Daniel Adsett v TransGrid
[2017] FWC 6204
•24 NOVEMBER 2017
| [2017] FWC 6204 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Daniel Adsett
v
TransGrid
(C2016/7057)
| Electrical power industry | |
| COMMISSIONER SAUNDERS | NEWCASTLE, 24 NOVEMBER 2017 |
Application to deal with a dispute – claim for higher grade pay under an enterprise agreement – no higher graded work performed – application dismissed.
Mr Daniel Adsett and TransGrid are in dispute as to whether Mr Adsett was directed to carry out, or performed, any higher graded work at any time in the period from 6 June 2011 to 30 April 2015 (Dispute). Having been unable to resolve the Dispute internally, Mr Adsett filed an application in the Fair Work Commission (Commission) pursuant to s.739 of the Fair Work Act 2009 (Cth) (Act) to allow the Commission to deal with the Dispute.
Background
The TransGrid Employees Agreement 2013 (Enterprise Agreement) applies to Mr Adsett’s employment with TransGrid. The dispute resolution procedure in the Enterprise Agreement applies to a wide range of disputes including disputes in relation to the Enterprise Agreement.[1] There is no doubt that the Dispute falls into that category, with the result that, subject to the jurisdictional issue identified in the following paragraph, the dispute resolution procedure in clause 35 applies to the Dispute. There is also no doubt that the preliminary steps in the dispute resolution procedure were complied with before the Application was filed in the Commission.
The Enterprise Agreement commenced operating on 13 June 2014 and continues to operate pursuant to s.54 of the Act. It did not operate in the period from 6 June 2011 to 12 June 2014, which is part of the period to which the Dispute relates. During that period an earlier enterprise agreement known as the TransGrid Employees Agreement 2010 (2010 EA) applied to Mr Adsett’s employment with TransGrid. Although the relevant terms of the 2010 EA are either the same as or materially similar to the relevant terms of the Enterprise Agreement, there is a question as to whether the Commission has jurisdiction to exercise any powers under a dispute resolution procedure in an enterprise agreement which has ceased to operate.[2] Neither party to the Dispute raised this issue during the arbitration. In light of the conclusion to which I have come in relation to the merits of the Dispute, I do not need to resolve this question.
After the Application was filed in the Commission, the Dispute was conciliated in accordance with clause 35.7(a) of the Enterprise Agreement. Because the conciliation was unsuccessful, the Dispute was arbitrated in accordance with clause 35.7(b) of the Enterprise Agreement.
The arbitration was conducted in the Commission on 20 November 2017. Mr Adsett represented himself and gave evidence in support of his case. He also tendered a witness statement made by Mr Garth Barry, TransGrid Team Planner and Coordinator, who was not required for cross examination. TransGrid was represented by Ms Raper of counsel and Ms Eastwood, solicitor, pursuant to a right conferred on the parties to the Dispute under clause 35.9 of the Enterprise Agreement to “appoint another person … to represent or support them during this process.” Evidence in support of TransGrid’s case was adduced from Mr Colin Mayer, Manager Field Resources, Mr John McCall, Project Director, Mr Peter Logue, Substations & Communications Program Manager, and Mr Dany Gittani, Program Manager-Customer Works. TransGrid also tendered a witness statement made by Ms Rosalia Wakim, HR Business Partner, who was not required for cross examination.
The Dispute
Mr Adsett claims that between 6 June 2011 and 30 April 2015 TransGrid directed him to perform, and he performed, higher graded work in the position of Project Manager/Northern Region/Network (PM Northern) on the following major capital works projects:[3]
| Project | Project Duration[4] | Project Value | Higher Grade Pay Claim | |
| 1. | C1271 Glen Innes to Inverell 132kV Transmission Line | 6 June 2011 to 8 June 2012 | $27 million | $53,635.46 |
| 2. | C1327 Tomago 330kV Substation Stage 2 | 22 July 2012 to 12 April 2013 | $15 million | $37,118.18 |
| 3. | C1349 Newcastle 330kV No.1 & No.2 Transformer Replacement | 12 April 2013 to 17 March 2014 | $22.4 million | $41,526.73 |
| 4. | Q1327 Installation of 330kV surge arresters at line entries | 1 May 2013 to 30 November 2013 | $2.1 million | |
| 5. | C1377 Newcastle 330kV No.3 & No.4 Transformer Replacement | 18 March 2014 to 9 July 2015 | $22.4 million | $36,945.28 |
| 6. | C1381 Installation of 330kV surge arresters at line entries, low priority sites | 6 May 2014 to 22 December 2014 | $3.5 million | |
| Total | $169,225.65 | |||
There is little dispute between the parties in relation to the work that Mr Adsett undertook during the period the subject of the Dispute. For example, TransGrid accepts that Mr Adsett performed the duties of a Site Manager and/or Superintendent’s Representative on a range of major capital works projects in the period from 2011 to 2015. However, TransGrid submits that such duties fall within the scope of the position in which Mr Adsett was employed as a Project Support Engineer/Northern Region/Network (Project Support Engineer) and do not amount to higher graded work within the meaning of clause 23 of the Enterprise Agreement. Further, TransGrid submits that Mr Adsett was not directed to perform any higher graded work, which is a requirement of an entitlement to higher grade pay under clause 23 of the Enterprise Agreement.
