National Union of Workers v Alton West Footscray Ptd Ltd T/A Alton
[2012] FWA 9329
•2 NOVEMBER 2012
[2012] FWA 9329 |
|
DECISION |
Fair Work Act 2009
s.739—Dispute resolution
National Union of Workers
v
Alton West Footscray Ptd Ltd T/A Alton
(C2011/4915)
COMMISSIONER RYAN | MELBOURNE, 2 NOVEMBER 2012 |
Alleged dispute concerning the appropriate classification level for an employee.
[1] The National Union of Workers (NUW) filed an application on 29 June 2011 for FWA to deal with a dispute pursuant to the dispute resolution procedures under the Manufacturing and Associated Industries and Occupations Award 2010 (the Award). The dispute concerned the appropriate classification and rate of pay for Ms Ninkovic and employee of Alton working at the premises of Leading Synthetics Pty Ltd (Leading Synthetics).
[2] The dispute was subject to conferences on 11 July 2011, 18 October 2011, a site inspection on 4 November 2011, hearings on 21 and 22 December 2011 to deal with the evidence and a hearing on 1 March 2012 to deal with final submissions.
Background
[3] Ms Ninkovic was employed by Leading Synthetics from November 1996 to September 2000 when she was made redundant. Ms Ninkovic commenced employment with Alton in February 2001 when Alton commenced as a labour hire supplier to Leading Synthetics and Ms Ninkovic has only been employed at Leading Synthetics whilst employed by Alton. At all times Ms Ninkovic has only been employed in the laboratory at Leading Synthetics undertaking quality control work in relation to products produced by Leading Synthetics.
[4] Ms Ninkovic is employed under the terms of the Textile, Clothing, Footwear and Associated Industries Award 2010 and has been since that Award commenced. It is not clear what award was applied to Ms Ninkovic in her employment with Leading Synthetics from November 1996 to September 2000.
[5] The NUW at the commencement of proceedings claimed that the correct classification for Ms Ninkovic was C4 under the Manufacturing and Associated Industries and Occupations Award 2010. The NUW later revised their claim to C6 or C7. Alton contends that the correct classification is C11.
[6] The presentation of the case by the NUW and the evidence of Ms Ninkovic covered both her employment with Leading Synthetics and with Alton. Much of this evidence and submissions were relevant in putting Ms Ninkovic’s employment with Alton in context of her previous employment with Leading Synthetics, especially given that at all times Ms Ninkovic has been employed in the same laboratory at the premises of Leading Synthetics.
[7] At the conclusion of the hearing of the evidence on 22 December 2011 I made the following comment to the parties:
“I’m going to adopt the unusual approach of I am going to make a preliminary statement in relation to this matter. It appears to me already on the basis of the evidence that at least as at the date of the redundancy in 2000, that the position of Ms Ninkovic was greater than C11, and I would say significantly greater than C11, but significantly less than C4. Now, I can say that on the basis that ultimately any comment I make about the status of the applicant up to the date of the redundancy would be not part of the reasons for making the decision in relation to the status of the applicant now. In the strict sense, it’s not going to be ratio decidendi. It’s obiter dicta. I’ll throw in a Latin phrase here and there.
And because it has that characteristic, I will at least make it very clear that at that point of time you are clearly both wrong. In terms of what is the position of the applicant now, I will still await the submissions. But at least for guidance sake I would make it clear that the evidence seems to be very strong in supporting a position that is above C11, but below C4. And because I am not going to make a decision as to what the position may have been back in 2000, I will leave it at that. But that in itself may start to give you some indication of where you might want to direct your submissions. Because to make out the position as to what it is as at the date of the dispute notification, you will have to draw all of the threads together. But bear in mind, too, that at the end of the day the relief sought by the applicant is not the relief that I am obliged to give. I can give other relief.
So I am not going to be looking at this, that. I only have a choice of either C4 or C11. It could very well be that if the submissions draw the evidence together in a particular way and it leads to a conclusion that is different from either C11 or C4, then that is the decision I would give. Now, I don’t know whether those comments are helpful or not.” 1
[8] It is clear on the evidence that during the period Ms Ninkovic was a direct employee of Leading Synthetics she exercised skills and engaged in laboratory work which had a degree of complexity to it such that it would have been work that would have attracted a classification higher than the current C11 classification.
