David Wallace v National Australia Bank Ltd T/A NAB
[2018] FWC 7615
•14 DECEMBER 2018
| [2018] FWC 7615 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
David Wallace
v
National Australia Bank Ltd T/A NAB
(C2018/4542)
| DEPUTY PRESIDENT CLANCY | MELBOURNE, 14 DECEMBER 2018 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)].
On 16 August 2018, Mr David Wallace filed an application under s.739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (Commission) to deal with a dispute. Mr Wallace brought the application pursuant to clause 64 of the NAB Enterprise Agreement 2016 (the Agreement).
The dispute relates to the outcome of a change management process undertaken by National Australia Bank (NAB) in May 2018 which resulted in Mr Wallace’s position being made redundant. NAB offered Mr Wallace what it says is a Comparable Position[1] within the meaning of the Agreement, that of Managing Partner. Mr Wallace then commenced a dispute under the Agreement in relation to the compatibility of the Managing Partner role.
The dispute was the subject of a conference on 7 September 2018, however the matter could not be resolved. On 14 September 2018, directions were issued for the filing of material ahead of the hearing on 8 November 2018. Submissions were filed on behalf of Mr Wallace, who also filed a witness statement. For NAB, an outline of submissions was filed and a witness statement of Mr Jeffrey Kappler, Regional Business Executive – Regional and Metro South, WA..
At the hearing, Mr Alexander Cousner of the Finance Sector Union of Australia appeared for Mr Wallace. Mr Matthew Follett of Counsel was granted permission to represent NAB. Only Mr Kappler was required for cross-examination.
Decision to be made
In his Outline of Submissions, Mr Wallace submitted there should be a finding the Managing Partner role is not a Comparable Position and the following relief should be granted:
(a) There should be a finding that Mr Wallace’s post change position is not comparable;
(b) There should be a finding that the provisions of clause 55 of the Agreement apply; and
(c) If no other comparable position can be found pursuant to clause 55, then the terms of the ‘Retrenchment’ clause (clause 56 of the Agreement) should be held to apply.
NAB submits the Managing Partner role is a Comparable Position, which resolves the dispute, and the applications should otherwise be dismissed.
At the hearing, I indicated to the parties that my view that the controversy over a Comparable Position only arose in an “On Deployment” scenario. I therefore sought confirmation from the parties as to whether Mr Wallace was in an “On Deployment” scenario under clause 55 of the Agreement, as if this were not the case, I considered there may have been consequences for the Commission’s jurisdiction to deal with the dispute.
Mr Follett advised that Mr Wallace was not “On Deployment” and had gone immediately from one role to the next, in that, having been made redundant on 9 July 2018, he was immediately appointed to his new position on the same day. Mr Follett submitted there was still a dispute about whether there was a Comparable Position under clause 54.1(a) of the Agreement. This clause relevantly states:
“54.1 Where an employee’s position is made redundant, the employee will be advised in writing and the employee will be placed “On Deployment” unless:
(a) The employee is immediately deployed upon redundancy, or…”
Mr Follett submitted that on a proper construction, clause 54.1(a) of the Agreement should read:
“54.1 Where an employee’s position is made redundant, the employee will be advised in writing and the employee will be placed “On Deployment” unless
(a) The employee is immediately deployed to a comparable position upon redundancy, or…” (my emphasis)
It was submitted that if the construction were otherwise, NAB could appoint Mr Wallace to any position in the organisation to avoid redundancy. Mr Follett submitted this was not the position of NAB and it had always taken the position that any deployment in a redundancy scenario has to be to a comparable position. As such, NAB characterised the dispute as to whether clause 54.1(a) of the Agreement (with the insertion of “to a comparable position”) was properly engaged.
Mr Cousner, the advocate for Mr Wallace, adopted the same position as that put by NAB, adding there would be an “absurd outcome”[2] if the words ‘to a comparable position’ were not read into the clause.
In essence, the parties have consented to me determining whether Mr Wallace was immediately deployed to a Comparable Position within the meaning of that term as defined in Clause 5 of the Agreement, upon his position having been made redundant and his appointment into the role of Managing Partner.
The definition of ‘Comparable Position’ in clause 5 of the Agreement provides:
“Comparable Position means a position which:
(a) is above or at the same TEC as the position the employee held which was made redundant;
(b) fills the same number of hours per 4 week cycle;
(c) does not entail a change in duties significant enough to be unreasonable in the circumstances of the employee’s skills, ability, previous work experience and training required to fulfill the role;
(d) does not involve an unreasonable change in daily start and finishing times (to be determined by such factors as the degree of the change and the employee’s family responsibilities and personal needs); and
(e) is at the same location or at another location which is in reasonable commuting distance (to be determined by reference to factors including the employee’s duties and responsibilities, family responsibilities and historical use of private and public transport).”
There is no dispute between the parties as to paragraphs (a), (b) or (d) of the definition of Comparable Position.
Mr Wallace submits, and I am asked to determine, whether the Managing Partner role offends paragraphs (c) or (e) of the definition of Comparable Position.
Applicant’s Submissions and Evidence
Mr Wallace has been employed by NAB since 1988. In July 2014, he was appointed to the position of Regional Agribusiness Manager, South WA (the old role). This position was located in Bunbury, Western Australia and entailed managing 20 staff whose locations were as follows:
· Bunbury – 3 managers and 2 support staff
· Albany – 2 managers and 2 support staff
· Kojonup – 1 manager and 1 support staff
· Narrogin – 4 managers and 3 support staff
· Corrigin – 1 manager and 1 part-time support staff
In the role of Regional Agribusiness Manager, Mr Wallace said as Bunbury was his second largest site and where he was located, he spent a significant amount of time conducting business there. This role typically included attending various meetings, performing administrative tasks, coaching staff, monthly performance conversations, visiting clients with bankers and meeting with key industry professionals. Mr Wallace said 40% of the role involved staff interaction, 40% involved interactions with clients and key industry professionals and 20% involved meetings and administrative tasks.
As to travel, Mr Wallace said on average he visited Narrogin between every seven to ten working days, due to the distance required to travel there and the additional distance to meet customers. On average, he visited Albany every four to six weeks and would stay there for no more than two nights. Mr Wallace said he performed his usual tasks at these locations, though under time constraints due to the limited time he spent there.
