[2019] FWC 1290

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Kentz Pty Ltd T/A Kentz
(C2018/3661)

COMMISSIONER SIMPSON

BRISBANE, 16 APRIL 2019

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

[1] On 5 July 2018, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) made an application to the Fair Work Commission (the Commission) under s.739 of the Fair Work Act 2009 (the Act).

[2] The CEPU’s application is for the Commission to deal with a dispute in accordance with the dispute settlement procedure at Clause 18 of the Kentz Pty Ltd Ichthys Onshore Construction Greenfields Agreement (the Agreement). Kentz Pty Ltd (Kentz) is the Employer Respondent to this application.

[3] Clause 12.3 of the Agreement provides for different classification groups, Group A being the group that applies to tradespersons. Within Group A there are a number of different classifications that apply to electrical workers, including instrument and controls tradesperson, instrument tradesperson complex systems and instrument tradesperson. Appendix 1 of the Agreement provides the definitions for each of the classifications.

[4] Appendix 1 includes the following definition for the classification of instrument tradesperson – complex systems:

“(c) Instrument Tradesperson – Complex Systems

An instrument (mechanical or electrical) tradesperson who is mainly engaged in installing, repairing, maintaining, servicing, testing, modifying, commissioning, calibrating and fault finding instruments which make up a complex control system which utilises some combination of electrical, electronic, mechanical, hydraulic and pneumatic principles, including work on complex digital and/or analogue control systems utilising integrated circuits.

To be classified as an Instrument Tradesperson – Complex Systems, a tradesperson will have:

(1) had a minimum of two (2) years on the job experience as a tradesperson working predominantly on complex and/or intricate instruments and instrument systems, as will enable them to perform such work under minimum supervision and technical guidance; and

(2) satisfactorily completed an appropriate post trade course equivalent to at least two (2) years part time study or has achieved to the satisfaction of the employer, a comparable standard of skill and knowledge by other means including in-house training or on the job experience referred to in (1) above.”

[5] Appendix 1 includes the following definition for the classification of instrumentation and controls tradesperson:

“(b) Instrumentation and Controls Tradesperson

An instrument (mechanical or electrical) tradesperson working at a level defined as Instrument Tradesperson Complex Systems and who is mainly engaged in applying skills and knowledge to installing, repairing, maintaining, servicing, testing, modifying, commissioning, calibrating and fault finding industrial instruments which make up a complex control system which utilises some combination of electrical, mechanical, hydraulic and pneumatic principles and electronic circuitry containing complex analogue and/or digital control systems utilising integrated circuitry.

The application of this skill and knowledge would require an overall understanding of the operating mode or principles of the various types of measurement and control devices on which the tradesperson is required to perform tasks. To be classified as an instrumentation and controls tradesperson, a tradesperson must have at least three (3) years relevant on the job experience as a tradesperson – twelve (12) months of which must be at the level of ‘Instrument Tradesperson – Complex Systems’ and in addition must have satisfactorily completed a related post-trades course equivalent to at least two (2) years part time study.

In addition, to be classified as an Instrumentation and Controls Tradesperson, a tradesperson must be required as part of their duties to:

(1) Maintain and repair multi-function printed circuitry of the type described in this definition using circuit diagrams and test equipment;

(2) Work under minimum supervision and technical guidance;

(3) Provide technical guidance to other Employees or to management within the scope of the work described in this definition; and/or;

(4) Prepare reports of a technical nature on specific tasks or assignments as directed and within the scope of the work described in this definition.”

[6] Clause 13.2 of the Agreement provides for payment of allowances to the classifications set out in Group A of Clause 12.3. The allowance attached to the classification of instrumentation and controls tradesperson is considerably higher at $158.62 than the allowance payable for the instrument tradesperson – complex systems at $61.73. The question of which classification, and therefore which allowance should be paid to the employees is at the heart of the matter.

[7] Appendix 3 provided for the rates of pay and allowances.

[8] On 3 October 2018, the parties reached an agreement on the Question for Arbitration. The Question for Arbitration is as follows:

“Were the employees listed in Schedule 1 entitled to be classified as “Instrumentation and Controls Tradespersons” on the proper construction of Clauses 12 and 13, and Appendices 1 and 3, of the Kentz Pty Ltd Ichthys Onshore Construction Greenfields Agreement recorded at [2014] FWCA 6641?”

[9] A preliminary issue arose concerning whether the enumerated list in the third paragraph at Appendix 1(b) should be read disjunctively or conjunctively and I decided to determine that element of the dispute first as it would assist in how the remainder of the matter proceeded. On 9 November 2018 I issued a decision 1 concluding as follows:

“I am satisfied that when the agreement is read as a whole and in context, the term “and/or” as it appears in the enumerated list at Appendix 1(b) paragraph 3, has a conjunctive effect and therefore the items should be read jointly, excluding items [3] and [4], which operate as either/or requirements. This interpretation has the effect of requiring employees to perform the duties listed in items [1] and [2], as well as either of the tasks outlined in items [3] and [4], in order to qualify for classification as “Instrumentation and Controls Tradespersons.”” 2

[10] The remainder of the matter was subsequently listed for hearing on 11, 12 and 13 February 2019. The CEPU was represented by Mr L Tiley of Hall Payne Lawyers and Kentz was represented by Mr M Easton of Counsel instructed by Mr R Gunningham of Thomson Geer Lawyers.

[11] The CEPU called four witnesses, Mr Daniel Burns who provided a witness statement dated 19 September 2018 3 and a statement in reply dated 22 November 20184, Mr Paul Kelly who provided a witness statement dated 26 September 20185 and a statement in reply dated 24 October 2018,6 Mr Jake Mayer who provided a witness statement dated 25 September 20187 and a statement in reply dated 22 October 20188, and Mr Farib Moreno who provided a statement dated 22 November 20189.

[12] Kentz called three witnesses, Mr Oliver Kilmartin who provided a witness statement dated 18 October 2018 10 and a further statement dated 13 December 201811, Mr Deejan Andersen who provided a statement dated 18 October 201812 and a further statement dated 13 December 201813 and Mr Robert Geisel who provided a statement dated 18 October 201814 and a further statement dated 13 December 2018.15 Kentz also relied on a 399 page bundle of documents as part of its case,16 and separately tendered a 44 page document containing material in relation to training courses.17
[13] The CEPU advised that at the time of the commencement of the hearing the list of employees who it was claimed should have been classified as instrumentation and controls tradesperson had reduced from a much higher number to 14 employees. The 14 named employees are:

• Luke Baker

• Scott Benson

• Gary Campbell

• Joseph Death

• Peter DiFiori

• Daniel Green

• Paul D Kelly

• Jack Marino

• Jake Mayer

• John Miller

• Farib Parra Moreno

• Mark Richards

• Shane Richardson

• Jamie Tobin.

Skills and experience requirements of second paragraph of subclause (b) Appendix 1

[14] The CEPU advised that the dispute as it pertained to a number of other employees was no longer pressed on the basis that further information that has become available made clear those employees were not entitled to the higher classification. The CEPU provided the Commission with a spreadsheet 18 containing the names of the 14 persons and advised that the eligibility of six of those 14 named persons to be classified at the level of instrumentation and controls tradesperson was disputed by Kentz on the basis they did not satisfy the qualification requirement in the second paragraph of the classification for an instrumentation and controls tradesperson. Kentz submitted that they did not meet this requirement as they did not hold a related post trades’ course equivalent of at least two years part time study, or in the case of Mr Tobin had less than 12 months experience at the level of instrument tradesperson – complex systems.

[15] The 6 employees disputed on the basis of the qualification/experience requirements are;

• Daniel Green

• Paul D Kelly

• Farib Parra Moreno

• Mark Richards

• Shane Richardson

• Jamie Tobin

[16] In relation to those six employees the CEPU tendered a copy of the following five documents relevant to the qualification argument:

• Daniel Green Certificate IV in Engineering MEM40105, 19

• Certificate IV in Engineering MEM40105 course overview, 20

• Paul Kelly Certificate IV in Engineering (Electrical Instrumentation), 21

• Mark Richards Certificate III in Instrumentation and Control UEE31211, 22

• Shane Richardson Certificate IV in Engineering (Instrumentation) MEM40103, 23

Letters of Offer

[17] Mr Kelly said prior to commencing employment he received a letter of offer from Kentz identifying his position as “instrumentation tradesperson – complex systems”. He said he believed the letter incorrectly described his position as instrumentation tradesperson – complex systems, instead of instrumentation and controls tradesperson. Mr Kelly said his role changed to becoming a leading hand in approximately September 2017.

[18] Mr Kelly was referred to the letter of offer he received attached to his statement. 24 He said he agreed to sign up to a lower rate under the understanding it was a probationary period. He accepted that the letter of offer was for a position as an instrument tradesperson – complex systems. He accepted the letter of offer did not describe the type of work except the title of the role. He understood the enterprise agreement set out the type of work. He said he looked at the enterprise agreement before he received the offer of employment.

[19] Mr Kelly said at other projects he had started at a lower rate and then moved to a higher rate after probation. Mr Kelly said he received a leading hand allowance. He said he was referred to as a senior technician and often helped new employees, not necessarily providing technical guidance but showing them how things worked on the site. He said getting paid a leading hand allowance also meant he was required to perform extra tasks.

[20] Mr Moreno was engaged on the Ichthys Project (the Project) by Kentz on 22 June 2016 and remained on the Project until 26 March 2018. Mr Moreno received a similar letter from Kentz to that received by Mr Kelly prior to his engagement, identifying his position as “instrumentation tradesperson – complex systems”. Mr Moreno said he was in the loop checking crew for the whole of his employment, save for the period of five or six months when he moved to the punch team.

[21] Mr Mayer is an electrician who holds an unrestricted electrical license. Mr Mayer received a similar letter to the letters from Kentz received by Mr Kelly and Mr Moreno prior to his engagement identifying his position as “instrumentation tradesperson – complex systems”. Mr Mayer said when he received the letter he was somewhat confused by his classification as he holds a Certificate III in Instrumentation and Control and thought he should have been classified as an instrumentation and control tradesperson. Mr Mayer said in his oral evidence he had been classified as the instrumentation and controls tradesperson role previously although this was not in his statement.

[22] Mr Mayer was referred to page 238 in the bundle of documents Kentz filed which was a registration form for work on the Project where Mr Mayer had ticked three boxes for positions he was interested in. Mr Mayer agreed he was applying for each one of the three positions which included the complex systems position. It was put to Mr Mayer that when he applied for the position he did not know what it would involve and he said he knew it was commissioning. Mr Mayer said he ticked the other positions because he was unaware of the difference between the levels under the enterprise agreement. When asked if he understood from the letter of offer that all Kentz required was the instrumentation tradesperson – complex systems Mr Mayer agreed.

Kentz evidence on ICS and loop check team

[23] The three witnesses for Kentz provided detailed evidence concerning their understanding of the manner in which the instrumentation commissioning support (ICS) and loop check teams performed their functions. For convenience I have summarised this part of Kentz’ evidence together in this part of the decision, and have included consideration of evidence from witnesses for the CEPU concerning these matters, and the response of the CEPU witnesses to this evidence within the decision where the parts of the Agreement itself are considered.

