Mr Peter Stannard v University of Tasmania
[2023] FWC 3380
•15 DECEMBER 2023
| [2023] FWC 3380 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Mr Peter Stannard
v
University of Tasmania
(C2022/8407)
| COMMISSIONER LEE | MELBOURNE, 15 DECEMBER 2023 |
Section 739 application for the Fair Work Commission to deal with a dispute. Application for review of classification. Relevant Enterprise Agreement provides power for Commission to review decision to reject a reclassification claim. Consideration of jurisdiction to deal with the dispute. Dispute relates to a decision of the University to reclassify the applicant from a HEO level 4 to a HEO level 5 and reject applicants claim to be reclassified at HEO level 6. Question as to whether or not the reasons for the decision of the University to reject the reclassification claim were properly based within the meaning of the relevant clause in the Enterprise Agreement. Question answered in the affirmative.
Background
On 21 December 2022, Mr Peter Stannard (Applicant) made an application pursuant to s.739 of the Fair Work Act 2009 (Cth) (Act) notifying a dispute under the dispute settlement procedure in the University of Tasmania Staff Agreement 2017 - 2021 (Agreement). The dispute is essentially a classification dispute. When the Applicant was employed by the University of Tasmania (University) he was engaged as a HEO level 4 under the terms of the Agreement. After a period of performing in the role, the Applicant made an application to be reclassified to a HEO level 6. After a review of the Applicant’s position and a consideration of the classification criteria, the University determined that the appropriate classification for the Applicant was HEO level 5, and the Applicant was reclassified to that level. However, the Applicant maintains that the appropriate classification level for his position is as a HEO level 6.
A brief history of the dispute.
The title of the Applicant’s position is Technical Officer (workshop). Art students from the University, both undergraduate and postgraduate attend the workshop in order to make pieces of art such as sculptures as part of their study. It is a metal workshop, containing the range of tools one might expect to find in a metal workshop that Art students would utilise, including a metal lathe (manually operated); soldering equipment; welders; a drill press; bench grinders; a sheet metal guillotine, an English wheel (for bending steel) and a plasma cutter. There is also a range of hand tools.[1] The Applicant instructs students on how to use the various tools in a safe manner.[2] The exception being the lathe, which the Applicant will only instruct “proven” post graduate students in use of. For other students, the Applicant performs all the lathe work himself.[3] The Applicant commenced employment with the University in 2019.[4] The Applicant made an application for a review of his classification in around December 2021. In his application, the Applicant sought to be reclassified from HEO level 4 to HEO level 6. In April 2022 Ms Karen Doak, the People and Wellbeing Team Leader of the University, completed a review of the role and recommended the Applicant be classified as a HEO level 5.[5] On 5 August 2022, the Applicant was reclassified to a HEO level 5 with the date of effect backdated to when he made the application for a review.
In August 2022, the Applicant sought an internal review of the reclassification decision pursuant to clause 41.3 of the University of the Agreement. That internal review was heard by a Reclassification Review Panel (RRP) as provided for in clause 41.3 (b) of the Agreement. The first meeting of the RRP failed to reach a conclusion. A second meeting of the RRP was convened and a report was provided with recommendations to Ms Kristen Derbyshire, the Chief People Officer of the University. That report noted that the review “committee” (though presumably should have been correctly titled “panel” consistent with the Agreement) were “split” in their recommendation.[6]
Ultimately Ms Derbyshire, decided that, after taking into account the internal review report along with other information she obtained, the correct classification of the Applicant was HEO level 5. This decision was communicated to the Applicant on 7 December 2022 (the Review decision).[7]
On 21 December 2022, the Applicant lodged a s.739 dispute with the Fair Work Commission (Commission) disputing the Review decision. The F10 filed by the Applicant sought for his role to be classified as a HEO level 6 and paired with an accurate job description. A number of conferences were conducted in an endeavour to resolve the dispute. One of the outcomes of the conferences was an agreement by the University to review the Applicant’s position description taking into account the duties and activities that the Applicant claimed he was performing. The outcome of that review was not to the satisfaction of the Applicant. The dispute was unable to be resolved and it was agreed that it was appropriate that the Commission arbitrate the matter. The question the parties agreed to be arbitrated is as follows:
“Was the internal review decision made by the Respondent to classify the Applicant as a level 5 and reject the Applicant’s claim to be a level 6 under schedule 3 of the Agreement made for reasons that were properly based, in accordance with clause 41.4 of the Agreement?”