Following the change management process, Mr Wallace was offered the position of Managing Partner (the new role) as a Comparable Position. He said the new role requires him to undertake the same tasks as his previous role and in addition, he is now responsible for business and small business clients. Mr Wallace said a significant amount of additional travel is required due to where his staff are located. His staff are now in the following locations:
· Bunbury – no staff
· Albany – 7 managers and 3 support staff
· Kojunup – 1 manager and 1 support staff
· Narrogin – 4 managers and 3 support staff
· Corrigin – no staff
Mr Wallace said there are no specific tasks required to be performed by him in Bunbury as it is not a community he is responsible for. He said there is an expectation he commute to Albany every fortnight, which takes about four hours, to be successful in the new role. Mr Wallace said he must be available to staff under tight time constraints and also visit clients in the region, which usually takes an additional hour and a half travel time.
Mr Wallace said the commute from Bunbury to Narrogin is approximately two hours and he is expected to visit every week. As to Kojunup, he said the travel was approximately two hours fifteen minutes and there is an expectation he travel there each fortnight.
Mr Wallace said the new role is unique and not sustainable as no other Managing Partner is asked to complete this level of travel, nor has to travel almost 200 kilometres to their closest team member. He said he spends, on average, four days per week away from home or completing significant travel on the road which are having an impact on his health and wellbeing.
Mr Wallace said at a Managing Partners conference on around 24 July 2018, the CEO of NAB announced there was an expectation that Managing Partners would spend around 70% of their time in the community with bankers, building reputations and relationships. Given this, Mr Wallace said it is not feasible he resides four hours from his main site in Albany. Mr Wallace highlighted that his NAB intranet profile records his work location as Albany.
Mr Wallace’s primary argument is that the location of the new role is not where NAB says it is.[3] He contends the new role is in fact not located in Bunbury and therefore cannot be considered comparable as it represents an unreasonable commuting distance. It was contended that none of Mr Wallace’s duties need to be performed in Bunbury and this is strong evidence of the fact that the true location of the position is in fact not Bunbury.[4]
It was submitted that as Mr Wallace’s old role was based at Bunbury, where his second largest site was, this is evidence of the practice of NAB in relation to locating Managing Partners.[5] It was said that the other Managing Partners in NAB’s Western Australian operations are all based in locations where they either have at least some staff that they manage, or a majority of the staff they manage, with the exception of the Managing Partner based in Perth.[6]
It was submitted that the words in subsection (e) of Comparable Position mean it is not simply a decision for NAB to dictate where the position is, but that the position actually has to be performed there.[7] It was submitted that “there has to be some connection between the work that is performed and the location that that work is performed from for the words “at the same location” to have any meaning, because otherwise you could end up with an array of contrived situations to avoid paying redundancy entitlements to people.”[8]
Mr Wallace’s second argument, if the location of the position is Bunbury,[9] is that the new role is one which entails a change in duties significant enough to be unreasonable in the circumstances.[10] It was submitted that while there was some contest in the evidence about the requirement to spend time travelling and in the community, it is ultimately a matter for Mr Wallace to determine how his work is to be discharged.[11]
In response to my question about how travel comes to be a consideration under subsection (c) of the definition of Comparable Position, it was submitted it comes under the first part of the clause where it says “does not entail a change in duties significant enough to be unreasonable,” with the second half of the clause informing the first part. It was submitted as to the first part of the clause, duties of the role include travel.[12] It was further submitted that the amount of travel required in the new role is a significant departure from what was previously the case,[13] with Mr Wallace’s evidence being he is spending four out of five days of the week on the road away from home.[14]
Mr Wallace submits Heath v NAB (Heath)[15] provides guidance on how the terms of the Agreement should be interpreted. Mr Wallace highlighted that in Heath, the matter of Von Bibra Robina Autovillage[16] Pty Ltd was cited as follows:
“The test is not whether or not the employee is capable of carrying out the new employment as such, it is whether there is sufficient correlation between the relevant indicia of the current work and the alternative employment as proposed.”[17]
Mr Wallace further submitted that “a decision will not be unreasonable if a reasonable person in the position of making the decision would have made the decision in question.”[18] It was submitted “looking objectively and casting a reasonable eye over the conduct of the respondent in this matter in locating the post-change position at Bunbury, is, respectfully, a contrivance in that to get them around the definition of comparable position throughout this change process.”[19] It was contended that looking at the matter objectively, the evidence is clear that the true location of the role is not Bunbury and it does not matter where else the location of the role is – it is simply a question about whether or not the role is located there.
It was submitted that in Heath it was also noted that in general, factors such as status, importance, the employee’s relative like of the job or the relative comfort the employee feels for the new job are not relevant considerations.
In applying the objective test to his matter, Mr Wallace submitted:
· The new role is not a comparable position;
· The change to the number and location of his direct reports represents a change to the duties required to be performed;
· Additional travel is required which is significantly more than his previous role and this change is unreasonable;
· While different opinions might exist about the amount of travel required, it is plain that additional travel is required;
· The true location of the new role is Albany; and
· If the Commission agrees with his submission, the position cannot be comparable as Albany is over four hours away from Bunbury.
Respondent’s Submissions and Evidence
NAB submits the dispute between the parties in this matter relates to whether the change in duties is unreasonable, based on an assertion of increased travel and a challenge to the location of the position of the new role.[20]
NAB summarised what it says are Mr Wallace’s contentions regarding subparagraphs (c) and (e) of clause 5 of the Agreement as follows:
1. His direct reports are now based at locations as compared to him in Bunbury such that he must travel significantly more in the new role as compared to the old role, which amounts to a significant change in duties so as to be unreasonable; and
2. The “true” location of the new role should be Albany such that the locations of the old role and the new role are not, in truth, the same.
As to the first contention, NAB submits Mr Wallace’s travelling commitments for the purposes of performing the new role are substantially the same as they were in the old role. As to the second contention, NAB contends this is a non-issue and not something in relation to which a dispute can be properly agitated and determined in the Commission.
NAB submits the core purpose of both the old role and the new role is to lead and manage a distributed workforce of experienced bankers across a regional area. This involves principal duties of, among other things, leading and managing people, developing and executing strategy for new and existing business development activities in South Eastern WA, being accountable for customer growth and financial targets as well as ensuring high quality customer service is provided. NAB submitted in both cases, Mr Wallace was not himself responsible for the direct provision of services to customers and clients of NAB (except in combination with his bankers), but rather his role (both the old role and the new role) is to manage and lead his team of direct reports to meet these deliverables.
