Helen Garvey v Australia and New Zealand Banking Group Limited - [2014] FWC 1095

[2014] FWC 1095

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 739 - Application to deal with a dispute

Helen Garvey
v
Australia and New Zealand Banking Group Limited
(C2013/7239)

DEPUTY PRESIDENT SAMS

SYDNEY, 13 FEBRUARY 2014

Dispute under the terms of an enterprise agreement - redundant Team Leader position - offer of redeployment - whether change of duties significant enough to be unreasonable - directly comparable role - project management - administrative and people management duties - new role directly comparable - no entitlement to severance payments.

[1] This decision will determine a dispute, arising under the terms of an enterprise agreement, lodged by Ms Helen Garvey, pursuant to s 739 of the Fair Work Act 2009 (the ‘Act’). The respondent to the dispute is the Australia and New Zealand Banking Group Limited (‘ANZ’ or the ‘Bank’). The dispute arises from a reorganization and restructure of the Wealth Technology Branch, which resulted in Ms Garvey being redeployed from a redundant Team Leader’s role to a Project Manager’s role.

[2] Ms Garvey maintains that the roles are not ‘directly comparable’ as defined in Sch 5 of the ANZ Enterprise Agreement 2013 - 2014 (Australia) [AE899281] (the ‘Agreement’) and that as a result, she is entitled to a severance payment under the relevant provisions of cl 5 of the Agreement. Given Ms Garvey’s service, her severance pay entitlements would be 14 ½ weeks pay totalling around $35,901 (depending on her actual date of termination).

[3] Under the Agreement, ‘directly comparable role’ is defined as:

‘... a role within ANZ which:

is at the same Grade or above;

does not involve a change in duties significant enough to be unreasonable having regard to the Employee’s skill and ability; and

is at the same work location or at another work location which does not involve an Unreasonable Impact on your travel time or costs.’

Unsurprisingly, the Bank submits that the two roles are ‘directly comparable’ and no severance payment is therefore payable. It is agreed that the first and third dot points above are not in issue in this dispute. Clause 5 is annexed to this decision and marked as Annexure A.

[4] At this juncture, I note that:

● Ms Garvey is covered by the Agreement;
● the disputes procedure has been complied with;
● the dispute concerns a matter arising under the terms of the Agreement;
● the disputes procedure empowers the Commission to arbitrate the dispute; and
● ANZ does not dispute that Ms Garvey’s former Team Leader’s role was made redundant on 1 August 2013.

Thus, it will be seen that no jurisdictional issues arise for determination in this case.

THE EVIDENCE

[5] The following persons gave written and oral evidence in the proceeding:

● Ms Garvey;
● Mr Gregory O’Donoghue, Head of Delivery - Global Pensions and Investments, ANZ;
● Mr Sandeep Chandra, Senior Delivery Manager - Wealth, ANZ; and
● Mr John Hunt, Head of Project Management Practice - Technology Delivery Services, ANZ;

Ms Garvey’s evidence

[6] Since 1985, Ms Garvey has been employed or engaged as a contractor in the information technology industry with a focus on financial services. For ten years from 1998-2008, she was employed by BT Financial Group (‘BT’) predominantly in Team Leader and Project Management roles. Her position with BT was made redundant in 2008 and she was not employed for one year.

[7] On 3 May 2010, Ms Garvey commenced permanent employment with ING Australia (INGA) as a Project Manager, having been engaged as a contractor to INGA in 2009-2010. She described ‘Project Management’ as ‘managing and coordinating a process to install and/or modify computer software to perform a function for the business within the specified timeframe, budget and scope of a project.’ She was one of a number of Project Managers employed by INGA.

[8] In October 2010, Ms Garvey successfully applied for one of two new Team Leader positions. This was a promotion. ANZ had earlier acquired INGA and from 24 September 2010, Ms Garvey and all other employees of INGA became employees of ANZ. She remained in her role as a Team Leader in the Wealth Technology section, a part of ANZ Wealth. Within Wealth Technology was ‘Wealth Delivery Services’ which had the function of delivering information technology projects in ANZ Wealth.

[9] Following a restructuring of Wealth Delivery Services in May 2012, Ms Garvey retained one of three Team Leader positions reporting to Senior Manager of IT Projects Manager, Mr Matt Filkins. She reported to him until June 2013 and to Mr O’Donoghue thereafter. Ms Garvey described her responsibilities in this role as follows:

● Her team varied between 15-20 project managers or business analysts, some or all of whom were, from time to time, contractors;
● attending weekly allocation meetings which discussed the various projects and how staff and priorities would be allocated;
● having an understanding of, and involvement in, all of the projects in Wealth Delivery Services, rather than just the projects she worked on as a Project Manager;
● attending Managers’ meetings where major decisions, such as restructuring, were advised and asked to be communicated to the affected persons;
● requesting approval for recruitment or extension of engagement of a Project Manager or Business Analyst in her team;
● responsibility for updating human resource information;
● liaising with external recruitment agencies on ANZ’s list of preferred suppliers, obtain details, shortlist candidates, arrange interviews and interview candidates with Mr Filkins or another Team Leader;
● having authority to approve timesheets and leave for Project Managers and Business Analysts;
● engaging in regular discussions with members of her team - in some cases, fortnightly and in other cases as needed;
● conducting six monthly performance sessions and dealing with disciplinary issues with Mr Filkins;
● attending annual bonus ratings meetings with her peers and line managers where ratings were allocated to each team member in order for the senior manager to determine each individual’s bonus;
● assessing each individual’s bonus; and
● undertaking project management herself.

[10] On 31 July 2013, Ms Garvey was advised of a business restructure in which she would be reporting to Mr Sandeep Chandra. At the time, she did not know, and had not received an organisational chart as to how the restructure would affect her Team Leader role. However, from August 2013 she understood that she would no longer be attending Allocation Meetings or have access to an intranet site which provided information necessary for these meetings.