Jurisdiction to arbitrate the dispute
In this matter the Form F10 application was lodged on the 21 December 2022. The industrial instrument referred to in the Form F10 was the University of Tasmania Staff Agreement 2017 – 2021. At the time the dispute was lodged, that was indeed the Agreement that covered and applied to the Applicant and the University. On 30 January 2023 the University of Tasmania Staff Agreement 2021 – 2025 was approved by the Commission and commenced operation from 6 February 2023. The new agreement therefore applied to the Applicant and the University from 6 February 2023. By virtue of s.58 of the Act, the 2017-2021 Agreement no longer applied to the Applicant and can never so apply again. However, consistent with the decision of the Full Bench in CFMMEU v Falcon Mining Pty Ltd[2022] FWCFB 93, the Commission retains jurisdiction to determine the matter as the application was made at a time the 2017-2021 Agreement covered and applied to the parties.
This application is made pursuant to s.739 of the Act. Section 739 falls under chapter 6, Division 2 of the Act. The Agreement includes a term of the type contemplated in s.738(6).
Therefore, s.739 applies pursuant to s.739(1). Relevant to the considerations are the following subsections of s.739
(3) In dealing with a dispute, FWC must not exercise any powers limited by the term.
(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.
Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).
(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.
There is no dispute that in respect of the term referred to in s.739(4) of the Act, the parties have agreed the Commission may arbitrate the dispute.
The relevant term in the Agreement for dealing with disputes about an internal review decision is set out in clause 41.4 as follows:
“41.4 External review by the Fair Work Commission
(a)A Professional Employee who is dissatisfied with the internal review decision may, within fourteen (14) days of being advised of that decision, apply to the Fair Work Commission for a review of the decision not to grant the reclassification claim.
(b)The Fair Work Commission shall determine whether or not the reasons for rejecting the reclassification claim were properly based, and shall do so by conciliation and/or arbitration. The decision of the Fair Work Commission shall be final. Clause 15 (Dispute Resolution Procedure) of this Agreement shall have no application to reclassification claims.”[8]
It is apparent that clause 41.4 provides a power of private arbitration for the Commission to deal specifically with disputes about the reclassification review process consistent with the terms of the clause.
The balance of clause 41 is as follows:
41.1 Introduction
(a)A Professional Employee who considers the classification level assigned to their position does not properly reflect the duties and responsibilities of the position may request a classification review of their position. Alternatively, the relevant Head of Budget Centre may seek an upward reclassification of an Employee’s position. Procedures to be followed are outlined on the Human Resources website.
(b)All applications for reclassification will be reviewed as soon as practicable following receipt by Human Resources.
(c)Reclassification claims, if successful, shall not be awarded retrospectively beyond the date of formal written application being received by Human Resources. An application will not be deemed to have been received unless it is accompanied by a revised position description, both of which have been signed by the relevant Head of Budget Centre.
41.2 Decisions on claims
The classification level of a position subject to a reclassification claim in accordance with this clause (clause 41) will be determined by reference to the duties and responsibilities of the position, assisted by the University’s Classification Descriptions and Enhanced Classification Descriptors for the relevant HEO levels. Regard shall also be had to other comparable positions within the University and their classification level.
41.3 Internal review mechanism
(a)Where a Professional Employee or relevant Head of Budget Centre is dissatisfied with the reclassification decision and believes that the decision did not take full and proper account of all material facts, either the Employee or Head of Budget Centre may, within fourteen (14) days of being advised of the decision, apply for an internal review of the decision. The Employee and/or Head of Budget Centre must provide a reasoned case, in writing, setting out the basis for requesting an internal review.
(b)Internal reviews shall be heard by a Reclassification Review Panel, which shall comprise three (3) representatives from the University and one delegate from each Union. The Reclassification Review Panel will meet twice a year in April and October to review and determine reclassification claims and shall provide a report with recommendations to the Executive Director, Human Resources in respect of each claim. The Executive Director, Human Resources will determine the claim having regard to the report provided and shall advise the relevant Employee(s) and relevant Head of Budget Centre of the outcome within fourteen (14) days of receipt of the report.
It is apparent that the dispute relates to the Applicant’s dissatisfaction with the internal review decision and the Commission has jurisdiction to review the decision made by the University, by way of making an assessment of whether the reasons for rejecting the reclassification claim were properly based.
I am satisfied that the requisite jurisdiction exists for the Commission to arbitrate the dispute and make a determination that is binding on the parties and neither party contended otherwise.
Interpretation of the terms of the enterprise agreement.
The principles that apply to the interpretation of an enterprise agreement were summarised by a Full Bench of the Commission in AMWU v Berri Pty Ltd (Berri),[9] drawing on the earlier Full Bench decision in AMIEU v Golden Cockerel Pty Ltd.[10] More recently, the relevant principles were summarised by Bromwich J in ARTBU v Sydney Trains [2022] FCA 86 at [20]-[23] and Katzmann J in Commissioner of Australian Federal Police (obh of Commonwealth) v Police Federation of Australia (Australian Federal Police Association Branch) [2022] FCA 272 at [42] – [44]. I agree these are the relevant principles that apply to the interpretation of an enterprise agreement, and I will apply them as relevant in determining this matter.