[9] The issue to be decided now only relates to whether as at the date of the dispute the classification of C11, or C7 or C6, or somewhere in between, is the correct classification for Ms Ninkovic. I note that in the final written submissions filed by the NUW on 13 February 2012 and in the final oral submissions that the NUW adopted the position that the correct classification level for Ms Ninkovic was C7 or C6.
The Applicant’s Case
[10] The Applicant contended as follows:
“14. It is submitted that classification C11 is unsuitable for Ninkovic, based on the work performed by her and the skills required for the performance of that work. This classification level is one that requires only basic, simple and routine testing under close supervision. This classification is clearly incompatible with the work actually performed by Ninkovic.
15. Prior to award modernisation under the Fair Work Act(Cth), Laboratory Tester classifications were provided for by the Rubber, Plastic and Cable Making Industry (Consolidated) Award, whereas classification levels C9 and above were provided for by the Rubber, Plastic and Cable Making Industry Award – Part II (Technical and Supervisory).16 This further suggests that the position of Laboratory tester is one requiring a level of skill and judgment well below that required by Ninkovic.
16. While the MA 2010 Award does not define the term “Laboratory Tester”, the term “Tester” has been defined in awards in the draughting, production planning and technical worker industries. The definition used in this industry – a more than comparable comparison – states as follows:
A tester shall mean an adult employee who in accordance with established procedures and under responsible supervision performs technical work of a minor nature such as:
(i) collection and physical preparation of samples including finished products, production samples, waste processes and raw materials;
(ii) simple routine repetitive testing…
(iii) general cleaning duties associated with laboratory work…
(our emphasis)
17. The evidence clearly shows that Ninkovic does more than just simple, routine testing. It is also clear that Ninkovic does not work under a level of supervision that would be expected of this level.
19. Just as “Laboratory Tester” is an inappropriate classification level for Ninkovic, it is submitted that the level of “Laboratory Technical Officer” is also inappropriate.
20. Definitions provided for in the draughting, production planning and technical worker industry awards suggest that the responsibility and skill required of a technical officer is higher than that required by Ninkovic in her position, as a technical officer is said to perform work “involving a high degree of autonomy, originality and independent judgment” and is required to co-ordinate projects and implement plans and programs.18 While Ninkovic is required to perform work requiring some autonomy and independent judgment, it cannot be said, based on the evidence before the Tribunal, that she is required to co-ordinate projects or implement plans or programs.
21. It is submitted, therefore, that Ninkovic must be classified within the spectrum of wage groups C9–C5.
22. When determining the correct classification of an employee, the tribunal should consider the overall character of a classification definition and determine whether or not it is suitable, having considered the work performed by the employee.19
23. It is submitted that classifications C9 and C8 are classification levels that, while requiring more skill and knowledge than that of an employee classified as C11, nevertheless emphasise basic duties and tasks, such as “basic laboratory duties” and “basic quality control”. This emphasis on “basic” duties and tasks is even stronger in the classification definitions provided for in the RPCM Award, with the classification level equivalent to the C8 level specifying “basic chemical analysis and physical testing” and “basic test result check procedures”. There is no reference in the definitions to troubleshooting, or other duties that would require the level of skill and independent judgment that is required of Ninkovic.
24. It is submitted, therefore, that the work performed by Ninkovic is above and beyond the simple and basic testing that would be expected of an employee classified at the C8 or C9 level.
25. It is also submitted that the C5 level is an unsuitable classification level for Ninkovic. The C5 definition in the 2010 MA Award states that a C5 employee is required to perform “routine and non-routine tests” and “to make modifications… to existing formula”. While the evidence shows Ninkovic has had to make modifications to existing formulas, this is not regularly required of her. She is also not required to perform nonroutine testing on a regular basis.
26. In our submission, the only classification levels in the 2010 MA Award whose overall character could be said to be appropriate for Ninkovic are C7 and C6.
27. While the definitions of the C7 and C6 levels in the 2010 MA Award are quite similar, the comparable classification levels in the RPCM Award and their definitions provide a much more illuminating picture of the difference between these two levels.
