Brett Stevens v Nyrstar Port Pirie Pty Ltd

[2017] FWC 965

[2017] FWC 965

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Brett Stevens
v
Nyrstar Port Pirie Pty Ltd
(C2016/5084)

Mining industry
COMMISSIONER PLATT	ADELAIDE, 16 FEBRUARY 2017

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)].

[1] In 2014 Nyrstar Port Pirie Pty Ltd (Nyrstar) reached agreement with its employees and made an enterprise agreement titled the Nyrstar Port Pirie Enterprise Agreement 2014 (the Agreement).

[2] On 27 March 2014, Deputy President Bartel approved the Agreement and in accordance with s.201(2) of the Fair Work Act 2009 (the Act) determined that the Agreement would also cover the Communications, Electrical Energy, Information, Postal, Plumbing and Allied Services Union (the CEPU), the Australian Manufacturing Workers Union (SA) (the AMWU), the Australian Workers Union (Amalgamated AWU (SA) State Union) (the AWU) and the Construction, Forestry, Mining and Energy Union (the CFMEU).

[3] The nominal expiry date of the Agreement is 2 April 2017.

[4] On 25 August 2016, Mr Brett Stevens who is a Grade 2 Tradesperson covered by the Agreement, through his Union, the CEPU, made an application under s.739 of the Act for a dispute concerning his classification to be resolved by the Commission.

[5] Clause 10 of the Agreement provides a staged process for resolving any industrial matter arising under the Agreement or in relation to the NES. The final step in that process is for the dispute to be referred to the Fair Work Commission using its conciliation or if required arbitral processes. It is common ground between the parties that the Commission has the jurisdiction to determine this dispute.

[6] The matter was not able to be resolved by conciliation and was arbitrated on 13 and 14 December 2016.

[7] Mr Stevens was represented by Ms Jess Rogers and Mr Simon Pisoni from the CEPU. Nyrstar was represented by Ms Susan Zeitz of counsel. Permission was granted pursuant to s.596(2)(a) of the Act.

[8] The dispute concerns the application of the Classification Structure and Base Salary Levels contained in Appendix 1 of the Agreement to Mr Stevens in respect of his request to be reclassified and the use of criteria which does not form part of the Agreement in the evaluation process. The outcome of this matter is likely to have flow-on effects to other employees covered by the Agreement.

Evidence

[9] Mr Stevens tendered a statement 1 by Mr Potter, Executive Officer of Energy Skills of SA concerning the Australian Qualifications Framework and Competency Assessment. Nyrstar did not seek to cross-examine Mr Potter.

[10] Mr Stevens submitted a statement of his own with a number of attachments 2 and was cross-examined. His evidence went to his skill set and his belief that he met the requirements for a higher level classification.

[11] Mr Wayne Harding, Mechanical Shift Fitter Technician, submitted a statement 3 which detailed his role requirements and informed the Commission that under the 2009 enterprise agreement, promotion was by way of invitation which was seen as unfair by employees.

[12] Mr Troy Partridge, Electrical and Instrumentation Dual Tradesperson, who was involved in the negotiation of the Agreement as a CEPU delegate, also submitted a statement. 4 Mr Partridge contended that the previous classification system relied heavily on management discretion and the intention was that the new system contained in the Agreement was based on actual performance, skills and qualifications.

[13] Nyrstar submitted a statement 5 by Mr Julian Blight, Human Resources Superintendent, who also gave evidence. Mr Blight advised that he assisted with the implementation of the new classification structure and developed the Performance Standards Guide which was used internally to assist assessments for promotion. He did not believe the standards required were onerous but were a reasonable expectation of employees at each level.

[14] Nyrstar also called Mr Jeremy Kuipers, 6 Engineering Manager who submitted a statement and gave evidence. He confirmed Nyrstar’s view that classification progression was not limited to the simple acquisition of competencies and was involved in the development of the Performance Standards Guide in conjunction with Mr Blight. He believed those standards were well understood and uncontroversial.

[15] The witness evidence was largely consistent, save for the requirements for moving from one Band to another. Whilst it is clear that Nyrstar’s autonomy in determining employee progression was reduced with the making of the current agreement, there is a dispute over the application of the Performance Standards Guide.

Submissions

[16] Mr Stevens submitted that;

• The dispute relates to clause 21 and Appendix 1 of the Agreement which specifies the classification structure for Tradespeople and an additional document not contained in or referenced in the Agreement known as the Performance Standards Guide.



