Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Queensland Alumina Limited

[2024] FWC 3457

[2024] FWC 3457

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

Queensland Alumina Limited

(C2024/4319)

DEPUTY PRESIDENT DOBSON BRISBANE, 11 DECEMBER 2024

Alleged dispute under the enterprise agreement – s.186(6) – s.739 – plain english

1. Mr Jordan McPherson is an Alumina Producer Level 3 employed by Queensland Alumina Limited (QAL) in the Bayer Section of its Gladstone operations. Mr McPherson applied to be re-graded to an Alumina Producer Level 4 in accordance with his Enterprise Agreement.[1] QAL declined this application on the basis that Mr McPherson is not competent to perform HV switching and maintaining final subcircuits. Mr McPherson raised a dispute per the dispute procedure in his Enterprise Agreement[2] however it remained unresolved and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (ETU) lodged an application with the Fair Work Commission (FWC/Commission) for assistance to deal with the dispute.

1. Attempts to resolve the dispute through conciliation were unsuccessful. The Commission now makes a determination that is binding[3] on Mr McPherson, the ETU and QAL (Parties). The Parties were given an opportunity to agree on the questions they wanted answered. They agreed the questions for me to answer were:

Question 1Upon the proper construction of the Agreement, is Mr Jordan McPherson required to hold a HV Switching Officer competency in order to be promoted from the position of Alumina Producer Level 3 to the position of Alumina Producer Level 4?

Question 2 If the answer to 1 is ‘no’, should Mr McPherson be promoted to the position of Alumina Producer Level 4?

The Law

1. The Fair Work Act (the Act) provides for the Commission to deal with disputes in relation to disputes[4] under enterprise agreement dispute settlement terms.[5] Given that the Agreement contained terms for different Salary Bands for each job role[6] and for Promotions,[7] I accept that the disputes settlement term enables me to arbitrate the dispute.[8]

1. The principles for determining disputes about the interpretation of Enterprise Agreements have been set out in the Full Bench decision of Berri.[9] I have applied them to the relevant issues in this case.

Relevant Provision of the Manual - Competency Standards

1. The Competency Standards for AP4 E/I Bayer in the Manual States:

·Leads others in performing technical work within trade qualification.

·Competent to perform HV switching and maintaining final subcircuits.

·Identifying and repairing faults on complex or new electrical/instrument

equipment such as VS drives, AC drives, I/O cards (Bailey), standalone PLC systems, high voltage motor isolation, DCS, burner management system, UPS systems, etc.

·Applies legislative requirements and QAL procedures such as change management, live work, recommissioning procedures, etc.

·Able to train or assist in the training of apprentices, new starters or AP2s and AP3s.

·Identifies equipment affected by MCC isolations when carrying out repairs and /or PM’s.

·Identifies errors and requests changes to circuit diagrams.

·Preventative Maintenance and repair of 415v and 3.3Kv circuit breakers and UPS systems or valves and relevant instruments

·Competent in one or more of the following:

− Master Isolation Officer

− Gas fitter

− Hazardous Area

− Radiation Safety Officer

− HV Switching Officer

Relevant Provisions of the Agreement

1. Clause 10.7 of the Agreement contains the provisions relevant to promotions, clause 11 in relation to the Competency Standards and clause 25 in relation to the Dispute Resolution procedure.

Permission to appear

1. QAL sought to be represented before the Commission by a lawyer, Mr McPherson was represented by the ETU.

1. The Act provides that a party may be represented in a matter before the Commission only with the permission of the Commission.[10] It also provides the reasons that permission may be granted.[11] Previous cases determined by the Commission or superior courts, give guidance as to how these reasons should be considered.[12]

1. I provided the parties with an opportunity to make submissions about these issues. QAL said that it had the assistance of the lawyer throughout the history of this dispute, including in the preparation of their case.[13] They also claim that the dispute is complex, the ETU representative is also a lawyer so QAL submit it wouldn’t be unfair to do so and that giving permission would aid me in dealing with the matter more efficiently. I note the ETU did not object to permission being given. I considered all of these issues, I agreed with the submissions made and granted permission for QAL to be represented by a lawyer at the hearing.[14]

Background

1. Mr McPherson does not hold the HV Switching Officer competency referenced in the Competency Standards. A HV Switching Officer competency is required to write switching sheets, perform switching, earthing and lock out for the purpose of access to high voltage equipment.

1. Mr McPherson applied to the Respondent for promotion/reclassification from AP3 to AP4 in February 2024. QAL refused Mr McPherson’s request for promotion on the grounds that Mr McPherson does not hold the HV Switching Officer competency, and QAL submitted therefore, that Mr McPherson is not “competent to perform HV switching and maintaining final subcircuits” as required in the Competency Standards. The Applicant disputes the Respondent’s contention, submitting that the Respondent is attempting change the competency standards where this cannot occur without the agreement of senior ETU site delegates and the ETU.