NAB said that as a result of the organisational change, Mr Wallace was invited to participate in an Expressions of Interest (EOI) process and was informed that if he was unsuccessful in that process, he may instead be appointed by NAB to a Comparable Position. NAB contends this was consistent with clauses 52.1 and 52.2 of the Agreement, which highlight the desire of the industrial parties to avoid/minimise retrenchments and maximise redeployment opportunities. As part of the EOI process, Mr Wallace expressed interest in two positions, a State Regional Customer Executive role for Western Australia and for Queensland. NAB contends each of these roles would have involved a considerable increase in Mr Wallace’s travel commitments, requiring travel across the whole of the State and the requirement to relocate, in the case of the Queensland role. However, Mr Wallace was not successful in obtaining either of these roles.
It was contended that it is difficult in the context of clauses 52.1 and 52.2 to adopt a construction of a provision, which is necessarily part of that process, in a way which too easily results in an outcome of non-comparability and frustrates the broader purposes and objects of the process.[21] It was submitted it is not suggestive of a construction which would see non-comparability arising all the time or more readily than might otherwise be the case when there are competing views.[22]
It was further submitted that clause 55.4 of the Agreement splits out skills and experience from employee dislocation in a manner which is consistent (or at least, not inconsistent) with the delineation between subparagraphs (c) and (e) in the definition of Comparable Position. [23] Furthermore, it was submitted that some contextual assistance was to be gained from clause 55.11(c) of the Agreement, as the process of identifying a comparable position is not designed to de-skill NAB employees.[24]
NAB submitted Mr Wallace continues to perform substantially the same duties within substantially the same overall area within Western Australia, with substantially the same number of team members, the majority of whom are the same individuals he previously managed and who perform substantially the same functions as when Mr Wallace was their manager in the old role. It says the distribution of some of Mr Wallace’s direct reports in terms of their base location has altered, leading to Mr Wallace’s assertion that significant additional travel is required in order to successfully perform the new role.
Significant change in duties so as to be unreasonable (subparagraph (c))
NAB contends the following are answers to Mr Wallace’s assertion that the new role involves a significant increase in travel requirements which is unreasonable in the circumstances:
1. There is no material change to the travel requirements as between the old role and the new role, and as such, no significant change in duties; and
2. Even if there was some significant increase in travel, this would not amount to a significant change in duties in any event.
As to the first of these contentions, NAB submits the evidence does not support Mr Wallace’s assertion and there has been no significant increase in his travel requirements. NAB submits the key deficiency in Mr Wallace’s argument is that he focuses on his own subjective views and actions in performing the new role, rather than the objective requirements of the roles. NAB contends it is clear for the purposes of the Agreement that the comparability requirement focuses on the objective characteristics and criteria attaching to the position, rather than how a particular employee in that role might choose to perform it. NAB submits the new role, objectively, does not require, call for or demand any material increase in travel, let alone any significant change so as to be unreasonable. NAB submits this has been repeatedly made clear to Mr Wallace.
NAB submits by focusing on his own activities, Mr Wallace turns the inquiry from an objective one considering the essential characteristics and functions of the two roles (and what they require), into a subjective one based on his chosen method or mode of performance. NAB contends this has the consequence of enabling the same position to nevertheless be significantly different as between two different employees, not based on the role requirements, but on the individual’s decisions as to how to go about performing the role.
NAB submits the old role and new role are managerial in nature and at a sufficient level of seniority to in essence, be results-based rather than activities-based. NAB asserts Mr Wallace focuses his attention on activities and the spread of activities which he contends are required to properly perform the roles, rather than the results of those chosen activities (supervision, strategic oversite and management). NAB contends, as the builder and owner of the new role, that Mr Wallace can adequately perform it by engaging in activities “x, y and z”, and they are the same activities “x, y and z” as in the old role. NAB submits this makes the two roles comparable, irrespective of whether Mr Wallace thinks the new role requires activities “a, b and c” and he in fact performs activities “a, b and c.”
As to the second contention above, NAB submits an increase in travel requirements, or even a significant increase, does not amount to a “change in duties significant enough to be unreasonable” for the purposes of subsection (c) of the definition of Comparable Position. NAB contends subsection (c) was not intended to capture increases in travel requirements in order to perform a role.
NAB submits attention has been paid by the drafters of the Agreement to the definition and the elements of a job role which might be the subject of variations and the permissible bounds within which those variations can operate so as to retain a role’s status as a “Comparable Position.” Subsection (a) deals with remuneration, subsection (b) with hours of work, subsection (c) with duties, subsection (d) with starting and finishing times and subsection (e) with work location. NAB contends in that context, “duties” are those things that an employee is required to do in order to perform their role, which might be subject to variability based on “skills, ability, previous work experience and training.” NAB submits traveling to and from work locations does not readily fall within this concept,[25] particularly where subsection (e) appears specifically designed to deal with dislocations of this type. NAB asserts even if it did, an increase in the prevalence of a well-established work function does not readily equate to a significant and unreasonable change in duties, unless, for example, it had the consequence that some other duties were not to be performed at all.[26]
Furthermore, NAB submits the second part of subparagraph (c) informs the meaning of the first part and when one construes the word ‘duties’, it is construed by reference to things that are associated with an employee’s skills, ability, previous work experience and training.[27] NAB contends it is not a natural reading of that language in that context to say that more travel equals a significant change in duties.
At the same location (subparagraph (e))
NAB has determined that the location of both the old role and the new role is Bunbury, which it submits for the purpose of subsection (e), is the beginning and end of the inquiry. It submits that the words “or at another location…” do not arise.[28]
NAB submits it is a matter for it as the employer to determine the location of its employees, having regard to its operational and organisational requirements. It asserts if it is content for Mr Wallace to be based in Bunbury in the new role, it is not for Mr Wallace to dispute that and it is not a matter which is capable of being arbitrated by the Commission, as it does not give rise to a “matter arising under the agreement.”[29] NAB submitted even if the Commission could determine it, it does not arise on the facts, largely because it is impossible to say where the position should be.[30]
NAB submits there is no controversy over the application or operation of the Agreement insofar as the location of the new role is concerned.[31] The location of the new role is Bunbury and the operation of the definition of Comparable Position to that fact is clear. NAB submits the fact Mr Wallace might have a different view to NAB as to where he should be based is not relevant. NAB contends it is not the function of the Commission to step into the shoes of NAB and decide where it would base the new role either, it being a matter entirely within “managerial prerogative.”