• When classifying employees, regard may only be had to clause 21 and Appendix 1 of the Agreement which provides a definition of the classification and a minimum training requirement for each classification, which is linked to the Australian Qualification Framework (AQF).



• The Performance Standards Guide, created by Nyrstar, without consultation with the Union or employees and after the Agreement was approved, is an additional document that goes beyond the requirements set out in the Agreement and therefore should not be used to determine employees’ classifications.



• Allowing the Performance Standards Guide to be used would give Nyrstar a right to manufacture requirements to stop employees reaching higher classifications.



• Consistent with the decision in Kucks v CSR Limited, 7 Australasian Meat Industry Employees Union v Coles Supermarkets Australia Pty Ltd,8 Amcor Ltd v Construction, Forestry, Mining and Energy Union,9 City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union10and Australasian Meat Industry Employees Union v Golden Cockerel Pty Limited,11 in determining the dispute the Commission must start with the language employed by the parties to an industrial agreement, with the context and purpose being relevant when construing the language.



• When the Agreement was negotiated there were concerns among trade employees’ with the 2009 classification structure, as moving beyond a Level 2 Tradesperson was by invitation. During negotiations for a new enterprise agreement a new classification structure was sought.



• Clause 4.3, although not a clause in dispute, refers to an ‘Implementation Guide’ which is a document that was commonly agreed to between the parties. Whilst it relates to the transition of employees from the old structure to the new, it provides context and reflects the common intention of the parties.



• The Implementation Guide refers to competencies required to progress through the classification structure and details the assessment process undertaken to determine whether an employee is competent. To assess whether an employee is competent, their skills and experience are compared to the performance criteria set out in the relevant competency units. The Implementation Guide states the intention of the parties to move to a classification structure that provides career progression and national recognition of competencies.



• The classification definition in Appendix 1 of the Agreement for Grade 3 and 4 Tradespersons replicate parts of the definitions contained in Schedule B.3.4 and B.3.7 of the Mining Industry Award 2010 [MA000011] and therefore should be considered in determining the definitions in the Agreement.

[17] Nyrstar submitted that;

• The previous enterprise agreement allowed progression subject to Nyrstar’s discretion to appoint.



• A new classification structure and definitions were introduced by the Agreement and became effective from 3 April 2014.



• The first step in the implementation of the new classification structure was to align employees to their appropriate classification structure within the structure. The focus was to engage with external experts and to develop Implementation Guidelines that resulted in employees being assessed on the basis of a combination of recognition of prior learning and competencies held. If an employee had some, but not all, of the competencies for the level assigned on implementation, a training programme was developed.



• Once this process was completed, processes for progression through the Grades was commenced which resulted in consideration being given by Nyrstar as to the elements that comprised performance standards. The Performance Standards Guide was subsequently developed by Nyrstar which is consistent with the matters identified in the Individual Performance Review process and Nyrstar values.



• The Performance Standards Guide assists with consistency of approach in the reclassification review requests and provides clarity for employees seeking reclassification.



• Mr Stevens is currently classified as a Level 2, Grade 2 Trade Person who has completed the minimum training requirement linked to the AQF being that in addition to the Level 1 criteria he is able to demonstrate competence in competency units from Band A or Band B or his trade specific competency list equal to a minimum of 24 points and complies with the classification definition Grade 2 Trades Person in Appendix 1 of the Agreement.



• Mr Stevens seeks to be reclassified as a Level 4, Grade 4 Trades Person. However, before he can be considered for that classification, he must first meet and be capable of being appointed as a Level 3, Grade 3 Trades Person, which he is not.



• The Agreement sets out plainly the criteria that employees must meet to be appointed to and progress within the classification structure. Each level of the classification structure applicable to Mr Stevens differentiates between the minimum competencies required and the definition requirements for each classification level. Each classification level also places differing emphasis on particular aspects of the job requirements. It is, therefore, clear and unambiguous on a plain reading of the classification structure that Mr Stevens must meet the criteria set out in Levels 3 and 4 in order to be appointed to a classification level other than Level 2. 12 Something more than mere compliance with the minimum training requirement linked to the AQF is required.



• Nyrstar have sought to provide clarity through the development and application of the Performance Standards Guide.