[24] Mr Kilmartin was employed by Kentz in the role of instrument commissioning lead on the Project from November 2016 to June 2017 and as deputy commissioning and completions manager from June 2017 until July 2018. He said he has worked in instrumentation for over 20 years and in his role as deputy commissioning and completions manager he was responsible for managing the commissioning superintendents on the Project, who in turn managed the commissioning supervisors and the commissioning technicians. Mr Kilmartin said because of his technical experience in instrumentation he adopted a ‘hands on’ approach to providing the supervisors and to a lesser extent the technicians with technical guidance in the field, meaning he entered the field, spoke to them about any difficulties they were having and provided technical guidance from time to time.

[25] Mr Andersen said he commenced at the Project as a technician in the ICS crew but after a few months transferred to the role of supervisor ICS. He said he has been a fully qualified electrician since 1997 and he has worked in electrical, instrumentation, and control systems ever since as a technician and supervisor. He said in addition to his trade qualification he holds a Certificate III in instrumentation.

[26] Mr Andersen said that on some projects he had worked on in the past, experienced senior instrumentation technicians (including himself) were required in their role to conduct independent fault finding from start to finish on complex control systems which meant that they worked independently and were required to make decisions about how to rectify faults. He said those independent technicians were often required to prepare detailed written technical reports consisting of multiple pages setting out their investigation, the fault, the decision about how to rectify the fault and the action required to affect that decision.

[27] Mr Andersen said that this was not the case at the Ichthys Project. He said on the Project instrument technicians were not responsible for conducting independent fault finding from start to finish in order to decided how to rectify faults. He said they were only required to follow JKC’s directions and provide support to the JKC instrumentation technician supervisors, vendors and instrument engineers. He said it was JKC who were responsible and bore the risk of deciding what to do and how to rectify and faults in the instrumentation system.

[28] Mr Andersen said that this meant that Kentz supplied its ICS technicians to JKC supervisors, vendors and engineers to assist and support JKC with fault finding and the rectification of faults. He said it also meant that the Kentz ICS technicians were under JKC’s day-to-day direction and supervision.

[29] Mr Geisel gave evidence that he was engaged by Kentz on the Ichthys Project as an electrical supervisor from November 2014 to February 2016, as an electrical and instrumentation superintendent from February 2015 to November 2016, and as commissioning superintendent from November 2016 to August 2018.

[30] Mr Geisel said in his role as commissioning superintendent he was responsible for managing two teams of electricians, the loop checking team and the ICS team.

[31] Mr Kilmartin gave evidence concerning the distinct roles of the loop checking team who were responsible for checking whether each individual instrument on the LNG plant worked as per specification as per the distributed control system (DCS) and the ICS team who were responsible for assisting and supporting JKC with its testing of the instrumentation system on the plant, to ensure that the system worked as a whole to have the required electrical and mechanical effect on the plant.

[32] Mr Geisel gave evidence that his duties as commissioning superintendent included:

• ensuring the ICS team and the loop checking team were properly resourced with tradespeople and tools and equipment;

• acting as a point of contact together with other superintendents the instrumentation commissioning manager and the deputy instrument commissioning manager) to Kentz’ client on the Project JKC;

• receiving work orders from JKC and delegating that work to the ICT team and, to a lesser extent the loop checking team;

• auditing the work permits held by the ICT team and the loop checking team to ensure the work being performed was covered by the scope of the work permit;

• reviewing from time to time the two written documents the ICS team and the loop checking team produced namely the:

(i) Inspection Test Record (ITR) form and

(ii) Loop Test Troubleshooting Team (LTTT) form,

• ensuring the jobs allocated to the ICS team and the loop checking team were finished efficiently and on time.

[33] Mr Geisel said that broadly the ICS team and the loop checking team were responsible for testing the electrical infrastructure of the plant once that infrastructure had been installed by Kentz’ construction team.

[34] Mr Geisel said the roles of ICS technicians and the loop checking technicians were distinct. Mr Geisel said some technicians were allocated to both teams whereas some others were just allocated to one team. Mr Geisel said Mr Kelly was wrong to say all technicians performed the same work because some worked in both teams and others worked in only one team.

Loop Checking

[35] Mr Kilmartin said that loop checking is a process that involves a technician simulating the process conditions using test equipment to an instrument to see if it was working within its parameters. He gave the example of a temperature instrument designed to read temperature. He said the technician will simulate the process temperature to the transmitter in the loop to make sure it is reading temperature accurately both locally and in the DCS. He said while loop checking is a relatively straight forward process, in his experience on the Ichthys Project, technicians who began work in the loop checking team generally had more hands on experience than the ICS technicians. He said this is because the ICS technicians acted as the “arms and legs” of their JKC supervisors in taking instructions and performing tasks.

[36] Mr Geisel said the loop checking team’s role was to check whether individual instruments worked, such as an instrument that measures something on the gas plant like temperature, level or pressure. He said the “loop” refers to the wire running into the instrument, the instrument itself and the wires running out of the instrument.

[37] Mr Geisel said the process for loop checking was as follows:

A JKC electrical engineer identified a particular section of the plant that was ready for commissioning through RFLC site notices;

(b) He/she or one of the other superintendents delegated the work to a supervisor in the loop checking team to test the individual electrical components in the field;

(d) The loop checking technician went out into the field to perform the loop check.

[38] Mr Geisel said the loop check referred to the energisation of the loop and using certain test equipment to read the output to firstly to see if it is functioning at all and secondly to see if it is functioning within the correct parameters.

[39] Mr Geisel gave the example of when checking for a pressure transmitter the loop checking technician would pump up the transmitter with a hand pump through the given operating range of the transmitter through a five point check (0%, 25%, 50%, 75% and 100%). He said once the loop has been confirmed through the DCS the ITR is completed by the loop checking technician and handed in for processing.

[40] Mr Geisel said that if the transmitter did not respond or the output range was incorrect, the loop checker identified it as faulty. He said if a loop checking technician identified a broken or faulty instrument then:

(a) The loop checking technician would complete a LTTT form which identified the faulty instrument and its serial number;

(b) The loop checking technician provided the form to a Kentz loop check supervisor;

(d) JKC reviewed the form and decided how to fix the problem, which invariably involved ordering a replacement of the broken instrument or component; and

(e) JKC emailed him, one of the superintendents or one of the electrical supervisors directly (copying himself or one of the other superintendents in) and directed them to replace the broken component and re-perform the loop check.

[41] Mr Geisel said the loop check team was not required or authorised to identify what the particular fault was with a device or component or suggest a solution for that fault. Mr Geisel said JKC did not pay Kentz to perform that role.

[42] Mr Andersen said that the loop checking team’s role was to test each individual instrument to make sure it worked to specification. He said this involved applying a special tool to an instrument to see if it was doing what it was supposed to do, as per specification. He said there were two outcomes from this: works as per specification, or does not work as per specification.

[43] Mr Andersen said that he was not aware of any occasion where a loop checker was required to repair a faulty instrument, because it was simply quicker and more cost effective to order a new one, particularly since the instrument was brand new anyway so if it was broken, there was no wear and tear that could be addressed. He said the only exception to this was if there was something visibly wrong with the instrument that was an easy fix, like securing a wire, installing a new lamp, or swapping out a blown fuse.

[44] Mr Geisel said that because the plant was at the commissioning stage (when parts are new and tend to either work, or not) JKC’s solution to rectifying broken components was invariably to replace the component or instrument in question rather than spend time and money repairing or maintaining it.

[45] Mr Geisel said that loop checking and ICS technicians were also the only workers on site who held a permit to conduct loop checking work and the replacement of instruments outlined above.

[46] Mr Geisel said that once the loop checkers had confirmed the instruments in a particular section worked individually they were ready to be tested together by JKC, with the support of the ICS technicians, to see whether the instruments worked together, and whether that particular section of the plant was ready to be commissioned through the sequence logic test team.

ICS Team

[47] Mr Kilmartin said that instrumentation commissioning is more focussed on how the instruments interact together and with the plant, i.e. the DCS control system, as opposed to individual instruments themselves. Mr Kilmartin said on the Ichthys Project, JKC:

(a) expressly did not engage Kentz to make decisions about how to rectify faults identified in the instrumentation system;

(b) employed instrumentation supervisors and engineers (but not instrumentation technicians) to make decisions about how to rectify faults; and

(c) required Kentz to supply instrumentation technicians to support the JKC instrumentation supervisors in their role by holding appropriate worker permits, assisting and following JKC’s directions.

[48] Mr Kilmartin said in this way ICS technicians acted as the “arms and legs” of their JKC supervisors. He said a common scenario when JKC was engaged in fault finding, was for the JKC supervisor or engineer to be in the control room monitoring the DCS and then radioing an ICS technician in the field to conduct certain tests. He said JKC was responsible for making a decision based on the data about whether the system was working appropriately to specification, and, if not, how to fix it.

[49] Mr Kilmartin described the day to day duties of ICS technicians as including:

(a) miscellaneous tasks as directed by JKC, or a specialised contractor engaged by JKC;

(b) assisting JKC and vendors with sequence logic testing (SLT) to determine whether the instruments they were testing were causing the sequence of events to occur in accordance with their design. He said this usually involved a chain of technicians out in the field working together to observe the effects of the instrumentation system, such as the opening and closing of mechanical valves, and reporting observations back to JKC.

(c) assisting JKC with fault finding. This included various testing using test equipment and replacing parts in accordance with JKC’s directions;

(d) holding work permits. This was a duty carried out by all the technicians because only Kentz was authorised to hold work permits for the scope of the work.

[50] Mr Andersen said that the ICS team undertook miscellaneous tasks as directed by JKC, or a specialised contractor. He said the ICS team also assisted JKC and vendors with sequence logic testing (SLT) to determine whether the instruments were causing the sequence of events to occur in accordance with their design. He said the ICS team was also engaged in fault finding including:

(i) Examining components for visible damage and reporting back to JKC if they identified damage;

(ii) Conducting various tests using testing equipment such as temperature, pressure and level transmitters;

(iii) Completing LTTT forms, in which the ICS technician may suggest a proposed resolution, such as repairing a part, or just refer the matter back to JKC.

[51] Mr Andersen said JKC’s approach to faulty parts was the same as its approach in the loop checking team, that is they would invariably order a replacement part. He said the ICS technicians also held work permits.

[52] Mr Geisel said the ICS team’s role was to:

(a) assist JKC with identifying whether the instruments interacted together and with the plant properly and within the correct parameters through the sequence logic test team; and

(b) if not, assist JKC with performing tests and identifying faults so JKC could decide how to rectify those faults.

[53] Mr Geisel gave the following example;

(a) The plant is a series of pressure instruments that are designed to open and close valves on a gas pipe when the pressure in the pipe reaches a certain level;

(b) Just as the loop checking technicians were not required to decide how to fix a broken component or device, the Kentz ICS technicians were not responsible for or required to decide how to fix the fault. That role fell exclusively to JKC, or a vendor engaged by JKC;

(c) JKC did not contract or pay Kentz to make those decisions, so Kentz did not authorise or require the Kentz ICS technicians to make those decisions.