28. When one considers these definitions, and the indicative tasks included therein, it becomes apparent that the level of skill, judgment and responsibility required of Ninkovic on a day-to-day basis matches the indicative tasks of the C6 equivalent more closely than the C7 equivalent. An analysis of both levels, as defined in the RPCM Award, suggests some similarity in the duties required of employees classified under these levels but a higher level of autonomy and responsibility for employees classified as Laboratory Technicians – Level IV (the C6 equivalent). It is submitted that this is consistent with the approach of and definitions in the 2010 MA Award.
29. While the work performed by Ninkovic in 2000 in the development of procedures used in the laboratory has some relevance to the determination of this matter, when the Tribunal considers the work performed by Ninkovic in the laboratory since she has been employed by the Respondent, it is apparent that the most appropriate classification level that could be assigned to Ninkovic is that of a C6.
30. We submit that this is so primarily for the following reasons:
(i) A Laboratory Technician Level III is required to troubleshoot only at a basic level; the evidence shows that Ninkovic must troubleshoot regularly and that this often requires skill and analysis of a higher than basic level;
(ii) A Laboratory Technician Level III is not required to maintain equipment, modify equipment or tests or conduct subjective testing, while these are all duties provided for in the indicative
tasks of a Laboratory Technician Level IV and are duties required of Ninkovic.26
31. The Applicant seeks:
A. An Order that determines that:
a. Ninkovic is classified under the 2010 MA Award as a Level C6;
b. Ninkovic must be paid no less than the minimum wage rate provided for by the 2010 MA Award (as it is from time to time) for a Level C6 employee (currently $20.71 per hour, or $25.89 per hour with a casual loading of 25 per cent).
B. An Order stating the Respondent has breached the terms of the 2010 MA Award to the extent that it has not provided the minimum entitlements of that award for all purposes of Ninkovic’s employment, including superannuation.
C. A Recommendation that the Respondent compensate Ninkovic for all wages lost, together with interest.” 2
The Respondent’s Case
[11] Alton contended that the work performed by Ms Ninkovic requires no more than a secondary school education. The evidence of Mr Gosain was that “I think a secondary school person who has qualified year 10 should be good enough to do these jobs,..” 3
[12] The written submissions of the Respondent dated 19 December 2011 contended as follows:
“17. Leading Synthetics have provided to Fair Work Australia the procedures which may be required to be performed by Ninkovic from time to time. Ninkovic has been extensively trained in how to follow these procedures. Ninkovic is required to follow these procedures rigidly and without deviation. Ninkovic is not required to modify the procedures in any way. Ninkovic performs the procedures repetitively. The procedures may appear complex on first inspection, but after training and repetitive execution of the procedures, the performance of the procedures is a reasonably straightforward activity. The C11 classification contemplates an employee at that level being to work from complex instructions and procedures.
21. Ninkovic performs basic/simple routine tests under the close supervision of the Laboratory Supervisor. She is required to record the results of those tests and report any abnormalities to the Laboratory Supervisor.
24. ....C11 contemplates laboratory testing using complex instructions and procedures.”
[13] The further written submissions of the Respondent dated 29 February 2012 contended as follows:
“17. It is conceded that there were 23 procedures that need to be performed by lab assistants from 2001. It was also noted that prior to 2001 there were originally 30 or 40 tests that may have been recommended". The testing procedure is exactly the same for each test. That is laboratory assistants are required to follow the same formula day in, day out. Mr Gosain states that the procedures are not difficult and further:
"The only thing is that if a person makes a mistake in the preparation of the samples, yes, you will not get the expected results."
Mr Gosain also states that an employee with secondary school education would be able to perform the work. Mr Budhiraja states that a person could be trained in the procedures in two or three days. He states that the procedures are simple and straight forward.
18. There were a limited number of procedures, the procedures required employees to follow the procedures to the letter and they had been performed by Ms Ninkovic day after day when she was an employee of Leading Synthetics from November 1996 until she was made redundant and then again, using Mitsubishi technology from 2001 until 2011.
19. Any difficulties which Ms Ninkovic asserted in relation to performing the procedures could only relate to occasional problems with malfunctioning machinery, occasional problems with power supply, problems associated with defective materials or operator error.