Mr Jeffrey Kappler – Evidence
In 2017, Mr Kappler was appointed the Regional Business Executive – Regional and Metro South, WA. He was based in Bunbury, where Mr Wallace is also located, and they would see each other regularly. On 9 July 2018, Mr Kappler was appointed to his current role, Regional Customer Executive, and he has been Mr Wallace’s manager since this time.
Mr Kappler said he manages four managing partners, five managers and three support staff. Two managing partners, including Mr Wallace, are based in Bunbury. The other Bunbury based managing partner manages the south-west region. Of the two other managing partners which report to Mr Kappler, one is based in Perth, which was where they were based already, and the fourth managing partner, who looks after the north-western region, has re-located there. Mr Kappler said the five agri-business managers are located in Perth.
The other Bunbury-based managing partner has one direct report in Margaret River, five in Busselton and nine in Bunbury. The Perth based managing partner has five direct reports in Kalgoorlie, two in Esperance, two in Corrigin and nine in Northam. The Geraldton based managing partner has 10 direct reports in Geraldton, two in Port Hedland and three in Kununurra.
Portfolio responsibilities
Mr Kappler said Mr Wallace’s key responsibilities in his new role are substantively the same as those in his old role. The principal duties in both the old role and new role are to:
· Mange the staff reporting to him distributed across a regional area, including being responsible for providing training, support, mentoring and guidance;
· Develop, lead and execute strategy for new and existing business development activities in South Eastern WA to ensure delivery of the local area plan to protect, deepen and grow all client relationships;
· Be accountable for customer growth and drive key revenue and financial targets;
· Be responsible for South Eastern WA’s sponsorship, portfolio asset quality and margin management;
· Continuously assess the quality of service provided to customers and ensure that service is of the highest quality; and
· Proactively manage risk and meet all policy and compliance requirements.
On a week to week basis, Mr Kappler said Mr Wallace’s role involves:
· Holding group meetings with his team members (generally by phone or teleconference), for example sales and debrief meetings;
· Conducting one on one meetings with his team members to provide them with support and coaching (generally by phone or teleconference);
· Conducting compliance risk assessment activities (for example, managing Watch List and expired credit limits);
· Meeting with bankers and customers (either by phone or teleconference or in person);
· Conducting administrative tasks online (for example, managing revenue and approving his team members expenses and recording meeting with his team and managing their performance and training in the online people system); and
· Attending leadership team meetings and meeting with himself as his manager.
As to Mr Wallace’s assertion that he is now responsible for business and small business clients, Mr Kappler said this is a result of the restructure of regional business portfolios and is not a significant change to his duties. Mr Kappler said the distinction between business and agribusiness does not really exist in the communities Mr Wallace is responsible for as the major industry in the region is agriculture and many of the businesses are therefore also ancillary to agriculture. Mr Kappler said while Mr Wallace would spend a significant portion of his old role with agriculture clients, he was also always responsible for business and small business clients that fell within the agribusiness portfolio (for example, doctors, accountants and machinery dealers).
Mr Kappler said the focus of the Mr Wallace’s new role is people management, and the skills required to manage bankers focussed on business or agribusiness clients are substantively the same. Mr Kappler said while Mr Wallace now manages bankers who specialise in commercial business lending, he is not required to conduct the lending himself. Mr Kappler said managing these employees is absolutely within Mr Wallace’s skillset, experience and ability given his managerial expertise and 30 years’ banking experience with NAB. Mr Kappler said this is supported by the EOIs submitted by Mr Wallace during the transformation process.
Location of Mr Wallace’s roles
Mr Kappler said Mr Wallace’s old role and new role are regional positions and the nature is that they require significant travel throughout the region for which the managing partner is responsible. He said NAB has determined Mr Wallace’s new role is based in Bunbury, as was his old role. Mr Kappler said the decision was made on the basis that the new role could be performed from a number of locations, including Bunbury, Albany and Narrogin. As Mr Wallace was already based in Bunbury, and Mr Kappler as his manager is also based there, it was determined that the role would be based at Bunbury. Nonetheless, Mr Kappler said an offer was made to Mr Wallace to be based in Albany, however Mr Wallace indicated he did not want to move out of Bunbury.[32]
Mr Kappler said there are significant advantages from an organisational and operational perspective to the role being based in Bunbury. Firstly, Mr Wallace has ready access to his manager and does not have to travel to meet Mr Kappler face-to-face. Secondly, it is valuable that Mr Wallace sits in the same office as another regional managing partner as they can share ideas, support each other and co-ordinate joint training sessions for their staff.
While Mr Kappler agreed that face-to-face contact can be important at points in time,[33] he also suggested technology can be employed in order to have discussions or undertake coaching.[34]
Mr Kappler also gave a number of examples from the past where an RA Manager was not co-located with direct reports which he submitted reinforces that this type of regional role can be effectively performed from a range of locations due to the size of the territory for which it is responsible.
As to Mr Wallace’s submission that managing partners should be located within the local community, Mr Kappler said while it is important that managing partners are known by the communities for which they are responsible and have a profile in those communities, there is no requirement for them to reside there. He said considering the very large geographical areas for which the managing partner roles are responsible, it would be impossible for a managing partner to reside in each of the communities which they oversee.
Mr Kappler said that when in his old role, Mr Wallace was expected to be known to the local chambers of commerce and key community and business groups, and on occasion would attend relevant events or functions. These expectations are the same in his new role and it was said Mr Wallace would benefit from the fact he has established relationships.
As to the NAB Directory which records Mr Wallace’s work address as Albany, Mr Kappler said this is correct and is the same address that was included in Mr Wallace’s original employment contract for the old role in 2014. Mr Kappler said this was because these regional roles can be performed from a number of locations and surmised that Albany was chosen as a nominal location for administrative reasons during the transformation process. Mr Kappler said that when Mr Wallace raised concerns about the location of the new role, NAB indicated that if he preferred to relocate to Albany, that was also an option and it would provide him with support.