• Mr Stevens’ application has undergone the proper procedures, which has been objectively applied, and none of those who have reviewed his application have assessed him as fulfilling the requirements for Grade 4, or even Grade 3. The evidence demonstrates that Mr Stevens complies with the requirements of a Level 2, Grade 2 Trades Person and although on occasion he demonstrates some of the requirements for Level 3, Grade 3 Trades Person, this is only ad hoc or incidental and not the substantial components of the work he undertakes. Therefore, the decision of Nyrstar to refuse Mr Stevens reclassification application should be upheld by the Commission.

Consideration

[18] Clause 21 of the predecessor Agreement, the Nyrstar Port Pirie Enterprise Agreement 2009 (the 2009 Agreement), provided that an employee would be classified in accordance with the classification criteria contained in Appendix 1 of that agreement. The effect of Appendix 1 was that progression from Level 1 to Level 2 and/or 3 was subject to the employee being ‘selected for progression’ by the employer.

[19] In the current Agreement, the Classification Structure contained in Appendix 1 provides, at Clause 2, for progression within each level (or Grade Band). The progression between the Grade Bands is subject to consideration of skills utilised by the employee. The progression within the Grade Band is subject to the consideration of individual performance.

[20] Clause 2.2 of Appendix 1 provides a Trades Classification table which details how trades employees are graded. The table is reproduced below;

[21] It can be seen from the table that the column headed ‘Minimum Training Requirement Linked to AQF’ provides minimum training required to be considered and the column headed ‘Classification Definitions’ provides a description of additional requirements that must be met.

[22] The language used in the Classification definitions is not precise and contains a number of subjective requirements (e.g. competent to…, knowledge in complex work …, demonstrates acceptable performance standards).

[23] In order to implement the Classification structure, Nyrstar produced an internal document (the Performance Standards Guide) which was intended to reflect Nyrstar’s requirements and expectations for the Grades at each level. The Performance Standards Guide was intended to achieve consistency of approach in the classification review process and provide clarity for employees seeking reclassification.

[24] The Performance Standards Guide was tendered as an attachment JB-3 to Mr Blight’s witness statement and is reproduced below;

Performance Standards Guide – Tradesperson Classification

Level 1

Displays discretionary effort. Demonstrated site appropriate skill set, to comply with the site policies (Including safety commitments), procedures and associated processes/programs

Accepts developmental feedback and actions appropriately

Level 2

In addition to satisfactory achievement of Level 1;

Consistently demonstrates a supportive and positive attitude, models best practice and professionalism at all times.

Can produce a basic work scope with materials and resources

Proactively manages safety of self and other, Identifies hazards and reports to Supervisor

Positively contributes to, collaborates and shares ideas in a team environment, and provides support when required/appropriate, positive contributor to Initiatives/innovations/safety and team functioning/culture

Positively and proactively communicates with team and external parties

Proactively works a reasonable proportion of their allocated Bank of Hours

Completes jobs within skill level, asks for help when needed

Level 3

In addition to satisfactory achievement of Level 1 & 2;

Has a demonstrated history of completing work to above average level of quality, applying skills/knowledge with complex work, applying appropriate discretion/judgement

Has solved a significant number of complex problems or troubleshooted problems out of the ordinary

Demonstrates a basic understanding of root cause principles, participates in basic 5Why analysis (If required)

Produces solid work scopes that Include materials, resources and any services needed

Demonstrates effective relief supervision or is a credible candidate for ongoing relief supervisor duties

Demonstrates initiative to perform additional tasks, ie uses ‘spare time’ productively

Demonstrates an understanding and basic use of RIMS

Demonstrates use of SAP to find and order materials and enter work requests with appropriate details

Has a high level of general safety consciousness, maintains job housekeeping standards, offers solutions to hazards, encourages team safety accountability

Can be given a job and trusted to follow through to completion within agreed timeframes

Accepts jobs assigned and completes within skill level. Does not pick and choose jobs

Takes lead on jobs with other employees at least once per month and as required

Actively seeks to assist and guide teammates, helps others with training instruction. Demonstrates ability to work constructively within a team

Volunteers to go above and beyond on a regular basis

Implements improvement projects within area

Level 4

In addition to satisfactory achievement of Level 1,2 & 3;

Demonstrates effectiveness as a relief supervisor and/or a credible candidate for promotion to supervisor

Considered to have supervisor technical knowledge in several specialist areas, delivering to a consistently high standard/quality

Demonstrated flexibility to work across enterprise

Has solved technical/maintenance problems that others in the team could not solve