Ms Ninkovic's evidence appeared to emphasise the difficulty of performing the procedures and malfunctioning machinery.
Ms Ninkovic was taken through the procedures by the Commissioner from PN508 to PN588 the procedure involved 10 steps, including tasks of weighing material, selecting a particular piece of equipment, an erlenmeyer flask, measuring a precise quantity of a chemical, oCresol, connecting the flask to a vapour cooling column and placing it on a hot plate. The lab assistant was then required to start timing the solution once it started to boil, and allow the mixture to boil for 30 minutes. The lab assistant was then required to visually check that the solid material had dissolved and then remove the solution from the heat source and allow to cool to ambient temperature. The lab assistant was then required to add a precise amount of distilled water and then use a magnetic stirring rod. The assistant was then required to select a particular computer file, use an electrode and then enter the sample weight.
20. Ms Ninkovic agreed that the Commissioner would be able to do each of these tasks with some training and guidance. At the end of a long cross examination Ms Ninkovic concedes that the procedures were relatively simple and straight forward:
"Question - I am suggesting to you that all of these procedures are relatively simple and straight forward and they require no more than following a relatively simple recipe?- if they did that, if they made this procedure from the beginning 1 would agree with that, but they didn't so they can't judge that. They are not involved with this."
21. Ms Ninkovic's evidence regarding the nature of the work she performed is confusing and inconsistent. She ranges from saying the work is complicated to agreeing the procedures are straight forward, expect when it came to DEG procedure. However her evidence in that regard may be understood to be that assistants had difficulty in obtaining expected results using the Mitsubishi procedure, but that was because Leading Synthetics used different machinery.
40. Ms Ninkovic's role involves following set procedures, without deviation, and without the exercise of any independent judgment.
41. The procedures Ms Ninkovic was required to follow were straightforward" and could be performed by a person with minimal qualifications. Ms Ninkovic gave evidence that the Commissioner could even perform her role and that a number of the procedures were relatively simple.
42. The tasks performed by Ms Ninkovic largely involved following and adhering to a set procedure or recipe and require basic skills.
50. The respondent submits that the Commissioner should make the following findings of fact:
(a) Ms Ninkovic does not have the minimum qualifications necessary for any classification above C11 in the MA Award 2010.
(b) Ms Ninkovic works under general supervision. The tasks Ms Ninkovic performs are repetitive in nature and do not require close supervision. A C10 classification only requires that the employee work 'under limited supervision'.
(c) Ms Ninkovic's role involves following specific procedures which does not require the exercise of any independent judgment, discretion or analysis. A C 11 works from complex instructions and procedures and is responsible for assuring the quality of their own works and a C11 employee works under general supervision [see paragraph 113 above regarding supervision]. However in a laboratory the employee works under close supervision. The respondent concedes that Ms Ninkovic did not work under close supervision in the laboratory but did work under, at least, limited supervision.
(d) Any "maintenance" or "repairs" Ms Ninkovic claims to have carried out are only basic cleaning and minor repair tasks which are routine in nature and incidental to her role.
(e) Ms Ninkovic did not develop or modify any procedures. The extent of her involvement, if any, in any changes to procedures was, in collaboration with fellow employees, to suggest using the Zimmer procedures in place of the Mitsubishi procedure. There is no credible evidence to suggest that Ms Ninkovic modified any of the procedures which were developed by Zimmer or Mitsubishi.
(f) Ms Ninkovic assisted in on the job training of other employees to the extent of a C11 employee.
(g) Ms Ninkovic was responsible for assuring the quality of her own work to the extent of a C11 employee.
[14] Much of this dispute is about the contest between three concepts: skills required; skills acquired; and skills utilised.
[15] Skills required relates to those skills which are required by the employer and which the employee must possess in order to perform the minimum requirements of the employment.
[16] Skill acquired relates to the suite of skills that an employee has including skills which are not necessary for the performance of the employment.
[17] Skills utilised relates to those skills which are actually used in employment and which may include skills acquired but which are not skills required.