The University submits that the extent of the Commissions power to deal with the dispute under clause 41.4 is limited by the meaning of the terms of the clause. I agree that this is so, as the Commission is unable to make a decision which is inconsistent with a Fair Work instrument that applies to the parties.[11] Clause 41.4 constrains the Commission to a consideration of whether the “reasons” for rejecting the reclassification request were “properly based.”
The University’s submissions on the point are:
“6 ‘Properly’ is defined as an adverb meaning “in a proper manner”, “correctly” or “appropriately”.[12]
7 ‘Based’ is defined as the past tense and past participle of the verb ‘base’, meaning “the bottom of anything, considered as its support; that on which a thing stands or rests”.[13]
8. Therefore, when used in conjunction, it becomes evident that for Ms Derbyshire’s reasons to be ‘properly based’, there must be a ‘correct’ or ‘appropriate’ support for them, with that support being the evidence which underpins those reasons.”[14]
I agree with those submissions. However, I do not agree with the University’s additional submissions to the effect that the discretion exercised by the decision maker, in this case Ms Derbyshire to refuse the reclassification, can only be assessed by the Commission by way of considering if the evidence provides a correct or appropriate basis for the reasons for rejection. This line of reasoning leads the University to claim that the Commission is not able to substitute its own view as to what the correct classification is. In my view this in an overly narrow construction of the term. If the decision to reject the reclassification is found to have been made for reasons that are not properly based, it is possible or perhaps even probable that the decision was incorrect. It cannot be that the framers of the document intended that this specific provision which allows the Commission to “review” the decision was meant to preclude the Commission from substituting its own view as to the correctness of the classification. It would hardly be a review of a decision if the Commission found the decision to reject the classification was not properly based but was precluded from doing anything more to remedy the situation.
Clause 40(d) of the Agreement provides as follows:
“The current DWM Classification Descriptors and Enhanced Descriptors for Professional Employees form part of this Agreement. Professional positions will be classified in accordance with classification descriptors, having regard to position classification relativities within the University. During the life of this Agreement the parties agree to commence a review of the Enhanced Descriptors.”
This is the provision that determines how professional positions such as that of the Applicant, are classified. That ultimately turns on the evidence as to what the Applicant is required to do by his employer, as reflected in his position description and other relevant evidence, and how that compares to the classification descriptors and enhanced descriptors that apply by virtue of clause 40(d).
For the reasons that follow, I have determined that the answer to the question posed is Yes. That is, the reasons for rejecting the classification claim were properly based. In any event, I have considered for myself the application of clause 40(d) to the position of the Applicant and I am satisfied that the decision to classify the Applicant as HEO level 5 was the correct one. While there are some aspects of the Applicant’s role that fall within the scope of HEO level 6, overwhelmingly, his position is properly classified as HEO level 5.
The submissions and an overview of the evidence
A significant amount of evidence was provided in this matter. A great deal of the evidence that the Applicant submitted was not relevant to the consideration. I provided some latitude for the Applicant to file all materials he considered relevant, however, I will only engage with the evidence so far as it is relevant to my task of answering the question posed and determining the matter.
The Applicant submitted that the decision was made for reasons that were not properly based for two key reasons. Firstly, that the entire process relating to the reclassification claim was flawed and biased. Secondly, that the University has consistently used inaccurate descriptions of his role and has undervalued his role. It follows, on the Applicants reasoning, that as the decision arose from a review process that used an inaccurate description of his role, it cannot be considered to have been properly based.[15] The University strongly contest the characterisation of the Applicant’s role advanced by the Applicant as well as his claims as to the process that was followed as being flawed and or biased.
In support of the submission on the first reason, that the process was fundamentally flawed, the Applicant submitted:
· that the process was unnecessarily lengthy;
· he had to request that the original decision be given to him in writing and that there was no information provided about how the decision on his application had been reached;
· the Applicant seeks to impugn the role of Mr Scott Sullivan the Director of Operations in the decision making process (though it is not entirely clear on what basis);
· that none of the purported decision makers (Mr Paul Kealy, Mr Scott Partridge or Mr Sullivan) had spoken to him about his role;
· that the reasons given for the rejection of his claim are contradictory;
· that his supervisor has consistently “downplayed the description of his work role”;
· that nobody consulted him on his revised Position Description;
· That key findings of the report prepared by Ms Doak (The Doak report) were not included in Ms Ilze McMullen’s rationale;
· that Ms Doak was instructed to not meet with the former wood workshop technician, and he would have been able to provide information about the Applicant’s role;
· that his predecessor was a HEO level 6 and that while his predecessor had additional duties associated with building management, they took up no more than 15% of his time; and
· that Ms Doak did not give full regard to other comparable positions within the University and their classification levels.[16]
The Applicant also submits that the report of the RRP was fundamentally flawed due to bias:
· that the RRP should not comprise people who are “decision makers”;
· that the panel majority should carry substantial weight;
· that the report should be a balanced presentation of the discussions that occurred and that none of these factors “held true”;
· that the opinions of the majority should determine the recommendation in the RRP report;
· that the RRP report should be a balanced presentation of the discussions that took place whereas the Applicant asserts that the report was not balanced (an example given is that there were “more words” in the report that were devoted to Mr Sullivan rather than to Mr Andrew Bylett who was supportive of the Applicant); and
· that the RRP meetings were ‘dominated’ by Mr Sullivan (according to Mr Bylett) and the purported bias that is claimed to be a feature the RRP report influenced Ms Derbyshire’s decision to reject the reclassification of the Applicant to a HEO level 6.
