“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Toyota Motor Corporation Australia

[2010] FWA 9267

FAIR WORK AUSTRALIA

DECISION

Workplace Relations Act 1996
s.170LW - pre-reform Act - Application for settlement of dispute (certified agreement)

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
v
Toyota Motor Corporation Australia
(C2009/2407)

Vehicle industry
COMMISSIONER GAY	MELBOURNE, 1 DECEMBER 2010

Alleged dispute in relation to the rate of pay of supervisors.

[1] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (the AMWU) has made application pursuant to s.170LW in C2009/2407 for settlement of a dispute said to have arisen in relation to a Pre-Reform Instrument, the Toyota Motor Corporation Australia Workplace Agreement (Altona) 2005 [PR959871] (the 2005 Agreement). The 2005 Agreement has application at Toyota Motor Corporation Australia’s vehicle plant at North Altona in Victoria (Toyota, the Company).

The Matter in Dispute

[2] As will be set out below the disputed provisions, with minor changes, appear in several agreements; first, in the Toyota Australia Workplace Agreement (Altona) 2002 (the 2002 Agreement) [PR915616], then, in the 2005 Agreement and finally in the variation of the 2005 Agreement, the Toyota Motor Corporation Australia (TMCA) Workplace Agreement (Altona) 2005 Variation [PR986708] (the 2005 Varied Agreement). More particularly, the dispute concerns the rate of pay required by the 2005 Agreement to be paid to tradespersons required to perform the duties of Toyota’s first supervisory level, that of Group Leader, on an acting basis during the absence of an incumbent supervisor.

[3] The 2005 Agreement provides at clause 18 for a conciliation and arbitration role to be exercised should that prove necessary after the unsuccessful completion of Toyota’s detailed in-house process.

[4] I am satisfied that the necessary preliminary steps required by the 2005 Agreement to be taken by the parties have been attempted, that earnest efforts were made in conciliation at Fair Work Australia, and that there is accordingly a sound jurisdictional foundation for the determination which follows.

The Agreements

[5] During the presentation of their cases the parties referred alternatively to each of the Agreements cited - most frequently the relevant provisions as set out in the 2005 Varied Agreement. In this decision, unless otherwise indicated, I will refer to the key provisions as they appeared, and were re-numbered, in the 2005 Varied Agreement. Although superficially the relevant clauses have altered, no one thought this a matter of consequence - with the exception of Toyota’s reference to the location of an Appendix, mentioned at paragraph 77 below.

[6] In commenting upon the parties’ more general references to ‘the agreement’, for example, in the AMWU general textual argument, I have used the term ‘the Agreements’ to refer to the relevant minimum guarantee and higher duties provisions, appearing almost identically, in the 2002, 2005 and 2005 Varied Agreements.

[7] Following conciliation, Directions were issued, material filed and the matter came on for hearing on 7 and 8 June 2010. A request for additional time to permit further discussions to occur, including during the hearing, was acceded to - however ultimately it became necessary for the question to be determined and for this decision issue.

The Parties

[8] At arbitration Mr B Terzic appeared for the AMWU and sought also to appear for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (ETU). Toyota was represented by Mr D Trindade, solicitor, by leave, together with Ms P Pellier-Cuit of Toyota. Mr Terzic’s application to appear for the ETU was not opposed by Toyota. It was put by Mr Terzic that the ETU advanced an identical claim and sought to have the determination of the issue raised by the AMWU have application also to members of the ETU. As will be seen, the second witness, Acting Group Leader (AGL) Gale, was an electrician.

[9] Mr Trindade neither opposed Mr Terzic’s dual advocacy nor that the determination of the matter in dispute ought flow to all those tradespersons to whom the 2005 Varied Agreement relevantly applied. Mr Trindade made it clear that, in any event, Toyota regarded the determination of the question to have agreement-wide application and that Toyota would apply the result to all trades Group Leaders. I have accepted that the claim is advanced by the AMWU and ETU, hereafter, ‘the Unions’.

The Witnesses

[10] Evidence was led for the Unions by Peter John Cook, a fitter and turner who had been engaged at Toyota for some 20 years, the last three as the AMWU’s “senior metals” shop steward, and who currently works as a metrologist, involved in precision engineering measurement and calibration; John Garry Gale, an electrician in the ‘unit parts’ division of Toyota, currently engaged as an AGL supervising the three electricians and four fitters on day shift at the Altona plant, (also with between one and four apprentices) essentially mirroring the afternoon shift Group Leader, also an electrician before his appointment, to oversee the five fitters and two electricians working on that shift; and Adrian Tainsh, General Foreperson in the paint shop, where he had worked initially as a process worker spray painting, before being promoted, first to Team Leader, then Group Leader, until in 1998 taking up his present appointment as General Foreperson.

[11] For Toyota evidence was given by Peter John Mulhall, Assistant Manager Engineering Services Press and Heather Box, Divisional Manager of Human Resources and, during the relevant periods, Industrial Relations Manager.

The Work Reflected in the Structure of the Agreement

[12] To follow the consideration which is set out below it is necessary to understand the basic way in which work in Toyota’s modern car manufacturing plant is arranged. For very many people such works will be easily envisaged. For the remainder, an overview of a most general nature is provided.

[13] In simple terms, motor vehicles are manufactured per medium of a moving line attended by operators progressively completing their quasi-repetitive tasks by placing sub-assemblies, sometimes manufactured off-line, in the vehicle as it is constructed, or, by performing a manufacturing function or functions themselves, by adding to the build or finish of each chassis or sub-assembly. An example of the former is the installation of the engine within the vehicle and of the latter, installing the windscreen or welding at one or more points on the vehicle. The maintenance of the line itself, much complex and large equipment (including robots) and the plant proper, is the responsibility of the trades group. Ancillary to the production process and its supervision, and Toyota employees whose employment is regulated by the Agreements, are a wide range of engineering, technical and administrative functions performed by technical officers, professional and other engineers, planners, administrative grades and supervisors.

[14] Modern car manufacture has seen very marked change in the organisation of such work over the last two decades in ways relevant to this decision. These changes have been commented upon in many decisions of the Australian Industrial Relations Commission and, latterly, Fair Work Australia.

Devolution

[15] Abruptly condensed, one can observe Toyota (with other vehicle manufacturers) having decentralised the focus of the performance of work to small cells or teams of between five to seven employees. While there will be exceptions to these generalities, the work teams or groups accept very considerable responsibility for the high standard of their work, for their adherence to safety, housekeeping, identification of method improvement, budgets, salvage and waste control, so that by the teams meeting frequently and identifying with the value of their work’s quality, previous stereotypical conceptions of vehicle workers as automatons slavishly repeating their tasks to meet the unceasing demands of the moving line have been displaced. The locus of the work, the quest for high standards and a concentration on clever method is found in the small groups; with their display of current information pertinent to their optimum performance and with information relevant to the team tracked, to constitute running indices over time. As these changes have been accepted and become normative in the non-trades production employees, so too are they adapted and replicated in the work organisation within the trades group the subject of this decision.

The Team Leader

[16] Fundamental to this production philosophy is the supervisory regime which sees at the work-face such groups or teams overseen by a Team Leader of either the production grades or the trades group. Selected with peer involvement, the Team Leader is a hands-on member of the team, also responsible for recording much of the information required to understand how the team is functioning within the overall production environment.

[17] The Team Leader also records attendance, allocates work and is involved in the allocation of duties or physical rotation of members of the group and, industrially, by taking first level responsibility for the group, not dissimilarly to the leading hands of yesteryear. Team Leaders in the production or non-trades area are eligible to be members of the vehicle division of the AMWU. Team Leaders in the trades area are represented by the ETU and the metals division of the AMWU which specialises in doing so.