[18] The classification descriptions in the Manufacturing and Associated Industries and Occupations Award 2010 identify that an employee at C11 who is engaged in laboratory work has completed a Certificate 11 and works on basic/simple routine tasks:
In a laboratory the employee performs basic/simple routine tests under close supervision and communicates results of those tests to the appropriate personnel.
A Laboratory Tester is an employee who has completed a Certificate II, or equivalent, in Sampling or Measurement so as to enable the employee to perform work within the scope of this level.
[19] The classification of C10 makes no reference to laboratory work.
[20] The classification of C9 applies to Laboratory Technician - Level I (the lowest of the Laboratory Technician levels). The required qualifications and duties are described as follows:
Certificate III in Laboratory Skills, or 50% towards a Diploma of Engineering, or equivalent.
The skills exercised by the Engineering/Laboratory Technician—Level I are in the technical field including draughting, planning or technical tasks, including in a laboratory, requiring technical knowledge.
- In a laboratory the employee performs basic laboratory duties using written, spoken or diagrammatic instructions and/or basic quality control assurance procedures and techniques under general supervision-either individually or in a team environment.
[21] The classification of C8 applies to Laboratory Technician - Level II. The required qualifications and duties are described as follows:
40% towards an Advanced Diploma of Engineering, or 60% towards a Diploma of Engineering—Technical, or equivalent
The skills exercised by the Engineering/Laboratory Technician—Level II are in the technical field including draughting, planning or technical tasks requiring technical knowledge.
At this level the employee is required to exercise judgement and skill in excess of that required at the C9 level under the supervision of technical or professional staff.
[22] Classification C7 applies to a Laboratory Technician - Level III with the following skills and duties:
Certificate IV in Laboratory Techniques, or 45% towards an Advanced Diploma of Engineering, or 70% towards a Diploma of Engineering—Technical, or equivalent
The employee in a laboratory is able to troubleshoot at a basic level and perform a range of quality control and/or research and development tests with only general supervision.
[23] Classification C6 applies to a Laboratory Technician - Level IV with the following skills and duties:
50% towards an Advanced Diploma of Engineering, or 85% towards a Diploma of Engineering—Technical, or equivalent.
At this level the employee is engaged in detail draughting and/or planning and/or technical duties requiring judgement and skill in excess of that required of a technician at the C7 level under the supervision of technical and/or professional staff.
[24] Ms Ninkovic does not have a Certificate II, III or IV but does have a statement issued in 1995 by the then Overseas Qualification Unit of the Victorian Department of Business and Employment identifying that “on the basis of the guidelines developed by the National Office of Overseas Skills Recognition (NOOSR)” Ms Ninkovic had a qualification from Bosnia Herzegovina which was “assessed as at least comparable to the educational level of an Australian TAFE Advanced Diploma (Stream 3300)”.
[25] Having regard to the classification structure of the Manufacturing and Associated Industries and Occupations Award 2010 it appears that the requirement to have an Advanced Diploma only relates to classifications of C3 and C2. Thus it is clear that Ms Ninkovic has acquired skills far in excess of those required by her employer and even far in excess of the classification level that the NUW is seeking.
[26] Whilst the entire proceedings were based upon the appropriate classification under the Manufacturing and Associated Industries and Occupations Award 2010 the evidence before the Tribunal shows that Alton had employed Ms Ninkovic as a Level 3 position under the Textile, Clothing, Footwear and Associated Industries Award 2010 even though Alton referred to Ms Ninkovic as being a “Lab Assistant - Leading Synthetics”. However not much hangs on this as Level 3 under the Textile, Clothing, Footwear and Associated Industries Award 2010 has the same rate of pay as C11 under the Manufacturing and Associated Industries and Occupations Award 2010. The most obvious difference between the two awards is that the Textile, Clothing, Footwear and Associated Industries Award 2010does not contain any specific reference to laboratory work.
[27] Any discussion concerning the proper classification for Ms Ninkovic can only occur if regard is had to the skills required for each of the Certificate II, II and IV referred to in the classification descriptions referred to above.