[11] Ms Garvey made a number of attempts to clarify her role in the restructure. On 29 August, she had a meeting with Mr Chandra in which he offered her a Project Manager’s role subject to the same terms and conditions as her existing role. She told Mr Chandra that she did not believe the role was comparable as it was a ‘backward step’. She further told him she would be seeking advice about the offer and she did not believe ANZ could demote her. Ms Garvey met Mr Chandra again the next day and he asked why she was seeking advice. She restated that the new role was not comparable and she would not be as ‘marketable’ without retaining her people management skills. Mr Chandra handed her a copy of the Role Mandate for the new position. This and the earlier Role Mandate for Team Leader are annexed to this decision as Annexures C and B respectively.

[12] The same day, Ms Garvey was advised that, apart from four contractors, all other Project Managers and Business Analysts were to report to Mr Chandra. There were duties removed from her, and her responsibilities changed as follows;

● she no longer attended Allocation Meetings or had access to the Allocations Sharepoint site;
● she had no knowledge or involvement in the projects of other Project Managers and Business Analysts;
● she no longer attended Managers’ meetings;
● she was no longer involved in recruiting or extending the engagement of Project Managers or Business Analysts;
● she no longer approved leave and timesheets for her team and consequently no longer amended HR’s database; and
● she no longer attended meetings with other Project Managers and Business Analysts. Nor was she involved with their performance management, disciplinary issues or setting their annual bonuses;

[13] Ms Garvey claimed her people management responsibilities constituted more than 40% of her role as a Team Leader. In short, Ms Garvey believed that her Team Leader role had been taken over by Mr Chandra. As a result, she was in the same position she had been in prior to being promoted in October 2010. She also believed that her broader staff management skills would no longer be used or developed and that they would eventually be lost over time. This would adversely impact on her career progression both within ANZ and outside.

[14] Ms Garvey formally initiated her grievance under the terms of the Agreement on 9 September 2013. She had an ‘informal’ meeting with Mr Chandra’s Manager, Mr John Hunt on 17 September 2013. Ms Garvey was concerned that Mr Hunt seemed to suggest that the issue was ‘black and white’ and there was nothing to determine. It appeared to her that ANZ was not intending to seriously consider her grievance. She felt his approach was to intimidate her into not pursuing the dispute.

[15] Nevertheless, Ms Garvey took her grievance to ‘People Assist’, an internal helpdesk in the Bank’s HR Department. She had further meetings under the disputes procedure as follows:

(a) with Mr Chandra on 3 October 2013;

(b) with Mr Hunt on 9 October 2013; and

(c) with Mr Hamish Mackenzie, Head of Platform Services and Ms Yvonne Della Bosca, Senior HR Business Partner on 12 November 2013.

[16] Ms Garvey insisted that her grievance remained unresolved. She continues to believe that her new role is not comparable and she should accordingly be paid redundancy benefits as a redundant employee. In supplementary oral evidence, Ms Garvey denied that she had alternative employment arranged if she was made redundant.

[17] Ms Garvey said that although she knew ‘something was coming’ in June 2013, nothing had been announced concerning the restructure until late July. However, she conceded that she had told Mr O’Donoghue before 1 August that she wanted a (redundancy) package if it was available. In further evidence, Ms Garvey agreed that there was another meeting with Mr Chandra on 27 August 2013.

[18] While Ms Garvey aknowledged that there was no difference in managing contractors vis a vis employees, contractors were self directed in their work, highly skilled, were paid a higher hourly rate and did not need direction as to their duties. Ms Garvey accepted that her reference to informal performance management reviews of her team were not a formal part of her duties, but had been undertaken at her own initiative. Annual performance reviews did not take up much time and her role was more like mentoring and/or coaching. She said that organising a person’s leave requests involved ‘a bit’ of negotiation.

[19] Ms Garvey developed her evidence as to the role and responsibilities of a Project Manager, such as involvement in the feasibility stage, budgeting, deliverability, resourcing and collecting and managing a team (between 5 and 10 or even 50 or more). She had typically managed a team of between 10 and 20 people. The Project Manager organises meetings, oversees programs, problem solves and arranges for additional resources if necessary and ensures budgets and schedules are met. She would also meet people individually and informally, liaise with infrastructure providers and ensure correct billing.

[20] Ms Garvey said that projects (some of which can last for six months to two years) may involve a dramatic increase in the hours of work, requiring people working late nights. She would provide a ‘personal touch’, by taking team members out to lunch and buying flowers or chocolates for team members as a recognition of the stress of the job. However, Ms Garvey deposed that if an individual needed counselling, the issue was referred to the Resource Manager. She would not initially disclose the matter of concern related to the individual. Ms Garvey said that leave requests were often negotiated. Feedback and reviews would take place when a project is completed. However, she did not advise on any specific bonuses.

[21] Ms Garvey was questioned as to how any of these responsibilities were different to her Team Leader’s role. She argued Project Management involved managing a team, taking input and sharing ideas around a team, recruiting and interviewing persons and overseeing projects.

[22] In a reply statement, Ms Garvey said that prior to the changes in September/October 2012, she spent about 50% of her time performing project management duties and after these changes, about 30%. Her direct reports went from 17 to 5 contractors. Nevertheless, Ms Garvey said that she was still required to perform:

(a) informal annual performance reviews (not part of the official ANZ review system);

(b) mentoring and coaching contractors with respect to ANZ’s processes and procedures;

(d) the ‘onboarding’ and ‘exiting’ of Project Managers.

[23] Ms Garvey said that Team Leaders also held weekly meetings to discuss the general management of the Project Managers, including leave requests or other ‘people’ issues. Ms Garvey disagreed with the proposition that reviewing CVs and attending interviews were not sophisticated people management tasks. She said that while authorising timesheets is not a sophisticated task, errors requiring correction would sometimes occur. She believed the ‘onboarding’ and ‘exiting’ of people was a time consuming and onerous task.