The Group Leader

[18] In the approximately 250 strong trades area of the Company a Group Leader assumes responsibility for every four Team Leaders. The Group Leader’s function is purely administrative and supervisorial and industrially Group Leaders are eligible to be represented (still within the Agreements), as part of the salaried group of the Supervisory, Clerical, Technical and Engineering Division (colloquially the ‘TECS Division’) of the AMWU. (For the genesis of these divisions see the Decision of Watson SDP certifying the Toyota Australia Workplace Agreement (Altona) 1999, 4 October 1999, [Print R9680] (the 1999 Agreement) and particularly at Appendix G to the 1999 Agreement, the ‘parties’ working views as to optimum spans of control for teams and groups.)

[19] While there will be some exceptions to the following statement deriving from training/instructional activity, occupational health and safety need and local practice (and which was to be the subject of a detailed statement of principle and cooperation at clause 13, Performance of Duties of the 2005 Varied Agreement), Group Leaders would not, as part of their regular duties, perform hands-on work. As Mr Terzic had it in the vernacular; they were not ‘on the tools’.

General and Senior General Forepersons

[20] Group Leaders in turn respond to General Forepersons and Senior General Forepersons with Assistant Managers and Managers also being evident in some departments, with the former two classifications forming part of the structure of the Agreement.

The Supervisory Classification Structure (the S classifications)

[21] For classification and pay purposes the Senior General Forepersons are designated within the supervisory structure as S6. The General Forepersons are classified over two levels; that given upon entry, S4, and the General Foreperson rate after 12 months, S5. At the base of the supervisory hierarchy and the grades centrally relevant to this decision are the Group Leaders, with the designation at entry of S1, ascending after 12 months to S2 and after 15 months, to S3.

[22] The Supervisory structure is set out at clause 2.6 of Appendix 5 to the 2005 Varied Agreement. That appendix gives an explanation in considerable detail of the way in which the parties intended their Supervisory, Technical, Engineering and Administration cohorts of employees to operate in an inter-related way and, no doubt conjunctionally with the trades group and vehicle production (non-trades) group. The parties’ detailed agreement on career paths, training, flexibility, access and innovative work organisation, nominates all these structural elements as continuing to be pursuant to the Structural Efficiency Principle.

[23] Reproduced here for convenience is clause 2.6 of Appendix 5 of the 2005 Varied Agreement setting out a pictorial representation of the Supervisory structure:

2.6 Supervisory

Level	Role definition	Normal formal Qualifications
S6 - Senior general Foreperson	a) The supervision of levels 1 or 2 supervisors; or b) The supervision of levels 1 or 2 supervisors and wages employees; or The supervision of trade and/or non-trade wages employees, and be responsible for the planning, management and direction of a major production or trades operation.	Advanced Diploma + 15 Modules
S4 & S5 - General Foreperson	Responsible for the supervision of trade and/or non-trade wages employees in the work functions described in level 1, and performing management functions as directed by the senior general foreman and/or section manager. This supervisor would have achieved a higher level of competence through experience, qualifications and training than a level 1 supervisor.	Diploma/ Advance Diploma
S1, S2 & S3 - Group Leader	Responsible for the supervision of trades and non-trades wages employees. Responsibilities at this level will involve production schedules, quality assurance, cost reduction, maintenance, training, material management, standardised work, safety and setting team objectives as detailed below.	Certificate 3

The Dispute

[24] The matter in dispute is the pay treatment properly to be afforded to tradespersons appointed as AGLs. The Unions’ case is that the proper resolution of the dispute, true to the Agreements, is to be obtained by considering clause 56 of the 2005 Varied Agreement, “CLASSIFICATION RELATIVITIES SALARIED GROUP (CLERICAL SUPERVISORY, TECHNICAL & ENGINEERING)”,and, in response to Toyota’s case by properly applying clause 62 “RECOGNITION OF HIGHER DUTIES” of the 2005 Varied Agreement.

[25] Those provisions are in the following terms:

“56 CLASSIFICATION RELATIVITIES SALARIED GROUP (CLERICAL SUPERVISORY, TECHNICAL & ENGINEERING)

1. Promotions: A minimum wage increase of 5% will be guaranteed to Employees who are promoted. In instances where the difference between the previous wage and the salary of the new position falls below 5%, an over award payment will be made. This will be on top of any Competency Skill or qualification payments they may be in receipt of.

2. Relativity: Any supervisor will be guaranteed a minimum relativity of 115% with the highest ordinary time rate of the trades or the production team member being supervised. This Agreement is to address inequities and will not be used to reduce existing relativities to TECS classification structure. The issue of relativities between supervisor and those supervised to be incorporated into the review of the TECS structure.”

“62 RECOGNITION OF HIGHER DUTIES

62.1 Team Leader / Group Leader

Where it is deemed necessary and management has approved, an Employee may undertake the duties of an acting team leader or group leader. This is a normal part of the work process and does forms part of an Employee’s career development.

Payment for the higher duties will be made on the basis of the accumulation of 5 Working Days at the higher duties.

Payment will be made in 5 day blocks only.

The maximum period a position will be acting is 12 months. Acting positions will only be utilised beyond 12 months where there is a current Employee that will return to the role.

Where a position has been filled in an acting role for a period of twelve months whether on block or cumulative, the position will be advertised and filled on a permanent basis. Where a period is expected to continue for longer than 12 months, TMCA will consult with the local Employee Representative. Any Employee returning to work from Leave, eg Maternity Leave, Annual Leave or Sick/Carer’s Leave, will return to the position they held prior to commencing Leave. As such the position will not be advertised and filled on a permanent basis.

Where the Employee is acting in a role for a period of 6 months or more, and the role is advertised for filling on a permanent basis, the Employee will be treated as the preferred candidate in any selection and interview process undertaken to fill the job. The best candidate should get the vacant position.” (Underlining original and relating to a glossary in the 2005 Varied Agreement)

[26] It may be noted that both references to ‘supervisor’ in clause 56.2 of the 2005 Varied Agreement are given with a lower case ‘s’. In the 2002 Agreement on the two equivalent occasions the word appears it is rendered as “Supervisor”. The parties did not place any weight upon this and other variations observable between the three Agreements. Indeed, it was not recalled how these changes came about. While not determinative, I have thought the original rendering of ‘Supervisor’ to have some relevance to the context and meaning of the 2002 Agreement and will comment to that effect below.

The Union Argument

[27] The Unions’ case relied essentially upon a construction of the various Agreements which provided that the answer to the question, “When a tradesperson employed under the WPA is appointed as an acting group leader is he or she entitled to the benefit of clause 56.1 or 56.2?’, was that the AGL was entitled to the benefit of clause 56.2. This meant the AGLs would be treated as one with the Group Leaders in maintaining a margin of not less than 115% over the highest ordinary time rate of the trades or production team member being supervised.

The Construction Approach

[28] As to the construction of an industrial agreement, Mr Terzic relied upon a series of authorities setting out the practical and purposive approach that should be adopted - some of which authorities had been referred to in the exegesis of his Honour, Vice President Lawler’s decision in Kenneth Watson & Ors and ACT Department of Disability, Housing and Community Services [2008] AIRC 291.

[29] It is noteworthy that Mr Trindade did not take exception to Mr Terzic’s analysis as to construction principle. I have sought to apply these principles in reaching the conclusions necessary to decide this case.

[30] The position eventually reached is that there is no ambiguity in the provisions set out above but there is uncertainty arising from the Agreements in relation to the payment of AGLs. The dispute which arises is the by-product of that uncertainty. After considering the terms of the Agreements I have further concluded that there is a plain meaning able to be declared as to the basis for payment of AGLs.

The Abruptly Changed Pay Practice of Toyota

[31] It was put in the evidence of Mr Cook [at paragraphs 34-38 of his statement, Exhibit AMWU2] and as an adjunct to the construction argument in support of the 115% margin, that Toyota had, until about mid 2009, paid AGLs according to clause 56.2. This meant that AGLs were paid at a minimum of 115% over the highest ordinary time rate of the trades or the production team member being supervised. Mr Cook’s outline of evidence, filed pursuant to the Directions, described an abrupt change in this practice in about May 2009 whereby the 115% deriving from clause 56.2 was replaced by the 5% deriving from clause 56.1. For Mr Cook the dispute turns on the legitimacy of that change. Mr Cook’s statement identified six employees who had or were serving AGLs (with three unnamed) and their departments, said to have been affected by the substitution of the 5% margin over the 15% [Exhibit AMWU2, paragraph 41]. I note that trades or post trades qualified employees entering the Supervisory structure at the S1 level also receive a payment of 5% of the entry rate - see clause 3.4.2 of Appendix 5 to the 2005 Varied Agreement.