1. Both parties agree that the only outstanding issue for Mr McPherson to qualify for promotion to the position of AP4 is whether or not he needs to hold the HV Switching Officer competency to be “competent to perform HV Switching and maintaining final subcircuits” as referred to in the Competency Standards. Both parties also agree that the dispute resolution procedure in clause 25 of the Agreement has been followed.

Applicant’s Submissions

1. Mr McPherson’s contentions are detailed in his submissions and evidence which I don’t intend to repeat in their entirety, however briefly, Mr McPherson submitted that upon the proper construction of the Agreement, and the Competency Standards which are incorporated into it, Mr McPherson is not required to hold a HV Switching officer qualification to be re-graded to AP4.[15] Mr McPherson submitted that QAL seeks to impose a new requirement that Mr McPherson be required to hold a HV switching officer qualification in circumstances where:

a.   The language of the classification definition simply does not support this; and

b.   This is not how QAL has applied the classification definition to other Employees (both under the previous and current agreement); and

c.   A change to the Competency Standards can only be made with the agreement of Senior Site Delegates and State Union Officials, which QAL does not have.[16]

1. Mr McPherson submitted that the language of the Competency Standards is imperfect and a similar criteria is expressed differently across the different sections in the Competency Standards. In circumstances where there is ambiguity in the document Mr McPherson submitted that extrinsic evidence will be necessary in this matter to aide in the proper construction of the provision. Mr McPherson submitted that the objective factual context is that until this dispute a HV Switching Officer qualification was not treated as a prerequisite for reclassification to AP4 by QAL or Employees. [17] This is however at odds with the evidence of Mr O’Leary who acknowledged at hearing that he was required to have a HV Switching officer qualification before he was promoted to AP4.

1. Mr McPherson submitted that the Parties underwent a comprehensive review of the Competency Standards ahead of making the new agreement and at no point did QAL raise that it sought to change the manner in which it would apply the AP4 competencies during the review. Further, Mr McPherson submitted that QAL continued to re-grade Employees to AP4 without having a HV switching officer qualification after the Competency Standards were reviewed. [18]

1. Mr McPherson provided that according to Mr David O’Leary, during discussions of the review of the Competency Standards, QAL did not seek to require the HV Switching Officer qualification as a standalone prerequisite for reclassification for AP4 in the Bayer section.[19]

1. Mr O’Leary stated that HV Switching work is not required to be performed by a HV Switching Officer[20]. High voltage switching where high voltage access is not required falls outside of the scope of QAL’ s High Voltage Isolation and Access Procedure. Mr McPherson’s position is that as a result of drafting errors, the language of the flow chart is at odds with the carve out in the scope section and with QAL’s practice of permitting the racking out of high voltage equipment by someone who has the relevant CTO but not HV Switching Officer qualification.

Respondent’s Submissions

1. QAL’s contentions are detailed in its submissions and evidence which I don’t intend to repeat in their entirety, however briefly, QAL submitted that while the Agreement refers to the Competency Standards Manual (Manual), it does not follow that they are incorporated as terms and conditions of the Agreement.[21] QAL submitted that the textual choices of the parties in clause 10.11 make it clear that they are not intended to be incorporated. QAL further submitted that, regardless, the Commission does not need to determine whether the Manual is incorporated because by virtue of clauses 10.7(3), 10.11(a) and (b), there is sufficient nexus between the terms of the agreement and the Manual.[22]

1. Based on the fact that Mr McPherson does not hold the “HV Switching Officer” competency, QAL submitted that he is therefore not competent to perform HV switching and maintaining final subcircuits and they have therefore refused to promote him.[23]

1. On interpretation of the Agreement, QAL submitted that the plain wording of the relevant clause is that an employee must meet the QAL Competency Standards of the higher level to qualify for the promotion.[24]

1. QAL provided that the amendments made to the Manual during a review were in place at the time of voting and approval of the Agreement. During a 2022 review of the Manual, in the technical competency sections in the Manual for electrical and instruments AP4s in the Boilerhouse, Bayer, Raw Materials and Shift Maintenance (sections 3.3.16, 3.3.21, 3.3.22 and 3.3.30) the competency of ‘HV Switching Officer’ was added to the list of one or more competencies that an AP4 is required to hold. QAL submitted that there is evidence that:

a. This was added to the list of competencies because these AP4s would already be required to be a HV Switching Officer to meet the other technical competencies for AP4; and

b. This change was therefore intended to make the technical competencies more achievable (i.e., because the employee would meet the requirements of AP4 without needing to hold any other qualifications such as ‘gas fitter’ or ‘hazardous area’). [25]