Relevant provisions of the Enterprise Agreement
The following provisions of the Enterprise Agreement are relevant to the Dispute:
“11. Salaries and Allowances
11.1 The Salary Point Rates for the classifications covered by this Agreement …
are as follows
Salary Point Weekly Rate
1 $545.30
…
40 $3,078.10
…
12. Classifications
12.1. The classifications of TransGrid employees are:
Classification
(a) Administrative Officers
(b) Engineering Officers
(c) Professional Officers
(d) Operators
Administrative, Engineering and Professional Officers' and Operators' positions are evaluated and allocated a range of salary points in accordance with the agreed Job Evaluation procedure
….
23 Higher Grade Work and Pay
23.1 Obligation to work in a higher grade
Employees must carry out work at a higher grade as directed and must be paid in accordance with the provisions of this Clause.
Employees will not be compelled to work in a higher grade, should they object to such work, if it is not reasonable or practicable for them to do so.
23.2 Payment for higher grade work
Employees must be paid higher grade pay if they are directed to carry out any higher graded work for one hour or more in any one day or shift.
These employees must receive the salary specified of an employee performing the particular class of work.
Employees who work at a higher grade for more than a half-day or shift must be paid the higher rate for all ordinary time worked during the day or shift.
23.3 Aggregation
Any time spent in another position equal to or higher than the grade of the position in which employees are acting must be counted as having been spent in the position under consideration in calculating whether the employees are entitled to higher grade pay for the purposes of this clause...”
Proper construction of the Enterprise Agreement
There is no dispute between the parties as to the principles that apply to the proper construction of an enterprise agreement. Those principles were summarised by the Full Bench in AMWU v Berri Pty Limited.[5]
The Enterprise Agreement does not define the expressions “work at a higher grade” or “higher graded work”. Nor does the Enterprise Agreement contain definitions of the classifications, or positions within those classifications, covered by the Enterprise Agreement. Also of relevance is the fact that the classifications referred to in the Enterprise Agreement are not aligned to any particular salary points in the range from salary point 1 to 40 and TransGrid has the discretion to assign a particular salary point (within the range of 1 to 40) to each position covered by the Enterprise Agreement.
In my view, the expressions “work at a higher grade” or “higher graded work” in clause 23 of the Enterprise Agreement refer to work beyond that reasonably contemplated for a particular position and within the scope of work reasonably contemplated by a position at a higher salary point than the employee’s usual position.
Factual background
Mr Adsett’s employment with TransGrid
Mr Adsett commenced employment with TransGrid on 10 May 2010 in the position of Project Support Engineer. The classification for the position of Project Support Engineer is Professional Officer. On the commencement of his employment with TransGrid, Mr Adsett reported to Mr John McCall in the position of Projects Manager/Northern. Mr McCall’s position title changed to that of Project Director following a restructure, but Mr Adsett continued to report to him during the period the subject of the Dispute.
Mr Adsett was recruited by Mr McCall to the role of Project Support Engineer. The “Issue Paper”[6] prepared by TransGrid in relation to the establishment of and recruitment for that role included the following statements:
“…Background:
The Projects section in Northern Region provides project management services to implement a wide range of Engineering, Network and External Work projects.
The Projects section until recently included Mr Brian Magin is a professional electrical engineer who planned and project managed field projects from conception through to commissioning onto the high voltage system.
Mr Magin has been transferred across to the Mains section…
Present Position:
In order to maintain the momentum of the delivery of the Capital Development Program in the Northern Region it is considered necessary to maintain the resourcing levels of the Projects section.
