Cyril Londechamp v Toyota Motor Corporation Australia Limited

[2013] FWC 992

[2013] FWC 992

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Cyril Londechamp
v
Toyota Motor Corporation Australia Limited
(C2012/5689)

COMMISSIONER GOOLEY MELBOURNE, 13 FEBRUARY 2013

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

Background

[1] Mr Cyril Londechamp (the Applicant) commenced employment with Toyota Motor Corporation Australia Ltd (the Respondent) in January 2009 as a Specialist Engineer. His employment is regulated by the Toyota Motor Corporation Australia (TMCA) Workplace Agreement (Altona) 2011 (the Agreement). 1

[2] He is classified at Band Level E6 under the Agreement. The Applicant holds a French Masters Degree in Mechanical Engineering, Diplome d’Ingenieur, from the French Institute of Advanced Mechanics.

[3] From February 2009 the Applicant wrote to the Respondent asking to be paid a qualification allowance which is provided for at clause 66 and Appendix 5 of the Agreement.

[4] The Respondent initially sought evidence that the Applicant’s qualification was equivalent to an Australian Masters degree.

[5] By December 2009 the Respondent accepted that the Applicant’s qualification was equivalent to an Australian Masters degree and that is not in dispute in these proceedings. However the Respondent rejected the Applicant’s claim because it contended he needed to have two separate qualifications. 2

[6] The Applicant took no further steps until September 2010 when he noted that the Australian Education International- National Office of Overseas Skills Recognition (AEI-NOOSR) was reviewing its assessment guidelines. He then asked the Respondent to recognise that his qualification was equivalent to an Australian Bachelor and Masters Degree. 3

[7] The Applicant sought to meet with the Respondent to discuss his claim. He was advised that the earlier decision to recognise his qualification as being at a Masters level was a mistake and it was only equivalent to a Bachelors degree. 4

[8] The Applicant resubmitted his qualifications to AEI-NOOSR and his qualification was assessed as being comparable to an Australian Masters Degree 5 and on 3 April 2012 he provided a copy of the certification to the Respondent.

[9] On 16 May 2012 he received advice from AEI-NOOSR which stated that they could not separate out his qualification “into a Bachelor and Master degree. The Bachelor degree studies are implicit in the assessment.” 6

[10] The Applicant notified a dispute pursuant to the Problem Resolution Procedure. The Respondent rejected the contentions of the Applicant as they contended that to qualify for the qualification allowance the Applicant required an “additional” qualification to the primary qualification. 7

[11] The dispute was then referred to Fair Work Australia for conciliation. The matter did not resolve at conciliation and in accordance with clause 19 of the Agreement the matter was referred to arbitration.

The matter in dispute

[12] The matters in dispute are threefold.

1. Is the Applicant entitled to the qualification allowance?

2. If so, from what date should the qualification allowance be paid?

3. On what basis is the qualifications allowance calculated?

The industrial instrument

[13] That Agreement provides at clause 66 for payments to be made to employees who have certain qualifications.

[14] Appendix 5 of the Agreement, at clause 3.2 sets out the criterion applied to determine if an engineer is entitled to a qualifications payment which is calculated as a percentage of the base trade wage rate.

[15] Clause 3.2.2 provides for an additional percentage for “approved accredited qualification. Qualifications are those additional to the appropriate degree or qualification for membership of the Institution of Engineers.”

[16] Clause 3.2.3 is headed Additional Accredited Qualifications for Engineers and provides as follows:

“Payment will be made to an employee who is the holder of a certificate indicating successful completion of an accredited course, which has its principal focus and content relating to the field of work being undertaken by the employee. The company must sight the certificate before payment is made.

The course must have an equivalence of one (1) years full time study and be recognised by an accredited authority.”

Jurisdiction of the Fair Work Commission

[17] There is no dispute that the Fair Work Commission is able to resolve the dispute.

Submissions of the Applicant

[18] The Applicant submitted that because his qualification was equivalent to a Bachelors and a Masters degree and because an employee who held a Bachelors and a Masters degree from an Australian University would be paid the additional qualification allowance, he should be paid the allowance. The Applicant submitted that he holds the equivalent of a Bachelor of Engineering and a Master of Engineering degree. 8 The Applicant submitted that his initial studies are relevant to his employment. His work includes research and development activities as he is involved in product development, equipment development and quality tuning.9 This evidence was given from the bar table without objection prior to the Applicant giving evidence. The Applicant was not cross examined about this description of his work.

[19] The Applicant submitted that the allowance is payable from the commencement of employment.

[20] The Applicant submitted that he was entitled to the allowance paid as follows:

1. For the period 1 January 2009 to June 2010 10% of the entry point wage for E6 in accordance with clause 3.2.2 of the EBA.

2. For the period June 2010 to December 2012 10% of the base trade wage rate (TR1) in accordance with the current clause in 3.2.2 of the EBA.

[21] No explanation of the different calculations was provided. However the predecessor agreement provided that the qualification allowance was set at 10%x entry point wage rate for the respective broad level.

Submissions of the Respondent

[22] The Respondent submitted that the Applicant was not entitled to the allowance because:

1. He did not have an additional qualification

2. The first two years of the Applicant’s course was not relevant to the Applicant’s work as a production engineer.

[23] The Respondent submitted that regard should be had to the purpose of the clause which was derived from the structural efficiency principle agreement negotiated between the Respondent and the Association of Professional Engineers Australia. 10

[24] It was submitted that the intention of the qualification payment was to encourage breadth of knowledge.