The Textual Argument

[32] The Unions submitted that upon a textual analysis, clause 56.2 should be found to have application to AGLs. It was put that the term, “Any supervisor”, referred to every supervisor and that to supervise, as with the noun ‘supervisor’, meant the overseeing of work or workers and the person so engaged. As to the AGLs not completing the totality of the Group Leader’s role (relevant to intervening in payroll administration and, with some limitations, in the administering of discipline) it was put that “... this would not detract from what acting group leaders do so significantly so as to put them outside of being a supervisor. The other aspects of their job, the oversight of 4 team leaders ... and keeping production running by organising trades staff would be enough to have group leaders deigned supervisors.” [Exhibit AMWU1, Written outline, paragraph 18].

[33] Reliance was also had upon the 2005 Varied Agreement’s treatment of supervisors in clause 62, PERFORMANCE OF HIGHER DUTIES. Clause 62 was said to support a conclusion that supervisors, insofar as the trades grades are concerned, are those who, with some limited exceptions, do not work ‘on the tools’. It followed that “an indicia of who is a supervisor in the context of the WPA is the restriction on touching tools.” [Exhibit AMWU1, paragraph 21]. By this rule, Team Leaders, performing direct hands-on work, were not to be considered supervisors and to the contrary, Group Leaders, including AGLs, clearly were.

[34] The Unions highlighted the Agreements’ many references to supervisorial functions, dealing with absences, breaks, overtime and leave, undertaken in many, if not all, cases by the AGLs, in support of the conclusion being reached that they be considered Supervisors for all intents and purposes under the Agreements.

[35] The structure of the Agreements was stressed by the Unions as reflecting a clear division between wages employees and supervisory staff and, within the wages stream, between production employees and the trades group. A range of indicators of the divide between those supervised and those supervising was given as supervisors not working on tools and, to an extent, fortnightly pay (AGLs remain on weekly pay during their periods as supervisors). It was put that, “where these hallmarks of supervision exist it would be disingenuous to deny that persons who are clearly in the supervisor’s camp are somewhere else,” [Exhibit AMWU1, paragraph 27].

[36] The dichotomy argument was put in these terms: there was a conclusion to be reached in this case entirely consonant with the 2005 Varied Agreement’s underlying theme of distinguishing between the wages grades (whether trade or non-trade) of the one part, and supervision of the other. It was said a classification, role or function must lie on one or other side of this structural divide [Exhibit AMWU1, paragraph 27]. Despite there being a few ‘contraindications’ such as an AGL not performing a particular function of a Group Leader, “it is contended that it is the substance of the engagement that determines on which side of the line an employee falls”. [Exhibit AMWU1, paragraph 27].

[37] As to the several contraindications, it was submitted that the great bulk of the Group Leader’s supervisorial job is performed by AGLs and the technicality of an AGL continuing to receive weekly pay, rather than oscillate, sometimes for short periods of appointment, between the ‘staff’ status of fortnightly pay back to weekly pay, should not be accorded decisive weight over an AGL assuming the principal superintending characteristics.

The Clause 56.1 versus Clause 56.2 Controversy

[38] It was submitted that:

When compared, it is clear that these two sub-clauses are “directed at different ends. The 105% rate is merely a guarantee as to a minimum increase, and it operates on another plane altogether to the 115% rate which is directed specifically at a particular and defined re-grading” [Exhibit AMWU1, paragraph 31].

Seen in this light, clause 56.1 is a catch all, applying generally to all the TECS streams, while clause 56.2, being quite specific, must prevail when it has work to do.

If this were not so and clause 56.1 overrode clause 56.2 the latter would be rendered otiose - not a construction to be lightly adopted.

The applicants’ construction of clause 56.1, operating to provide a minimum increase for a promoted employee, was said to have particular relevance not only where the quantum of increase upon promotion was less than 5%, but also in cases where, as part of an individual’s career plan an employee might move from one TECS stream to another. A detailed example was given where this might entail a reduction in pay for a Technical stream employee seeking to improve their skills (by temporarily taking a lateral position in another stream) with the longer term career aim of moving to more remunerative or fulfilling work somewhere within their original stream or in another stream [Exhibit AMWU1, paragraph 34].

The Unions’ Evidence

Peter Cook

[39] Much of Mr Cook’s evidence related to his understanding of the working of the AGL function at Toyota was gained not by him having personally performed as an AGL, but by dent of his representational status and him having observed the system in operation for many years, both in metrology and elsewhere.

[40] Representative of Mr Cook’s evidence was his response in examination in chief when asked by Mr Terzic:

“Could you explain to the Tribunal how you came to know about the work of acting group leaders, what is your level of familiarity? Who have you spoken to, for example, and when?---Well, I have a gentleman in my area who is my team leader, he's been a team leader for about 20 years. He's done acting group leader many, many times, so I had a good knowledge of how it works and what he does look after myself over many years. Also some of the shop stewards, and some of them are in this room now, are team leaders and they have done the acting group leader role many, many times, over many years and in instances they have been team leaders for many years as well. So it was something that generally people talk of, in most areas there's someone you know who is a team leader, is an acting group leader many times over many years, due to the fact that Toyota has a very small turn over of team leaders and take my own team leader, he's a team leader for 20 years, so he has been the principal person who does acting group leader, possibly with the team leader on afternoon shift and possibly rotate around with him at times if they saw fit to do that up to periods of 12 months.” [TPN 54]

[41] As to a reputed reluctance, commented upon by Toyota’s witness, Mr Mulhall, for AGLs to administer discipline when they would have to return to the ranks later themselves, Mr Cook’s evidence was that:

“It's not something that's discussed a great deal but what I've known from some of the gentlemen who have done the acting, at times anything they do we have to chastise an employee for would be lateness. Generally anything over that is handled by the general foreman or manager but my general experience is if it's lateness or things of that nature causing a bit of a ruckus in the workshop, they've never had an issue of going and pulling the gentleman to one side and having a chat, if not calling myself or another shop steward as well to come in and say, take it easy, what you're doing is not correct.” [TPN 56]

[42] In short summary Mr Cook’s further evidence was that:

More serious disciplinary issues would be dealt with by a Toyota officer other than an AGL with, however, the caveat that such a situation, where an AGL had “...to use a higher level of discipline in their area...” had not occurred to Mr Cook’s knowledge [TPN 68].

AGLs were required to deal with occasional problems of timekeeping and where, particularly with apprentices, it was necessary to pull someone up, this was done by an AGL without reticence and in consultation with the area delegate.

There was no prohibition, from the AMWU perspective, in an AGL exercising their role as to discipline should an occasion require [TPN 77].

[43] The following response was forthcoming when Mr Cook was asked whether he would be “entirely happy and comfortable if the company said to people in an acting role, you have to be involved in disciplining. ... Yes, they are doing the role so I would expect that ... if they say they are going to do the role then the book or what we have doesn’t say then do part of it, it does all (sic). We have no argument to say that I should walk in and say, well you don’t do this, that or the other, it would be the whole - if they’re doing acting group leader it’s the whole group leader’s role...” [TPN 78].

John Gary Gale

[44] At the time of giving his evidence Mr Gale was serving as an AGL. Mr Gale was then some two and a half months into a tour of AGL duty which was likely to continue for some nine months. While this was Mr Gale’s first term as an AGL, he had previously served as an Acting Team Leader from his substantive electrical trades role in Unit Parts.