A Position Description has been prepared for a position of Project Support Engineer, which would be suited to graduate engineers at the end of their rotation program. Several internal staff are known to be in this position…”
One of the terms in Mr Adsett’s contract of employment with TransGrid required him to perform:[7]
“a. Those duties set out in the Position Description attached to this contract; and
b. Any other duties which TransGrid may reasonably require from you.”
The position description for the role of Project Support Engineer was prepared by Mr McCall and includes the following relevant parts:
“PRIMARY OBJECTIVES:
1. The Project Management of Transmission infrastructure projects including the commercial management of specifications, tenders and contracts, preparation of technical specifications.
2. To implement the Regional values of safety, continual performance improvement, quality product, customer focus and environmental sensitivity in carrying out all duties.
KEY RESULT AREA MAJOR ROLES / ACCOUNTABILITIES PERFORMANCE EXPECTATIONS … 3. Management · Site Management of projects to ensure that budget and milestone criteria are met
· Project estimation and resourcing
· Ensure sound project planning and management
· Manage project budgets and controls to ensure outcomes
· Project problems identified and rectified within timeframe and budget
· Client satisfaction is insured through close consultation
· Determine project resource requirements and manage availability
· Arrange for the allocation of staff for projects work
· Arrange for the procurement of materials and external services associated with projects
· Arrange for outages of the HV system in association with the project
4. Commercial · Contracts associated with major engineering and Network projects
· Tender evaluations
· Effective contract administration, ensuring TransGrid’s interests are protected in accordance with terms of contract
· Potential project cost over runs are identified and controls initiated
· Evaluate tenders for recommendation of engaging competent contractor is to provide best value for money
… 7. Reporting · Monitor and report to management · Reports on project progress and performance are maintained and available as required
· Issues & problems are identified and resolved to ensure progress is not affected
JUDGEMENT:
·The ability to manage and develop a “safety first” culture in the Project environment.
·The position requires a multi–skilled approach with emphasis on versatility, necessary to participate in project teams with differing disciplines where workloads and time frames are constantly changing as projects often run concurrently.
·Organising resources and providing technical direction on projects.
·…
·Written and verbal communications is [sic] required with contractors, suppliers, project managers, clients and other design groups to negotiate design requirements, resourcing and programs, provide technical direction and present information to a wider audience under normal working conditions.
·Provision of accurate, reliable and timely advice.
·Ensure compliance with relevant TransGrid and statutory requirements.
·Identify problems/issues and provide cost effective solutions for resolution
ACCOUNTABILITY:
·The position reports to the Projects Manager/Northern and will be responsible for the implementation of allocated projects.
·The incumbent provides project management service for work originating from within TransGrid as well as from external work opportunities.
·The position influences the commercial outcomes of projects by virtue of specification requirements, tender evaluations, contract administration and inspection acceptance.
·The role has an influence on local projects with approximate values up to $500k and a secondary influence on Major Engineering Projects.
·The position applies established design principles to infrastructure projects in accordance with design rules to ensure the safe, reliable and effective operation of the project.
EXPERTISE:
Entry Level
·A degree in Electrical Engineering with relevant knowledge in the engineering aspects of civil works.
·Ability to manage Network Projects and contracts as required. Understanding of the concepts and application of risk management…
·Good interpersonal and people management skills…
Competent Level
·Wide base knowledge of Electrical Substation and/or Transmission Line works…
·Well developed interpersonal, people and service management skills.
·Ability to clearly convey ideas including complex technical issues to inform, influence and persuade or direct the work of others both verbally and in written form is required.
Note:
1. Successful applicants must be prepared to participate in development programs based on the above requirements…”
The responsibilities of the Project Support Engineer position description were given further clarity by a Sub Delegations of Authority – Northern Region document issued by TransGrid in May 2011, which sets out the delegated powers of TransGrid staff in the Northern Region. Pursuant to that document, Mr Adsett (who is listed in the document as holding a position generally described as “Project Coordinator/Officer”) had a delegated authority to authorise expenditure up to a limit of $10,000 and to sign (or, in the language of the document, “certify”) a range of documents including overtime authorisation claim forms, subject to signature validation by payroll staff.
The salary point range for the position of Project Support Engineer is 24 to 28.