[54] Mr Geisel said that once JKC identified a fault with the assistance of the ICS technicians, the solution to fix that fault (like the decision to fix a faulty instrument identified by the loop check team) almost always was to replace the particular component. Mr Geisel said that the ICS technicians performed that role under the direction and supervision of a JKC electrical engineer.

[55] Mr Geisel said that loop checking technicians performed their day to day duties under the supervision, guidance and direction of Kentz loop checking supervisors, while ICS technicians performed their day to day duties under the supervision, guidance and direction of JKC electrical engineers and supervisors.

[56] Mr Geisel said that the ICS technicians performed their duties as follows:

(a) Kentz ICS supervisors and he decided which technicians were available and best suitable for the tasks required to support JKC with commissioning that section of the plant;

(b) Kentz ICS supervisors allocate the work to the appropriate technicians; and

[57] Mr Geisel said that the work itself involved a variety of duties that all supported the JKC supervisor or electrical engineer to make a decision as to how to rectify the fault. Those duties included:

(a) Assisting JKC or a vendor with certain tests. For example:

(i) Assisting JKC with the valve test he described, which involves a JKC technician energising a series of pressure valves along a gas pipe using a pressure transmitter, and the ICS technician observing when the valves open and shut, and how long they remain open for, and reporting that back to the JKC technician; and

(ii) “Filling the wet leg” which involves filling the wet leg of a pressure differential transmitter.

(b) Assisting JKC or a vendor with fault finding. This included:

(iii) Physically examining components to identify whether a fault was self-evident (for example, water damage, corrosion or other visible damage);

(iv) If a fault was not self-evident, conducting various tests using equipment to identify a faulty component; and

(v) Reporting the fault to JKC for JKC to decide how to rectify it, or whether JKC required more information.

[58] Mr Geisel claimed that not all ICS technicians carried out fault finding regularly, or even semi-regularly. He said some ICS technicians’ primary duties consisted of assisting JKC or a vendor with certain tests, and some ICS technicians’ primary role was to act only as a permit holder while JKC technicians and vendors performed the fault finding work in the software.

[59] Mr Geisel said for those who did perform fault finding the process was as follows;

(a) JKC directed an ICS technician to try and find the cause of the fault;

(b) The ICS technician conducted a physical examination or the various tests mentioned above;

(d) The ICS technician provided the LTTT form to JKC;

(e) The JKC electrical engineer or supervisor reviewed the LTTT to see if it is correct, and if any other information is required;

(f) Once JKC had sufficient information they decided how to rectify the fault and completed a field trouble report (FTR) which, usually involved ordering a replacement part or component;

(g) JKC ordered the replacement part and directed the ICS technician to install it.

(h) Once the faulty device/component was replaced, the JKC electrical engineer and the ICS technician re-perform the relevant test as outlined above.

[60] Mr Geisel said that performing these duties the ICS team supported the JKC electrical engineer. He said the JKC engineer was often in the field with the ICS technician, or back in the control room on the radio with the ICS technician, directing them in relation to the tests and reviewing the feedback on the DCS computer to identify any faults.

[61] Mr Geisel said JKC’s approach to fixing faults on the plant was the same as JKC’s approach to addressing broken or faulty components identified by the loop checking team. That is, they ordered a replacement part, and replaced the faulty component with the new one unless there were software based issues, then the JKC appointed a vendor to rectify it.

First, second and third paragraphs of subclause (b) Appendix 1

[62] The parties are in dispute as to whether the 14 employees are performing work of the kind required by the first, second and third paragraphs of subclause (b) of Appendix 1. In order to be classified at the level of instrumentation and controls tradesperson it is a requirement that the worker must perform work of the kind required under the first and second paragraph and also perform the additional duties specified in the third paragraph.

[63] Mr Kelly, Mr Moreno and Mr Mayer all contended they satisfied the first paragraph of subclause (b) of appendix 1 because it is substantially the same as paragraph 1 of subclause (c) and Kentz already agrees that is satisfied. Mr Kilmartin and Mr Geisel both disagreed, saying the paragraphs are not the same or substantially the same. Both said the higher classification requires;

(a) the application of skill and knowledge requiring an overall understanding of operating mode/principles; and

(b) includes the words “electronic circuitry” and “circuitry” which is important given the requirement under the definition that employees repair and “maintain multi-function printed circuitry of the type described in this definition” to meet this classification.

[64] Mr Kilmartin said that from the beginning of Kentz’ engagement on the project it was clear the business did not require and would not employ ICS technicians in the higher classification. He said this was broadly because ICS technicians;

(a) Would not be required to conduct fault finding independently and apply an overall understanding of the instrumentation systems upon which they worked, but instead would be employed to follow JKC’s directions and support JKC in their decisions about fault finding and rectification; and

(b) Would not be required to carry out the duties identified in that classification in the enumerated list in the third paragraph of subclause (b) appendix 1.

[65] Mr Kilmartin said the following in relation to the words ‘mainly engaged in application of skill and knowledge requiring overall understanding of operating mode/principles’ in the second paragraph. Loop checking is concerned with an individual instrument and whether it works – it does not require the application of skill and knowledge requiring an overall understanding of the operating mode or principles of the various types of measurement and control devices.

[66] Mr Kilmartin said that ICS technicians performed tasks under the direction, supervision and guidance of JKC Supervisors, JKC engineers, or JKC appointed vendors, which did not require the application of skill and knowledge requiring an overall understanding of the operating mode or principles of the various types of measurement and control devices.

[67] Mr Kilmartin said that if the ICS technicians were required to assist JKC with fault finding, they were not required to or responsible for conducting that process independently, or to make a decision about how to rectify the fault and that was JKC’s responsibility. He said Kentz and its technicians bore no responsibility in relation to fault rectification because that fell to JKC. He said Kentz and its technicians supported the implementation of the rectification as directed by JKC.

[68] Mr Geisel said the following in relation to the same words. Firstly, that the loop checking technicians were responsible for testing individual loops to see if they worked, and this does not require the application of skill and knowledge requiring an overall understanding of the operating mode or principles of the various types of measurement and control devices (i.e. of the instruments – temperature transmitters, pressure transmitters etc. they were working on, and how they interacted together). They performed those duties under the direct supervision of the Kentz loop checking supervisors.

[69] Mr Geisel said that the ICS technicians operated under the direction, supervision and guidance of JKC Supervisors, JKC electrical engineers, or JKC appointed vendors. He said they performed tasks as directed. Mr Geisel said that the ICS technicians may have possessed skills and knowledge requiring an overall understanding of the operating mode and principles of the instruments upon which they worked but in following JKC’s directions, however they were not specifically required to apply that knowledge.

[70] Mr Geisel said that if ICS technicians were required to assist JKC or the vendors with fault finding the most independent action they performed was to follow the JKC/vendor’s direction and suggest a resolution for a fault for JKC to consider (which was usually to replace the part), but it was JKC or the vendor who considered whether further information was required or made the decision about how to resolve the fault. Mr Geisel said the Kentz ICS technician bore no responsibility or risk if their suggestion was incorrect because it was up to JKC or the vendor to decide how to resolve the fault.

[71] Mr Andersen said that the technicians were not required to conduct independent fault finding from start to finish on complex systems that required an application of an overall skill and knowledge. He said they performed tasks as directed by JKC to allow JKC to decide how to rectify faults.

[72] Mr Kelly in support of the CEPU case said when fault finding an instrument it is important that the tradesperson has an overall understanding of the operating modes and principles of the instrumentation, control process, process characteristics and test equipment. He said without this it would be impossible to diagnose any fault successfully and this would lead to many faults being incorrectly diagnosed.

[73] Mr Kelly said that he disagreed with Mr Geisel’s evidence concerning the expression ‘mainly engaged in application of skill and knowledge requiring overall understanding of operating mode/principles’. He described what he called the following typical example as follows:

(a) A JKC commissioning engineer reports that they are seeing flow from a flow transmitter when there should not be any as the manual valve is closed upstream of the flow transmitter and the line downstream has been drained.

(b) JKC supervisor directs Mr Kelly to investigate possible faulty transmitter or calibration issue. This incorrect indication could have many different causes, and just replacing components until it is fixed is not only costly but time consuming. Mr Kelly said in this instance it was apparent to him that the flow orifice was installed at the highest point in the pipework based on his knowledge of the operating principle of this type of transmitter. He said he suspected that only the downstream side of the restriction had been fully drained and that some liquid remained on the upstream side, this corresponding with the positive flow indication. The transmitter zero was checked by equalising the instrument manifold in the correct sequence and confirmed correct. The DCS trend was checked to verify that the flow was reading correctly prior to and during the water flushing and that the error timing corresponded with the flowing pipe.

(c) Mr Kelly said this was explained to the JKC commissioning engineer in a way that he could understand and he was satisfied with the explanation, and the whole process was completed in less than 10 minutes and allowed the commissioning engineer to proceed with minimal delay. Mr Kelly said this would not have been possible without an overall understanding of the operating principle of the instrument.

[74] It was put to Mr Kelly the sequence he was describing involved a supervisor who had been called on by a commissioning engineer about the issue regarding the flow transmitter. Mr Kelly agreed.

[75] It was put to Mr Kelly that the fixes that were done were fixes able to be done quickly as opposed to substantial repairs. Mr Kelly disagreed and said that they would do everything from completely reconfiguring a conditioner to changing its location. He said there were a wide range of fixes, and different kinds of faults that were varied.

[76] Mr Burns is a licenced electrician and a member of the CEPU who worked from 15 January 2016 to 31 August 2018 for Kentz at the Ichthys Project. Mr Burns was a delegate for the CEPU at the project. He was not one of the employees contended to have been misclassified.

[77] In reference to the four points in the third paragraph of the instrumentation and controls tradesperson classification Mr Burns claimed in a meeting on 12 January 2018 Mr Kilmartin said he did not believe the claim met that requirement 1, but agreed it met requirements 2 and 3, and it did not meet requirement 4. Mr Kilmartin said in his first statement he did not concede that the technicians met any of the requirements. He said that he did say words to the effect of “some tasks are naturally performed with minimal supervision” however it was not his understanding that if a tradesperson performs straightforward tasks under minimum supervision and technical guidance that means they “work under minimum supervision and technical guidance.” Mr Burns agreed the dispute was not resolved at the end of that meeting.

[78] Mr Kilmartin said that the technicians would not be required to carry out the duties identified in that classification in the enumerated list largely because they worked under the direction and supervision of JKC or Kentz supervisors. Mr Geisel claimed ICS and loop technicians did not meet any of the requirements in paragraph 3.

(1) Maintain and repair multi-functional printed circuitry of the type described in this definition using circuit diagrams and test equipment

[79] In regard to the first criteria ‘maintain and repair multi-function printed circuitry of the type described in this definition using circuit diagrams and test equipment’ Mr Kelly said he and his colleagues performed that work on a daily basis. Mr Kelly said they were required to maintain and repair all of the industrial instruments within their work area and this work required the use of circuit diagrams and testing equipment. He said the Kentz Instrument Technician was the only person authorised to access, modify, connect test equipment and repair this industrial instrumentation.