[45] Mr Gale’s evidence was that it was his “duty to do all the administrative affairs for the tradesmen, give them out their work, tell them which area they’re working in today, do their wages and if necessary discipline them” [TPN 96]. As to pay administration, Mr Gale’s evidence was that he approves the pay of all tradespeople on his shift [TPN 126] by logging on to the MSS payroll system [TPN 127] and authorising payment for various forms of attendance. Mr Gale also performed a broad range of supervisorial functions including arranging and preparing forms for the approval of overtime [TPN 134] and had made a conscious effort to emulate the previous Group Leader, Mr Terazinsky, under whom he had worked very closely and who had been promoted. Asked whether he was aware of any difference between what he did as AGL and what Mr Terazinsky had done as Group Leader, Mr Gale responded “No.” [TPN 146].

Adrian Tainsh

[46] Mr Tainsh had been General Foreperson in the paint shop since 1998 having been Group Leader from about 1991. Mr Tainsh, a General Foreperson with responsibility over the non-trade production grades, was also a senior delegate of the ‘TECS group’ at Toyota for which technical, engineering, administrative and supervisory officers he had participated in negotiations for agreement renewal in 2002, 2005, the extension in 2008 and more recently.

[47] It was Mr Tainsh’s recollection that, contrary to the evidence to be given later by Ms Box, a senior Toyota negotiator in the 2002 (and subsequent) negotiations, agreement had not been reached at the TECS specific working party which, in the 2002 negotiations, had considered, inter alia, the relativity claim for supervisors. The 2002 ‘relativity claim’ was a claim advanced by the Technical, Engineering, Administrative (sometimes rendered Administration) and Supervisory group of the AMWU and ETU for a minimum pay relationship or relativity to exist between a supervisor and those supervised. The minimum relativity claimed in the 2002 bargaining round was 22% over the highest rate of those supervised. [See Attachment HB-1 to Exhibit T1, Witness statement of Heather Box].

[48] It will be recalled that the provision agreed in the 2002 round which has continued to apply in later agreements, is that set out at clause 56.2 of the 2005 Varied Agreement and reproduced at paragraph 25 above. When cross-examined by Mr Trindade, after Mr Tainsh had been given the benefit of a short adjournment to familiarise himself with Ms Box’s witness statement and its attachments relevant to the 2002 negotiations, the witness was asked:

“MR TRINDADE: I just had one question arising from that. When you say it was agreed, it was agreed at the working party level, the 115 per cent, wasn't it?---I can't remember the final agreement being important, but did we discuss 115 at the working party, probably, yes. But the actual - there was a lot of issues around the clause because we wanted it to apply to everybody and the company only wanted it applied to over a tradesperson or a team member, we wanted it to apply over anybody.” [TPN 310]

The Case for Toyota

[49] It was put for Toyota that neither clause 56.1 nor clause 56.2 applied to a Toyota tradesperson required to take up the duties of a Group Leader on an acting basis. Toyota submitted that both clauses had application only when a person was appointed to a permanent Group Leader position. It was Toyota’s submission that a temporary request for an employee to act as a Group Leader attracted the operation of clause 62 RECOGNITION OF HIGHER DUTIES, which, “deals with recognition of higher duties, specifically in the context of acting Group Leaders.” [Exhibit T3, Toyota’s Outline of Argument, paragraph 4].

[50] Clause 62 is also set out at paragraph 25 above.

[51] In detailing the lineage of clause 56, agreed in the 2002 negotiation round, Toyota acknowledged that “the clause was in response to a claim made in respect of ensuring that an employee permanently appointed to a Group Leader position was paid more than the trades employees who they supervised. The claim was based on a relativity clause in an award applying to Ford which provided for 122% relativity for supervisory level employees.” [Exhibit T3, Written Outline, paragraph 9].

[52] The Toyota argument placed emphasis upon clause 56 being “only ever intended to apply to permanent appointments to Group Leader positions.” [Exhibit T1, paragraph 10].

[53] Where in Toyota’s view clause 56 was about promotions and the pay increases that should minimally accompany such career progression, clause 62, in contrast, was about higher duties for both Acting Team Leaders and AGLs [Exhibit T1, paragraph 13]. It was said that the approach favoured by Toyota, that one clause was about promotions and the other about higher duties, was consistent with the fact that the Agreement provided for different processes in selection of AGLs and Permanent Group Leaders (See clause 30.3 and 30.4 of the 2005 Varied Agreement).

Practical Difficulties

[54] There were also said to be practical difficulties attaching to the Unions’ position, in that where it is a “manageable exercise” to review those supervised by a permanent Group Leader, to ensure the 115% relativity obligation imposed by clause 56.2 was met (and the payroll system adjusted accordingly), the same exercise for an AGL was, it seemed, fraught with problems. These were, essentially, that it would be necessary in relation to an AGL who performed that function infrequently, say on Saturday every week when the Group Leader was rostered off, to know the “highest ordinary time rate of the trades or the production team member being supervised.” [Clause 56.2].

[55] It was posited that there may be different ‘highest ordinary time rates’ experienced because an AGL may supervise an employee of, say, pay level A for half the shift and supervise another employee, of pay level B, for the second half of the shift. It was put that this would lead to a need for Toyota to calculate and pay “different pay rates for different parts of the shifts on each Saturday.” [Exhibit T3, paragraph 21]. This was said to involve administrative complexity.

[56] Fair Work Australia was urged, in applying its statutory approach in coming to a conclusion over such a disputed issue, to avoid unreasonable or overly onerous interpretations and, rather, to honour the spirit and intent of those who negotiate and draft agreements. I have sought to take such an approach.

The Toyota Evidence

Peter John Mulhall

[57] Mr Mulhall gave evidence from the vantage point of his extensive experience and his position as Assistant Manager Engineering Services Press, a role he had occupied since January 2010. Mr Mulhall spoke of the five separate technical support functions operating within the five principal shops, which, with ancillary sub-sections, go to make up the Altona assembly plant - namely, the Press, Body, Unit, Paint and Resin Shops.

[58] Mr Mulhall’s representation of the duties of the Team Leaders and Group Leaders relative particularly to the use of tools did not differ markedly to that already set out. Where Team Leaders, in Mr Mulhall’s view, provided guidance, support and assistance to production and trade employees, Group Leaders were “formally and actively involved in the supervision of those staff and Team Leaders, including payroll functions and counselling and disciplinary functions” [Exhibit T2, Statement of Mr Mulhall, paragraph 12].

[59] Mr Mulhall described how some periods of performance of the AGL functions may last for one day, as in the Saturday example given above, and, subject to the reason for the Group Leaders’ absence, may continue for extended periods - as per clause 62.1 - for more than 12 months.

[60] As to the performance of the full range of duties, Mr Mulhall acknowledged that “... in the short period of acting (eg. a single day of acting as an acting Group Leader) ...on any particular day not all of the functions and duties of a Group Leader will be required” [Exhibit T2, Mr Mulhall’s Statement, paragraph 17]. It was Mr Mulhall’s evidence that where the period of acting as Group Leader was for a longer period, the AGL did not ‘take on’ the full range of duties and responsibilities of a Group Leader and that “in relation to the areas of counselling and discipline and payroll functions acting Group Leaders do not in my experience ever perform these functions.” [Exhibit T2, paragraph 17]. The reason for this was given as sensitivity to such duties given that the AGL would be returning to the ranks when the ‘acting’ period concluded. The AMWU was said to have a position that AGLs not perform such duties.

[61] As to the performance of other Group Leader duties when an AGL was engaged for a short period, it was Mr Mulhall’s view that, other than issues that are of a minor nature, the AGL consulted the General Foreperson or Assistant Manager. Where confirmed Group Leaders must perform all functions, the AGLs “will often not have the skills or experience to perform all of the duties of the Group Leader.” [Exhibit T2, paragraph 21].

[62] In cross-examination Mr Mulhall said that where the acting period extended for longer periods, “you would see a greater range of what you would expect to be a full gamut of group leader roles.” [TPN 397]. Mr Mulhall acknowledged that Mr Gale was carrying out a principle function that he, Mr Mulhall, did not know was performed by the AGL, [TPN 404] that is, the full Group Leader function of computerised payroll intervention and administration.