At the commencement of his employment with TransGrid, Mr Adsett was assigned salary point 24. Prior to his employment with TransGrid, Mr Adsett had some experience in the construction industry but did not have strong experience in the electricity industry or in the management of the kinds of projects that were carried out by the business unit in which he worked. At the time of his recruitment, Mr McCall viewed Mr Adsett as a capable worker who he expected would be able to gain the necessary experience and develop his skills through his work in the position of Project Support Engineer.[8]
TransGrid increased Mr Adsett’s salary point from 24 to 25 in 2011, from 25 to 26 in 2012, and from 26 to 27 in 2014. Mr Adsett’s current salary point, as assigned by TransGrid, remained at 27 during the balance of the period the subject of the Dispute. These increases to Mr Adsett’s salary point were made in recognition of his strong performance, his improving skillset and his increasing experience.[9]
Position of PM Northern
The salary point range for the position of PM Northern is 32 to 34. The classification for the position of PM Northern is Professional Officer. The position description for the role of PM Northern states that it reports to Mr John McCall in the position of Projects Manager/Northern.
The position description for the role of PM Northern also includes the following relevant information:
“PRIMARY OBJECTIVES:
1. To carry out the duties of Site Manager (reference GD EG G3 001) on CPD major capital projects including the duties of Superintendent's Representative.
2. To manage a range of specific engineering and related systems projects associated with asset replacement and external work.
3. Support the Project Manager in the coordination of a wide range of projects carried out in the Northern Region.
4. Ensure all project activities under the control of the incumbent corn ply with TransGrid polices [sic] and procedures as well as with relevant environmental and safety legislation.”
KEY RESULT AREA MAJOR ROLES / ACCOUNTABILITIES PERFORMANCE EXPECTATIONS … 3. Performance Management · The management of projects to achieve industry best practice… · Project run to time on budget to an agreed standard which includes compliance with TransGrid policies, procedures and legislation
· Monitor and regularly report on project status and performance, including time and cost…
4. Management of Planning, Budgets and Work Programs · The Project Management (including commissioning activities) of specific major projects.
· The project management of external work contracts as required…
· Develop effective and efficient project plans for allocated work packages… 5. People Management · … The monitoring and review of human resource indicators such as overtime and attendance at work in relation to work on projects under the control of the incumbent…
MAJOR JOB CHALLENGES:
·To achieve project management objectives, within a set budget, utilising quality planning skills and appropriate utilisation of resources whilst satisfying all stakeholders environmental and safety expectations.
·To establish successful partnerships with stakeholders to ensure project targets are met.
·The leadership and management of small teams to achieve project targets.
·Support the Projects Manager in the review of current work practices, the development of new practices and systems in order that the efficiency and effectiveness of project management be optimised.
·The production of both written and oral reports for the various stakeholders.
·The need to understand and comply with all legislation, TransGrid policies and procedures relative to the variety of work activities undertaken.
·The provision of effective technical direction and advice.
·The preparation of accurate and competitive tenders on short notice…
KNOWLEDGE/EXPERIENCE REQUIREMENTS:
·… In-depth knowledge and a substantial experience in project management…
·In-depth knowledge of electricity industry and participant expectations…”
Mr Wayne Hobden was employed in the position of PM Northern from about 2008 until about June 2011. After Mr Hobden’s employment with TransGrid came to an end in about June 2011, it did not appoint any person to work in the role of PM Northern.
Prior to moving to Newcastle in about 2008, Mr Hobden was employed by TransGrid in Sydney. He was granted a transfer to Newcastle on compassionate grounds. I accept Mr McCall’s evidence that Mr Hobden’s position description for the role of PM Northern “came with him”, in the sense that it was largely based on the work he had been doing in his role in Sydney.
TransGrid project work
During the period relating to Mr Adsett’s claim (2011 to 2015), there were two business units within TransGrid that generated and managed project work: the Capital Program Delivery Unit (CPD Unit) and the Network Services and Operations Unit (NSO Unit), formerly known as the Transmission Operations Business Unit, which was split between various regions in New South Wales.
The CPD Unit had overall responsibility and accountability for the delivery of major capital projects.[10] Major capital projects include all substation and transmission line projects covered by a Project Definition Report. They are resource intensive projects to bring about change on the New South Wales’ high voltage electricity network and involve the construction of new infrastructure such as electrical substations and transmission lines. These projects are typically complex in nature, have a high value, run for a long duration and involve a range of TransGrid employees, external contractors, vendors and suppliers.[11]
The CPD Unit had state–wide responsibility for the planning and execution (and, ultimate accountability for) major capital projects across the TransGrid network. The CPD Unit worked with the regional NSO Units to implement major capital works projects in each region. These projects originated within the CPD Unit, which carried out the planning, scoping and development phases, and then the relevant regional NSO Unit had the responsibility to work on–site with contractors to implement the project under the direction and ultimate control of the CPD Unit.