[28] I have had regard to the information publicly available from the Manufacturing Skills Council in relation to the Laboratory Operations Training Package - MSL09. The Training Package has 6 components as follows:
Qualification Level | Code | Title |
Certificate II | MSL20109 | Certificate II in Sampling and Measurement |
Certificate III | MSL30109 | Certificate III in Laboratory Skills |
Certificate IV | MSL40109 | Certificate IV in Laboratory Techniques |
Diploma | MSL50109 | Diploma of Laboratory Technology |
Advanced Diploma | MSL60109 | Advanced Diploma of Laboratory Operations |
Vocational Graduate Certificate | MSL70109 | Vocational Graduate Certificate in Instrumental Analysis |
[29] Each component has Units of Competency which provide detailed information on the competency’s required in order to gain the qualification. I have specifically looked at the Units of Competency for each of Certificate II, III and IV. The attached table at Appendix A identifies all Units of Competency for each of those 3 qualifications.
[30] As can be seen from the table the type of work performed by Ms Ninkovic in the laboratory at Leading Synthetics could possibly fall into all three Certificate Levels.
[31] As the greater portion of the work of Ms Ninkovic is in the performance of chemical tests I have had particular regard to three Units of Competency.
[32] The Unit of Competency “MSL973001A Perform basic tests” is found as part of each of the 3 Certificates.
[33] The Unit of Competency “MSL974003A Perform chemical tests and procedures” is found as part of Certificates III and IV.
[34] The Unit of Competency “MSL975018A Perform complex tests to measure chemical properties of materials” is only found at Certificate IV.
[35] The details of each of these three units of competency are attached at Appendix B.
[36] What clearly separates each of the levels from the others is the increasing level of complexity in the work to be performed. At Certificate II the requirement is only to perform “basic tests”. At Certificate III the requirement is to perform tests which are basic and tests which are more than basic and less than complex. At Certificate IV the requirement is to perform basic tests and to perform tests which are more than basic and less than complex and to perform complex tests.
[37] The unit descriptor for each of the above 3 Units of Competency are illustrative of this.
MSL973001A Perform basic tests - This unit of competency covers the ability to perform tests and measurements using standard methods with access to readily available advice from supervisors.
MSL974003A Perform chemical tests and procedures - This unit of competency covers the ability to interpret chemical test requirements, prepare samples, conduct pre-use and calibration checks on equipment and perform routine chemical tests/procedures. These tests will involve several measurement steps. The unit includes data processing and interpretation of results and tracking of obvious test malfunctions where the procedure is standardised. However, personnel are not required to analyse data, optimise tests/procedures for specific samples or troubleshoot equipment problems where the solution is not apparent.
MSL975018A Perform complex tests to measure chemical properties of materials - This unit of competency covers the ability to isolate analytes from complex matrices and perform multi-staged and/or multi-component analysis on them. The unit requires personnel to apply detailed knowledge of analytical chemistry to plan the analysis, prepare and measure samples, analyse and report results and make approved adjustments to procedures as required. Personnel are required to recognise atypical test data/results and troubleshoot common analytical procedure and equipment problems.
[38] What is very apparent from a consideration of the evidence in this matter, particularly as it relates to the nature of the chemical tests that are required to be performed by Ms Ninkovic at the Leading Synthetics laboratory, is that the skills required fall far short of the skills required to “perform complex tests to measure chemical properties of materials”.
[39] Even on Ms Ninkovic’s evidence and the submissions of the NUW it is clear that none of the work set out in the laboratory procedures which were put into evidence would require Ms Ninkovic to “apply detailed knowledge of analytical chemistry to plan the analysis, prepare and measure samples, analyse and report results and make approved adjustments to procedures as required” or require Ms Ninkovic to “recognise atypical test data/results and troubleshoot common analytical procedure and equipment problems”. This is made even clearer when the detailed requirements of the Unit of Competency, MSL975018A Perform complex tests to measure chemical properties of materials, are considered in light of the laboratory procedures in evidence.
[40] The same outcome applies when the evidence in relation to supervision, training, maintenance of machines and trouble shooting are considered in relation to the various units of competency which cover these topics.
[41] I conclude that the work of Ms Ninkovic is not work at the Certificate IV level and that such work is not at the C7 or C6 level.
[42] This then leaves a possible range of classifications for Ms Ninkovic’s work between C11 and C8.