[63] When asked in cross-examination for concrete examples of the emphasised reluctance of an AGL to be involved in discipline of trades employees or trades Team Leaders, Mr Mulhall recalled an employee representative who, given a period as an AGL, did not want to be involved in disciplinary action [TPN 406]. It is important though, to note the balance of Mr Mulhall’s evidence as he acknowledged that disciplinary circumstances requiring the involvement of an AGL were rare, saying, “...I guess as Mr Cook said, they’re few and far between, so that situation did not arise.” [TPN 406].

Heather Box

[64] Ms Box gave evidence from the perspective of a senior Toyota Industrial Relations Manager, well versed in agreement renewal negotiations and both dispute resolution and avoidance. Detailed evidence was given as to the 2002 negotiations from which the disputed provisions emerged. Ms Box’s evidence, which need not be minutely recounted, was that:

The 2002 negotiations involved a ‘Main Table’ with subsidiary working parties processing different subject matters of interest to different interest groups. Where agreement was reached over a disputed issue it was later referred to the Main Table, not generally for further discussion, and, rather, for endorsement. If endorsed it was later prepared for inclusion in the ultimate agreement. If not endorsed, the issue was sometimes further discussed at the Main Table. Where an issue was not agreed in a working party it was most unlikely to proceed unless for some reason the Main Table took it up.

Pay of supervisors relative to those supervised was in issue, and the minimum relativity of those in supervisory positions was claimed as 22% over those supervised.

The 22% relativity claim was made for employees occupying supervisory positions (Ms Box articulated this as employees who had been promoted to a supervisory position) “and was not put in the context of people in acting roles” [Exhibit T1, Ms Box’s statement, paragraph 12].

During the course of negotiations Toyota agreed to the 115% relativity which was later set out in the 2002 Agreement at Appendix F, sub-clause g), Classification Relativities.

The agreement reached also provided for a 5% wage increase guarantee for employees upon promotion.

[65] As to higher duties Ms Box’s statement read:

“17. In contrast, (to the 5% guarantee and the minimum relativity of 115%) the issue of higher duties was dealt with in clause 13 of the 2002 Agreement. This identified that an employee could undertake the duties of an acting team leader or group leader or specialist team member and indicated that payment for higher duties would be made on the basis of accumulation of five working days at the higher duties. This is a change from the 1999 Agreement where the payment of higher duties was only where an employee had undertaken an acting team leader or acting group leader role for a minimum period of ten consecutive days.” [Exhibit T1, Ms Box’s statement, paragraph 17].

Final Submissions of the Unions

[66] The Unions relied upon:

A plain reading of the 2005 Varied Agreement to support their approach and particularly that the term “any supervisor...” at clause 56.2 should be found to apply to the facts of an AGL.

The application of a broader contextual sense of the Agreement.

[67] As to its’ textual analysis approach, it was submitted by the AMWU/ETU that the words in the Agreements best expressed the will of the parties. Without shying from the fact of short term performance or the potential for slightly narrower performance of duty by AGLs, it was put that, as undoubted supervisors, the AGLs are entirely within the supervisorial orbit as conceived by the Agreements.

[68] Fair Work Australia was advised of the need for caution in having regard to the negotiation aims of the parties in their arriving at the Agreement. In this respect it was said that there was no patent ambiguity in the term “any supervisor” which might permit attention being given to extrinsic materials and, as to latent ambiguity that exists by virtue of the term “any supervisor...” not having made it explicitly clear that acting supervisors are excluded, the stronger indication is for inclusion rather than exclusion.

[69] The Unions urged rejection of the suggestion that clause 56.1 (guaranteeing 5%) could override clause 56.2, (guaranteeing any supervisor 115%), as unsustainable and resulting in clause 56.2 being rendered otiose.

[70] In applying clause 62 strong reliance was placed by the Unions on the fact of that provision not providing for a pay rate. It was said to deal only with temporal matters and to have “nothing to do with the issue before this Tribunal...” [Mr Terzic, TPN 478]. As to Ms Box’s evidence in relation to the 2002 negotiations, the Unions stressed that conclusions could be safely drawn only to the fact of the 2002 negotiations; of various working parties; of clause 56 emerging from one such working party of which Ms Box was not a member; and that the provision, without debate at the Main Table, found its way into the Agreement.

[71] It was highlighted that Mr Tainsh was in the relevant working party and he did not recall agreement being reached in the smaller forum, and further, that there was no evidence providing the Tribunal with any assistance as to the drafting and even place of final agreement. To the contrary, Ms Box did not know in any direct sense, of the basis of agreement, or of the very reaching of agreement.

[72] The Unions submitted that it was clear that what is now clause 56 was agreed and no reference was made to acting employees to whom the guarantees might apply. The Unions emphasised that Ms Box had, “said words to the effect that she did not seek to question whether it would apply to acting employees or would or would not apply to acting employees.” [Mr Terzic, TPN 484].

Toyota’s Final Submissions

[73] Toyota submitted that were Fair Work Australia to conclude as to the disputed provisions that there was discernable a plain meaning, the parties ought be advised of that meaning “and that’s the end of it” [Mr Trindade TPN 504]. Were the Tribunal to consider there was not such a plain meaning on the Agreement’s face, then one would look to the materials available as to the parties’ objective intention and the context of the clause. Were that not capable of being done, Fair Work Australia should ascribe an application or an interpretation to the clause “consistent with the historical and legislative context in which the agreement operates and equity, good conscience and the substantial merits” [TPN 504 - Mr Trindade].

[74] It was also put that in ascribing a plain meaning, were one able to do so, the dispute settling purpose of s.170LW should not be called upon to justify “some overriding concept of fairness or reasonableness that isn’t supported by plain wording” [TPN 510]. Where there is a degree of uncertainty all the relevant aides and influences given above could be called up.

[75] As to the question of the meaning of ‘supervisor’ in this case it was pressed that ‘supervisor’ referred to a person within the classifications found within Appendix 5 of the Agreement, that is, the “... Technical, Engineering, Administration & Supervisory structure...” (Appendix 5, Clause 1) and particularly at clause 2.6 “Supervisory”. This group comprises of the Senior General Foreman at S6, the General Foreman at S4 and S5 and the levels relevant to this case, the Group Leader classifications at S1, S2 and S3.

[76] Mr Trindade agreed with the evidence of Mr Cook as to the Team Leaders exercising a level of supervision over their charges, but quite short of the level of management function which would place them squarely in the supervisory bracket [TPN 532].

[77] Toyota submitted that:

In the 2002 Agreement the relativities provision found at clause 3 g) of Appendix F dealing with Career Progression was ‘tucked away’, distant from the Recognition of Higher Duties provision at clause 13 of that Agreement, which clause was in “the main body of the group” [TPN 551]. (It has already been noted that there has since been a re-packaging of these provisions within the Agreements which alterations, minor change, are said by Toyota and the Unions to not be of particular relevance.)

Clause 56.1 applies across the TECS group to guarantee 5% upon promotion while clause 56.2 applies the 15% relativity only to those within the supervisory group, from S1 to S6 being the supervisors of trades and production team members, and not to others in the TECS area.

There is no ambiguity in that clause 56.2 applies only to Supervisors in the S grades and has no application for anyone who acts.

“... the issue of acting is dealt with by the higher duties clause” [Mr Trindade, TPN 635].

The 1999 Agreement showed the background to the 2002 higher duties provision and although the 1999 provision was subsequently altered (both as to the technical trigger to an entitlement arising and in articulating what the higher duties recipient was actually paid) one could be confident that there was a higher duties clause “that actually provides something [TPN 659, Mr Trindade].

Discussion as to what people do or not do whilst acting is of little relevance to the Tribunal’s present task [TPN 663].

That if unconvinced by Toyota’s principal submissions, and one was seeking to apply the Agreement in a fair way, which is also consistent with the rest of the Agreement, it is reasonable to take into account the incomplete performance of duties [TPN 668].