Mr Wallace’s direct reports
Mr Kappler said a core component of Mr Wallace’s old role and new role is the management of a distributed workforce across a regional area. Due to the size of Western Australia, this means in his old role and new role, he is a number of hours’ drive away from the majority of his direct reports. Mr Wallace has retained 13 of his 20 former team members and he is now responsible for 19 staff.
Mr Kappler said in the old role, Mr Wallace had four staff in Albany, six staff in Narrogin, two staff in each of Kojonup and Corrigin and five staff members in Bunbury. Mr Kappler submits the team members in Narrogin and Kojonup have not changed and the majority of his team remain the same. He said the only notable change is that Mr Wallace’s five team members in Bunbury and two team members in Corrigin have been replaced by five additional team members in Albany (plus shared responsibility for a Business Banker, Small Business).
Mr Kappler said although Mr Wallace had team members based in Bunbury in the old role, the business they conducted would not have been in Bunbury itself. Mr Kappler said any business Mr Wallace and his bankers based in Bunbury performed would have required travel to local towns.
Mr Kappler said the fact Mr Wallace has no direct reports in Bunbury is not unusual within NAB. In his own case, the majority of his direct reports are based in Perth. Mr Kappler outlined a number of managing partners’ locations around the country and the time required to travel by car to some of their direct reports. Accordingly, he asserts it is not accurate for Mr Wallace to say “[n]o other MP is being asked to complete this level of travel.”
Mr Kappler said travel is an inherent part of this type of regional role where the managing partner is responsible for managing a distributed workforce, and many other regional managing partners are required to travel further to visit their direct reports and clients.
Expectations and requirements regarding travel
As to Mr Wallace’s assertion that the new role will require significantly more travel than his old role, Mr Kappler said this is not correct and he has repeatedly advised Mr Wallace that there is no expectation for him to undertake additional travel, and that the new role does not require him to undertake more travel than the old role. Mr Kappler said Mr Wallace can still perform the duties in the same time frames as before.[35]
Mr Kappler said NAB:
· Has never requested Mr Wallace travel to Albany every two weeks, nor is this an expectation of his role;
· Has never requested Mr Wallace travel to Narrogin every week, nor is this an expectation of his role. Additionally, the number of direct reports that Mr Wallace has in Narrogin has not changed from the old role so there would be no reason for his travel requirements to change; and
· Has never requested Mr Wallace travel to Kojonup every fortnight, nor is this an expectation of his role. Additionally, the number of direct reports at this location as not changed from the old role and so there would be no reason for his travel requirements to change.
Mr Kappler said he has directed Mr Wallace not to do the travel outlined above.[36]
As to Mr Wallace’s assertion that managing partners are required to spend 70 per cent of their time in the community, Mr Kappler said that was not the case and because there are several communities, “the expectation that you spend 70 per cent of your time in each location is ludicrous.”[37]
Mr Kappler said he has repeatedly instructed Mr Wallace to continue with his old role’s visitation program and that there is no need to change this pattern of travel. He said this has also been confirmed by his manager, Ms Julie Rynski.
Mr Kappler said it is “absolutely normal” and expected that managing partners would use NAB’s teleconferencing technology to manage their direct reports, hold meetings and conduct one on one conversations. Mr Kappler said this was a standard part of Mr Wallace’s management of his direct reports in his old role, the majority of whom were not based in Bunbury. Mr Kappler said the need to rely on technology is enhanced by the fact that the bankers Mr Wallace manages are expected to be on the road with customers, so are frequently offsite in any event.
Mr Kappler said based on his observations, he does not agree that Mr Wallace is spending an average of four days per week away from home. Mr Kappler said as Mr Wallace has been repeatedly informed, this level of travel is not a requirement or expectation of the new role. Further, Mr Kappler said Mr Wallace’s claims regarding overnight travel are not supported by NAB’s records. Mr Kappler said from May 2017 to June 2018, a period of 14 months, in seven of those months Mr Wallace travelled to Albany once in the month, in five of those months he did not travel to Albany at all and in two of the months he travelled twice to Albany. Since being appointed to the new role, Mr Wallace did not travel to Albany in July 2018, in August 2018 he travelled there twice and in September 2018 on one occasion. Mr Kappler contends this evidence demonstrates the number of trips Mr Wallace has made to Albany has not substantively changed since he commenced in the new role in July 2018.
Mr Kappler said Mr Wallace is not expected to stay overnight in Narrogin or Kojonup as part of either his old role or his new role. While he is expected to travel to these locations, this is generally during the day and this expectation is the same as in his old role and inherent to a regional role managing a distributed workforce in the largest State in Australia. Mr Kappler said Mr Wallace in his new role has less areas for which he is responsible as Corrigan, a three and a half hour drive from Bunbury, is no longer within his portfolio.
As to Mr Wallace’s assertion that he is under considerable pressure to perform his role and be available to staff under tight time constraints, Mr Kappler said in both the old role and the new role, Mr Wallace always had team members and clients in Albany. While his team members have increased from four to nine at Albany (plus shared responsibility for a Business Banker, Small Business), Mr Kappler said both he and his manager have clearly explained to Mr Wallace that he does not need to spend any additional time there. Mr Kappler said client visits and meetings with staff should all be scheduled in line with his planned visits to Albany.
Relevant Principles
The Full Bench of the Commission in AMWU v Berri Pty Limited (Berri)[38] concluded as follows in relation to the interpretation of a single enterprise agreement:
“[114] The principles relevant to the task of construing a single enterprise agreement may be summarised as follows:
1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:
(i) the text of the agreement viewed as a whole;
(ii) the disputed provision’s place and arrangement in the agreement;
(iii) the legislative context under which the agreement was made and in which it operates.
2. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.
3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.
4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.
5. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.
6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.
7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.
8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.
11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.
12. Evidence of objective background facts will include:
(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;
(ii) notorious facts of which knowledge is to be presumed; and
(iii) evidence of matters in common contemplation and constituting a common assumption.
13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.
14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.
15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.”
The Full Bench of the Commission in CFMEU v Endeavour Coal Pty Ltd (Endeavour Coal),[39] considered Golden Cockerel and Berri in the following terms:
“[42] In Golden Cockerel, the Full Bench set out authorities which make it clear that while the task of construction begins with consideration of the ordinary meaning of the words of the agreement, regard must be paid to the context and purpose of the provision or expression being construed. Those authorities make clear that context and purpose are relevant to construction and must be considered even where the words of the provision being construed appear, on their face, to have a clear and unambiguous meaning.