Is the current go-to person when there is a complex problem that is an ongoing issue requiring resolution

Demonstrates understanding of problem solving principles/RCA, can lead multidisciplinary problem solving sessions and can contribute in an intelligent manner

Has in depth understanding of and can deploy site systems

Has a history of providing support to supervisor

Comprehensive understanding and adherence to safety principles/requirements, identifies and controls hazards on their own, helps drive team safety culture

Is regularly trusted to lead teams & projects

Is a natural leader within the team, including consistent positive participation in Wweb, safety meetings etc

Actively shares knowledge with supervisor and teammates

Actively mentors teammates and is concerned for their development, builds strong relationships

Capable of utilising data to make recommendations for change including problem solving/poke yoke

Positively engages a range of senior stakeholders external to the team

Drives customer/supplier relationships with other teams with positive results

All levels

Positive demonstration of consistent alignment with Nyrstar Way

[25] The Performance Standards Guide was not the subject of agreement between the parties, nor was it submitted as part of the agreement approval process. The Performance Standards Guide is a more expansive document than the Classification definitions contained in Appendix 1 of the Agreement. Its content is more than an elaboration of the Classification Table. The fact that it is more expansive would not be an issue if its requirements were consistent with the contents of the Classification Table. In my view, the Performance Standards Guide imposes additional requirements not contained in the Classification Table contained in the Agreement.

[26] By way of example the additional obligations for Level 2 include;

• Consistently demonstrates a supportive and positive attitude, models best practice and professionalism at all times.



• Positively and proactively communicates with team and external parties.



• Proactively works a reasonable proportion of their allocated Bank of Hours.

[27] At Level 3 the additional obligations include;

• Demonstrates effective relief supervision or is a credible candidate for on-going relief supervisor duties.



• Takes the lead on jobs with other employees at least once per month and as required.



• Volunteers to go above and beyond on a regular basis.



• Implements improvement projects within area.

[28] This matter involves, in part, the interpretation of the Agreement and the Performance Standards Guide. There are a number of cases that have established the general principles for the interpretation of industrial instruments, the leading case being Golden Cockerel, 13and I have applied these principles to the interpretation of the Agreement.

[29] I find that the Performance Standards Guide imposes obligations in excess of those required by the Classification Table in the Agreement. In my view, it is not open for Nyrstar to do so. 14 The Performance Standards Guide is not an agreed document and is not an industrial instrument. Its content is not referenced by the Agreement. Accordingly, it cannot operate so as to undermine (or in this case impose greater obligations than) the Agreement.

[30] In so far as the Performance Standards Guide imposes requirements and/or obligations in excess of that provided for in the Agreement, they are of no effect and must not be used to determine an employee’s classification and/or eligibility for promotion.

[31] I do not make any finding in respect to Mr Steven’s individual circumstance, but I require Nyrstar to reassess Mr Steven’s eligibility for promotion by reference to the Agreement alone within 14 days from the date of this decision. If any dispute arises from this process the parties have liberty to apply.

[32] I am aware that the parties are presently in negotiation for a new Agreement and I understand that the Classification Structure is in issue. One matter for the parties to consider will be the use of a separate document to assist the consistent application of the requirements detailed in Appendix 1 of the Agreement, or if that information should be included in the Agreement.

[33] Should the parties require the Commission’s assistance in that process, I would be willing to assist in any manner agreed by the parties.

COMMISSIONER

Appearances:

J Rogers and S Pisoni of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia on behalf of the Applicant.

S Zeitz of counsel on behalf of the Respondent.

Hearing details:

2016.

Adelaide:

December 13 and 14.

 1   Exhibit A1

 2   Exhibit A2

 3   Exhibit A3

 4   Exhibit A4

 5   Exhibit R1

 6   Exhibit R3

 7 (1996) 66 IR 182

 8 (1998) 80 IR 208

 9 (2005) 222 CLR 241

 10 (2006) 153 IR 426

 11   [2014] FWCFB 7447

 12   Australian Meat Industry Employees Union v Golden Cockerel Pty Ltd[2014] FWCFB 7447

 13   [2014] FWCFB 7447

 14   See generally Construction, Forestry, Mining and Energy Union v MSS Security Pty Ltd and MSS Strategic Medical Pty Ltd[2015] FWCFB 2872; Finney v St Patrick's College Townsville Limited[2015] FWC 795 [57]-[59]

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