1. QAL submitted that contrary to the Applicant’s submissions, the final dot point of ‘HV Switching Officer’ is therefore not rendered meaningless, but instead, as intended by the parties, makes it easier for electrical employees at Alumina Producer Level 3 (AP3) to achieve the required AP4 competencies. It made it clear that an employee with competency to “perform HV switching and maintaining final subcircuits” could progress without the need also to be competent in one of the other named roles.[26]

1. QAL rejected the evidence from Mr O’Leary in respect of Mr McPherson and submitted that it confuses high voltage switching with functional switching and fails to provide a description of the task, and that there is no reference to functional switching in the Manual.[27]

1. QAL rejected Mr McPherson’s submission that the objective factual context is that a HV Switching officer qualification was not treated as a prerequisite for reclassification to ‘AP4’ and that where there have been some instances of promotion from AP3 to AP4, that these employees did not meet the competencies in the Manual at the time of their promotion, that it should not have happened but it did for various other reasons. QAL submitted that this does not suggest that QAL has a practice to promote employees contrary to the Manual and further, where those qualifications had either been missed or had expired after their promotion to AP4, they were in the process of rectifying those situations[28]

1. QAL submitted that Mr McPherson’s position is not capable of a practical and common-sense application because the high voltage electrical work of HV Switching Officer is critical safety work required to be performed at the AP4 level. AP3s are not yet competent to perform the work and AP5s are required to perform more advanced duties.[29]

1. QAL submitted that the Berri[30] principles of interpretation should be applied having regard to the more recent and binding decision of the High Court in Ridd.[31] QAL submitted a number of contentions from that decision ought be applied in the interpretation of an enterprise agreement and inter alia, submitted the High Court’s statement that to do so:

“In that that process of interpretation, an important matter of context is the industrial nature of the instrument. Industrial instruments are not always drafted carefully by lawyers or professional drafters, and hence the literal words of a provision might more readily be understood to have a meaning other than their ordinary meaning if the context so suggests.”[32]

Agreed Facts

1. The parties filed a Statement of Agreed Facts and Question for Arbitration dated 13 September 2024.[33]

Consideration

1. In setting out my consideration of the issues raised by the parties, I do not intend to list each and every issue raised in detail however that is not indicative of any failure to consider each of those issues. I have indeed carefully considered each, and every issue raised by the parties and I seek only to highlight the more notable arguments that demonstrate the reasons for my findings.

Ordinary meaning of the words

1. Put simply, I don’t accept the argument that there is ambiguity or uncertainty in the ordinary meaning of the words detailing what is required to reach the level of AP4. On the accepted submissions, the language of the competency standards is not perfect,[34] the legal authorities confirm a narrow approach is misplaced[35] and that the drafters of instruments are not generally legally drafted with precision.[36] The repetition of HV Switching references in the Bayer Competency Standards for an AP4[37] do not mean that one reference might negate the other. The plain interpretation is that if the person meets the second dot point of “Competent to perform HV Switching and maintaining final subcircuits” and it means they are a HV Switching officer, it simply means in relation to the final dot point that having the HV Switching Officer qualification means the holding of one of the other qualifications in that dot point is unnecessary but the use of the words “in one or more” simply accepts that the AP4 may also be competent in the others listed but it is not a necessity and the two propositions are not mutually exclusive.

1. Further evidence was put that suggested the removal of words from the AP3 competency standards,[38] supported that the words in the AP4 competency standards in respect of HV Switching, should be interpreted differently. I don’t accept this contention. The words removed were the words “Competent to assist in HV Switching and maintaining final subcircuits” (Emphasis added). Evidence was given at hearing that “assisting” with these tasks were the duties of an employee performing HVIA “training” (Emphasis added). The insertion of HVIA training at the end resulted merely in removing that earlier point to put it into a list at the end of just one of the competencies an AP3 was required to have one of. This supports the contention that the AP4 level would require a higher level of competence to someone in training.

1. I heard and accept evidence that a HVIA trainee was able to assist in preparing the steps to be followed in a switching sheet. They can write it and follow it, but it needs to be checked and approved by a HV switching officer. Mr Wilking’s gave credible evidence at hearing that these duties amounted to a HV Switching Mate or a HVIA in training, The evidence at hearing I accept is that that person, the HVIA Switching Mate or in training, is someone who assists but cannot fully perform the work in question. Mr O’Leary gave evidence that holding a High Voltage Isolation and Access qualification was an external qualification that required 4 days of training and Mr McPherson’s own evidence was that even though he had completed the training he did not feel comfortable to complete the assessment without more experience. This is indicative of someone who is still in training and on the plain and ordinary meaning of the words in the Competency standards sits at an AP3. Mr McPherson’s own evidence was that he was able to prepare the work required, was able to do the work required but was unable to check or sign off the work required to complete the performance of the required HV switching work at the AP4 level. Again, the inability to complete that work means that the work is equivalent to that of a HVIA in training, an AP3.