[24] Ms Garvey found Mr Hunt’s attitude in the meeting of 27 September 2013 to be ‘very confrontational’. She disagreed with his view that the Project Management role involved people management responsibilities as there is no line management function. She claimed the ‘capability uplift’ of accountability and leadership involving a ‘virtual team’ does not involve any line management authority. Ms Garvey disagreed with Mr Hunt that the skills she developed were ‘basic, repetitive, mechanical tasks’.

[25] In respect to Mr Chandra’s evidence, Ms Garvey repeated para [12] and added that the induction of contractors was part of her role as a Team Leader, but not that of a Project Manager. She believed her people management duties were not ‘process driven’ and were more than just following ANZ’s processes and procedures.

[26] Ms Garvey referred to a spreadsheet containing questions and answers about the two roles. She had not provided the answers recorded in them, but did so in an email to Mr Chandra and Mr Hunt on 30 October 2013.

[27] Ms Garvey said that in 2010 she and others were directed to reduce the amount of time spent on administrative work. She continued to perform the same amount of managerial work, but ceased allocating this time internally to ANZ. Rather, she recorded it against the projects themselves. This meant her timesheets in the ANZ system were inaccurate.

For the Bank

Mr Gregory O’Donoghue

[28] Mr O’Donoghue has worked in his current role since September 2013, and was previously employed by ING Administration Pty Ltd (‘INGA’). He began working for ANZ in 2010.

[29] In his statement, Mr O’Donoghue said that he had hired Ms Garvey in August 2009 as an IT Project Manager and she became a permanent employee in 2010. He had noted in particular, her more than ten years experience in project management and five years in people management at a ‘Wealth Management’ company. He thought of her as calm under pressure, organised and capable of well managing tight schedules and budgets.

[30] Mr O’Donoghue deposed that he had begun to manage a pool of 30 Project Managers in April 2009. In 2010, he decided to split this pool into two groups and sought expressions of interest from those Project Managers to become an acting Team Leader. He stressed that he could not employ two full-time Team Leaders in early 2010. Ms Garvey indicated her interest. She and Ms Rachel Yango filled these acting positions. They were required to spend more than half their time as Project Managers on their respective projects. They were both subsequently successful in applying for two Team Leader roles in August 2010.

[31] Mr O’Donoghue said that both Ms Yango and Ms Garvey were ‘transitioned’ into the same roles at ANZ when the Bank took over INGA. From 2012, their role was titled ‘Development Team Leader’. In 2011, Mr O’Donoghue’s team was expanded to include additional Project Managers and Business Analysts. Mr Matt Filkins was appointed Senior Manager, IT Project Management and was Ms Garvey’s manager. Mr Filkins was expected to be entirely focused on management, unless there were Project Managers on leave.

[32] Mr O’Donoghue explained that as a result of ANZ’s change to its business structure by moving a number project management functions from Wealth to Delivery Services, Ms Garvey lost all of her direct reports, except for one person who was on a fixed term contract. A number of independent contractors were retained in project management roles within Wealth and Ms Garvey had oversight of five of them. Ms Yango continued to supervise her team of permanent employees. Mr O’Donoghue said that the restructure was also designed to change the focus on project management, so that Project Managers were personally responsible for leading change within their projects. He observed that swaps between specialist project management and people management roles were a common occurrence.

[33] Mr O’Donoghue said that there were a number of flow-on effects of ANZ’s restructure. Firstly, there was no longer a large pool of Project Managers which necessitated two Team Leaders. Ms Garvey’s management of independent contractors was fundamentally different in that she was no longer required to manage aspects of people management, like professional development, performance and bonus reviews. He believed that contractors are more highly qualified and experienced and are paid high hourly rates. Accordingly, the level of supervision required was not as great. Ms Garvey’s management in this area really amounted to contract management and constituted approximately 30% of her work time.

[34] Mr O’Donoghue said that he had not filled Mr Filkin’s position when he resigned as he was aware that it was to be made redundant. Consequently, he was Ms Garvey’s immediate manager. Even so, 70-80% of Ms Garvey’s duties were related to direct project management. The number of independent contractors which Ms Garvey dealt with varied, but she was responsible for monitoring timesheets, allocations and ‘onboarding’ and ‘exiting’ contractors. The work which Ms Garvey was required to do in respect to the remaining employee who reported to her, was similar to that which she performed in relation to the contractors. The employee was not new to ANZ and was junior with oversight of projects worth less than $500,000.

[35] Mr O’Donoghue explained that the movement of Wealth project management staff into Delivery Services was announced in July 2013. Under the new structure, there was to be no ‘split’ accountability between project management and people management. Project Managers (Group 4) were to be immediately accountable to more senior managers (Group 3) for their results. Ms Yango and Ms Garvey were to be focused on project management.

[36] Mr O’Donoghue believed that Ms Garvey was wrong to think that her future at ANZ had been damaged by these changes. His view was that the importance of a role was referable to its complexity, rather than its status as a people manager or specialist. He could not see how no longer performing people management tasks would affect Ms Garvey’s skill set - at most she might need brief refresher HR training at some stage. Nor did her position as Team Leader mean that she was ‘next in line’ for promotion, although he conceded her experience in people management would always be noted on her file. He spoke highly of Ms Garvey’s skills and opined that the rate of structural changes at ANZ continued to increase and opportunities to work in people management and specialist roles will continue to arise.

[37] Mr O’Donoghue referred to Ms Garvey’s statement and emphasised that she was originally employed in 2009 as a Project Manager, spending all her time on direct project management. Her commencement date with ANZ was actually 22 October 2010 and the date of the 2012 restructure was in April, rather than May 2012.