[43] In this regard, the Full Bench in Golden Cockerel set out at [29] the explanation of this point by the NSW Court of Appeal in Mainteck Services Pty Ltd v Stein Heurtey SA. Relevantly, that explanation emphasises the following matters:
· Until a word or phrase is understood in the light of the surrounding circumstances, it is rarely possible to know what it means and there is always some context to any statement;
· Language considered in its context will often have a clear meaning and context will often not displace that meaning – “but not always”;
· To state that a legal text is clear reflects the outcome of an interpretation process and means that there is nothing in the context that detracts from the ordinary literal meaning and cannot mean that context can be put to one side;
· The phrase used by Mason J in Codelfa “if the language is ambiguous or susceptible of more than one meaning” does not mean that the susceptibility of the language to more than one meaning must be assessed without reference to the surrounding circumstances and in order to determine whether more than one meaning is available it may be necessary to turn to context; and
· Context has also been described as surrounding circumstances and the meaning of terms normally requires consideration not only of the text, but of the surrounding circumstances known to the parties and the purpose and object of the transaction.
[44] Further, the significance of context and purpose in the construction of an enterprise agreement was emphasised by a Full Bench of the Commission in Berri, where the relevant principle was summarised at [114] as follows:
“The principles relevant to the task of construing a single enterprise agreement may be summarised as follows:
1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:
(i) the text of the agreement viewed as a whole;
(ii) the disputed provision’s place and arrangement in the agreement;
(iii) the legislative context under which the agreement was made and in which it operates …”[40] (references omitted)
Further, the Full Bench of the Commission in United Firefighters Union of Australia v Emergency Services Telecommunications Authority T/A ESTA[41] stated:
“[35] As stipulated in Berri, the starting point for interpreting an enterprise agreement is to have regard to the ordinary meaning of the words used. Further, the text must be interpreted in the context of the agreement as a whole. Principles 7 and 10 elicited in Berri emphasise that ambiguity in a provision within an enterprise agreement must be identified before one is to have regard to evidence of the surrounding circumstances. However, principle 8 makes it clear that, in determining whether ambiguity exists, one may have regard to evidence of the surrounding circumstances. That is, such evidence can be used to identify and resolve any ambiguity.”
Consideration
As outlined in Endeavour Coal, the decisions in Golden Cockerel and Berri make it clear that context and purpose are relevant to the construction of an agreement and must be considered even where the words of the provision being construed appear, on their face, to have a clear and unambiguous meaning.
Turning therefore to the text of the Agreement as a whole, I consider the clauses I have outlined below provide some assistance for me in discharging the task of determining the meaning of Comparable Position.
In the clause 5 Definitions, “Redundancy” is defined as follows:
“Redundancy means a situation where the employee's position is made redundant because the role being done by the employee (or the major part of it) is no longer required to be done in that location or a location within a reasonable commuting distance as a result of reorganisation, changed business practice, technological change or downturn in business.”
Section E of the Agreement deals with “Organisational Change” and clause 52 outlines applicable principles to apply:
“52. Principles in organisational change
52.1 NAB and FSU are committed to the following principles in respect to organisational change and its effect on employees:
(a) maximising redeployment opportunities for displaced employees;
(b) minimising retrenchments;
(c) minimising forced retrenchments;
(d) matching employee preferences as far as possible with business unit needs; and
(e) anti-discrimination provisions contained in the NAB Award are applied.”
Clause 52.2 of the Agreement also commits NAB to the avoidance of retrenchments wherever possible.
In dealing with the concept of “On Deployment”, the duties to be undertaken by an employee are outlined in clause 55.4:
“55.4 The duties undertaken by an employee “On Deployment” will be:
(a) consistent with the employee's skills and experience, and
(b) at a location which is within reasonable commuting distance.”
Clause 55.11 deals with “Deployment to a Comparable Position” and clause 55.12 with “Deployment to an Acceptable Position”:
“55.11 Deployment to a Comparable Position
(a) NAB may deploy an employee "On Deployment" to a Comparable Position.
(b) If an employee does not accept deployment to a Comparable Position the employee is not entitled to the retrenchment payments.
(c) The process of identifying a comparable position is not designed to de-skill NAB employees. The process is designed to maintain, enhance or broaden an employee's principal skills to meet business and operational requirements.
55.12 Deployment to an Acceptable Position
(a) NAB may offer an employee an Acceptable Position and may offer deployment for a trial period of 8 weeks in that role. To remove any doubt, it is a decision of NAB as to whether any offer to deploy an employee to an Acceptable Position is made.
(b) Where NAB determines that an Acceptable Position trial should occur, the employee must not unreasonably refuse and the "On Deployment" period will be suspended.
(c) The Transition Coach/People Leader and the employee will meet weekly during the trial to discuss progress. In the final week of the trial, the employee and the Transition Coach/People Leader will meet to discuss whether or not the appointment to the Acceptable Position is confirmed. However at any time during the trial period, NAB or the employee may decide that the Acceptable Position is unsuitable, and the employee will return to "On Deployment".
(d) If the appointment is not confirmed the employee will return to "On Deployment".
(e) An employee who is deployed to an Acceptable Position will retain their existing TRP, and any future adjustments shall be those applying to the new roleexcept where income adjustment provisions apply.
(f) NAB will reimburse an employee for any additional home to work and work to home travel expenses which arise from Deployment to an Acceptable Position.
(g) If Deployment to an Acceptable Position involves a change in residence giving rise to a relocation payment entitlement the employee may either:
(i) accept the relocation payment and forfeit the trial period, or
(ii) postpone the relocation payment until after the employee is appointed to the new position. NAB will cover the actual cost of reasonable accommodation, food, drink and incidentals for the trial period.”
Appendix C outlines various allowances, including:
“Private vehicle allowance
5.1 An employee required by NAB to use their private vehicle in the performance of duties shall be paid 66 cents per kilometre.
5.2 A minimum amount of seven kilometres travelled shall be paid to an employee, other than employees in Group 3 and above, in respect of each return trip from the employee's usual workplace.
Transfers, travelling and working away from usual place of work
9.1 Notice of transfer
(a) This clause does not apply to casual employees.