[80] Mr Kelly agreed he was not referred to circuit board diagrams. He said a circuit board diagram is a circuit diagram and a circuit diagram is a drawing showing how different electrical components are connected with electrical conductors. He said a loop diagram is a circuit diagram. He said individual names are given to different circuit diagrams and the clause doesn’t say circuit board diagrams. Mr Kelly said the circuit on a printed circuit board is printed onto the board, whereas an electrical wiring circuit is not printed onto the board.

[81] It was put to Mr Kelly that he worked on instruments with printed circuit boards inside them. He said a printed circuit board diagram is a diagram showing how all the components on a printed circuit board are connected together via printed circuits. Mr Kelly said the expression “printed circuitry” defines the combination of printed circuit boards that make up the instrument.

[82] Mr Kelly said they were testing and working on the multi-function printed circuitry. He agreed you would not repair the circuit board but you are repairing the device which “is” multi-function printed circuitry. It was put to Mr Kelly that he was saying that he was working on instruments with multifunction printed circuitry in them; therefore he maintained he was maintaining and repairing multi-function printed circuitry. Mr Kelly said a computer or phone is a combination of multi-function printed circuitry and that is how it does what it does. He said that is how an industrial instrument works as multi-function printed circuitry and that is why he believes the industrial instruments are multi-function printed circuitry and that is consistent with the definition in the first paragraph.

[83] Mr Kelly said the work they were doing was providing assistance to the process engineers to enable them to eventually start up the gas plant. He said they were interpreting the instrument signals so as to provide that advice and assistance to the process engineers.

[84] Mr Kelly said that the industrial instruments they utilised to assist and advise the process engineers included pressure transmitters, level transmitters, flame scanners and fire and gas analytical equipment. He said they were required to utilise those industrial instruments to provide the necessary advice and assistance to the process engineers because of the fact that the pipes and other equipment that they were testing were not able to be accessed and had to be interpreted through industrial instruments of that kind. He said their technical advice enabled the JKC engineers to perform their tasks.

[85] Mr Kelly said the test equipment he discussed was used to maintain and repair multi-function printed circuitry of the type described in the definition so as to make out that part of (1) of subclause (b). He said the other part of (1) is the use of printed circuit diagrams to maintain and repair multi-functional printed circuitry of the type described in the definition. Mr Kelly said he did this on a daily basis. He said for example an indispensable part of the advisory and assistance process was the use of circuit diagrams. He said while they were using industrial instruments (test equipment) they regularly had reference to circuit diagrams and from time to time they also had to update them and rewire things accordingly. He agreed he did not solder and de-solder the device but he would provide solutions.

[86] Mr Kelly said if a broken or faulty instrument was identified, the loop check team were authorised to spend 10 to 15 minutes to rectify a fault. He said as this repair would not be documented Kentz would have no way of knowing who or how often this was done.

[87] Mr Kelly said on many occasions he was authorised to replace a faulty component that he identified within an instrument, with one from a removed component with a different type of problem. These components ranged from I/P modules, printed circuit boards, displays and many more. Mr Kelly said JKC kept many removed instruments for this purpose. Mr Kelly said that it was sometimes possible to repair an instrument without replacing any components and Kentz would have no way of knowing how often this was done.

[88] Mr Kelly said in response to Mr Geisel that he agreed that ICS and loop checking crews performed different tasks, however denied one was more complex than the other. In relation to loop checking Mr Kelly said in addition to working out whether the instrument worked, the loop check technician had to verify that the instrument was correctly installed, the entire loop including graphics pages on the DCS/HMI was responding correctly, calibration was within specification and calibrate if necessary, as commissioned mark up or verify instrument data sheets and electrical drawings correctly.

[89] He said in addition to this the loop check team was authorised to spend 10 to 15 minutes to rectify a fault with an instrument if possible and this repair did not require any Kentz or JKC authorisation, and only if the repair was unsuccessful would a replacement be ordered.

[90] Mr Moreno said multi-function printed circuitry makes reference to any instrument or equipment that is part of a complex analogue and/or digital controls system and has integrated boards, integrated circuitry. He said those words do not mean that you have to repair electronic boards because that is the task of an Electronic Technician. Mr Moreno was asked what he meant by electronic boards. He answered what is inside a computer, lap top or printer. He said this was not what he was referring to in regard to multi-function printed circuitry which he said was the instrument itself.

[91] Mr Moreno was asked about the term integrated circuitry and he said that is what is on the board plus whatever else is in the instrument which makes up the instrument. It was put to him that this was inconsistent with his sentence in paragraph 17 of his statement where he states “Each of those is part of complex control systems and has integrated circuitry.” He agreed they are inside of the instrument and are part of the instrument.

[92] Mr Moreno said that when working in the loops crew they tested and calibrated Level Transmitters, Flow Transmitters, Temperature Transmitters, Pressure Transmitters, Vibration sensors, proximity sensors on a regular basis. He said each of those is part of a complex control system of integrated circuitry. Mr Moreno said he contends that the work he described was “maintaining and repairing multi-function printed circuitry of the type described in this definition.”

[93] Mr Moreno said when working in the loop checking crew they would find and repair faults. He said it was not the case that all faults resulted in a replacement device being ordered. He said often devices would be faulty because they were wet or with some moisture and therefore the electronic cards were a bit rusted. He said if the damage was severe a replacement would be ordered, however in many cases they would explore the device to try and determine the particular fault and see whether it could be repaired and on several occasions they cleaned up the electronic cards (using dry contact cleaner) from some transmitters.

[94] Mr Moreno said sometimes after evaluating a transmitter he found the only problem was that the display was faulty. He said when this occurred he would take another display from another instrument that was fine, to test and make sure it was just a fault with the display, and after testing he would then make a note on the ITR that it needed a new display. Mr Kilmartin said in response that this worked described by Mr Moreno is straightforward and an apprentice could perform it.

[95] Mr Moreno also said that he often during a loop check found a fault with a pressure transmitter or a temperature transmitter that he would spend 30 to 60 minutes repairing. He said only if the device was obviously incapable of repair or could not be fixed within that window of time would a replacement be ordered. He said a rough time limit of 20 minutes per loop was specified by Kentz supervisors. He said as part of their roles they were required to at least attempt to repair devices as that was more cost and time efficient than ordering a replacement.

[96] Mr Kilmartin said in response to Mr Moreno’s evidence on this point that loop checkers were authorised to spend 15 to 20 minutes to fix an instrument, so this was limited to simple repair work to rectify visible issues that could be completed in a short time frame, and loop checkers were not required or authorised to perform repair work that would take more time because of the contractual and commercial agreements between Kentz and JKC.

[97] Mr Kilmartin agreed the loop diagram tendered into evidence was a circuit diagram but wasn’t referred to as that at the project. It was put to Mr Kilmartin that in the context of that answer, the loop diagram in evidence was a circuit diagram for the purposes of the Agreement. Mr Kilmartin agreed it could be. Mr Kilmartin agreed a document presented to him containing a diagram was a loop diagram. 25 He accepted a drawing that shows a complete electrical circuit could be a circuit diagram for the purpose of the clause.

[98] It was put to Mr Moreno that when he was finding a fault he was not actually repairing any part of the integrated circuitry. He said when the instrument was wet it involved removing everything from inside the instrument including the board. He said it also involved cleaning each of the contacts inside the instrument to make sure it was working and he said that was repairing something. It was put to him that using dry contact cleaner on an electronic board was not the mark of a higher classification. Mr Moreno said it was just one example and it was repairing the instrument. It was put to him that the effect of what he was saying was that the difference between the two trade levels was the use of the dry contact cleaner. Mr Moreno said he was not saying that, and it was just one example of the repairs done and many other repairs were done including connection repairs and that makes them entitled to the higher allowance.

[99] Mr Moreno was asked if there were any more examples of him repairing an electronic card and he said no. It was put to him that other than the cleaning example all he was doing was replacing the cards. He agreed he did not repair the cards.

[100] Mr Mayer said he frequently used test equipment to maintain and repair multi-function printed circuitry. He said the amount of time he spent doing this varied, in that some weeks it could be all day every day and others not at all. He said the work involved diagnosing faults.

[101] Mr Mayer said there were different types of test equipment used in order to find faults including level transmitters, temperature transmitters, flame scanners and pressure transmitters. The test equipment used to diagnose faults included a 729 process meter, 789 process meter, 726 process calibrator and 475 hart communicator and others. He said they also used the Beamex MC6.

[102] Mr Mayer said in the course of the work they used circuit diagrams. He said circuit diagrams identify which cable numbers need to be attended to and which junction boxes should be inspected. Mr Mayer said it would have been impossible to maintain and repair multi-function printed circuitry without the use of circuit diagrams.

[103] Mr Mayer said that as part of their duties they would test certain cards and replace faulty ones in panels and boards as well as the instruments themselves. Mr Mayer contended that doing a calibration on an instrument and connecting meters to the printed circuitry is maintaining it for the purposes of sub-clause (b). Mr Andersen responded that the card Mr Mayer referred to is a piece of hardware that may be inserted into an instrument or panel e.g. transducer card, power supply card or network card like a graphics card you might insert into a personal computer. Mr Mayer said the instrument will not work if the card inserted into it is not performing properly, had incorrect firmware or is faulty. Mr Andersen said in relation to the cards referred to by Mr Mayer, the ICS technicians just swapped them out, or swapped the entire instrument. Mr Andersen also said he did not agree that connecting a meter or other testing equipment to an instrument is maintaining and repairing multi-function printed circuitry.

[104] Mr Mayer agreed during cross examination that when talking about multifunction printed circuitry that was talking about circuit boards. It was put to Mr Mayer that what he was saying that he was working on equipment that had multi-function printed circuitry inside it. He said it was a component made up of multi-function printed circuitry. During re-examination Mr Mayer repeated his evidence that when he made reference to repairs, he meant repairs to instruments that contained the multifunction printed circuitry and he did not repair the multi-function printed circuitry or card itself.

[105] Mr Kilmartin said that the use of the word “electronic circuitry” does not exist in the definition of the instrument tradesperson – complex systems classification. He said it is clear to him that the higher classification requires that the instruments upon which the employees work must contain electronic circuitry. He said “electronic circuitry” means circuitry at the circuit board level. He said the words “multi-function printed circuitry” used in the definition means a printed circuit board, comprising strips of conducting material, like the circuit boards in common electronic appliances. He said none of the technicians were required to maintain, repair or physically interfere at all with multi-function printed circuitry.

[106] Mr Kilmartin accepted that the word “board” did not appear in the classification definition. It was put to him that the word “circuitry” is written in the plural and not applicable to a printed circuit board as defined by Mr Kilmartin. Mr Kilmartin rejected that.

[107] Mr Kilmartin said he was also unaware of any circuit diagram being available to or used by any Kentz technician on site to maintain or repair multi-function printed circuitry and that the only diagrams the technicians had access to were loop diagrams not printed circuit board diagrams. Mr Kilmartin agreed a loop diagram could be called a circuit diagram but he has never heard it called that on the project.

[108] Mr Andersen said that the instruments upon which the ICS technicians worked contained multi-function printed circuitry but none of the ICS technicians or the loop check technicians were required to or did repairs or maintained that multi-function printed circuitry.

[109] Mr Andersen said that work would require a soldering iron, and they did not have a soldering iron on site available to the Kentz ICS technicians until halfway through the project, and even then that soldering was not used for maintaining or repairing printed circuitry.