[38] Mr O’Donoghue did not dispute the types of people management duties which Ms Garvey asserted that she performed, but argued that between 2010 and September 2012, this would only have taken up 50% of her time and since then, would only have taken 20 to 30% of her time. He did not see her duties in ‘onboarding’ and ‘exiting’ persons, authorising timesheets, reviewing CVs and attending interviews as sophisticated people management skills in relation to independent contractors. His understanding was that Allocations Meetings were fortnightly, not weekly and ran for approximately one hour. This had not been a major part of her role. Mr Filkins had been the decision maker, though Ms Yango and Ms Garvey could offer recommendations. He did not believe her participation in these meetings constituted a ‘contribution’ to other projects. Ms Garvey only attended Manager’s meetings after Mr Filkins left the Bank. She would attend on an ad hoc basis if there were significant issues, like the restructure announcement.

[39] Mr O’Donoghue said that Ms Garvey had not managed a Business Analyst since September 2012. Ms Garvey’s assertion that she had lost involvement with other Project Managers’ and Business Analysts’ projects was not entirely true as there were other forums where Project Managers are able to discuss their projects. He observed that many of Ms Garvey’s previous direct reports were highly experienced and perhaps even more senior than her.

[40] In cross examination, Mr O’Donoghue said that he reviewed and approved Ms Garvey’s time sheets weekly. He had not noticed that she had not recorded time against the appropriate management code and had not asked her where she was recording her team leadership. However, he had issued a direction to Ms Garvey in October 2010 about charging timesheets to the relevant project.

[41] Mr O’Donoghue explained that while at INGA, he and his manager had created the roles and the mandates for those roles under INGA processes. He had been involved in the standardisation process in relation to a number of Team Leader roles to conform with ANZ mandates. Mr O’Donoghue was shown a copy of a Role Mandate for Design & Development Team Leader dated 22 July 2011 (Annexure B). This was the document used in the standardisation of Team Leader roles. He had had no input into its creation, but he had some input into its selection during the standardisation process.

[42] Mr O’Donoghue agreed that it was possible that prior to Mr Filkins leaving the Bank, Ms Garvey would attend Managers’ meetings if Mr Filkins’ was unable to attend. Mr O’Donoghue agreed that Ms Garvey would give contractors informal performance reviews and was involved in their mentoring and coaching.

[43] In re-examination, Mr O’Donoghue said that his expectation was that Team Leaders would be charging a minimum of 75% of their time to their chargeable projects, rather than to administration. He emphasised that the two Team Leader roles were junior to his own. When the size and composition of her team was reduced, Ms Garvey’s role had obviously changed.

Mr Sandeep Chandra

[44] Mr Chandra has been Senior Delivery Manager - Wealth since November 2013, but was the Team Manager - Project Management Practice between August and November 2013. He joined ANZ as a Team Manager in Delivery Services in May 2013. He described his previous experience at the Royal Bank of Scotland, which involved responsibility for projects valued at over $100 million.

[45] In his written statement, Mr Chandra outlined the day to day duties of a Project Manager leading a project team to deliver a project outcome. Project Managers do not have direct line control over the relevant project team, but would be expected to ‘lead’ Business Analysts, design staff, testers and IT support staff to produce an outcome. His own position as Team Manager was to lead and manager Project Managers.

[46] Mr Chandra deposed that the restructure which would move the remaining technology teams from the Retail, Commercial and Wealth divisions into the Technology organisation as part of Delivery Services was announced in July 2013. The purpose was to support the ‘capability uplift’ program. That aspect of the restructure affecting himself, Ms Garvey and Ms Yango occurred in August 2013. He had been managing three teams in Melbourne. These teams were reduced to two and the two teams managed by Ms Yango and Ms Garvey were consolidated and transferred to Delivery Services. He managed this as a third team.

[47] Mr Chandra explained that the Team Leader roles of Ms Yango and Ms Garvey both became redundant at this time. It was not immediately apparent as to whether there would be ‘comparable’ roles for them. He had not worked with them previously and was not familiar with them as he only had had his first one-on-one meeting with Ms Garvey on 2 August 2013. He explained to her that the process was going to take more time. After undertaking due diligence, he determined that Ms Garvey was a Team Leader who did not appear to have any direct reports. Mr O’Donoghue confirmed with him that Ms Garvey had been managing contractors since October 2012 and that 70% of her time was spent in direct project management. He noted, Mr O’Donoghue had informed to him that Ms Garvey would likely contest any reduction in her people management duties.

[48] Mr Chandra said that he consulted again with Ms Garvey on 27 August 2013. From this discussion, he learned of her background and experience as a programmer, production support analyst, production support team lead, development team lead, business project manager, technology project manager and her current role. He also confirmed that her work was predominantly direct project management and that she had a project load of $1-1.5 million. She held one-on-one meetings with contractors fortnightly or on an ‘as needs’ basis. She believed that her people management roles made her more “marketable”.

[49] Mr Chandra believed from his own experience that the management of contractors was less arduous and complex. The contractors were largely senior to her in relation to the complexity of their delivery. He would have expected any ANZ employee to assist contractors in integrating them into ANZ systems and practices.

[50] Mr Chandra said that in the course of his second meeting with Ms Garvey and after discussions with Mr O’Donoghue and Ms Yango, he had reinforced his view that Ms Garvey averaged approximately 70-80% of her time working on project management duties. He now understood that she attended Allocation Meetings on a weekly basis, recruited new contractors if required and extended contracts for IT Project Manager contractors. Mr Chandra explained that he was provided with a new role mandate for Project Managers/Project Directors (Annexure C) at about the same time. His view was that she would be better suited in this role, noting that her classification and pay would not be changed and that there was to be an upskilling of this role.

[51] Mr Chandra met again with Ms Garvey on 29 August 2013 to provide her with the outcome. Knowing that she was likely to express some opposition to the proposal, he prepared himself with a script to ensure that he put all relevant information to her. She had asked if any other roles were available and was told that there were not. She also indicated that she had advice that the new position was not ‘directly comparable’.