In respect to the flawed or biased argument advanced by the Applicant, the University submits that the Mrs McMullen’s summary and the decision of Mr Kealy (which are impugned by the Applicant as set out above) are not under review in this matter. Rather, it is the decision of Ms Derbyshire to reject the reclassification request which is under review and that her decision was based primarily on the RRP report and information from the Applicant’s supervisor Mr Alexander Thomson.
Irrespective of that submission, the University points out that essentially the Applicant disagrees with the assessment of his supervisor as to what he does and that his supervisor had input into the original decision: that there is no basis for the clause 41.3 (internal review mechanism) to be interpreted in the manner asserted by the Applicant and that Mr Sullivan was not a decision maker in the original application; the opinions and recommendations of the majority were discounted by Ms Derbyshire on a reasonable basis, and the report was balanced. The University notes that the draft report was circulated to members of the RRP for feedback before it was published, and no issue was taken by RRP members with what it contained.
As to the claims the University used an inaccurate description of the Applicants duties to make the decision, the Applicant submitted:
· that those who actually engage with the metal fabrication workshop agree that the nature of his role is as a HEO level 6;
· only his supervisors and managers disagree;
· management have a desire to see all technical officer positions in the school interchangeable; and
· he has a higher level of responsibility compared to other technical officers.
A key feature of the Applicant’s case is that his work involves teaching and mentoring; managing a teaching facility and managing significant Work Health and Safety (WHS) risks. However, the University largely contest these key propositions. In support of the proposition that he is involved in teaching and mentoring, the Applicant refers to a statement in his position description that he “guide[s] and instruct[s] students and staff in developing metal fabrication skills….” As he is involved in teaching students the use of tools and manipulation of materials that they require in order to complete their study, the Applicant submits that he is involved in teaching.
In terms of management, the Applicant’s evidence is that he independently allocates space, time and resources to students and manages the budget without requiring approval for purchases up to $2000. The Applicant does not hold supervisory responsibility for any staff. However, he submits that he provides supervision of inexperienced students and staff in the high-risk environment of the workshop. In respect of WHS responsibility, that he is responsible for implementing WHS practices such as inductions, maintenance and conducting risk assessments of equipment, the Applicant does accept his supervisor is “probably” responsible for ensuring that these tasks are carried out.[17] The Applicant has drafted a risk assessment for the metal workshop (with guidance from the College of Sciences and Engineering Team) and he submits that there are catastrophic risks in the metal workshop which are only reduced to moderate risks by way of his application of risk control measures, contending that his workshop has higher risks than the photography workshop and other workshops.
Two academics Mr John Vella and Mr Jose Vincente Garcia Cesar provided evidence on behalf of the Applicant. Their evidence was broadly consistent with what they told Ms Doak and was included in her report. The report of Ms Doak is dealt with later in the decision. Ms Hannah Foley, a PHD student, gave evidence which was of little to no probative value as she conceded she had no knowledge of the broader management of the workshop including the involvement of the Applicant’s supervisor Mr Thomson.[18]
The University disputes that the description of duties and responsibilities of the Applicant are inaccurate and undervalue the Applicant’s role. They note that the description of duties and responsibilities used in Ms Derbyshire’s decision was based on information provided by Mr Thomson as well as the Applicant’s position description. As his supervisor, Mr Thomson has knowledge of the Applicant’s role and workshop. While the Applicant disagrees with the description of his work, the University submits that does not mean that it is factually incorrect.
Consideration
It is necessary to begin by making some observations about the Applicant. The Applicant has a tendency to reinterpret facts to suit his preferred narrative. For example, the Applicant claims that in the Doak report, Ms Doak reported that “I manage the metal fabrication workshop, a teaching facility at CAM”[19]. Similarly, the Applicant asserts Ms Doak reported that the Applicant teaches students.[20] The Applicant describes these as “key findings” of the report. However, Ms Doaks’s report does not say either of those things and they are certainly not key findings. Ms Doak’s report simply reflects that what the Applicant told her he does. In respect of the teaching, she records that it is the view of two of the three academics she spoke to that the Applicant is involved in teaching. Her report does not make any finding that is what he does as a matter of fact. The Applicant was prone to exaggerate his claims as to the work he undertook. In contrast, the key witness for the Respondent, Mr Thomson, the Applicants supervisor, was generally responsive and credible. While Mr Thomsons answers were sometimes longwinded, he made concessions where appropriate. To the extent that there is a conflict on the evidence, I prefer the evidence Mr Thomson over that of the Applicant.