[110] In response to Mr Kelly’s evidence Mr Andersen said that Mr Kelly was not authorised to, required to, and did not repair multi-function printed circuitry. He said Mr Kelly and other ICS technicians did not use, or have access to, circuit diagrams to maintain and repair multi-function printed circuitry. He said the only diagrams the ICS technicians and loop checking technicians had access to or used were loop diagrams which are essentially an ELV electrical diagram of the instrument they were required to work on. He said these are not diagrams that would allow them to perform work on multi-function printed circuitry. He said contrary to Mr Kelly’s statement the ICS and loop technicians were not required to and did not update or amend multi-function printed circuit diagrams because, again those diagrams were not required for any work they performed and were not available on site.

[111] Mr Andersen was shown a copy of a loop diagram. 26 Mr Andersen said a loop diagram is a portion of the circuit but accepted that it was a circuit diagram. Mr Andersen accepted you could not loop check without a loop diagram. It was put to Mr Andersen that repair means the same as rectify or fix and he accepted that.

[112] Mr Mayer denied that the only circuit diagrams that they used were loop diagrams, and said they also use electrical schematics, layout drawings and electrical connection diagrams which he contended meet the requirements of sub-clause (b). Mr Andersen said that an ICS technician would only use a schematic diagram, if an instrument carried greater than extra low voltage, e.g. 240 volts. He said even if an ICS technician did have access to such a diagram for a particular instrument, it is not a diagram that is used, or can be used to maintain and repair multi-function printed circuitry, which describes printed electronic circuit boards. He said similarly layout drawings, location drawings, and P&ID’s simply identify where an instrument is located in the broader control system, and these drawings are not used to maintain and repair multi-function printed circuitry.

[113] Mr Andersen said in response to Mr Mayer’s evidence that he agreed loop checkers were given a short amount of time to attempt to fix an instrument. He said that work was limited to visible issues that were easy to fix, such as swapping a wire, installing a new lamp, or swapping out a blown fuse, fixing leaks, or correcting polarity. He said this is simple and quick repair work that focusses on single instruments.

[114] Mr Andersen accepted in the current day and age circuit boards are very rarely repaired. He accepted the word “board” was not in the classification but maintained “printed” circuit referred to a circuit board. It was put to Mr Andersen that the word “circuitry” was plural not a singular. Mr Andersen said he read the first enumerated point in paragraph three as referring to circuits inside the instruments. It was put to him that the first paragraph was referring to industrial instruments that contain printed circuit boards rather than the circuit boards themselves and Mr Andersen rejected that proposition. Mr Andersen also said that calibrating is not maintaining or repairing.

[115] Mr Geisel said that the words “circuitry of the type described in this definition” is a reference to the words in the first paragraph “...instruments which make up a complex control system which utilises some combination of electrical, mechanical, hydraulic and pneumatic principles and electronic circuitry containing complex analogue and/or digital control systems utilising integrated circuitry.”

[116] Mr Geisel said the words “electronic circuitry” in the instrumentation and controls tradesperson classification does not exist in the instrument tradesperson – complex systems classification. Mr Geisel said that this identifies that the instruments upon which employees at the higher classification work must contain electronic circuitry.

[117] Mr Geisel said “multi-function printed circuitry” means a printed circuit board, which is a board with strips of conducting material on it, like the green circuit boards in a laptop computer. He said none of the loop checking technicians or ICS technicians were required as part of their duties to maintain, repair or physically interfere at all with multi-function printed circuitry.

[118] Mr Geisel said he did not agree that Mr Kelly or his colleagues maintained or repaired multi-function printed circuitry at all. He said Mr Kelly and his colleagues were not authorised to do that work, required to do that work and did not do that work.

[119] Mr Geisel said the process engineers referred to by Mr Kelly are the JKC electrical engineers or supervisors, and they directed Mr Kelly and his colleagues to perform certain tasks. Mr Geisel said once the tasks were completed Mr Kelly and his colleagues reported back to JKC, and JKC decided if further tasks were required of the ICS technicians or whether they had enough information to make a decision about how to rectify the fault.

[120] Mr Geisel said that Mr Kelly and his colleagues also did not use or have access to circuit diagrams that would allow them to perform the work. Mr Geisel said he had never seen such a diagram on site, and there was no need for one, because there was no work performed that required one. Mr Geisel said he had only ever heard reference to a “loop diagram”.

[121] Mr Geisel accepted that rectifying faults in an instrument was the same as repairing an instrument. Mr Geisel was shown a loop diagram 27 and accepted that it was a circuit diagram. He also accepted loop checking cannot be performed without loop diagrams.

[122] It was put to Mr Geisel what when an instrument was being calibrated it was being maintained. He said that it would be verifying not maintaining.

(2) Work under minimum supervision and technical guidance

[123] Mr Burns and Mr Kelly both claimed that Mr Kilmartin had agreed at the meeting of 12 January 2018 that the second point on the enumerated pertaining to work under minimal supervision and technical guidance was met. In the course of cross examination Mr Burns accepted that he did not directly work with employees who were the subject of the dispute, however said he was in the field working on the same locations and saw them working.

[124] It was put to Mr Burns that Mr Kilmartin said “Some tasks are naturally performed with no or minimum supervision.” Mr Burns said that perhaps at some previous meeting Mr Kilmartin said that but not at that meeting, and at the January meeting Mr Kilmartin just agreed.

[125] Mr Kelly said that he worked under minimum supervision and technical guidance, as a part of his duties throughout his employment. He said he and his team dealt directly with JKC and were not supervised or given technical guidance (at least not with any regularity at all) by Kentz or JKC.

[126] Mr Kelly said during the course of his employment his role changed to become a leading hand and while performing that role he was the senior person in his crew and he was the point of contact for Kentz client JKC in relation to the work that they were performing. Mr Geisel said that Mr Kelly was one of the most experienced instrumental tradespeople in the ICS team so in September 2017 and Kentz promoted him to senior technician and paid him a leading hand allowance.

[127] However Mr Kilmartin, Mr Andersen and Mr Geisel all said they disagreed with Mr Kelly’s characterisation of his role as the point of contact for JKC saying that Mr Kelly was not required or authorised to act as a point of contact with JKC on behalf of other technicians, and that Mr Kelly was directed and supervised by a JKC employee, or a vendor appointed by JKC. Mr Kelly later accepted “point of contact” may have been a poor choice of words, and he intended to refer to himself as leading hand as a point of contact for the crew.

[128] Mr Kelly said their work was performed autonomously and for all intents and purposes they were not supervised at all and any supervision was in relation to matters of conduct or work ethic not matters of a technical nature about the way in which they performed their duties or whether what they were doing was technically correct. He said they were entirely responsible for themselves in relation to technical matters. He said most JKC supervisors and commissioning engineers had limited or no experience with industrial instrumentation and test equipment. Mr Kilmartin disagreed saying the JKC Instrument Commissioning supervisors were qualified and experienced in instrumentation. He said the JKC Instrument Engineers and Process Engineers were tertiary qualified and assisted JKC supervisors with making decisions about rectifying faults or were focussed on testing the process systems and complex systems the instruments comprised.

[129] Mr Kelly said that Mr Geisel misdescribed the fault finding process for ICS technicians, and the way it actually occurred was that JKC would direct the technicians to find the fault and they would do so. Mr Kelly said JKC did not direct them as to how to go about finding the fault, or fixing it and they were left to their own devices.

[130] Mr Moreno said their work was autonomous and he had almost no interaction during his working day with supervisors or managers from Kentz. He said there were some leading hands who organised jobs for the day, and the normal tool box meeting in the morning with the supervisors, but nobody supervised their tasks or gave technical guidance.

[131] Mr Mayer said he worked under minimal supervision and worked autonomously. He said supervision from Kentz was in relation to non-technical matters. He said they worked more with the process engineers from JKC. He agreed he assisted process engineers. He agreed process engineers told him when to go and check particular devices. He agreed it was the process engineer’s role to make sure things happened in a particular order. Mr Mayer agreed the process engineers didn’t stand over the tradesmen’s shoulder but they needed to know where the technicians were up to and what they had done.

[132] Mr Mayer agreed that if a repair that was needed was not a ‘quick fix’, the technician were required to report back to JKC process engineers. He said this could be done verbally and ITR’s were more for testing the instrument initially.

[133] Mr Mayer agreed that when calibrating and fault finding, it was required to report the faults back to JKC so JKC could decide what to do about it. Mr Mayer agreed that part of finding faults on an instrument was telling someone when a fault was found. He agreed that this would either mean recommending how to fix it, or recommending a part be replaced. Mr Mayer said reporting a fault and writing a report to JKC was providing technical guidance. He also agreed it was part of the parcel of fault finding.

[134] Mr Andersen said that he did not agree with Mr Mayer’s statement that JKC was not responsible for deciding what to do and how to rectify faults, and Kentz ICS technicians were not responsible for or required to conduct independent fault finding from start to finish on the complex control systems integral to the LNG plant or decide how to rectify these faults. He said JKC would direct and supervise the Kentz ICS technicians assigned to them in relation to which device or devices were in fault. He said if the fix was straight forward the ICS technician would repair the instrument and report the fix back to the JKC supervisor who would decide whether or not any further action or information was required. Mr Andersen said critically, it was JKC who decided whether or not the instrument was fixed or whether further action was required.

[135] Mr Andersen said he did not consider supervision in instrumentation, or a trade generally to be limited to a supervisor constantly or regularly watching an employee. He said the ICS technicians were qualified tradespersons and not apprentices. He said JKC directed them to perform tasks; the ICS technicians performed those tasks and then reported back to JKC to take further action. He said that was one of the ways that JKC supervised the work, and another way was by JKC requiring the technicians to complete the ITR’s and LTTT’s so JKC could review the work. It was put to Mr Andersen when a technician was told to go and find a fault the technician just went and did it and he accepted that. It was put to Mr Andersen this was more akin to direction than supervision which he accepted.

[136] Mr Geisel said that loop checking technicians worked under direct, ongoing supervision and direction of Kentz loop checking supervisors in the performance of their day to day duties. He also said that ICS technicians worked under the direct, ongoing supervision and direction of JKC supervisors/electrical engineers, or vendors, in the performance of their day-to-day duties. It was put to Mr Geisel that was better described as direction and not supervision. He did not accept that.

[137] Mr Kilmartin said that loop technicians worked under direct, ongoing supervision and direction of Kentz loop check supervisors and ICS technicians worked under the direct, ongoing supervision and direction of JKC supervisors/electrical engineers, or vendors. Mr Kilmartin said some discrete tasks did require minimal supervision and technical guidance, and he gave the example of a loop checker testing temperature instruments, or an ICS technician observing and timing the opening and closing of mechanical valves and reporting back to a JKC engineer.

[138] In regard to fault finding Mr Kilmartin said that if a JKC supervisor or engineer directed an ICS technician to help them identify a fault, the ICS technician did that under their supervision. He said if the ICS technician proposed a resolution to their JKC supervisor, the JKC supervisor might consider it, or ask for more information, but it was up to the JKC supervisor how to solve the problem and order any new parts.

[139] It was put to Mr Kilmartin that what he described as supervision was more accurately described as direction or instruction. He agreed that usually JKC or Kentz did not tell technicians how to do the tasks. Mr Kilmartin agreed that what he called supervision was the giving of directions or instruction.