[52] Mr Chandra said that he had a further meeting with Ms Garvey on 30 August 2013, for which he also prepared a script. She had reemphasised that the loss of people management duties was substantive and that the offer was not for a ‘comparable’ role. He had replied that the project management role involved elements of people management. The meeting ended with Mr Chandra saying that he would send Ms Garvey a link to the dispute resolution process in the Agreement. Mr Chandra asked Ms Garvey to transfer the contractors reporting to her to him on the same day.

[53] Ms Garvey sent Mr Chandra an email on 9 September 2013 indicating that she wanted to begin the dispute resolution process. Mr Chandra briefed his manager, Mr John Hunt and Mr Hunt met with her on or around 17 September 2013. After this, Mr Chandra developed a line by line analysis of the two positions in spreadsheet form (Annexure D to this decision). This was provided to Mr Hunt on 20 September 2013, who provided comments of his own. A further meeting was held between Mr Chandra and Ms Garvey on 3 October 2013. He emphasised that she was a valued employee and that the Bank would be sorry to lose her. Ms Garvey was really only seeking the reinstatement of her Team Leader role and Mr Chandra felt that she was overstating her competencies and duties.

[54] Mr Chandra claimed that Ms Garvey would not have actively ‘contributed’ to other projects through her participation in Allocation Meetings. These involved the allocation of resources, rather than the resolution of issues. He regarded the approval of recruitment or extension of engagement of Project Managers or Business Analysts as administrative in nature.

[55] Mr Chandra denied that his role and Ms Garvey’s role as Team Leader were directly comparable. His role was more senior, entirely management focused, and entailed oversight of projects with a significantly higher dollar value. In any event, she would need to have more experience in the delivery of complex transactions. Further, he could not see how the people management skills utilised by Ms Garvey in her Team Leader role could be lost over a short period of time. He did not believe her status had been reduced.

[56] In cross examination, Mr Chandra explained that the line by line analysis had been undertaken by himself and Mr Hunt in relation to Ms Garvey’s roles. The comments in the general comparison were a combination of his and Mr Hunt’s contributions. The table marked ‘Loss of Duties’ contained only his comments. There was also a table marked ‘Questions and Answers’ setting out five bullet points with five questions. He had written the answers under the questions based on his own assessment. He agreed that the questions were based on a standard ANZ document marked ‘Appendix ii - Definition of a Comparable Role’. He could not recall providing the document to Ms Garvey to ask for her comments. However, he had seen an email setting out Ms Garvey’s responses to those questions.

[57] Mr Chandra said that he was not aware the Ms Garvey had been assigning time spent on managerial work to her project, rather than to administration. It should have been allocated to management and governance. It would have been possible to create management tasks within a project. He had not observed these kind of entries in Ms Garvey’s timesheets.

[58] Mr Chandra said that he did not regard one-on-one annual performance reviews and recruitment as ‘process driven’, but emphasised that he did not see Ms Garvey as having to perform these duties as she was managing contractors at the time that her position was made redundant. He agreed that Ms Garvey had told him that she had performed ad hoc performance reviews with contractors, but he thought that this was a different process. He was not aware of her performing coaching or mentoring in relation to contractors, although he was aware that she organised their leave requests. He noted that he had not attended any Allocations Meetings at which Ms Garvey was present.

Mr John Hunt

[59] Mr Hunt is Head of Project Management Practice - Technology Delivery Services and has been head of the IT Project Management Practice (Group 2) since November 2013. He has worked in project management roles for over twenty years, including working for ANZ prior to being recruited for his current role in 2013. He was the immediate manager to Mr Chandra and a ‘2-up’ Manager to Ms Garvey.

[60] In his written statement, Mr Hunt explained the reliance of organisations, like the Bank, on technology projects to introduce new products or modify existing ones, to ensure regulatory compliance and update software and hardware. The process of a project would involve the specification of requirements, technical design, technical building, testing and implementation. The Bank expended significant capital on technology projects.

[61] Mr Hunt explained that he had been recruited by ANZ as it sought to change the role of Project Manager, making it a more accountable and leadership based role, rather than being one of a mere coordinator. This involved a change in management structure, a review of the project management lifecycle and retraining of permanent employees. Simultaneously, IT Project Management was being moved to Delivery Services. Project Managers were to be consolidated under one structure. He noted that he had been on leave from mid July to mid August 2013.

[62] Mr Hunt said that when he returned from leave he was made aware of Mr Chandra’s meeting with Ms Garvey on 27 August 2013. He was initially of the view that he did not need to be involved, but this changed when Ms Garvey initiated the dispute resolution process. He was made aware that Ms Garvey was unhappy with the effect of the restructure and proposed to meet with her informally on 17 September. Prior to meeting, he examined copies of her existing Role Mandate and the new Role Mandate (Annexures B and C respectively) and was of the view that they were similar. When they met, Ms Garvey said that she wanted her Team Leader role reinstated. She was told that this role no longer existed. She had emphasised that she saw the new role as a backward step. She did not reply to Mr Hunt’s assertion that the new role had elements of people management responsibility.

[63] Mr Hunt explained that prior to dispute resolution meetings occurring, he had asked Mr Chandra for a full briefing on his views. Mr Chandra provided him with a line by line comparison of the roles in the form of a spreadsheet. It was at this point that Mr Hunt became aware that Ms Garvey was only managing contractors and this cemented his view that there was no real difference between the roles. He emphasised the leadership qualities and budget responsibilities required for the revamped Project Manager role and noted that the day to day duties of a Project Manager would be different, according to the phase of the project. He believed Ms Garvey would have the skills and experience to take on the new role. He identified three aspects of her Team Leader role which would not be present in her Project Manager role: succession planning, vendor relationship management with contractors and performance management.

[64] Mr Hunt said that he conducted a twenty minute phone meeting with Ms Garvey on 9 October 2013 after becoming aware that she had not accepted Mr Chandra’s findings in a meeting held on 3 October 2013. He went through each of her previous duties and expressed the view that the difference between the roles was insignificant. Ms Garvey again raised concerns about her ‘marketability’. She indicated that she would be moving on to the next phase of the dispute resolution process.