As set out earlier in the decision, I agree with the University that the task for the Commission is to assess whether the reasons for rejecting the classification claim were properly based and that as Ms Derbyshire was the decision maker it is her reasons and what they were based on that needs to be subject to scrutiny.
Ms Derbyshire sets out the basis upon which she proceeded to determine the appropriate classification in her evidence Her evidence was not subject to any significant challenge. Ms Derbyshire gave evidence that she was not aware of any detail regarding the Applicant’s reclassification review until the RRP report came before her for review.[21]
Ms Derbyshire was given the report on the outcome from the RRP from Ms Jana Wedlock. Her evidence is that she was aware that the RRP was “split” with no unanimous recommendation having been made.[22] Further that she was particularly concerned with the views of Ms Lili Midgely and Mr Bylett as the report reflected that they had a lack of in-depth knowledge regarding the Applicant’s role. She therefore formed the view that despite the RRP majority favouring a reclassification to HEO level 6, she considered she needed to make an objective decision based on the views of the RRP and all of the evidence.[23]
Having considered the RRP report for myself, in my view this approach of Ms Derbyshire was entirely sensible. The report shows in summary that the two union representatives supported the Applicant being reclassified to a HEO level 6. However, the foundation for their support was tenuous to say the least. There is little rationale for Ms Emma Gill, the National Tertiary Education Union (NTEU) delegate to assert the Applicant position should be classified as a HEO level 6. She accepts he is not in a management role but asserts “you do not need to be a supervisor to be at HEO level 6.” That may be the case, however there is nothing in this statement that supports a reclassification to a HEO level 6. The assertion that the Applicant designs and contributes some aspects of teaching is not correct in my view having considered the evidence as set out later in this decision. Ms Midgley of the Community and Public Sector Union (CPSU) supports a HEO level 6 but there is no apparent basis for this support. Ms Midgely accepts she does not understand his role and has no experience in the work he performs. Mr Bylett the Engineering Technical Team Leader is “leaning towards HEO level 6” yet accepts that the Applicant works alone, that he has not seen his workspace, he purchases equipment and the amount of money involved is irrelevant. Mr Bylett mused “it would be nice to speak to someone who knows what he does day to day” This is a curious statement given that Mr Sullivan had provided extensive information to the Panel on just that. There is no indication from the minutes of the meeting that there was any serious testing of the position description of the Applicant against the classification criteria in the Agreement by the union representatives, or Mr Bylett. Mr Sullivan and Mr Templar from People and Wellbeing, were clear the Applicant was a HEO level 5 as was the HR representative. The reasons given by Mr Sullivan, and to a lesser extent Mr Templar, for this view was clearly articulated and reasoned.
Given the extraordinary divergence in the views of the Committee and the lack of cogent rationale of those supporting a HEO level 6, it was not just reasonable, but it was incumbent on the decision maker, Ms Derbyshire to essentially look behind report in order to satisfy herself of the correct classification.
The Applicant submitted that Ms Derbyshire decided not to take the views of the RRP into consideration.[24] That is not correct. It is clear on the evidence that Ms Derbyshire had regard to the RRP. That is what clause 41.3(b) in the Agreement required her to do, have regard to it. Ms Derbyshire was not bound to follow a majority view of the RRP. The report of the RRP has to be considered against the clause in the Agreement that gives rise to its existence. Clause 41.3(b) provides that the group will review and determine classification claims and provide a report with recommendations to the Executive Director Human Resources (in this case Ms Derbyshire), Ms Derbyshire then determines the claim, having regard to the report provided. While the clause confers a right on the RRP to determine reclassification claims, that has to be subject to the further right of Ms Derbyshire to determine the claim, having regard to the report. What the clause does not do is suggest in any way that the Panel operates as a group that can cast votes in order to arrive at a majority decision. The notion that one of the union representatives can provide a “proxy” to a group that does not have a power to determine matters by majority vote is nonsensical. In any event, in this matter the Panel was “split” according to the report. That is obvious given the terms of the report, Ms Derbyshire was correct in her assessment that the RRP is not in itself a decision maker.[25] If it was, the provision in the Agreement for the Executive Director HR to ultimately determine the claim, having regard to the Report, would be otiose.
Ms Derbyshire spoke to and asked questions of Ms Wedlock and Ms McMullen about the four main areas of contention she identified based on the Applicant’s classification and the reports and reviews conducted by the University.[26] These four areas were whether or not the Applicant was teaching students; whether he managed the metal workshop; whether he managed WHS risks in the workshop and whether he required a creative degree to perform his role.[27] She also considered the available evidence including the Doak report. It is apparent from the evidence that these are the four key areas in contention, and it was appropriate for Ms Derbyshire to focus on them.