[140] Mr Andersen said both the loop checking team and the ICS team worked under direct, ongoing supervision and direction in their day to day duties. Mr Andersen said that the “process engineers” are the JKC engineers and supervisors who directed and supervised Mr Kelly and his colleagues on a daily basis.

[141] Mr Geisel said that the JKC supervisor or electrical engineer directed and guided the ICS technicians to perform certain tasks and the ICS technician always performed those tasks under the supervision of the JKC employee.

[142] Mr Geisel claimed that if a JKC supervisor or electrical engineer directed an ICS technician to identify a fault, the ICS technician did that under the supervision of the JKC technician or engineer. He said the ICS technician may have suggested a proposed resolution to their JKC supervisor, but it is the JKC supervisor who took that on board, considered the options, and then directed and guided the ICS technician on how to solve the problem. Mr Geisel accepted that technicians provided assistance to each other but he did not regard it as technical guidance.

[143] Mr Geisel said Mr Kelly and his team were supervised and received technical guidance by JKC on a daily basis. Mr Geisel said the work of Mr Kelly and his team was not autonomous as they received constant direction and supervision and reported back to JKC. Mr Geisel said the supervision was of a technical nature and to ensure the work performed was technically correct. Mr Geisel said that was the purpose of the LTTT, the Form allowed JKC to review the ICS technicians work, whether it was technically correct, and decided how to fix a fault or if further action is required to make that decision.

[144] Mr Kelly agreed he dealt with Instrument Commissioning Supervisors from JKC. Mr Kelly said when plant was started for the first time these supervisors would be sitting on a control system to see if they could see what was happening properly. Mr Kelly said the Commissioning Supervisors would give him a list of instruments that were faulty and Mr Kelly would go out to deal with those issues. Mr Kelly agreed these Supervisors and other Engineers would give them tasks each day and direct the technicians. Mr Kelly disagreed that the Technicians were the “arms and legs” of the supervisors or engineers because at no stage were they standing over the technicians telling them what to do.

[145] It was put to Mr Kelly he was doing the leg work by doing the tasks the engineers and supervisors needed done so they could complete their larger assignment. Mr Kelly disagreed. He said he didn’t have someone standing there telling him how to do his job. He said they were directed on what to work on, but not how to work on it.

[146] It was put to Mr Kelly that the question was whether they or JKC was responsible for completion of the task. Mr Kelly said they were responsible to provide JKC with correct information and JKC were responsible for satisfying the client that the correct checklists had been done, and that everything was signed off. He said they assisted them by working on the instrumentation or circuitry while JKC worked on the software.

[147] It was put to Mr Kelly that if a process engineer had a 5 step process to follow and the technicians had to complete one of those steps it is the process engineer that is supervising what the technician is doing and precisely what the technician does because it is one of the steps required. Mr Kelly said technicians did not have contact with a process engineer about how to do things. If it was a time or coordination issue the process engineer would be pulling the reigns however at no time were technicians supervised in the work they were doing.

[148] Mr Kelly was asked if an instrument tradesperson – complex systems would have a supervisor standing over them and he said no. Mr Kelly agreed some of the workers at the project would be properly classified as instrument tradesperson – complex systems.

[149] Mr Kelly said he was supervised with a pre-start meeting in the morning where the supervisor would have been emailed by the different JKC supervisors, and the supervisor would accordingly allocate people to certain areas. Mr Kelly said he would then go and speak to the JKC person he was allocated to for another short meeting. He said he’d then send an email with a progress update and then a closing meeting. He said the supervision totalled approximately 15 minutes a day.

[150] Mr Kelly was asked how his day would be different to that of an instrument tradesperson – complex systems. Mr Kelly said both levels are required to work under minimum supervision but the types of work would be different, including the level of required knowledge and experience.

(3) Provide technical guidance to other Employees or to management within the scope of the work described in this definition

[151] Mr Burns said Mr Kilmartin agreed at the meeting on 12 January 2018 that technical guidance is provided to other employees but appeared to accept it was agreed on the basis that it is a usual part of their role. Mr Burns provided with his evidence handwritten notes he took during the meeting. Mr Kilmartin denied they provided technical support to management.

[152] Mr Burns agreed that Mr Kilmartin said it’s expected that you should provide technical guidance. When asked if he agreed with that he agreed that if he was asked for technical guidance as an electrician he would give it. Mr Burns said everyone on the project was providing technical guidance of some description regardless of their position. Mr Kilmartin maintained the same position in his oral evidence.

[153] It was put to Mr Burns that while he understood Mr Kilmartin was agreeing that point 3 had been satisfied, the words in his notes “3 Providing technical guidance is expected – under a current allowance as part of your trade” was a no because it was something already paid for as part of his trade. Mr Burns responded that Mr Kilmartin agreed that point 3 was satisfied but that Mr Kilmartin thought everyone satisfied point 3.

[154] Mr Kelly also said that Mr Kilmartin said in the meeting that point 3 on the enumerated list was made out. Mr Kelly said that he and his colleagues provided technical guidance to each other during the course of the work that they were performing. He said the work they were performing was very high level and unique and none of them knew how to do all of it by themselves. He said the work necessarily required that they share technical knowledge with one another in their respective areas of additional or special expertise and in that way they provided technical guidance to other employees. He said this was important in the context of making sure there were no mistakes.

[155] Mr Kelly said both the LTTT form and the ITR form contain technical details as to problems with industrial instrumentation. He said the fact that JKC used the test results and technical findings to guide them serves to demonstrate technicians were providing technical guidance.

[156] Mr Kelly said that in any event, the way in which they were required to perform the work was that they would deal directly with Kentz’ client JKC and Kentz did not involve itself in that process as an intermediary between his team, himself and JKC. Mr Kelly said seen in that way they also provided technical guidance to management through the advice and assistance which they gave to JKC about the work that they were performing as he described it. Mr Kelly said the part of the guidance that was critical was the guidance given to JKC, and the only way JKC management could get it.

[157] Mr Kelly was asked how often he provided technical advice. He gave an example of where he said he provided technical advice to other employees. He said he had a general idea of how a valve positioner works. Mr Kelly said if he was fault finding a valve positioner, and he thought it was a certain module but had not worked on that specific valve positioner, he would use cumulative knowledge to find the error. He said employees would provide advice to each other on specific areas they had more experience in.

[158] It was put to Mr Kelly that there were areas within his skill set and within the scope of his role where he would have greater understanding than others, and in other areas other employees would have a greater understanding. Mr Kelly gave an example of a machine in Darwin compared to an instrument down south that could experience different issues. he said tradesman had different levels of experience depending on where they had their experience.

[198] The CEPU submitted that such an approach tends to support its interpretation in regard to the use of the expression “circuitry” in the context of circuit boards no longer being commonly repaired, and to the extent that such an interpretation may be at all inconsistent with the decision in Berri then the higher court authorities should be followed.

[199] It is not evident to me that the principles set out in Berri are at odds with the authorities referred to.

CONSIDERATION

First, second and third paragraphs of subclause (b) Appendix 1

[200] The CEPU said that the first paragraph is almost identical to the first paragraph of sub-clause (c) of Appendix 1. The CEPU said it is worth noting that the clause is concerned with “electronic circuitry” which is plural as distinct from the singular “electronic circuit”, and the same can be said of the use in the clause of “integrated circuitry”. The CEPU said this is a pointer against Kentz argument that the clause is concerned with circuit boards.

[201] The CEPU also submitted that the clause does not use the word “board”. The CEPU submitted that the Kentz construction of the clause is nonsensical because the evidence makes clear that, in the modern age, printed circuit boards are never repaired, they are simply replaced. The CEPU said on the Kentz construction no one could ever attain the classification.

[202] The CEPU submit that the employees already working at the level of 1(c) of the Appendix applied their skills and knowledge to (at least) maintain and repair industrial instruments that formed part of the complex control system at the project, which instruments utilised electrical principles and electronic circuitry, which electronic circuitry contained complex digital systems using integrated circuitry. In doing so they also required, and demonstrated, an overall understanding of the operating mode or principles of the various types of measurement and control devices on which the tradesperson was required to perform tasks (a criteria located in the first sentence of the second paragraph, but instructive of the first).

[203] Kentz said that the CEPU interpretation of the first paragraph (and the third paragraph);

(a) Ignores the emphasis in the first paragraph upon working on a “complex control system which utilises….electronic circuitry containing complex analogue and/or digital control systems utilising integrated circuitry”;

(b) Ignores the link between such systems and the work/duty of “maintain[ing] and repair[ing]….circuitry of the type described in this definition”; and

(c) Reads down the stated duties so that they are indistinguishable from the duties of an instrumentation tradesperson – complex systems.

[204] Kentz submitted that the four stated duties carry an expectation that they are higher order duties than the duties of the instrumentation – complex systems;

(a) The words “working at a level defined as instrument tradesperson – complex systems and …” in the definition makes this clear; and

(b) As the Commission noted in the earlier decision in this matter that higher remuneration carries with it an expectation that the work being undertaken is of a more complex or onerous nature.

[205] Kentz acknowledged it is more than likely the case that some of the ICS technicians would have possessed the skill and knowledge requiring an overall understanding of the operating mode or principles of the various types of measurement and control devices. However it is apparent from the evidence that is not what the role on this particular project demanded because of the extent to which JKC had taken that responsibility on for itself.

[206] In some respects it is understandable how a perception could arise, at least amongst some technicians that they possessed the skill and knowledge described in the higher classification and therefore should be paid as such. That however is not to the point. Regardless of whether an employee holds particular skills or qualifications, the critical question is always, what is the job that the employee is engaged to perform.

[207] The CEPU case falls down because the instrumentation and controls tradesperson was not the role required on this particular project. Instead Kentz quite deliberately engaged technicians at the level of instrument tradesperson – complex systems role just as their offers of employment stated, and just as the evidence concerning the extent of JKC’s oversite demonstrated Kentz required in order to fulfil its contractual arrangements with JKC.

[208] The first sentence in the second paragraph when read in conjunction with the first paragraph required technicians to be “mainly” engaged the application of the relevant skills and knowledge, and the second paragraph “requires” that the technician apply an overall understanding of the operating mode or principles of the various types of measurement and control devices on which the tradesperson is required to perform tasks.

[209] The CEPU has been unable to distinguish between the instrument tradesperson – complex systems classification and the work their members were doing in order to establish they should have been engaged as instrumentation and controls tradespersons.

[210] The CEPU interpretation does not sufficiently address the different language at the higher level including the term “circuitry”, language not appearing at the instrument tradespersons – complex systems level. As Kentz submitted, the first paragraph in the higher level describes the control system that technicians are working on. The first paragraph said they are working at the level of an instrument tradesperson – complex systems, “and”. The words that follow “and” describe work that logically must be at a higher level than that of the lower complex systems classification. In other words they are doing the work at the level of instrument tradesperson – complex systems, however they are doing it with superior skills and knowledge at a higher level.