[65] Prior to the proceeding in the Commission, Mr Hunt had made further inquiries and had been informed that Ms Garvey did have one fixed term employee reporting to her (Mr Uebergang). Over the past two years, Ms Garvey had had direct reports of another six employees; five of whom still work for ANZ. Three of these ceased reporting to Ms Garvey in March 2012 and two more now reported to other managers. He now allocated Project Managers himself and that even if Ms Garvey had kept her previous role, she would not be performing this duty.

[66] Mr Hunt expressed his view that people management represented a wider set of skills than the HR processes or contract administration upon which Ms Garvey placed much emphasis. Ms Garvey’s view that the change in role was a demotion was an unfortunate one. He believed the loss of Ms Garvey would be a real loss to the Bank.

[67] In further oral evidence, Mr Hunt said that where a Project Manager was not fulfilling their duties appropriately he/she would be approached directly. Where there was an extreme problem, it might be appropriate to approach their Manager, although this would be a rare occurrence. ANZ’s policy was that contractors were not performance managed in the same way as permanent employees, as this would run the risk of ‘blurring the line’ between contractors and employees. In cross examination, Mr Hunt said that it would be hard to lay down a prescriptive rule as to when a line manager would be approached in relation to a Project Manager’s performance.

[68] Mr Hunt was referred to the ANZ branded document marked ‘Appendix ii: Definition of a Comparable Role’ and agreed that this document informed the assessment of himself and Mr Chandra in relation to their line by line comparison of the two roles (Annexure D). This document had been provided to them by HR and was provided to Ms Garvey as part of the dispute resolution process.

[69] Mr Hunt was then shown an email to him from Ms Garvey on 30 October 2013 setting out her response to the five extra compatibility definitions. He believed he had made his assessment in the previous step of the dispute resolution procedure and, at that stage, had been seeking whether she wished to proceed to the next step.

[70] Mr Hunt claimed he was unaware that Ms Garvey was undertaking informal performance reviews on contractors, although observed that he had only worked for the Bank since June 2013. Further, he was not aware that Ms Garvey had been coaching or mentoring contractors.

SUBMISSIONS

[71] In written submissions, Mr C Lawrence, Solicitor, submitted that the effects of clause 5 of the Agreement were as follows:

(a) Where an employee’s job is redundant, ANZ will seek to redeploy the employee to another role (clause 5.3).

(b) If the employee is redeployed into a “Directly Comparable Role”, the employee is not entitled to a severance payment even if the employee does not accept that role (clause 5.5.1).

(c) If the employee is redeployed into a ‘Non Comparable Role’, but does not accept that role, the employee is entitled to a severance payment (clause 5.5.3).

The definition of ‘Directly Comparable Role’ is defined in Schedule 5 (See para [3] above). Any role which is not a Directly Comparable Role is a Non Comparable Role.

[72] Mr Lawrence acknowledged that there was no dispute that the Project Manager role was at the same grade and location as the Team Leader role. The question was whether the changes to Ms Garvey’s duties would ‘involve a change in duties significant enough to be unreasonable having regard to the employee’s skills and ability’.

[73] Mr Lawrence drew my attention to Hawkins & Anor v Commonwealth Bank of Australia (1996) 66 IR 322(‘Hawkins’) as providing a definition of ‘unreasonable’ in this context, specifically where only some of the employee’s skills were to be required in the new role. Mr Lawrence submitted that it was indisputable that there were differences between the two roles. He noted that they were in different divisions of the ANZ business. In her capacity as Team Leader, Ms Garvey had managed a number of Project Managers and Business Analysts while also undertaking project management work. However, the Project Manager role involved only undertaking project management work. Mr Lawrence listed a number of duties and responsibilities which were present in the Team Leader role, but not in the Project Manager role (see Ms Garvey’s evidence, para [12] above). Mr Lawrence characterised the loss of these responsibilities from the new role as meaning it was different from the Team Leader role in two ways; firstly, it meant that Ms Garvey no longer worked as a line manager and secondly, Ms Garvey only dealt with project management roles on which she was directly working.

[74] Mr Lawrence submitted that redeployment was ‘unreasonable’ within the meaning of clause 5 of the Agreement as there was no strategic or broader management function in the new role. Ms Garvey’s people management skills would be lost over time in the project management role. This would have a flow on effect as to her prospects of promotion within ANZ and for external job applications. She was effectively being moved back to a role she had been promoted from three and a half years earlier. Her reports would now be her peers.

[75] Mr Lawrence said Ms Garvey sought the severance payment pursuant to clause 5.10(a) as an employee employed in accordance a Total Employment Cost (TEC) package. This would involve seven weeks TEC Salary for the first year of service, a further four weeks TEC salary for each subsequently completed year of service and a pro-rata payment for each completed month of service in the final year. Mr Lawrence’s calculated that this would amount to approximately $39,000, although this was dependent on when the matter was determined.

[76] In oral submissions, Mr Lawrence submitted that Ms Garvey was a reliable witness and her account of what she did in her role of Team Leader should be accepted. The conclusion that Mr Chandra had drawn from his examination of time sheets that Ms Garvey had only spent 7-8% of her time on Team Leader functions between October 2012 and August 2013 should be disregarded. He noted that the Bank submitted that Ms Garvey was spending 20-30% of her time on these functions and this was also the evidence of Mr O’Donoghue.

[77] Mr Lawrence submitted that Hawkins set out that ‘unreasonableness’ in the present context is to be determined in an objective fashion and is a matter of degree. The line by line comparison prepared by Mr Chandra and Mr Hunt support Ms Garvey’s submission that the change in duties was ‘unreasonable’. The subjective commentary of Mr Chandra and Mr Hunt in that document should be given little weight.

[78] Mr Lawrence claimed that in addition to losing duties and responsibilities, Ms Garvey had also lost title, status and authority as a line manager. He acknowledged that some of her functions had changed when she had lost reports, but the role was still the same. He observed that up until 12 months prior to the position becoming redundant, she was spending 50% of her time on the Team Leader aspects of that role. ANZ were seeking to highlight the breakup of her duties since that time.