With the respect to the teaching issue, Ms Derbyshire took into consideration that while the Applicant believed that he was teaching as he was showing and instructing students how to operate machinery, his supervisor and University management were clear that this was not teaching as it is contemplated in the Academic Workload Principles (the Principles). Ms Derbyshire clearly preferred the view of the Applicant’s supervisor and University management on this point. I consider Ms Derbyshire’s assessment of this point to be reasonable.
The Applicant is not teaching in the sense that term is used in the University environment. The Applicant told Ms Doak that he works with students to explore their designs and concepts and to provide “out of the box” solutions to students.[28]
However, the Principles which form part of the Agreement, provide context as to how the term teaching should be interpreted within the meaning of this Agreement. They include tasks such as assessments; course design and provision of teaching and learning materials.[29] The Applicant is simply not involved in those types of activities.
Simply put, the Applicant is not expected to teach students. The teaching of art and art theory is to be done by the academics. That is what his supervisor expects, as does the head of school.[30] If the academics who gave evidence on behalf of the Applicant believe that the Applicant should be teaching students in matters relevant to the curriculum, that is a matter that they can agitate with the University. It appears that the University’s view is that they are engaging the academics to perform that task and not the Applicant. In that context the approach of Ms Derbyshire to ascertain what the expectations of the University leadership was with regards to the role of the Applicant and teaching was entirely sensible. The University leadership view is reflected in the evidence of Mr Thomson and is consistent with the view expressed by the Head of School, Ms Meg Keating.[31] Ms Derbyshire’s expectation is that the University can and should determine what role they expect an employee to perform.[32] This is hardly a surprising or controversial view. The Applicant struggles to accept this, but at some point, the Applicant must come to terms with it.
Ms Derbyshire considered the claims the Applicant is managing the workshop. Ms Derbyshire formed the view that the management of the metal workshop and the allocation of resources was undertaken by Mr Thomson, the Applicant’s supervisor and not the Applicant. I agree that the Applicant is not in a management role. Mr Thomson’s evidence, which I prefer, was that the Applicant does not:
· do any prioritisation across the school;
· enter into any agreements or contracts on behalf of the school or develop new capabilities;
· does not have any responsibility for any staff, policy development or career or performance counselling; and
· his involvement with the budget is limited to administering the budget by way of purchasing supplies for the workshop within parameters set by Mr Thomson and Ms Keating. The overall budget is managed by Mr Thomson and Ms Simons.
The Applicant has some autonomy, but ultimately the management responsibility for the workshop lies with Mr Thomson, not the Applicant.
The Applicant insists that it is he who manages WHS risks in the workshop. Ms Derbyshire concluded that it was Mr Thomson who manages the WHS risks and not the Applicant. The evidence supports that her conclusion was the correct one. The evidence of Mr Thomson is that he generally supports the advice that the Applicant gives as to how WHS risks can be managed. However, ultimately it is Mr Thomson who is responsible for managing the risks. The Applicant is responsible for implementing and abiding by WHS regulations. That is not the same as managing the risk. The evidence of Mr Thomson, which was not subject to serious challenge, was that while there are different risks in the metal workshop, they are not necessarily greater risks than other workshops, as contended by the Applicant.[33] Irrespective of whether that is true, it does not assist the Applicant’s case. Working in a more risky environment, does not weigh towards a finding that the Applicant should be classified as HEO level 6.
On the fourth issue, that being whether, as asserted by the Applicant, he needed a creative degree to perform the role, Ms Derbyshire was satisfied that such a degree was not needed. This was hardly surprising as the position description does not require a degree qualification of any type. Rather it requires a Certificate III qualification in a relevant area. As the Applicant is not required to teach students, other than in the use of, including the safe use of the tools they are using, it makes perfect sense that a creative degree is not required. The Applicant may well bring something more to the role by virtue of the fact that he holds a degree in the creative arts, but that does not translate into a requirement that the incumbent hold such a degree.
Ms Derbyshire clearly had regard to the report of Ms Doak in making her decision.[34] The report of Ms Doak was compiled at the time the Applicant was classified as a HEO level 4 and was seeking reclassification to a HEO level 6. Ms Derbyshire in her report noted the following:
· that the Applicant’s colleagues in the Hunter St Campus were almost all HEO level 5 (one “grandfathered” as a 6); and
· that the Applicant’s position was an outcome of a restructure and that the previous metal workshop technician, whose position was made redundant, was a HEO level 6.