The NSO Unit was responsible for maintenance and operational projects. Maintenance and operational projects involve modification and/or maintenance of existing TransGrid assets such as existing buildings and electrical apparatus. These projects are typically less complex in nature than major capital projects, have a lower value, run for a shorter duration and are completed by TransGrid employees.[12] In addition, the NSO Unit had responsibility for site management of major capital works projects. This included management of all construction activities, including work by contractors and TransGrid staff.[13]
A Project Manager from the CPD Unit was assigned to each major capital project to manage the overall project and contract. The Project Manager had overall responsibility and accountability for the delivery of the major capital works project. Mr Adsett accepts that he was not the Project Manager for any of the major capital projects on which he worked in the period from 2011 to 2015.
A Site Manager was appointed to each major capital project to be the person responsible to coordinate and manage the NSO Unit’s assigned tasks and responsibilities for the major capital project in an effective and efficient manner under the direction of the Regional Projects Manager and the Regional Manager.[14] The Site Manager also had responsibility for the management of construction contractors and NSO Unit site works related to the major capital project.[15]
A Superintendent was appointed to each major capital works project to be the person with responsibility to ensure that the contract for the major capital project was executed “in a reasonable manner” in accordance with the terms and conditions of the contract. One or more Superintendent’s Representatives were appointed for each major capital project to carry out the duties of the Superintendent.[16]
The roles of Project Manager, Site Manager, Superintendent and Superintendent’s Representative for a particular major capital project related specifically and only to that project; they were not stand alone positions. Appointments to those roles was a matter of project contract administration.
Consideration
TransGrid appointed a range of employees in different positions and at different salary points to work in the roles of Project Manager, Site Manager, Superintendent and Superintendent’s Representative for particular major capital projects in the period from 2011 to 2015. Whilst those employees undertook such roles on a particular major capital project, they continued to occupy their substantive position with TransGrid. For example, Mr Adsett was appointed to the role of Site Manager and Superintendent’s Representative on various major capital projects in the period from 2011 to 2015, as were other employees at different salary points (including Mr Matthew Hayes, Project Co-ordinator, who was at a similar salary point to Mr Adsett), but Mr Adsett (like the other employees assigned to those roles) retained his substantive position of Project Support Engineer during that time.
One of Mr Adsett’s primary arguments in support of his claim is that the duties and responsibilities set out in the position description for the role of Project Support Engineer in relation to project management are limited to NSO Unit infrastructure projects, and do not extend to major capital projects originating from and under and the control of the CPD Unit. I reject that argument. It is too narrow a reading of the position description for the role of Project Support Engineer.
Mr Adsett focuses attention on the words “Transmission infrastructure projects” in the first “primary objective” set out on page 2 of the position description to support his argument. In particular, Mr Adsett contends that the word “Transmission” is a reference to the Transmission Operations Business Unit (later renamed the NSO Unit). I accept that is so, but I do not accept that “Transmission infrastructure projects” are limited to infrastructure projects originating in the NSO Unit, as distinct from major capital projects involving infrastructure originating in the CPD Unit and on which the NSO Unit undertakes on-site work, nor do I accept that the position description for the role of Project Support Engineer read as a whole limits the management duties for that position to NSO Unit infrastructure projects, for the following reasons:
(a)First, the expression “Transmission infrastructure projects” is broad enough on its ordinary meaning to include both infrastructure projects originating in the NSO Unit and major capital projects originating in the CPD Unit and on which the NSO Unit undertakes on-site work. As explained in paragraph [25] above, the major capital projects originating in the CPD are resource intensive projects to bring about change on the New South Wales’ high voltage electricity network and involve work on infrastructure such as electrical substations and transmission lines;
(b)Secondly, the “Major Roles/Accountabilities” described in the Project Support Engineer position description for the “Key Result Areas” of “Management” and “Commercial” include “site management of projects” and “contracts associated with major engineering and Network projects”. Such language is broad and does not suggest any intention to limit the position’s management duties to NSO Unit infrastructure projects only;
(c)Thirdly, the Project Support Engineer position description refers to “projects”, “allocated projects” and “infrastructure projects” in the “Judgement” and “Accountability” sections. Again, such expressions are broad and do not suggest any intention to limit the management duties of the position to management of NSO Unit infrastructure projects only;
(d)Fourthly, the “Accountability” section of the Project Support Engineer position description refers to the provision of “project management service for work originating from within TransGrid” without limiting the business unit from which the work may originate;
(e)Fifthly, the “Accountability” section of the Project Support Engineer position description refers to the position of Project Support Engineer having “an influence on local projects with approximate values up to $500k and a secondary influence on Major Engineering Projects”. During the period of Mr Adsett’s claim the Project Manager assigned to each major capital works project had the primary influence on that project, because the person in that role had overall responsibility and accountability for the delivery of the major capital project. Mr Adsett, when appointed to the role of Site Manager and/or Superintendent’s Representative on such a major capital project, had a secondary influence (behind the Project Manager) on such projects; and
(f)Sixthly, the “Issue Paper” prepared by TransGrid in relation to the establishment of and recruitment for the role of Project Support Engineer made reference to the fact that the “projects section in Northern Region provides project management services to implement a wide range of Engineering, Network and External Work projects”. Further, the “Issues Paper” gave as part of the rationale for the recruitment of the Project Support Engineer position the need to “maintain the momentum of the delivery of the Capital Development Program in the Northern Region”. That was clearly a reference to major capital projects originating from and under the control of the CPD Unit.