The Unions’ Reply

[78] It was put in reply that the Unions’ analysis was to be preferred; that title follows the person, so that “If the work the person does is that of a supervisor or undeniably supervisory, then they attract the title, they are then the supervisor and they are entitled to the benefit of clause 56.2” [Mr Terzic, TPN 674].

[79] While the Unions acknowledged that in some instances the Agreements’ use of the term ‘supervisor’ might not be a formally designated supervisor, it was submitted that in clause 56.2, the ‘determiner’, “any”, gave ample ground and scope for the depiction of an AGL as a supervisor. This was because, in context, “it is the substance of what the person does that determines whether they are or are not a supervisor” [Mr Terzic, TPN 682].

Consideration

[80] Whatever the parties’ subjective intentions may have been in negotiating and drafting the provisions which most closely bear on this case;

the 5% minimum promotion guarantee to TECS staff at clause 56.1;

the guarantee at 56.2 that any supervisor will enjoy a margin of not less than 15% over the highest ordinary time rate of the production or trades employee being supervised; and

the Recognition of Higher Duties at clause 62,

it cannot be denied that significant attention was given to these aspects in the Agreements under consideration. There are also other clauses likely to be relevant and which assist in considering the broader meaning and workings of the Agreement. Nevertheless, and despite the parties’ efforts in 2002 and the opportunity presented since for review in the later agreements, there is now considerable uncertainty as to inter-operation of these provisions and as to the AGL entitlement deriving from the 2005 Varied Agreement. The parties’ submissions reflect that uncertainty - whether through the questioned function of the adjective ‘any’, the Agreements’ failure to explicitly legislate for the pay of AGLs or the curious fact of the Higher Duties provision being silent as to what tangible meaning (beyond the temporal stipulations) such ‘Recognition’ actually provides. In my view it is predominantly around that latter query that the dispute, and in turn the case, revolves.

[81] As to method, I have been urged to apply a plain meaning if one is apparent and then to adopt an orthodox approach as to construction. I have sought to apply such an approach.

The Witnesses

[82] All the witnesses appeared conscientious and I have placed significant weight on the reliability of the practices and approaches as described by both the Company and employee witnesses. Where appropriate to do so the witnesses conceded a point against their interests and acknowledged a strength in the opposing case. And it must be noted there are arguable cases able to be advanced for each viewpoint.

[83] From Toyota’s perspective the Unions’ case was quite flawed, wrongly conflating two separate provisions, each with a legitimate, but limited, role to play. Thus, recourse for Toyota was to be had solely to the Higher Duties provision. Applying clause 62, Recognition of Higher Duties, was said to offer the total answer to an AGL who sought to avail of the benefit, available to Group Leaders, of the clause 56 minimum relativities guarantee of 15%. For the Company, AGLs making the claim for the 15% guarantee was ‘coming the raw prawn’, seeking to benefit from a minimum pay relativity assured by clause 56, and intended by the negotiating tables of 2002 to apply solely to those employees classified within the TECS classifications.

[84] Specifically, this meant that clause 56.1, with its sub-heading, “Promotions”, conferred its 5% guaranteed wage increase to all TECS officers upon promotion, that is, upon them being officially appointed to a salaried TECS position within Toyota’s approved establishment.

[85] Providing less support for the Toyota position was clause 56.2 sub-headed “Relativity” which stipulated that “Any supervisor will be guaranteed a minimum relativity of 115% with the highest ordinary time rate of the trades or the production team member being supervised. This Agreement is to address inequities and will not be used to reduce existing relativities to TECS classification structure.”.

[86] This provision, by effect of its own terms, has no general TECS application and, rather, is limited to TECS classifications supervising trades or production employees. My understanding of the normal operation of each of the Agreements is that these terms restrict the bounty of clause 56.2 to Supervisors within the S range of the 2005 Varied Agreement. Clause 56.2 does not, in contrast to clause 56.1, deal exclusively with promotions - although this was an important plank in Toyota’s argument. Instead, the Unions urged Fair Work Australia to conclude that the use in clause 56.2 of the generously inclusive adjective “any” in “Any supervisor” should, as a matter of construction, be taken to favour a wider view if, as in the present case, one was able to be seriously advanced.

[87] Toyota argued that by reference to the context - to the terms of the 2005 Varied Agreement - clause 56.2 can only be referring to the specialist Supervisors classified at S1 to S6. It followed that “Any supervisor” meant any Supervisor graded S1, S2, S3, S4, S5 or S6 and no others. It did not include within its domain AGLs because, not being supervisors as described in the previous sentence, they were not entitled to its benefits, even though they undoubtedly were undertaking work performed by the S graded Supervisors for varying periods. I have noted that there can be no doubt about the ‘official’ nature of an employee performing the AGL role. Clause 62.1 emphasised that a Higher Duties period qualifies for ‘Recognition’ only where “...it is deemed necessary and management has approved...”.

The Question of Complete Performance

[88] As a sub-theme, quite properly abandoned by Mr Trindade in his technical construction argument, it was suggested that the AGLs did not perform all the duties of the Supervisors and therefore were not [or should not be] entitled to receive the benefits of a full-blooded, promulgated Supervisor. Notwithstanding that this issue, of incomplete performance, is very likely to be infused with equity considerations and is not, in the advocates’ submissions, central to the dispute over the application of the Agreement, I do propose to deal with several related points because this sentiment permeated the evidence of Mr Mulhall and, to a lesser degree, of Ms Box. In any event the following matters are all contextual elements.

[89] First, it should be clear that AGLs relevant to this case are drawn from amongst tradespersons who, very often, but not exclusively, are Team Leaders. While the trades Team Leader position is a highly responsible post, central to Toyota’s approach to work organisation and requires of them supervision and a general oversight of those within the group, the Team Leader position does not require supervision or superintendence in the fully rounded sense required of a Group Leader. Where the Team Leader within the work group might be considered first amongst equals, the Group Leaders’ oversighting of duty, approval of pay, direction of work and monitoring of attendance and performance sees them stand apart from those supervised and Team Leaders. The performance of Group Leader duties upon permanent appointment requires for all those appointed a period of transition wherein they can acclimatise and learn the job. Obviously this is likely to be less so when an AGL has previously been acting for a lengthy period - of up to, and, on occasion, excluding 12 months. I note also the evidence is that AGLs occasionally are appointed direct from the trades ranks, not inevitably from amongst the Team Leaders.

[90] Performance of the Group Leader functions on an acting basis will be little different. The evidence discloses that in the smaller catchment areas of the trades group there are tradespeople who (without denying there is some rotation) have very frequently acted-up to cover their Group Leader’s absences on extended leave or to cover for the Group Leader absent on an extended secondment [Exhibit T2, Mr Mulhall, paragraph 16]. It is appreciated that some periods of acting duty, although regularly recurring, are for quite short periods, covering weekend Group Leader absence and for ad hoc absences, such as sick leave, where coverage is considered mandatory and, on occasion, mandated by the Agreement.

[91] As a matter of basic industrial fair play one would be very unlikely to have a benefit accruing to a primary group for shouldering some burden or responsibility accrue also to a secondary group not taking up a broadly equivalent burden.

[92] The picture which emerges is of a coterie of experienced tradespersons called upon to act as Group Leaders. Mr Mulhall’s evidence was that “...invariably the acting Group Leader will not perform certain aspects of the Group Leader functions, particularly the counselling and disciplinary aspects and the payroll functions.” [Mr Mulhall’s Statement, Exhibit T2, paragraph 21]. It is necessary to consider this evidence and its thrust, that AGLs should not be treated or regarded as the equivalents of Group Leaders, in large part because they do not do all the job - even when well experienced in the acting role. This is said to be ‘invariably’ the case. Such an attitude appears, in part, to provide the motive force behind the Toyota treatment of AGLs. This attitude may have been the motivation for the Toyota decision in 2009 to stop paying the 15% margin to AGLs and replace it with 5%. One cannot know with any certainty and it is unsafe to speculate, even in the face of the uncontested evidence of Mr Cook.