Ms Doak also set out that a number of academics who work with the Applicant expressed a view that the Applicant was involved in “teaching students”. These academics were Mr Vella, Senior Lecturer and Program Director, Art and Mr Jose Vicente Garcia Cesar, Associate Lecturer in Arts, Design and Media and former PhD Student. Both of these academics gave evidence on behalf of the Applicant in these proceedings. As stated earlier, their evidence largely reflected the views they expressed to Ms Doak and that she recorded in her report. Ms Doak noted that the views of these academics that the Applicant was involved in teaching was possibly contentious as it could be seen as “crossing over into an academic space”. The Doak report sets out that other position descriptions at HEO level 5 and HEO level 6 were reviewed. Ms Doak’s analysis concluded that the Applicant’s role and the work he performs is at HEO level 5 minimum and noted that there are elements of the role that could be viewed as HEO level 6, but she did not reach a concluded view on whether the majority of his role is performed at HEO level 6 nor “whether that is the expectation of this role”. In particular, Ms Doak noted that the University should determine whether technical officers required Arts or related degrees and whether they are teaching students, as claimed by two of the academics she spoke with. Ms Derbyshire was in the position, having regard to the information she had before her, to conclude that the answer to both of those questions was clearly no. On the basis of all this information, Ms Derbyshire determined that the Applicant should be correctly classified as a HEO level 5. Whilst the Applicant complains that Ms Derbyshire did not take into account the views of the academics, this is simply not accurate. The views of the academics who gave evidence in these proceedings were reflected in the Doak report which Ms Derbyshire clearly took into account in reaching her decision.
Ultimately the evidence in this case does not contradict or call into question the factual basis upon which the decision was made by Ms Derbyshire. The views of the Applicant were known to her as were the views of the academics via the Doak report. She also took into account that Mr Templar; Mr Partridge and Ms McMullen, who were all part of the Universities HR function, had undertaken independent reviews and concluded the appropriate classification was a HEO level 5. Her consideration appears to be one that was objective and evidence based. In conclusion, I am satisfied the reasons of Ms Derbyshire to reject the reclassification claim were properly based.
Is the Applicant correctly classified at HEO level 5.
In any event having considered the evidence I am satisfied that the Applicant is properly classified as a HEO level 5. That is, irrespective of whether or not the reasons for the decision of Ms Derbyshire for rejecting the classification claim were properly based, the decision to classify the Applicant as a HEO level 5 was the correct one, for the following reasons.
Attached to the statement of Mr Sullivan is a marked-up version of the classification descriptions for HEO level 5 and HEO level 6.[35] Mr Thomson marked up that document in a manner where his views as to the role of the Applicant as compared to the position description can be clearly seen, aided by the use of some colour coding. The evidence supports the conclusion that has been reached by Mr Thomson that the most appropriate classification for the Applicant is a HEO level 5. The Applicant does not manage a teaching or research laboratory. He certainly is responsible for supervision of the metal workshop. However, he does not have a management role. There is no staff that report to him, and he works within the parameters set by his supervisor. He does co-ordinate purchases of equipment and general supplies, but not on any significant scale.[36] Major purchases are controlled by his supervisor and the Applicant meets with his supervisor fortnightly.[37] While the Applicant gave evidence that there has been a reduction in contact between him and his supervisor in the last 6 months, this has to be considered against the unchallenged evidence of Mr Thomson that he has chosen to maintain some distance from the Applicant due to his behaviour in recent times.[38] The Applicant does ensure that he and others in the workshop comply with safety regulations and this is consistent with HEO level 6. The Applicant has a budget allocation, but it is evident from email exchanges in evidence with the finance manager that while the Applicant has a budget that he is not to exceed, it would be a stretch to suggest that he has a role in budget monitoring.[39] However, the problem for the Applicant is that even if that is not right and he is in fact managing a teaching and research laboratory, he barely satisfies the other criteria and for the most part does not meet the criteria at all.
In respect to the further criteria: “Provide training to technical staff and postgraduate students in the use of analytical equipment and techniques”, the Applicant is not involved in the use of what might be described as analytical equipment. The Applicant does train technical staff and postgraduate students in how to use the various tools in the workshop. At best, it could be said that he partially meets that criteria, on a broad and beneficial reading of it.
As to “maintain, prepare and calibrate equipment and assist in the development of prototype equipment”, the evidence is that the Applicant does maintain and prepare the tools in the workshop. However, I do not accept that he calibrates any equipment. The Applicant’s evidence that the correct fitting of a saw blade[40] is calibration is not accepted. The ordinary meaning of calibration in the engineering context is “to mark units of measurement on an instrument such so that it can measure accurately”[41] That is not what the evidence shows that the Applicant is involved in. Nor is there any evidence that what the Applicant does is to assist in the development of prototype equipment. “A prototype is the first example of something, such as a machine or other industrial product, from which all later forms are developed”.[42]
In respect of the remaining four criteria for a HEO level 6, the Applicant does not meet any of those criteria. The first of the remaining four is to “design and construct complex and novel equipment”. The Applicant submits that whether he does this depends on the meaning of the word equipment and that he “assists students in designing and constructing complex novel sculptures”.[43] There are two things to say about that. Firstly, there is no reasonable interpretation of equipment which extends to describing sculptures as “equipment”. Sculptures are pieces of Art, not equipment. Secondly, the Applicant is, or should be, assisting students to make sculpture by instructing them in how to use the tools in the workshop. That is his role. His role is not to be the designer and constructor of complex and novel equipment.