I accept the evidence of Mr Logue, Mr McCall and Mr Mayer to the effect that the work Mr Adsett undertook in his capacity as the Site Manager and/or Superintendent’s Representative on major capital projects in the period from 2011 to 2015 fell within the scope of his duties and responsibilities as a Project Support Engineer. My reasons for so finding may be summarised as follows:
(a)The management duties Mr Adsett performed in his role as Site Manager and Superintendent’s Representative on a range of major capital projects sit comfortably within the “Major Role/Accountabilities” of “site management of projects to ensure that budget and milestone criteria are met” in “Key Result Area 3. Management” and “contracts associated with major engineering and Network projects” in “Key Result Area 4. Commercial” of the position description for the Project Support Engineer position;
(b)The workplace health and safety functions and tasks Mr Adsett undertook in relation to major capital projects, including monitoring, reporting, inspecting and auditing, fell within the “Key Result Area 1. Occupational Health and Safety” of the position description for the Project Support Engineer position;
(c)The management of resources and allocation of staff by Mr Adsett in relation to major capital projects, including in some instances the approval of overtime, time and attendance records and annual leave for staff, fell within the “Key Result Area 3. Management” generally and the “Performance Expectations” of “determine project resource requirements and manage availability”, “manage project budgets and controls to ensure outcomes”, and “arrange for the allocation of staff for projects work” of the position description for the Project Support Engineer position;
(d)The environmental management tasks Mr Adsett undertook on site in relation to major capital projects fell within the “Key Result Area 2. Environment” of the position description for the Project Support Engineer position;
(e)The budgeting and expenditure functions Mr Adsett performed in relation to major capital projects, including expense authorisation tasks, fell within the “Key Result Area 3. Management” generally, the “Major Role/Accountabilities” of “ensure that budget and milestone criteria are met”, and the “Performance Expectations” of “manage project budgets and controls to ensure outcomes” of the position description for the Project Support Engineer position;
(f)The verification by Mr Adsett of facts relating to extension of time claims made by contractors and variation orders fell within the “Key Result Area 3. Management” generally, and the “Key Result Area 4. Commercial” in relation to the “Performance Expectations” of “effective contract administration” and “potential project cost over runs are identified and controls initiated” of the position description for the Project Support Engineer position;
(g)Mr Adsett’s work in developing and managing the program for projects, including arranging for outages to the high voltage network, fell within the “Key Result Area 3. Management” generally and the “Performance Expectation” of “arrange for outages of the HV system in association with the project” of the position description for the Project Support Engineer position;
(h)The commissioning activities Mr Adsett undertook fell within the “Key Result Area 5. Technical Services” generally and the “Performance Expectations” of “provide technical assistance on site for projects and external work”, as well as the “Accountability” of being “responsible for the implementation of allocated projects” and providing “project management service for work originating from within TransGrid” of the position description for the Project Support Engineer position;
(i)The site reporting and giving of directions to contractors on site by Mr Adsett fell within the “Key Result Area 3. Management” and the “Key Result Area 7. Reporting” of the position description for the Project Support Engineer position;
(j)The quality management tasks undertaken by Mr Adsett fell within the “Key Result Area 5. Technical Service”, particularly the “Major Roles/Accountabilities” of “quality”, “Key Result Area 3. Management” in relation to the “Major Roles/Accountabilities” of “site management of projects to ensure that … milestone criteria are met”, and the “Key Result Area 4. Commercial”, particularly the “Performance Expectation” of “effective contract administration, ensuring TransGrid’s interests are protected in accordance with terms of contract”, of the position description for the Project Support Engineer position; and
(k)The document processing and production tasks undertaken by Mr Adsett fell within the “Key Result Area 5. Technical Service” in relation to the “Major Roles/Accountabilities” of “specifications”, “support” and “quality” of the position description for the Project Support Engineer position.