[25] The Respondent submitted that even if it accepted that the Applicant had a Bachelor of Engineering and a Master of Engineering he would not automatically be entitled to the qualification allowance. The Respondent submitted that the qualification allowance is not a higher degree allowance. The Respondent submitted that there were employees who held such qualifications in the Applicant’s area who did not get the allowance. 11

[26] It was the Respondent’s contention that it was the Masters qualification that was the appropriate degree or qualification for membership of the Institution of Engineers. Therefore the additional qualification was the first two years which it was submitted was not relevant to his role as a production engineer. The Respondent submitted that the study of French Philosophy and Sports were not relevant. 12 Ms Geraldine Buchanan gave evidence that suggested that only if all subjects in the qualification were directly relevant to engineering, would the qualification to be recognised.13

[27] It was also said that even if the initial studies were the equivalent of the Bachelor of Engineering then the second qualification, namely the masters qualification, was not relevant to his employment because the focus of that qualification was on research and development and that is not directly relevant to a production engineer’s job as production engineers employed by the Respondent are not involved in research and development at all.

[28] The Respondent submitted that if the allowance were payable it should only be payable from the date that the Applicant provided evidence to support his contention that he had an additional qualification, namely 3 April 2012. The Respondent also submitted that the correct calculation for the allowance was 10% of the base trade wage rate (TR1).

Conclusion

[29] It is clear from the submissions of the parties that no consideration was given by the parties to how overseas qualifications would be recognised by the Agreement. This is despite the fact that this issue was first raised by the Applicant in February 2009, prior to the renegotiation of the Agreement.

[30] It is uncontested that the Applicant’s qualifications are the equivalent of a Masters degree. I accept the evidence that the Applicant’s qualifications are equivalent to a Bachelor of Engineering and a Master of Engineering. However it is clear that the first two years of study are not the equivalent of a Bachelor of Engineering as a person transferring from a French Grande Ecole after two years would enter Year 3 of a Australian Bachelor of Engineering and would require an additional two years of study to complete the degree and be recognised by the Institution of Engineers. 14

[31] While I accept that the Agreement refers to an additional qualification, it would be a narrow and pedantic approach to the construction of the Agreement to find that, only because the Applicant cannot produce two separate certificates, he is precluded from receiving the allowance. The purpose of the provision was to encourage and recognise employees who had relevant formal qualifications which were additional to the minimum qualification required for recognition by the Institution of Engineers. While the Applicant’s course was structured differently, the outcome is the same.

[32] The real question to be determined is whether the qualification the Applicant holds which is additional to the minimum qualification required for recognition by the Institution of Engineers, has as its principal focus and content relating to the field of work being undertaken by the employee.

[33] I do not accept the evidence that it is necessary for every subject studied by a student of engineering to be directly relevant to engineering. Even some Australian engineering courses permit students to undertake non engineering subjects. For example, at the Queensland University of Technology (QUT) engineering students are able to take a minor from anywhere in QUT that is outside of the course.

[34] The Applicant relies upon the first two years of study as being the additional qualification. 15 This is presumably because it is recognised that this qualification would not by itself have qualified the Applicant for recognition by the Institution of Engineers.

[35] I do not accept that the studies undertaken in the first two years by the Applicant could be described as having as its principal focus and content relating to the field of work of the Applicant. General courses in mathematics, physics, chemistry or engineering are unlikely to have any particular focus on the specific engineering needs of the Respondent.

[36] The Respondent also submitted that the advanced elements of the Applicant’s course which focused on research and development are not directly relevant to a production engineer’s job. However the Respondent submitted that the description of the work provided by the Applicant in the reply submission was no more than a description of the type of work required in his classification. Therefore it is clear that some elements of the Applicant’s studies caused the Respondent to appoint the Applicant at the highest level of the classification structure. It must have concluded that those studies had its principle focus and content relating to the field of work of the Applicant.

[37] However that it is not what has to be determined. I have to determine if the additional qualification had as its principle focus and content relating to the field of work of the Applicant. The Applicant submitted that it was this preparatory study which constitute the additional qualification and as I have indicated those studies do not fit the description in the Agreement.

[38] I also accept the submissions of the Respondent that the qualification allowance was not intended to be paid to an employee simply because the employee has a Bachelor and Masters degree or its equivalent.

[39] I have determined that the Applicant’s qualifications are the equivalent of a Bachelor of Engineering and a Masters of Engineering. I have determined that the Applicant has satisfied the first requirement, namely he has an additional qualification.

[40] I am unable to conclude on the evidence before me that the additional qualification had as “its principal focus and content relating to the field of work being undertaken be the employee.”

[41] I therefore dismiss the application.

COMMISSIONER

Appearances:

D Malbasa for the Applicant.

N Spark for the Respondent.

Hearing details:

2012.

Melbourne:

21 December.

 1   Exhibit A1 at [1]

 2   Exhibit A1 attachment CL7

 3   Ibid at [12]-[13]

 4   Ibid at [14]

 5   Ibid at CL8

 6   Ibid at CL9

 7   Ibid at CL10

 8   Exhibit A3 at CLR1

 9   Ibid at [6]

 10   Exhibit R1 at GB3

 11   Exhibit R2

 12   Exhibit R1 at [16]

 13   Ibid at [16]

 14   Exhibit A1 at CL6

 15   Exhibit A3 at [2]-[4]

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