[79] Mr Lawrence submitted that this case could be distinguished from Hawkins and Peart v Allianz Australia Services Pty Ltd [2011] FWC 1267 (‘Peart’). In this case, status is a relevant factor in determining comparability of the roles.

[80] Mr Lawrence criticised the respondent’s characterisation of clause 5.5.3 of the Agreement as having the effect that employees could be placed in perpetual limbo as the employer continues to seek redeployment opportunities. The clause could not have that meaning.

For the respondent

[81] In written submissions, Mr Gianatti, Solicitor submitted that Ms Garvey had been redeployed into a ‘directly comparable position’ within the meaning of clause 5.5.1 of the Agreement and that her application should be dismissed.

[82] Mr Gianatti observed that Ms Garvey had previously been employed as a Project Manager at Logica and had been employed as a Project Manager by INGA in May 2010. Mr O’Donoghue had made a decision to split his team of 30 direct reports into two and to have two Team Leaders below him. Ms Garvey had volunteered for this role on an interim basis, which was formalised in August 2010.

[83] Mr Gianatti acknowledged that Ms Garvey had direct reports in her capacity as Team Leader at INGA and initially at ANZ. However, she was expected to maintain her existing project management duties. She had lost her direct reports, bar one, in the course of the restructure in September 2012, when Business Analysts and Project Managers were moved to Delivery Services. Five contractors were assigned as her reports in October 2012. Throughout this period, Ms Garvey was still expected to maintain her project management duties.

[84] Mr Gianatti explained that a further restructure within Delivery Services in early 2013 involved the recruitment of higher level managers into project management, a review of the project management life cycle, a change in the unified role mandate for Project Managers and the consolidation of all IT project management services under Delivery Services. The reporting line changed and Mr Chandra now led the consolidated team under Delivery Services. The roles in Wealth became redundant. Mr Chandra then offered Ms Garvey and the other Team Leader (Ms Yango) project manager roles. This was a ‘directly comparable role’ within the meaning of clause 5.5.1 of the Agreement. Mr Gianatti agreed with Ms Garvey that the question to be determined was whether the new role involved a change in duties significant enough to be ‘unreasonable’ having regard to her skills and ability.

[85] Mr Gianatti also referred the Commission to Hawkins and submitted that it was authority for the proposition that ‘unreasonableness’ within the meaning of clause 5 is determined objectively, informed by the degree of change to duties and impacts on the employee ‘arising directly from and relating directly to the employee’s skills and abilities’. This involved a two stage test in which the changes to the duties between the roles are identified and an assessment of the ‘unreasonableness’ caused by that change. The time of the test, on the proper construction of the Agreement, was at the time of the offer of the new role.

[86] Mr Gianatti submitted that a loss in status arising from the use of the employee’s skills would not be considered ‘unreasonable’ and drew my attention to Hawkins, Peart and Valastro v Westpac Banking Corporation [2005] NSWCIMC 97 (‘Valastro’).

[87] Mr Gianatti noted the change in duties and addressed Ms Garvey’s contentions in this regard. He observed that Ms Garvey had managed contractors since October 2012 who were, as a rule, more experienced and self-directed in their work. While Ms Garvey had attended Allocation Meetings and had access to the Allocations Sharepoint within Wealth, she did not contribute to management. Her involvement in the work of other Project Managers and Business Analysts had ceased in October 2012. She had only briefly attended Managers’ Meetings after the departure of Mr Filkins. Mr Gianatti stressed that she did not contribute to these meetings. Finally, Mr Gianatti submitted that the duties which Ms Garvey characterised as ‘people management’ were limited to administrative tasks and only took up 20-30% of her time. Mr Gianatti asserted that Ms Garvey would now spend 95-100%, rather than 70% of her time on project management and these duties were more sophisticated than her previous project management experience. Much of the administrative burden had been removed.

[88] Mr Gianatti addressed the level of ‘unreasonableness’ by reference to Ms Garvey’s skills and abilities. He noted her long experience in IT and finance and said it was undisputed that Ms Garvey had the skills to perform the new role. He submitted that Ms Garvey avoided the fact that 70-80% of her time at work would be unchanged. ANZ valued Ms Garvey’s contribution and would prefer not to lose her.

[89] Mr Gianatti disputed that Ms Garvey would lose skills performing the new role. The skills identified by Ms Garvey as ‘line management’ skills did not really involve any skill. They were process based and refresher training would cure any loss of ‘skill’ involved. The issue at the heart of line management was leadership and this element would remain a part of the new role. Mr Gianatti further disputed that Ms Garvey had ever performed tasks that required strategic or broader management skills. In any event, opportunities for promotion would not be driven by the types of skills identified by Ms Garvey.

[90] Mr Gianatti submitted that even if it were found that the changes were significant, they would not be sufficiently significant to mean that they were ‘unreasonable’ within the meaning of clause 5; See: Hawkins; Peart; Valastro; and Finance Sector Union of Australia - Western Australian Branch v National Australia Bank Ltd [2006] PR967571.

[91] Mr Gianatti submitted that the express terms of cl 5.5.3 meant that even if the role offered was a non comparable role, it was open to ANZ to continue to seek redeployment for Ms Garvey. It would only be open to the Commission to revert the matter to the status quo immediately prior to 29 August 2013.

[92] In oral submissions, Mr Gianatti submitted that all of the witnesses were reliable, but the evidence of senior managers of the Bank should be preferred. Where persons are qualified to speak on a particular subject matter, that should carry some weight. In any event, Ms Garvey’s evidence, at its highest, was that some of her duties had changed.