[93] Mr Cook gave evidence as to what was said to him in explanation of the change by Ms Romano, Toyota’s Industrial Relations Director. Ms Romano did not give evidence. Mr Cook was not cross-examined by Mr Trindade on this part of his evidence and no part of the Toyota submissions dealt with Toyota’s payment of either the 15% or 5% margins. To avoid uncertainty I add that I have noted these reported phenomena (the payment of 15% and then, of 5%) but have not relied upon them and I have not drawn a negative inference from the absence from the box of Ms Romano and the failure to relevantly cross-examine Mr Cook or Mr Gale. This is because ultimately the post-agreement behaviour is not determinative of meaning. [It would nevertheless have been interesting to hear Toyota’s commentary on why 15% had been paid (if it had been paid), after the 2002 Agreement then to have been recently replaced with a 5% minimum increase. To understand the context, stressed by all the authorities, illumination of Toyota’s approach and reasoning in applying the Agreement in the real world of Altona might have been expected.]

[94] The comment has earlier been made as to the credit of the witnesses. Mr Mulhall’s evidence can in my view be found to be conscientiously given, even if in significant respects, including the performance of payroll duties by an AGL, the evidence was not well founded. It must also be noted that Mr Mulhall freely acknowledged the evidence of Mr Gale of whom he had a particularly high opinion, as to the full use made of the payroll system in, Mr Gale’s administration when an AGL, of the payroll affairs of his charges. I have unreservedly accepted the evidence of Mr Gale - including as to Mr Gale’s emulation of his predecessor’s duties.

[95] As to the purported disciplinary/counselling deficit of AGLs over Group Leaders, one appreciates that the acting role is distinguishable from that of the fully fledged Group Leader. Nevertheless I have accepted Mr Gale’s evidence in respect of apprentices as indicative of a real performance of discipline/oversight. By way of example, Mr Gale was asked; “In respect of discipline, what have you done?...Apprentices who have come in lake (sic), I always have to speak to them...the apprentices particularly though we have to keep them in check and tell them to keep their time keeping up and make sure they do come in on time and leave at the correct times or so forth or don’t spend too long in the lunch room at smoko, that sort of thing.” [TPN 123]. I have noted that AGL Gale was not cross-examined on the disciplinary or payroll matters addressed in his evidence. I have also taken as reliable the evidence given by Mr Cook from his experience as a long term employee and senior delegate, to the effect that AGLs are immersed in first level supervisory tasks which do trench into counselling and disciplinary areas.

[96] There are several further points likely to be thought relevant and which would go to weight. First, and importantly, the evidence was that there were very few instances of behavioural problems required to be addressed, but that where, for example, apprentices had to be spoken to as to timekeeping issues, those duties were not shirked. Sometimes, as common sense dictates, where a difficult problem might arise (and there were no examples) there would be consultation between the AGL and the general Foreperson or Assistant Manager. Prudence (and industrial reality) would expect little else.

[97] Context requires one to note also that the 2005 Varied Agreement comments upon the nature of the acting role, both at Team Leader and Group Leader level. Clause 62.1 editorialises that the undertaking of acting duties “is a normal part of the work process and does forms (sic) part of an Employee’s career development”.

[98] All the evidence supports the obvious conclusion that this is so; that the selection and development of Toyota’s future supervisory and plant leadership is vital to the achievement of the high goals mutually set by all the Agreements. It is natural that as and until such staff develop their nascent AGL expertise and confidence they will not reasonably, or wisely, be asked, or be able, to take up all the duties at the outset. What flows from all this is that it is an unbecoming argument to attempt to bring the AGLs down a peg as deficient overseers, as they perform the great preponderance of these everyday duties and develop the supervisory skills that will be a valuable resource for Toyota.

[99] There is also a real potential for the AGLs’ counselling and disciplinary ‘deficit’ to be overrated. The bargaining parties gave close attention in 2002 to the involvement of the various supervisory/salaried grades in such activities. At clause 3.h) of Appendix F, the 2002 Agreement circumscribed the level and degree of involvement of a Group Leader in applying the agreed ‘Counselling and Disciplinary Procedure’. While Group Leaders take the sole running in the early, more passive steps of conducting an ‘Awareness Discussion’ and ‘Verbal Reminder’, at the point of conducting a Formal Counselling, the Group Leader is mandatorily supported by a General Foreperson. From that point according to the 2002 Agreement, although present when warnings are issued, the Group Leader neither conducts the First Written Warning, Second Written Warning or Final Written Warning encounters which are the final three stages of the procedure, nor supports the officer conducting the activity involved. While the Group Leader observes proceedings, conducted and supported variously by the General Foreperson, the Senior General Foreperson and the relevant Manager, the Group Leader is decidedly supernumerary.

[100] In considering the impact, if any, of AGLs performing something less than the full disciplinary role performed by promulgated, permanent Group Leaders, I have had regard also to the 2005 Varied Agreement’s portrayal of Group Leader responsibilities.

[101] Appendix 5 of the 2005 Varied Agreement reflects the parties’ considerably detailed efforts to apply the Structural Efficiency Principle’s purpose - of an integrated career path together with the achievement or satisfaction of productivity, quality and equity goals within a nationally accredited education framework. The responsibility for trades and non-trades staff is set out in the ‘Role Definitions’ (at clause “2.6 Supervisory” at Appendix 5 of the 2005 Varied Agreement) applicable to the S1, S2 and S3 Group Leaders positions. In the detailed breakdown of functional responsibilities given to the S1-S3 group, no reference is made to the oversight of behavioural matters as, by contrast, is made at 2.4 of that Appendix dealing with the “Responsibility & Accountability” duties in the Engineering stream. In that stream at “Levels E5 & E6 Supervisory or Specialist engineer/scientist” the following appears; “Makes recommendations on staff relations, training and discipline”.

[102] Similarly, in the “Agreed guide for application of Group Leader Definitions (S1, S2, S3)” at 2.6.1 of Appendix 5, of the 10 “Key Activities” given under the sub-heading ‘Training/Human Relations’ the theme is promoting fair treatment and communication. While it might be thought that addressing behavioural lapses can be considered implicit in all supervision, there is no activity identified to be undertaken by the Group Leaders at 2.6.1 which focuses on the disciplinary oversight in the way emphasised by Mr Mulhall.

[103] Mr Mulhall, when asked to give concrete examples of the discipline administration deficit, recalled one person who was reluctant “...going back some time...” and then offered, “But I guess as Mr Cook said they’re few and far between, so that situation didn’t arise.” [TPN 406].

[104] With these considerations in mind I have concluded that this point, deriving from a view of AGLs not performing some disciplinary role sufficiently fully, as constituting a diminution of their responsibilities such as to disentitle them to payment of the guaranteed minimum relativity, is not, even were it considered relevant to this case, likely to be decisive or a point of substance.

[105] Additional to the observations set out above I have accepted that Mr Gale does take up the full gamut of administrative responsibility, as he understands to have been required of him by Toyota, as to those in his charge, having accepted his evidence that “... it’s my duty to do all the administrative affairs for the tradesmen, give them out their work, tell them which area they’re working in today, do their wages and if necessary discipline them” [TPN 96]. I have also noted Mr Cook’s evidence that it is his experience (as a tradesperson and as the Senior Steward) that this represents a general or not isolated practice. Having set out these considerations it will be apparent from what follows that these aspects do not bear on the resolution of the question before the Tribunal. I have chosen to comment upon them at some length as it is likely they are given weight in the workplace not supported by merit or the evidence. It is abundantly clear on the evidence that in not unimportant part such considerations have informed Toyota’s approach in applying the Agreements - even though, tellingly, they constitute no part of Toyota’s argument as to its proper construction.

The Supervisor Argument

[106] Of far greater centrality to the issue at hand is Mr Terzic’s argument that AGLs must be considered supervisors within the meaning of clause 56.2 because they supervise full-time and come ‘off the tools’ to do so. As to the dichotomy between the supervised wages staff, in this case predominantly trades employees and those supervising them, Mr Terzic argued; that with inconsequential exceptions when one looked to the substance of the AGLs’ appointment, they ought be seen as supervisors coming within the orbit of clause 56.2. Toyota’s argument is that clause 56.2 cannot bear such interpretation, as it is fundamentally the case that AGLs, while supervising, are not Supervisors falling within the scope of clause 56.2, in the sense of promoted supervisory officers of Toyota as understood in the Agreement and described at Appendix 5.