There is clearly some overlap between the duties and responsibilities of the position of Project Support Engineer and the position of PM Northern, particularly in relation to areas such as commercial management, project management, site management, occupational health and safety management, environmental management, and undertaking the role of Site Manager and/or Superintendent’s Representative on particular major capital projects. However, it is important to appreciate that Mr Hobden was working for TransGrid in Sydney when he was transferred to Newcastle to work in the Northern Region on compassionate grounds. Mr Hobden was plainly more experienced than Mr Adsett. So much is clear from the “Knowledge/Experience Requirements” of the position description for the PM Northern position, particularly the requirement for the person working in that position to have “in-depth knowledge and substantial experience in project management” and “in-depth knowledge of electricity industry and participant expectations”. The essential knowledge and experience requirements for the PM Northern position are, overall, significantly more advanced than the corresponding expertise requirements for the Project Support Engineer position. In addition, Mr Adsett accepts that he did not, at any time in the period from 2011 to 2015, “manage a range of specific engineering and related systems projects associated with asset replacement and external work”, which is one of the “Primary Objectives” of the position of PM Northern.
Mr Adsett also relies on communications made to him by TransGrid in response to his claim that he was entitled to payment for higher graded work in accordance with clause 23 of the Enterprise Agreement. TransGrid investigated Mr Adsett’s claim after he first raised it in about 2014. As part of that investigation, Mr Adsett prepared an issues paper and provided it to TransGrid. In that paper Mr Adsett claimed payment for higher graded work from 2011, which was less than two years after he commenced employment with TransGrid. Eventually Mr Adsett met with Mr McCall, Mr Mayer, Ms Wakim and Ms Anna Sarelas, TransGrid Employee Relations & Remuneration Manager, on 24 June 2015 to discuss Mr Adsett’s claim. TransGrid then prepared a report entitled “Response to Complaint” and sent a copy of it to Mr Adsett.
TransGrid’s “Response to Complaint” report sets out reasons as to why Mr Adsett did not work in a higher grade in the period from 6 June 2011 until 14 May 2013. The report then states the following conclusions in relation to the period from 15 May 2013 until 30 April 2015:
“INVESTIGATION: CONCLUSION
40.The performance level that Mr Adsett was working at during the replacement of power transformers at Newcastle substation constitutes working in a Higher Grade.
41.Mr Adsett worked in a Higher Grade for the period between 15/5/2013 – 30/4/2015…
CONCLUSION
43.For the period between 15/5/2013 – 14/5/2014, Mr Adsett will be paid at SP29.
44.This equals a gross amount of $11,988.54. This is inclusive of all overtime and travelling time. This is not inclusive of any allowances paid at a flat rate.
45.For the period between 15/5/2014 – 30/4/2015, Mr Adsett will be paid at SP30.
46.This equals a gross amount of $4,454.36 for the period between 15/5/2014 to 24/8/2014. This is inclusive of all overtime and travelling time. This is not inclusive of any allowances paid at a flat rate.
47.Plus a gross amount of $8,377.08 for the period between 25/8/2014 to 30/4/2015. This is inclusive of all overtime and travelling time. This is not inclusive of any allowances paid at a flat rate.”
Mr Adsett disputed the payments proposed in the “Response to Complaint” report on a number of fronts, including that they did not include any payment in respect of the earlier period from 6 June 2011 until 14 May 2013 (in respect of which Mr Adsett maintained his claim that he had worked in a higher grade), Mr Adsett claimed the higher grade payment should have been calculated on a higher salary point than 29, and the payments proposed did not include, so it was contended by Mr Adsett, all the allowances and entitlements required by clause 23 of the Enterprise Agreement. As a result of those ongoing disputes, no payment was made by TransGrid to Mr Adsett in response to his claim that he had worked in a higher grade.
The position taken by TransGrid in these proceedings is different from the conclusion expressed in paragraph [41] of the “Response to Complaint” report, namely that “Mr Adsett worked in a Higher Grade for the period between 15/5/2013 – 30/4/2015”. In these proceedings TransGrid denies that Mr Adsett did any work in a higher grade at any time in the period the subject of the Dispute (6 June 2011 to 30 April 2015).