[93] Mr Gianatti emphasised that the test to be conducted by the Commission was a point in time test, rather than a test conducted over a period of time. The relevant point in time is the period back to October 2012. While it was conceded by the Bank that there had been duties lost, the Commission would not find that this loss was ‘unreasonable’. Questions of status and marketability were not relevant and the loss of skills did not translate into the loss of competencies contended for by Ms Garvey. Leadership was required for both roles. Hawkins was directly relevant to this case.

[94] In reply Mr Lawrence submitted that the approach of looking at particular skills in isolation was erroneous and that they should be looked at in totality. While the loss of individual tasks may not be of any great moment, in and of themselves, when looked at together, starker differences arise.

CONSIDERATION

Applicable principles

[95] Both parties agree that the question to be determined by the Commission is the second limb of the Agreement’s definition of ‘directly comparable role’ which is as follows:

‘ does not involve a change in duties significant enough to be unreasonable having regard to the Employee’s skill and ability;’

[96] The first observation to be made is that the new role does not necessarily have to be the same or similar position. Obviously, the definition comprehends a possibility of a change in duties. It is self evident that a new role for a redeployed employee would be unlikely to be the same position, in the same location and in the same grade; otherwise, why would the original role need to be made redundant in the first place? Plainly, every redeployed employee will experience some change in either their location, their duties or their responsibilities. The key here is, of course, whether the change in duties is significant enough to be considered ‘unreasonable’ for Ms Garvey to refuse to accept them.

[97] The term ‘unreasonable’ is probably the most argued about word in the industrial relations lexicon. It variously appears in a legislative context, in awards, agreements, contracts of employment and in numerous decisions of industrial tribunals and courts.

[98] As a starting point, I note the ordinary English meaning of ‘unreasonable’ as defined in the Macquarie Concise Dictionary, 5th Edition:

‘adj. 1. not reasonable; not endowed with reason. 2. Not guided by reason or good sense. 3. Not agreeable to or willing to listen to reason. 4. Not based on or in accordance with reason or sound judgement. 5. Exceeding the bounds of reason; immoderate; exorbitant.’

[99] Counsel for both parties relied on the judgement of Moore J in Hawkins. There, His Honour considered a similar provision, in another banking agreement, to the one here under consideration. His Honour discussed the meaning of the term ‘unreasonable’. I quote from Hawkins at pp 348-350:

‘Of critical importance in determining whether the new position was a directly comparable one, is the meaning of the word “unreasonable”. Any judgment as to whether the change of duties are significant enough as to be unreasonable would, in my opinion, need to be objective and would involve questions of degree. The language of the definition does not suggest that the unreasonableness of the change in duties turns on the opinion of the employee or the Bank. The word “unreasonable” is found in an adjectival phrase, “significant enough to be unreasonable”, qualifying the nominal phrase “change of duties”. The adjectival phrase identifies the extent or magnitude of the change of duties which, if exceeded, renders the new position not directly comparable. Whatever is comprehended by “unreasonable”, it requires, as a measure of reasonableness, reference to the existing skills, or future skills after training, and abilities of the officer concerned. It is plain that if the new position requires the performance of a range of new duties and the employee does not possess the skills to discharge those duties, or is unlikely to acquire them after training, then the change of duties is significant enough as to be unreasonable. That is because it is unreasonable to call upon an employee to do work they are unlikely to be able to do with any measure of success. I should add that I do not see any material difference between ‘‘skills’’ and ‘‘abilities’’.

In the present case the relevant question is how the definition is intended to operate if the change in duties is such that the employee plainly has the skills and ability to perform them as Hawkins conceded in relation to the new position, but the skills required reflect only some of the employee’s skills. Two points can be made. First, it is likely that it was contemplated by the parties to the Agreement that the directly comparable position would be at a similar level of responsibility within the Bank and of broadly similar significance to the Bank in terms of the Bank’s operations. This may be inferred from the express requirement that the position be at the same classification. The second is that the three elements in the definition, which are classification, change of duties and location, are, in my opinion, designed to establish minimum standards for the benefit of the employee. This may be inferred not only from the subject matter of the elements but the effect of cl (e)(iii) which has been discussed earlier. The employee is deprived of certain benefits under the Agreement if he or she is offered and rejects a directly comparable position. The definition is framed so as to ensure that the loss of those benefits occurs only if the employee is offered a position that he or she might be reasonably expected to accept because it satisfies those standards.

Given that the definition serves this purpose, it is probable that the parties intended the word ‘‘unreasonable’’ to comprehend not only situations where the changed duties or a significant number of them could not be performed by the employee either immediately or after training, but also any other unreasonable effect on the employee arising directly from and relating directly to the employee’s skills and abilities. It would thus operate in situations where the performance of the changed duties would require the use of only a limited range of the employee’s skills with the potential that the skills would be lost by the employee over time. That is, the range of his or her skills would diminish over time in the offered position because he or she was no longer called upon to exercise them. The loss of those skills may indirectly bear upon the employee’s prospects of promotion in the Bank. There may be other consequences flowing from the offered position requiring the use of a limited range of the employee’s skills which are comprehended by the expression ‘‘significant enough to be unreasonable’’ but they are not readily apparent.

However given that the offered position needs to be at the same classification to satisfy the definition, I do not consider it is likely that the parties intended unreasonableness to be measured by reference to loss of status arising from the use of only some of the employee’s skills. The case advanced by the applicants was that the position offered to Hawkins was, in essence, that of a salesman. The gravamen of the applicants’ case on this issue was that the broad managerial role Hawkins performed, and thus the skills he used, would no longer form part of his duties. There was no suggestion that those skills would be lost to him while performing the duties of a relationship executive. Rather the limited skills he would use as a salesman had a bearing on his own perception of the status of the position, the possible perception of its status by others within the Bank and how that might affect his prospects of promotion to the position he aspired to occupy within the Bank. It could also have a bearing on the perception of those with whom he might deal outside the Bank. Each of these matters really concerns the status of the offered position and they are not, in my opinion, matters to which the relevant part of the definition was directed. Accordingly, the position of relationship executive graded at the SE level was a directly comparable position.’