[211] Interpreting the first paragraph that way is important in understanding what is required from the enumerated list, and what is intended by the word “circuitry” that makes sense in the context of the rest of the definition. To accept the CEPU interpretation of the term “circuitry” would have the effect that its inclusion in the higher classification has no effect in terms of distinguishing it from the lower level. That interpretation is counterintuitive, reads down the enumerated list and cannot be correct.

[212] It is unnecessary for me to conclusively decide whether maintenance and repair of multi-function printed circuitry can only be maintenance and repair work performed on circuit boards or cards themselves. I accept that it would seem unfair to include in a classification a requirement which cannot be attained because it describes the performance of a task that is effectively redundant because of technological change. When I asked, neither party could provide me any assistance about where the words came from. It may be there are forms of maintenance and repair work on multi-function printed circuitry other than on the circuit boards or cards themselves (that is apparently now largely redundant) however there was no evidence about what else it could be with the exception being some brief evidence in passing of Mr Moreno who said that work performed on circuit boards was the work of an electronic technician. It is enough to say that whatever the breadth of the meaning of the expression, I am satisfied it is more than what the evidence of witnesses for the CEPU indicated they were doing, or put another way, the work that Kentz required of Mr Kelly, Mr Mayer or Mr Moreno did not extend to maintenance and repair of multi-function printed circuitry of the type described in the definition.

[213] Having formed the view set out above it is strictly unnecessary to go on and address the evidence concerning the third paragraph, and second paragraph of subclause (b) Appendix 1 to the extent it pertains to the skills and experience requirements of the second paragraph of subclause (b) Appendix 1. However for completeness and in an endeavour to assist the parties by addressing all of the issues including some of the more specific issues as they pertained to the enumerated list I will do so.

(1) Maintain and repair multi-functional printed circuitry of the type described in this definition using circuit diagrams and test equipment

[214] The CEPU submitted that except for calibration of new instruments, there is no dispute that the employees maintained and repaired industrial instruments. The CEPU submitted that the employees performed work on the industrial instruments and that work had the effect of keeping the industrial instruments in existence and of restoring them to sound condition, meaning they were both maintained and repaired.

[215] The CEPU said each Kentz witness conceded during cross examination that repair is synonymous with rectifying and if the clause is concerned with industrial instruments as distinct from printed circuit boards, than those were in fact repaired. The CEPU said that calibration is plainly maintenance.

[216] Kentz said the evidence is clear that no technicians actually did any work that might be understood to be repairing or maintaining the printed circuitry/board/card itself (save for Mr Moreno’s proposition that putting dry contact spray on a moist board was repair work.) Kentz said each CEPU witness agreed that they do not work on the circuits of an electronic card/board/printed circuit and each Kentz witness concurred.

[217] Kentz submitted that the CEPU seems to be suggesting “maintain and repair” should be taken to include installing, servicing, testing, modifying, commissioning, calibrating or fault finding and invited Kentz witnesses to agree, for example, that calibrating an instrument meant actually maintaining or repairing it.

[218] Kentz submitted that if the drafters listed a wider range of possible tasks in the definition of instrument tradesperson – complex systems at the lower classification level, and a narrower range of mandatory tasks in the definition of instrumentation and controls tradesperson at the higher level, then the intention was to specify only the narrower tasks to the exclusion of the other possible tasks.

[219] It was agreed that the words “of a type described in this definition” cross referred to the first paragraph of the clause. The CEPU submitted that the first paragraph and paragraph 3 (1) are both concerned with whether technicians perform work of a certain level on “things” of a certain type. It submitted the core of the dispute between the parties is as to what type of “things” the clause requires a technician to perform work upon. The CEPU submitted that resolution of “things” is instructive as to the resolution of the work that is required to be done to them, and those “things” are industrial instruments which formed a part of the complex control system at the project being transmitters, temperature transmitters, flow transmitters etc, which (to use an example) would control and measure the flow, temperature etc, of the gas. I have already found against that interpretation.

[220] Kentz said that there is no contest in the evidence about what the words “multi-function printed circuitry” means in isolation, being the circuitry itself that is found on a multi-function printed circuit board or card. Kentz submitted that the CEPU proposition that if a technician performed work on an instrument and the instrument had within it some multi-function printed circuitry, then the technician is taken to have been working on the circuitry is wrong.

[221] CEPU submitted that during cross examination Kentz witnesses accepted loop diagrams are circuit diagrams. The CEPU said there is also evidence from Mr Kelly that the ICS crew used other electrical drawings including schematic drawings, wiring diagrams and PID’s.

[222] Kentz submitted that the CEPU case seems to be that the words “using circuit diagrams” really means any kind of circuit diagram including a loop diagram. However Kentz submitted that the duty described relates to particular circuitry, being “of the type described in the definition”, and so the reference to “circuit diagrams” must mean circuit diagrams for that particular circuitry and not just any diagram that is a circuit diagram. Kentz submitted that no witness suggested that they had access to the circuit diagrams of relevant multi-function printed circuitry.

[223] The CEPU submitted that there is no dispute that the employees used test equipment to perform their work on industrial instruments. As addressed above, the CEPU made the point forcefully that a significant issue arises if the first item on the enumerated list were to be interpreted such that in order to meet the subclause it is a requirement to perform work on circuit boards because that work is not performed by anyone under the Agreement. However there is a greater difficulty with accepting the CEPU alternative interpretation.

[224] As already stated if the CEPU interpretation were to be accepted that work performed on industrial instruments that contain “multi-function printed circuitry of the type described in this definition”, or alternatively, that the industrial instruments themselves are the “multi-function printed circuitry of the type described in this definition” that would therefore mean that work performed on any instrument that contains printed circuit boards by any instrument technician (or tradesperson generally) is work within the meaning of the definition of instrumentation and controls tradesperson at item 1 on the enumerated list.

[225] Finally, in regard to the CEPU argument in the alternative, I am not satisfied that cleaning and drying a circuit board or card equates to maintaining and repairing multi-function printed circuitry. Even Mr Moreno himself appeared to accept that would not be a proper basis to distinguish between the lower and higher classifications.

[226] I am also inclined to accept that the reference to circuit diagrams must be a reference to the circuitry as defined in the first paragraph, otherwise what is the purpose of its inclusion if it is not to in reference to the definitions in the first paragraph.

(2) Work under minimum supervision and technical guidance

[227] Kentz made the point that the phrase “minimum supervision and technical guidance” appears in the definitions of instrument tradesperson – complex systems as well as the higher classification but not in the lower instrumentation tradesperson classification. I am satisfied that the relevant employees do work under minimum supervision and technical guidance as it pertains to work at the level of an instrument tradesperson – complex systems, but not at the level of instrumentation and controls tradesperson.

[228] I agree with the Kentz submission that the phrase can mean the same in both definitions, but each phrase appears in a different context in each respective definition. In the Complex Systems level the phrase describes the work the technician could be “enabled” to do if they have the requisite experience. Kentz submit this part of the definition is directed to the technicians’ experience, and not particularly to whether or not the technician actually works under minimal supervision and guidance.

[229] Kentz said by contrast in the definition of instrumentation and controls tradesperson the phrase “works under minimal supervision and guidance” is directed to how the technician does their work and imposes a requirement that the technician work under minimal supervision and guidance in order to qualify for the higher allowance.

[230] I agree with Kentz that the fact that JKC was ultimately responsible for the work is a key point, and beyond the technicians ensuring that they performed their assigned tasks correctly, the technicians were directed and controlled by JKC. As was pointed out by Mr Andersen, on some projects experienced senior instrumentation technicians conduct fault finding from start to finish on complex control systems, meaning they worked independently and were required to make decisions about how to rectify faults. That was not the case on the Project. On that basis item (2) on the enumerated list was not met.

(3) Provides technical guidance to other Employees or to management within the scope of the work defined

[231] The CEPU submitted the evidence demonstrates that technical guidance was provided to employees. The evidence establishes that the technicians shared information with each other. As I have found the instrumentation and controls tradesperson classification requires duties of a higher order, I do not accept that the particular discussions between fellow workers who were engaged at the same classification level about technical matters fell within the meaning of technical guidance at the higher level.

[232] The technicians were performing specific tasks within a skill and knowledge range and the sharing of information within that skill and knowledge range to others, who are expected to work in that same skill and knowledge range. That is not technical guidance.The technical guidance must logically refer to technical guidance provided from a person at a higher skill and knowledge level if it relates to other employees.

[233] I am also not satisfied that the technicians were providing technical guidance to management. The technicians were providing information that was technical in nature, but that does not constitute technical guidance when it is there to prescribe a higher level of work at instrumentation and controls tradesperson level when the work being performed was not at that level but at the instrument tradespersons – complex systems level.

(4) Prepare reports of a technical nature on specific tasks or assignments as directed and within the scope of the work described in this definition

[234] The CEPU relied upon the ITR form, LTTT form and verbal reports about matters of a technical nature and submitted that the evidence shows that the employees were required to do each of those things. The CEPU submitted Kentz witnesses accepted that the ITR and LTTT were documents of a technical nature. The CEPU submitted the evidence was littered with examples of verbal reports to JKC and/or Kentz about matters of a technical nature.

[235] I am not satisfied that the ITR, LTTT or verbal reports from the technicians on this project were “reports” that intended to fall within the meaning of the words “Prepare reports of a technical nature on specific tasks or assignments as directed and within the scope of the work described in this definition.” The ITR’s and LTTT’s required the provision of information of a technical nature however it was not beyond the recording of things or saying of things that would otherwise be reported or said in the course of performing work as an instrumentation tradesperson – complex systems. The activities performed and included in the reports related to installing, repairing, maintaining, servicing, testing, modifying, commissioning, calibrating and fault finding industrial instruments as required at the level of an instrument tradesperson – complex systems.

[236] Kentz described the contents of the ITR’s and LTTT’s as the day to day workings of a technician and standard test records completed through the whole of the project from construction to commission. Kentz pointed to the concession of Mr Kelly that reporting back a fault is part and parcel of the task of fault finding.

[237] I agree that the agreement was not intended to be understood to mean that when a technician provides information of a technical nature, it is therefore a technical report within the meaning of the instrumentation and controls tradesperson classification. As the ITR’s and LTTT’s were providing technical information related to the work of an employee engaged at the level of an instrument tradesperson – complex systems, it is not a report within the scope of work described in the definition for the higher level and is not a report within the meaning of the higher level.

Mandatory Skill and experience requirements of second paragraph of subclause (b) Appendix 1

[238] Kentz relied on the bundle of documents setting out particulars of various Certificate IV courses to demonstrate that they require far less than 2 years part time study to complete.

Mr Kelly

[239] Mr Kelly said his qualification is ‘instrumentation and controls tradesperson’ and he obtained that qualification following a four year apprenticeship. He said he had also completed a Certificate IV in Western Australia in relation to Instrumentation and Control being course number 31211. Mr Kelly said this course, although identified as a Certificate IV in Western Australia, is the equivalent of a Certificate III in other States such as Queensland.

[240] Mr Kelly said that prior to employment with Kentz he had completed approximately 13 years of work at or above the level of Instrumentation and Control Tradesperson. He said he had also completed at least 12 months, during that 13 year period, at the level of Instrumentation Tradesperson – Complex Systems.