I accept TransGrid’s submission that, regardless of the view expressed in its “Response to Complaint” report or otherwise communicated by TransGrid to Mr Adsett during the investigation into his claim, it is ultimately a matter for me to determine, on the basis of the evidence adduced in this arbitration, whether Mr Adsett was directed to carry out, and did perform, any higher graded work at any time in the period from 6 June 2011 to 30 April 2015.
Mr McCall gave evidence, which I accept, that he did not see the “Response to Complaint” report before it was finalised. At the time of the preparation of the report Mr McCall was of the view that Mr Adsett had not undertaken any higher graded work, but in recognition of Mr Adsett’s strong performance in relation to Projects C1349 and C1377 it was appropriate, in Mr McCall’s view, to pay Mr Adsett at salary point 30 for that work. Mr McCall formed that view in a context where employees covered by the Enterprise Agreement (such as Mr Adsett) do not participate in a bonus scheme. As a result, one option available to provide monetary recognition to staff who have performed at a very high level is to recommend that they receive a higher grade of pay for particular periods of work even though they have not undertaken any work at a higher grade.
Mr Mayer gave evidence, which I accept, that he agreed with the “Response to Complaint” report at the time it was prepared, but he subsequently changed his view in relation to whether Mr Adsett undertook any higher graded work. At the time the “Response to Complaint” report was prepared, Mr Mayer had only recently commenced in his new role and he had a limited understanding of the claim being made by Mr Adsett. Mr Mayer was, at that time, keen to come to a resolution with Mr Adsett quickly in relation to his claim and he believed it was appropriate for a payment to be made to Mr Adsett in recognition of the high-quality work he had undertaken on particular projects. Having since reviewed in detail the documentation and arguments in relation to Mr Adsett’s claim for higher graded pay, Mr Mayer now, I accept, genuinely holds the view that Mr Adsett was not, at any time, directed to carry out, and did not carry out, any higher graded work in the period from 6 June 2011 to 30 April 2015.
In light of the matters to which I have referred in the previous two paragraphs, I am satisfied that the proposal by TransGrid to pay Mr Adsett almost $25,000 was in reality a proposal to make a payment in the nature of a bonus to Mr Adsett in recognition of his strong performance on particular projects, rather than a considered decision to pay Mr Adsett for undertaking higher graded work. That being so, it is most unfortunate that the “Response to Complaint” report expressed the conclusions that it did in paragraphs [40] to [47] of the report. Those conclusions have clearly contributed to Mr Adsett’s belief that he undertook higher graded work and is entitled to payment in respect of such work. In light of the conclusions stated in the “Response to Complaint” report, Mr Adsett’s belief in that regard was reasonably held, albeit I have come to a different conclusion in my determination of the Dispute.
Determination of Dispute
For the reasons set out above, I am not satisfied that, at any time in the period from 6 June 2011 to 30 April 2015, Mr Adsett was directed to carry out, or performed, any “work at a higher grade” or “higher graded work” within the meaning of clause 23 of the Enterprise Agreement. I am satisfied that the work Mr Adsett performed in the period from 6 June 2011 to 30 April 2015 was not beyond that reasonably contemplated for the position of Project Support Engineer. Accordingly, the Application is dismissed.
COMMISSIONER
Appearances:
Mr D Adsett on his own behalf.
Ms E Raper of counsel, together with Ms V Eastwood, solicitor of Allens, on behalf of TransGrid.
Hearing details:
2017.
Newcastle:
November 20.
[1] Clause 35.3.1
[2] See, for example, Stephenson v Abetz, Print PR952743, 28 October 2014; Grabovsky v United Protestant Association of NSW Ltd T/A UPA [2015] FWC 2504
[3] Mr Adsett’s outline of submissions at [3.3]-[3.4]
[4] There is some dispute between the parties about when each project commenced and finished, but those disputes do not need to be resolved; they are not material to my determination of the Dispute.
[5] [2017] FWCFB 3005 at [114]
[6] Exhibit A8
[7] Exhibit R1
[8] Exhibit R6 at [8]
[9] Exhibit R6 at [9]
[10] Exhibit A9 (TransGrid Site Management and Reporting Responsibilities for Major Capital Construction Works) at [4.1]
[11] Statement of Daniel Adsett at [2]
[12] Statement of Daniel Adsett at [3]
[13] Exhibit A9 at [4.1]
[14] Ibid at [3] & [4.3]
[15] Ibid at [4.4.1]
[16] Ibid at [3]
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