In respect of the other three of the remaining criteria: “Develop and implement improved methods of analysis and testing”; “Assist with project planning of trials by preparing specifications and operational requirements” and “provision of quotations and technical advice to Printery customers for major job”, the Applicant concedes he does not do any of those things.[44]
A proper and fair application of the descriptors to the Applicant’s actual role that the University expects the Applicant to undertake, as opposed to the role that the Applicant imagines or prefers to undertake, is the proper approach to assessing the correctness of the classification. Assessing previous incumbents of the role who performed different duties prior to a restructuring exercise does not provide a basis for reclassification of the Applicant to a HEO level 6.[45] As I have sought to demonstrate above, when that exercise is undertaken on an objective basis, it is apparent that the Applicant is properly classified at HEO level 5.
Conclusion
I have determined that the reasons for Ms Derbyshire rejecting the reclassification claim were properly based for the reasons set out in this decision. It follows that the answer to the agreed question is Yes.
Further, having considered the correct classification of the Applicant for myself, based on the evidence it is clear that he is correctly classified as a HEO level 5.
I note that I have a concern about the evidence of Mr Thomson, to the effect that the Applicant is engaging in inappropriate behaviour towards him, for example, ignoring him.[46] That evidence was given under oath and was not challenged. The Applicant is entitled to prosecute his case and prosecute it with vigour as is the University entitled to defend it. However, the Applicants prosecution of his position should not include engaging in the types of behaviour referred to by Mr Thomson and if he is engaging in it, he should cease that behaviour. It was clear on the evidence that the Applicant is a much valued member of staff. It is also clear that the Applicant enjoys his work in the metal workshop.
Clause 41.4(b) of the Agreement provides that “The decision of the Fair Work Commission shall be final”. I expect that all parties will respect that consistent with this term of the Agreement that this decision brings this long running matter to a close.
COMMISSIONER
Appearances:
I Stannard and P Stannard for the Applicant.
J Catchpole of Edge Legal for the Respondent.
Hearing details:
2023.
Hobart:
September 14.
Final written submissions:
Applicant, 28 September 2023.
Respondent, 12 October 2023.
[1] PN175-PN190.
[2] PN209.
[3] PN210-PN213.
[4] Form F10 at question 2.5.
[5] Witness Statement of Brett Templar at Attachment 1.
[6] Report from Jana Wedlock from Internal Reclassification Review at pages 112-117 of the Digital Court Book.
[7] Witness Statement of Kristen Derbyshire at [22] and [23].
[8] [2020] FWCA 3265, University of Tasmania Staff Agreement 2017 -2021.
[9] [2017] FWCFB 3005.
[10] [2017] FWCFB 4487.
[11] Fair Work Act 2009 at s.739(5).
[12] Definition of ‘properly’ from Macquarie Dictionary online - Definition of ‘base’ (being the present tense of the verb ‘based’) from Macquarie Dictionary online - Respondent’s Outline of Submissions at [6]-[8].
[15] Applicants Outline of Submissions at [1]-[3].
[16] Applicants Outline of Submissions at [1]-[6].
[17] Applicant’s Outline of Submissions at page 16.
[18] PN406.
[19] Applicants Outline of Submissions at [e].
[20] Ibid.
[21] Witness Statement of Kristen Derbyshire at page 2.
[22] Witness Statement of Kristen Derbyshire at page 2.
[23] Ibid at [13]
[24] PN51.
[25] PN1024.
[26] Witness Statement of Kristen Derbyshire at [14].
[27] Ibid at page 3.
[28] Digital Court Book at page 108.
[29] Respondent’s Outline of Submissions at page 1; PN731.
[30] PN629, PN630, PN634, PN638.
[31] Witness Statement of Kristen Derbyshire at [20].
[32] PN915, PN916, PN917.
[33] Witness Statement of Alex Thomson at [40] and [41].
[34] Witness Statement of Kristen Derbyshire at [21], PN1018 and PN1028.
[35] Witness Statement of Scott Sullivan at Attachment SS5
[36] PN144 – PN146.
[37] PN252.
[38] PN511-PN617.
[39] Email from Andrew Charman-Williams - Information about my budget at pages 155-156 of the Digital Court Book.
[40] PN231.
[41] Cambridge Online Dictionary.
[42] Ibid.
[43] PN238.
[44] PN241-PN250.
[45] PN314-PN320.
[46] PN596.
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