[107] Regrettably for Mr Terzic’s artful argument I am unable to agree that, even aided by the adjective “any”, the term ‘supervisor’ at clause 56.2 can be found to include AGLs. In my view the full scope of clause 56, taken alone, is confined by the Agreements to members of the promoted, appointed group; that is, employees appointed to particular supervisory positions within Toyota’s Clerical, Supervisory, Technical & Engineering establishment. While there is a real attraction to Mr Terzic’s argument, given the particularly close affinity between AGLs and the S grade Supervisor, for clause 56.2 to admit employees who were not actually classified as supervisory staff would require, in my view, explicit provision in the Agreements. As a matter of construction it would be to significantly change the Agreements were one to import or imply the term “(including Acting Group Leaders)” to clause 56.2 of the 2005 Varied Agreement, which would be the affect if the Unions’ case was to be accepted. No such importation or implication is logically necessary for the provision to function.

[108] In coming to this view I am mindful that elements of industrial merit or industrial equity as might form part of the exercise of arbitrated principle do not come into play, and one notes Toyota’s unnecessary caution in this regard. What is to be considered is what does the Agreement mean in relation to Higher Duties and is there relevance for present purposes of it guaranteeing to “Any Supervisor” a benefit at clause 56.2?

[109] Group Leaders classified as S1, S2 or S3 are classified for pay purposes according to a combination of “Qualification payments” for the various Certificate, Diploma and Advanced Diploma and Competency Skill Payments applying to a maximum 10% at S3 only. (See the Supervisory pay matrix at 3.4.2 of Appendix 5 of the 2005 Varied Agreement.) It is my view that, mindful of the pay permutations affecting individual S1, S2 and S3 Group Leaders the term, “Any supervisor”, (which I have noted was rendered ‘Supervisor’ in the 2002 Agreement) is more likely employed to capture Group Leaders receiving the disparate personal pay rates possible within the S scales than trades employees receiving recognition under the Agreements (however it is calculated) for acting-up. The Terzic textual argument, simpliciter, that AGLs enjoy the benefits accorded clause 56.2 supervisors because (like others in the salaried TECS group) they perform supervision, cannot, unaided, be sustained.

[110] This, however, is not the end of the matter.

The Application of the Agreements

[111] The dispute sought to be resolved is, at its essence, a dispute over the trades AGLs’ entitlement to pay properly arising from the Agreements. Toyota, correctly in my view, submits that the resolution of the dispute, the ensuring of the proper application of the Agreement for trades AGLs, is not confined to a choice between clause 56.1 and clause 56.2. The AMWU/ETU have argued that there is an entitlement to the 15% for AGLs arising from the ‘amplitude” of the term, “Any Supervisor...”. Toyota, in denying the AGLs access to clause 56.2, has directed attention, as to recompense for the performance of the undoubtedly significant additional responsibility of acting as a Group Leader, to clause 62, Recognition of Higher Duties.

[112] In my view Toyota is correct in pointing to the Recognition of Higher Duties provision, given its sub-heading Team Leader/Group Leader. It is a curious clause in that it neither provides, nor refers to, a pay rate either for Acting Team Leaders or AGLs. For the provision to operate to provide the pay entitlement as contended for by Toyota, one must imply an intention under the Agreements to pay the employee acting-up at the rate of the classification at which the acting up is done. Toyota submits that this is necessary. I have accepted that this is clearly so and as there are no other provisions taking up the burden of effecting the payment for such recognition. And the clause while about ‘Recognition’, and, speaking of payment, is mute as to quantum or source.

[113] The affect then of clause 62.1 is to direct the person wishing to recognise Higher Duties to the classification being relieved. It follows that one must determine what is the rate, under the Agreements, for the function being relieved, in this case the Group Leader. While there may on occasion, be questions as to what constitutes the rate to be paid for the purposes of Higher Duties, I have taken the view that subjective aspects of pay, those pertaining to the individual being relieved, are not to be had regard for in calculating the Higher Duty payment. An example of such an irrelevant consideration would be service increments due to the time served at a classification and received by the incumbent being relieved. The actual pay rate, the incremental level or personal competency payments of the person being relieved are not of assistance in determining the payment of the reliever. So much should be uncontroversial.

[114] In my view there can be no doubt what the proper effect is of applying clause 62.1 to an AGL. AGLs are entitled to receive the ordinary rate of pay appropriate to the Group Leader position in which they are relieving. Because any and every ‘S’ graded Supervisor receives a rate of pay subject to the 15% guarantee over those relevant employees supervised, so must any AGL approved by Toyota to do this work. It is axiomatic that the benefits of clause 56.2 transmit to AGLs through clause 62 because the rate of every trades Group Leader mandatorily includes the benefit of the 15% margin. Put another way - it would not be consistent with the obligation imposed by clause 56.2 to fail to pay an S1, S2 or S3 Supervisor/Group Leader whatever was necessary to bring their rate of pay into compliance with the 115% minimum relativity obligation.

[115] As payment incorporating recognition of the 15% relativity constitutes the minimum Group Leader rate able to be paid under the Agreements (free of any subjective payments referable to an incumbent) it is to be included in calculating the Higher Duties ‘Recognition’ promised by the Agreements.

[116] One also notes that to do otherwise would permit, at least in part, the ‘inequity’ to reappear that was sought to be remedied by the parties’ agreement and commented upon, in terms, at clause 56.2.

[117] Accordingly, I have concluded that the Higher Duties provision requires payment for AGLs to include the irreducible pay constituents which, taken together, constitute the minimum payable to a notional Group Leader. This certainly incorporates the benefit of clause 56.2.

The Practical Difficulty Argument

[118] It is appropriate, finally, to comment upon the ‘practical difficulty argument’ put by Toyota. Complaint was made by Toyota of an administrative difficulty were it to become necessary to maintain a 115% relativity between the highest ordinary time rate of the team member being supervised and an AGL. The difficulty was said to attach to Toyota’s identification of the highest ordinary time rate of the trades or production team member being supervised. The identical obligation, the maintenance of the 115% relativity over those relevantly supervised was said to present no such problem for incumbent Group Leaders. Examples were proffered, should AGLs require payment, which postulated splitting payments for a single shift consequent upon the arrival of a higher paid tradesperson in the second half of the shift. Nothing was said as to Toyota presently splitting pay recognition within shifts relative to the need to meet the 115% guaranteed margin when calculating Group Leaders’ pay.

[119] The 115% guaranteed minimum determined as a function of the highest relevant person supervised, is, wholly and solely, a creation of the Agreements. It is then, singularly unpersuasive to argue against the guarantee applying, by virtue of its administration. The Recognition of Higher Duties clause sets out the method of payment being the accumulation of five day blocks of higher duties. There is nothing to permit the splitting of days, as if a Group Leader, notwithstanding their seniority and importance in the Toyota hierarchy, was subject to a petty Mixed Function clause and examined four-hourly. This submission is without foundation and must be rejected.

[120] The dispute between the parties is resolved in the manner set out above. Should any further difficulty arise, leave is reserved for the parties to apply.

COMMISSIONER

Appearances:

B. Terzic appearing for the “Automotive, Food, Metals, Engineering, Printing and

Kindred Industries Union” known as the Australian Manufacturing Workers’ Union

(AMWU) and for the Communications, Electrical, Electronic, Energy,

Information, Postal, Plumbing and Allied Services Union of Australia.

D. Trindade, solicitor, by leave, with P. Pellier-Cuit for Toyota Motor Corporation

Australia Ltd.

Hearing details:

2010.

Melbourne:

June 7.

Printed by authority of the Commonwealth Government Printer

[2010] FWA 9267

1 DECEMBER 2010