[241] Mr Kelly contended that he satisfied the criteria in the second paragraph of subclause (b) of Appendix 1. He said his Certificate IV in Instrumentation and Control is a related post trade course equivalent to two years part time study. Mr Geisel said he was not aware that this was the case and he did not consider Mr Kelly was qualified to make that statement.

[242] Mr Kelly said his Western Australian MEM40105 – Certificate IV in Engineering (Instrumentation) is different to the eastern states Certificate IV in Electrical – Instrumentation – UEE40411.

[243] Mr Kelly said geographically speaking; the training providers for the UEE and MEM are different. He said there was no such thing as the UEE Certificate III in Western Australia. He said others have used Recognition of Prior Learning through a Registered Training Organisation to have the MEM Certificate IV recognised as having the UEE Certificate III qualification.

[244] Mr Kelly agreed he had not yet done that. He agreed it was not an automatic process to have the MEM Cert IV recognised as a UEE Cert III, and there were some differences in the electives in the courses. Mr Kelly said up to this point not having the Certificate III has not affected his career and was not needed in Western Australia as the MEM Cert IV was recognises as the equivalent. He said he only started to think about the UEE Cert III when in Gladstone. He said the eastern states seemed to want the UEE Cert III.

[245] Mr Kelly was shown screen shots from a government training website including a course brochure for UEE40411 Certificate IV and the course duration was 6 plus 6 days, and the MEM40105 Certificate IV course with a duration of 4 days face to face, approximately 15 to 25 days for the practical component and one year all up maximum to complete practice and theoretical components. Mr Kelly said this was not indicative of the entire course as it doesn’t tell how long the course was. It was put to Mr Kelly that it would be less with RPL. Mr Kelly indicated that he knew none of the components he completed in his own course were done by RPL, and he accepted if he did the specific course shown to him he would not qualify for the instrumentation and controls tradesperson.

[246] Mr Kelly was also referred to the UEE Certificate course on page 13 and 14 of the document showing 400 hours or a maximum one year of study. Mr Kelly was also referred to page 24 and 34 to show the MEM course was a Certificate IV level. Mr Kelly said the course was broad and can apply to different areas where other modules are also completed, whereas the UEE certificate would specify the modules. Mr Kelly said if you looked at all of the modules he completed in his Certificate IV it would equate to a Certificate III.

[247] Mr Kilmartin said that the maximum duration of UEE40411 Certificate IV and MEM40105 Certificate IV were less than 2 years. Mr Kilmartin said Mr Paul Kelly, Mr Daniel Green, Mr Mark Richards and Mr Shane Richardson were not qualified for the higher classification because of this. It was put to Mr Kilmartin that the West Australian Certificate IV was the equivalent to the Queensland Cert III. He was not sure.

[248] Kentz said Mr Kelly’s evidence was also clear that whilst he believed that his Certificate IV course is the equivalent of a Certificate III he has no separate confirmation or proof of the equivalency. Kentz said there was no corroborating evidence for Mr Kelly. Further his oral evidence made clear there was an avenue available for him to attain a relevant Certificate III through RTO and RPL and he has not pursued it and does not have the requisite qualification. Kentz said the other outstanding claimants are in the same position as Mr Kelly.

[249] Whilst the issue for the purpose of this dispute is now moot, I am of the view that based on the evidence of Mr Kelly he does satisfy the mandatory skill and experience requirements. In Mr Kelly’s case he said in his evidence his Certificate IV involved 4 years study. The CEPU said the course Mr Kelly did pre-dated the courses referred to by Kentz which he completed some 15 years ago. Based on his evidence the Certificate IV course he completed in Western Australia years ago was a related post-trades course equivalent to two years part time study. He met the other requirements.

Mr Tobin

[250] In relation to the experience argument as it pertained to Mr Tobin the CEPU sought to tender an email dated 31 January 2019 from Mr Tobin setting out times Mr Tobin claimed to have worked in particular roles relevant to this claim. Kentz raised an objection to the tendering of the email on the basis that it was in a different category to the qualification documents as the email summary was not sufficient evidence.

[251] Mr Kilmartin said Mr Tobin did not work at least 12 months at the level of instrument tradesperson – complex systems and therefore would also not be eligible for the higher level. Kentz said Mr Tobin’s CV did not say anything about instrumentation experience which is curious and he was not available for cross examination. The CEPU argued that Kentz was otherwise not contesting reliance on the CV’s of other employees who the CEPU said put similar information on in another way. The email was admitted into evidence. 32

[252] In Mr Tobin’s case the objection is that he did not have 12 months experience at the level of instrument tradesperson – complex systems. The CEPU relied on his CV 33 as clarified by his email to Ms Flynn34 where he claimed he was employed as an E and I Trainee 1.5 years and then as an E and I technicians for approximately 3.5 years. He then details a range of duties said to have been performed that would fall within the instrument tradesperson – complex systems classification. Mr Tobin did not give evidence. Assuming the accuracy of the information provided Mr Tobin would meet the mandatory requirements. Had the determination of the matter been decisive for Mr Tobin I would have been inclined to require more evidence to settle the outcome.

Mr Moreno

[253] The CEPU advised there was no document that could be produced demonstrating Mr Moreno’s qualification however Mr Moreno would be called to give evidence. Mr Moreno said that prior to his commencement on the Project he had over 12 years relevant on the job experience as an instrumentation technician. He said he had almost 10 years’ experience working as an instrumentation technician in Columbia as well as 21 months working as an instrumentation and control tradesperson for Chelgrave Contracting at the GLNG Project new Gladstone.

[254] Mr Moreno said prior to commencing his employment with Kentz he attained the following Australian qualifications;

(a) Certificate II in Electrotechnology (Career Start) dated 11 July 2013

(b) Advanced Diploma of Electrical and Instrumentation (E&I) Engineering for Oil and Gas Facilities dated 22 November 2013 (Advanced Diploma)

[255] Mr Moreno said he became trade qualified in Colombia around 2000 and worked there in the instrumentation field since 1995. He said in Australia he became trade qualified in 2014 when he obtained his Certificate III in Instrumentation Control. He said he did not have his Australian trade qualification when he completed the Advanced Diploma in 2013. He said in order to enrol in the Advanced Diploma the prospective student is required to be trade qualified (from any country) or, alternatively, to have extensive on the job experience.

[256] Mr Moreno said he was able to enrol because of his studies and extensive on the job experience in Colombia and he said it took him 18 months of part time study based on an average of 30 hours a week to obtain his Advanced Diploma. Mr Moreno said he meet the requirements of the second paragraph of subclause (b) of Appendix 1 because prior to commencing with Kentz in June 2016 he had 12 years of relevant on the job experience as a tradesperson and at least 21 months of those at GLNG at the level of instrument tradesperson – complex systems, and because his Advanced Diploma amounts to “a related post-trades course equivalent to at least two years study”.

[257] Mr Moreno was advised of the current course information or the Advanced Diploma of Electrical and Instrumentation (E&I) Engineering for Oil and Gas Facilities offered at the Engineering Institute of Technology 35 where he completed his course. He was advised the course material on the second page discussed the 18 month course. Mr Moreno agreed the course he did was an 18 month course. Mr Moreno was asked what he did for 30 hours a week for 18 months. He said the course required a lot of reading, and because he was not an electrician he had to put a lot more effort in then those with that knowledge. It was put to him that the course would normally be less than 30 hours a week and he agreed.

[258] It was put to Mr Moreno that the course material on page four said that successful students are likely to spend between 10 and 15 hours per week in order to cover the material adequately. Mr Moreno agreed that when he did the course the expectation was for 10 to 15 hours per week.

[259] The CEPU submitted that Mr Moreno gave evidence that the Advanced Diploma took him 18 months at an average of 30 hours per week. It said a two year (90 week) part time (20 hours per week) course is around 1800 hours long. It was submitted that Mr Moreno’s Advanced Diploma took well over 2000 hours, conservatively estimated (30 hours per week x 72 weeks [78 weeks in 18 months but remove 6 weeks for holidays and the like] = 2,160 hours.

[260] Kentz said Mr Moreno seemed to maintain he took 30 hours a week even after the course outline was put to him that indicates the course takes 10 to 15 hours a week. He seemed to concede this was the course he completed and he recalled the course outline saying that. Kentz said that Mr Moreno’s evidence made it clear that his post-trade course was not “equivalent to at least two years part time study”.

[261] On the basis of Mr Moreno’s concession that the course he completed over 18 months required 10 to 15 hours a week, the evidence does not support a finding that his post trades qualification was equivalent to at least two years part time study.

Mr Green, Mr Richards and Mr Richardson

[262] The CEPU submitted that Mr Daniel Green relied on the Western Australian Certificate IV course code MEM40105 and submitted on the evidence of Mr Paul Kelly the Western Australian Certificate IV is equivalent to the eastern states Certificate III, and according to the Commonwealth Government 36 the average duration for MEM40105 is 90 weeks which is the equivalent of at least two years part time study, noting that educational institutions do not typically run their courses for 52 weeks of the year having regard to holidays and the like.

[263] In the case of Mr Mark Richardson the CEPU relied on his Queensland Certificate III course UEE31211. 37 The CEPU said Mr Richardson is in the same position as Mr Benson to whom Kentz does not object. Kentz said it does not concede Mr Richardson’s entitlement. The date of his certificate III is 13 August 2017 and it is difficult to say he had the relevant experience when he wasn’t qualified until 13 August 2017 to obtain that experience. The CEPU has filed his CV but he has not been available to be cross examined. The CEPU said a new argument was raised after the case closed that he did not have three years. The table said three years and Kentz should not be permitted to argue otherwise. The three years does not need to be at the level of complex systems it is the 12 months.

[264] In Mr Shane Richardson’s case the CEPU relied on the Western Australian Certificate IV course MEM40103 38 and the same argument as that of Mr Kelly.

[265] In regard to these three employees there is insufficient evidence to reach a concluded view. Had the matter been decisive for these three employees I would have required more evidence.

CONCLUSION

[266] Based on the findings set out above the answer to the question for arbitration is no.

COMMISSIONER

Appearances:

Mr L Tiley of Hall Payne for the Applicant

Mr M Easton of Counsel instructed by Thomson Geer for the Respondent.

Hearing details:

2019,

Brisbane:

February 11, 12, 13.

Printed by authority of the Commonwealth Government Printer

1 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Kentz Pty Ltd T/A Kentz [2018] FWC 6909.

2 Ibid at [38].

3 Exhibit 7

4 Exhibit 8

5 Exhibit 9

6 Exhibit 10

7 Exhibit 12

8 Exhibit 13

9 Exhibit 11

10 Exhibit 14

11 Exhibit 15

12 Exhibit 22

13 Exhibit 23

14 Exhibit 24

15 Exhibit 25

16 Exhibit 16

17 Exhibit 17

18 Marked For Information document 1

19 Exhibit 1

20 Exhibit 2

21 Exhibit 3

22 Exhibit 4

23 Exhibit 5

24 Exhibit 9 attachment PK 1

25 Exhibit 20

26 Exhibit 20

27 Ibid

28 Exhibit 18

29 Exhibit 19

30 Exhibit 18

31 Exhibit 19

32 Exhibit 6

33 Exhibit 16 at page 367

34 Exhibit 6

35 Exhibit 21

36 Exhibit 2

37 Exhibit 4

38 Exhibit 5