1. In respect of evidence given about a range of other ancillary issues, I say that it is unnecessary for me to address this given my findings about the ordinary and plain meaning of the words. However, I will for the record address them in part. It was Mr MacPherson’s case that QAL had not consistently required a HV Switching Officer qualification for all employees promoted to AP4. I found that the evidence showed that some parties were required to have the qualification before they were promoted and there was no evidence they objected to being required to have it at the time. There were some employees who either did not have it when they were promoted or later were found not to have maintained the qualification, Various explanations were given for those situations. I accept the evidence of QAL that they were exceptions, that some employees who had the qualification at the time of their promotion later did not maintain those qualifications and some were found to be missed. I found the explanations plausible. I note that there were a number of employees who were indeed required to have the qualification and that there were a number of other employees at AP4 level for whom there was no evidence either way in respect to whether they held the HV Switching Officer qualification.

1. Further, in hearing the evidence of the parties involved in the review of the competencies, it was clear to me that memories of who was present and what was said were hazy. What I cannot accept is that the document was circulated with the updated words and parties were given multiple opportunities to object to the new words but did not do so. I do not accept that Ms Slatter changed those words on her own volition without input from the technically competent persons present and even if she did, then there were multiple opportunities for it to be corrected and yet they were nether questioned nor corrected. Therefore, I accept the changes were made were intended and agreed.

1. Additionally, QAL gave evidence that the EA provided numerous provisions in itself that supported the interpretation of the competency provisions that I have reached. These are set out in QAL’s submissions.[39] I accept that these submissions and the evidence that supports them, further reinforce the interpretation of the Agreement that I have come to in respect of the issues in question.

Conclusion

1. For these reasons, the answer to the questions for arbitration are as follows:

Question 1Upon the proper construction of the Agreement, is Mr Jordan McPherson required to hold a HV Switching Officer competency in order to be promoted from the position of Alumina Producer Level 3 to the position of Alumina Producer Level 4?

For all of the reasons set out in the preceding paragraphs, the answer is yes.

Question 2 If the answer to 1 is ‘no’, should Mr McPherson be promoted to the position of Alumina Producer Level 4?

Unnecessary to answer.

DEPUTY PRESIDENT

Appearances:

Ms Midson for the Applicant.
Mr Coonan for the Respondent.

Hearing details:

In Person
Brisbane
11 November 2024

[1] Queensland Alumina Limited Enterprise Agreement [2023] FWCA 502, in short ‘Agreement’.

[2] Clause 25 of the Agreement.

[3] In accordance with Clause 25(d)(ii) of the Agreement.

[4] Fair Work Act 2009 (Cth) s.739.

[5] Clause 25 of the Agreement.

[6] Clause 10.2 of the Agreement.

[7] Clause 10.7 of the Agreement.

[8] Clause 25 of the Agreement.

[9] Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited[2017] FWCFB 3005 (Berri).

[10] Section 596(1) of the Act.

[11] Section 596(2) provides that the Commission may grant permission for a person to be represented by a lawyer or paid agent in a matter before the Commission only if:

(a)   it would enable the matter to be deal with more efficiently, taking into account the complexity of the matter; or

(b)     it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or

(c)   it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.

[12] The decision to grant permission is not merely a procedural step but one which requires consideration in accordance with s.596 of the FW Act (see the decision in Warrell v Fair Work Australia [2013] FCA 291). The decision to grant permission is a two-step process. First it must be determined if one of the requirements in s.596(2) have been met. Secondly, if the requirement has been met, it is a discretionary decision as to whether permission is granted (see the decision in Warrell v Fair Work Australia [2013] FCA 291).

[13] By email on 13 September 2024.

[14] By email on 17 September 2024.

[15] Digital Court Book (DCB) p 192 [1].

[16] DCB p 192 [2].

[17] DCB p 193 [3] and [4].

[18] DCB p 193 [5].

[19] DCB p 197.

[20] DCB p 235.

[21] DCB p 443 [19].

[22] DCB p 444 [20].

[23] DCB p 445 [22] – [23].

[24] DCB p 445 [27].

[25] DCB p446 [30] – [31].

[26] DCB p 446 [32].

[27] DCB pp 447 [36] – [37].

[28] DCB pp 448 [41] – [42].

[29] DCB p 449 [45].

[30] Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited[2017] FWCFB 3005 (Berri).

[31] Ridd v James Cook University (2021) 274 CLR 495; [2021] HCA 32.

[32] Ibid at [17].

[33] DCB pp.1032-1034.

[34] DCB p.194 at [3].

[35] Kucks v CS Limited (1996) 66 IR 182 at [184].

[36] Ibid.

[37] DCB p.109.

[38] DCB p.565.

[39] DCB pp.443-449.

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