(b) NAB will give an employee at least one months' notice of its intention to transfer the employee where a change of residence is involved.
9.2 Transfer/removal expenses and reimbursement
(a) This clause does not apply to casual employees.
(b) The following provisions only apply to NAB initiated transfers. Payments in circumstances where an employee transfers at their own request are at the discretion of NAB.”
It is also worth re-stating the definition of Comparable Position from clause 5:
“Comparable Position means a position which:
(a) is above or at the same TEC as the position the employee held which was made redundant;
(b) fills the same number of hours per 4 week cycle;
(c) does not entail a change in duties significant enough to be unreasonable in the circumstances of the employee’s skills, ability, previous work experience and training required to fulfill the role;
(d) does not involve an unreasonable change in daily start and finishing times (to be determined by such factors as the degree of the change and the employee’s family responsibilities and personal needs); and
(e) is at the same location or at another location which is in reasonable commuting distance (to be determined by reference to factors including the employee’s duties and responsibilities, family responsibilities and historical use of private and public transport).”
It is apparent from the provisions outlined above from [84] - [90]:
(a) Organisational change is contemplated by the parties (Section E);
(b) It is governed by agreed principles, which include maximising redeployment opportunities, minimising (if not, avoiding) retrenchments and matching employee preferences as far as possible with business unit needs (clauses 52.1 and 52.2);
(c) NAB can require a role to be done or not done in a particular location (clause 5 – definition of Redundancy, clause 55.11, clause 55.12);
(d) Duties to be assigned to an employee “On Deployment” are subject to an assessment that distinguishes between employee skills and experience on the one hand and location on the other (clause 55.4);
(e) The process behind a Comparable Position scenario is designed to maintain, enhance or broaden an employee’s skills to meet business needs, as opposed to de-skilling him or her (clause 55.11(c));
(f) NAB is entitled to deploy employees to a Comparable Position (clause 55.11) and an employee must not unreasonably refuse deployment to an Acceptable Position (clause 55.12);
(g) NAB is also entitled to transfer employees to different locations and will pay expenses in doing so (Appendix C, clause 9.1 and 9.2); and
(h) Reimbursement is also provided for:
· Home-to-work and work-to-home travel expenses when deployed to an Acceptable Position (clause 55.12(f));
· Relocation on deployment to an Acceptable Position (clause 55.12(g)); and
· Use of a private vehicle in the performance of duties (Appendix C, clause 5.1).
The parties dispute whether the new role is a Comparable Position having regard to subsections (c) and (e).
Comparable Position definition – subsection (c)
When it comes to subsection (c), the parties agree the second part (in the circumstances of the employee’s skills, ability, previous work experience and training required to fulfill the role), informs the first (does not entail a change in duties significant enough to be unreasonable). This accords with my view.
Mr Wallace argues in relation to subsection (c) that if the location of the new role is Bunbury, it equates to a significant change in his duties that is unreasonable. He asserts this because he maintains the duties include travel and his travel requirements have changed. As I understand his submission, Mr Wallace argues that the travel changes are significant enough to be unreasonable in the circumstances of his previous work experience of travel required to fulfil the role.[42] He also maintains a distinction can be drawn between the scenario of a Comparable Position and an employee “On Deployment.”
On the question of travel, I have outlined Mr Kappler’s evidence relating to the NAB’s expectations and requirements regarding travel and what has been outlined to Mr Wallace above, at [70] – [78]. I note Mr Kappler directly responded to Mr Wallace’s claims regarding his travel obligations and I do not consider his evidence was in any way materially shaken as a result of cross-examination.
There appears to be a lack of alignment between travel commitments Mr Wallace perceives are required and those which Mr Kappler and NAB expect. As a result, I have looked to the records of the overnight travel of Mr Wallace. These allow for a comparison of his overnight travel before and after assuming the new role and they suggest that there has been no discernible change.[43] Overall, notwithstanding the contrary views of the parties, I am at least satisfied that of those in Managing Partner roles, NAB does not require the level of travel that Mr Wallace suggests is necessary.
Further, I am persuaded on the basis of Mr Kappler’s evidence that NAB is comfortable with Mr Wallace being based in Bunbury and it considers he will be able to fulfill the requirements of his role while being so and I prefer Mr Kappler’s evidence that he has told Mr Wallace to continue with the visitation program of the old role and has not told him to travel in the manner Mr Wallace claims is required in the new role.[44]
NAB’s position on subsection (c) is:
1) It does not include travel;
2) Even if it does, there has been no significant increase in travel on the facts; and
3)Even if there is a significant increase in travel, it has been brought about by the choice of Mr Wallace, rather than the requirements of the role.
I have outlined NAB’s submissions in relation to subsection (c) at [47] above and note further its submissions at hearing that travel is ‘not readily captured’ in the language of subsection (c) and nor does a natural reading of it say that more travel equals a significant change in duties. NAB further submits that the context of the wording of the Agreement does not lead to the conclusion that travel is a duty.
There are five criteria that go to the assessment of whether a position is a Comparable Position. I consider these are capable of being characterised as remuneration/compensation (subsection (a)), hours of work (subsection (b)), spread of hours (subsection (d)), location (subsection (e)) and, in the case of subsection (c), employee capacity and capability.
When I have regard to the ordinary meaning of the words “employee’s skills, ability, previous work experience and training”, I do not consider that requirements as to travel fit within either an employee’s skill or work experience on a plain reading of subsection (c). Further, the text of subsection (c) must be interpreted within the context of the Agreement as a whole. In this regard, just as I consider subsection (c) as covering capacity and capability, I consider that considerations as to travel fall within subsection (e). I am fortified in this view having regard to the manner in which skills and experience and location and commuting are distinctly treated in clause 55.4, which also deals with circumstances following a redundancy. Further, I have also had regard to the regime of allowances and other entitlements, which persuades me that in the Agreement, work related travel is treated as a disability associated with a role, as opposed to being a skill or function of a role.
I therefore conclude subsection (c) in the definition of Comparable Position does not assist the contention of Mr Wallace that he was not deployed to a Comparable Position within the meaning of that term as defined in Clause 5 of the Agreement, when appointed to the new role.
Comparable Position definition – subsection (e)
Mr Wallace submits the decision I am to make is whether or not the Comparable Position is in the same location as his earlier position. The primary argument of Mr Wallace is that the location of the new role is not Bunbury. He relies on the evidence as to the location of staff, his assertions both as to the time spent on various tasks pre and post change and that none of his duties need to be performed in Bunbury and a comparison of his circumstances with other Managing Partners located in Western Australia. Mr Wallace contends that to simply say the position is where NAB says it is, ignores the reality of the work that is performed in the position.
Flowing from his proposition that the location of the role is not Bunbury is Mr Wallace’s assertion, dealing with the second part of subsection (e), that none of the alternative locations for the new role could be considered a reasonable commuting distance from Mr Wallace’s home.
Ultimately, Mr Wallace submits that there must be some connection between the work that is performed and the location in which it is performed for the words "at the same location" in subsection (e) to have any meaning, because otherwise the result could be an array of contrived situations designed to avoid paying redundancy entitlements.
NAB, on the other hand, submits the question of where someone works is to be assessed by the employer and an employer can ‘build’ a position, own it and outline what it wants done and how and where it wants it done. It submits the position of Managing Partner is where it says it is and in this instance, the new role is a Comparable Position because it is in the same location of Bunbury. As such, NAB submits the balance of the wording of subsection (e) has no work to do.
NAB submits the Commission has no jurisdiction to deal with this aspect of the dispute and that even if it could, the assertion that the new role is not in Bunbury has not been made out on the facts. It submits that the evidence in this case indicates Managing Partners are largely located where they want to be located (asserting Bunbury is where Mr Wallace wanted to be) and that the Managing Partner role does not encompass, call for, require or demand any or any material increase in travel commitments, relying on the evidence of both Mr Kappler and what he said his manager, Ms Rynski, has said in this regard.
NAB contends the location of the new role is a decision for it and any alleged differences or changes are simply the subjective perceptions or views of Mr Wallace. It submits what Mr Wallace is asking the Commission to do is compare the old role with his perception of the new role.
In terms of context, NAB raises clause 52.1 and 52.2 of the Agreement which it says ‘highlight’ the desire of the parties to avoid and minimise retrenchments and maximise redeployment opportunities and further, it submits:
“It is difficult in the context of those statements of principles and objects to adopt a construction of a provision which is necessarily part of that process in a way which too easily results in an outcome of non‑comparability and frustrates the broader purposes and objects of the process.”[45]
NAB further submits there is some contextual assistance to be gained from clause 55.11(c), which provides that the process of identifying a comparable position is not designed to de-skill NAB employees, but rather maintain, enhance or broaden an employee's principal skills to meet the business and operational requirements.
I am satisfied the evidence makes clear Managing Partners are located in different ways and there is no set criteria guiding these. Within the context of the Agreement, organisational change is contemplated, the parties aspire to minimise retrenchments and maximise redeployment and NAB can exercise its managerial prerogative to place or not place employees in various roles and locations. In such circumstances, I am satisfied that NAB is entitled to deploy an employee to a position at the same location in a redundancy scenario and if the other four criteria are also satisfied (subsections (a)-(d)), this will constitute a Comparable Position. It is the decision of NAB and not the subjective view of Mr Wallace which is the determining factor as to where the location of the position is to be.[46]
NAB has a choice as to location but once it decides a post-redundancy position is to be located at the same location as the previous (redundant) role, subsection (e) has no more work to do. I reject the contention that it is necessary to ask whether a reasonable person would have made the choice to deploy an employee to the same location, in order to determine whether a new position can be considered a Comparable Position. The words of subsection (e) do not require this. The notion of reasonableness would only come into play if the employee was to be placed in another location. This would also be the case if an employee was placed “On Deployment” elsewhere.[47] When settling upon the considerations which would determine whether a position would be considered a Comparable Position, the parties to the Agreement were deliberate in choosing which of the five criteria were to be assessed on the basis of reasonableness and which were not.
Therefore, having regard to the wording of subsections (c) and (e) in the Definition of Comparable Position, together with the context of the Agreement, I am satisfied that when it decided to deploy Mr Wallace as a Managing Partner in Bunbury, the same location as the old position, NAB had deployed him to a Comparable Position within the meaning of that term as defined in Clause 5 of the Agreement.
DEPUTY PRESIDENT
Appearances:
A Cousner for the Applicant.
M Follett of Counsel for the Respondent.
Hearing details:
2018.
Melbourne and Perth (video link):
November 8.
<PR703178>
[1] Clause 5 of the Agreement.
[2] Transcript PN 581.
[3] Transcript PN 301.
[4] Transcript PN 313.
[5] Transcript PN 312.
[6] Transcript PN 312.
[7] Transcript PN 313.
[8] Transcript PN 588.
[9] Transcript PN 315.
[10] Transcript PN 300.
[11] Transcript PN 315.
[12] Transcript PN 321.
[13] Transcript PN 328.
[14] Transcript PN 332.
[15] [2014] FWC 3944.
[16] [2007] AIRC 397.
[17] [2014] FWC 3944 at [450].
[18] [2014] FWC 3944 at [451].
[19] Transcript PN 338.
[20] Transcript PN 381.
[21] Transcript PN 389.
[22] Transcript PN 389.
[23] Transcript PN 437.
[24] Transcript PN 438.
[25] NAB contends this is consistent with authority, as referred to in Heath v National Australia Bank Ltd[2014] FWC 3944 at [446] and [450].
[26] Heath v National Australia Bank Ltd[2014] FWC 3944 at [446].
[27] Transcript PN 391.
[28] Transcript PN 472-477.
[29] Clause 64.1 of the Agreement.
[30] Transcript PN 481-485.
[31] Heath v National Australia Bank Ltd[2014] FWC 3944 at [423].
[32] Transcript PN 166 and 169.
[33] Transcript PN 122.
[34] Transcript PN 126.
[35] Transcript PN 186.
[36] Transcript PN 214.
[37] Transcript PN 198.
[38] [2017] FWCFB 3005.
[39] [2017] FWCFB 4487.
[40] Ibid at [42]-[44].
[41] [2017] FWCFB 4537.
[42] Transcript PN 331-332.
[43] Exhibit R1 at [41]-[45] and Annexure 3.
[44] See above at [71].
[45] Transcript PN 389.
[46] Heath v National Australia Bank Ltd[2014] FWC 3944 at [424].
[47] See Clause 55.4(b) of the Agreement.
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