[43] In order to determine what is the correct classification of Ms Ninkovic, between C11 and C8, requires a detailed examination of the evidence and proper consideration and application of the case law.
[44] The Respondent relies on two decisions: Australian Liquor, Hospitality and Miscellaneous Worker's Union and National Foods Milk Limited 4, and Services Union v Austin Health 5, and the NUW relies on Australian Municipal, Administrative, Clerical and Services Union v Redland Shire Council. 6
[45] Each of the Applicant and the Respondent had made detailed written and oral submissions exploring the language used in the Manufacturing and Associated Industries and Occupations Award 2010 as well as in other modern awards and awards which operated prior to the modern award system. The respective submissions are helpful in painting a picture of the evolution of award treatment of laboratory work but the submissions do not provide a clear answer to the identification of the correct classification for Ms Ninkovic.
[46] Once again I start with the fact that the greater portion of Ms Ninkovic’s work is carrying out chemical tests. Thus I return to the 2 units of competency, MSL973001A Perform basic tests and MSL974003A Perform chemical tests and procedures.
[47] Whilst I have had regard to the whole of the content of each of the 2 units of competency I focus on key aspects of each.
[48] In “MSL973001A - Perform basic tests” I note that the following sections:
“Typical tests carried out by laboratory/field assistants”, “Measurements”, “Common measuring equipment” and “This competency in practice” all paint a reasonably clear picture of a low level of skill and the use of simple and standard procedures.
[49] In “MSL974003A - Perform chemical tests and procedures” the following sections:
“Critical aspects for assessment and evidence required to demonstrate competency in this unit”, “Context of and specific resources for assessment” and “This competency in practice” paint a reasonably clear picture of a reasonable level of skill and responsibility including the use of standard procedures but with the addition of understanding where things might have gone wrong in applying such procedures.
[50] In HSU v Austin Health, Cribb C had the benefit of position descriptions for the relevant classifications in question and was able to use these as part of the process of identifying the duties required to be performed by the employees and then ascertaining whether such duties met the requirements of a particular classification. However in the matter before her Cribb C noted that the classification descriptors did not identify work to be performed but only the qualifications required.
[51] In the present matter there was no position description for Ms Ninkovic’s position as at the time the dispute was notified to FWA. Alton did create a position description for Ms Ninkovic prior to the arbitration of this dispute but such a document is so self serving that I have not given it any weight. However the work required to be performed by Ms Ninkovic is well described in the laboratory procedures for the various tests that form Ms Ninkovic’s work. Additionally the classification descriptors in the Award provide a benchmark against which to test the actual work performed.
[52] Unlike in HSU v Austin Health the issue of educational qualifications is not as absolute in this matter. In HSU v Austin Health the employee was required to hold a specific qualification “or equivalent as recognised by the Employer.” In the present matter the issue of equivalence of a qualification is not at the discretion of Alton or Leading Synthetics but is to be determined objectively. In the present matter the evidence is that a State Government body has determined that Ms Ninkovic’s qualifications are equivalent to an Advanced Diploma. Ms Ninkovic’s qualifications exceed those required to be held at the levels of C11, C10, C9 or C8.
[53] Mr Gosain’s evidence was that a person with Year 10 could do the work being performed by Ms Ninkovic. I have trouble accepting this evidence as it was clearly intended to downgrade the level of skill required to perform the work and the evidence of Mr Goshien was not supported by any evidence as to what is taught in Year 10 Chemistry and how the specific laboratory procedures would relate to the Year 10 chemistry course.
[54] There is a degree of difficulty attached to the whole suite of the laboratory procedures when an employee, in this case Ms Ninkovic, is required to perform all of the laboratory procedures. I have no doubt that when pulled apart each laboratory procedure could be “dumbed down” enough so that as the Respondent contended, even a Commissioner of Fair Work Australia could do the work. But the laboratory procedures in evidence have not been “dumbed down” but are written in technical language requiring a reasonably broad chemistry knowledge in order to perform all of the tasks.
[55] I do not consider that the laboratory procedures would fall within the description of “perform basic tests” but rather fall within the description of “perform chemical tests and procedures”.
[56] I do not consider the work performed by Ms Ninkovic to be within the skill level of C11 of the Award.
[57] I am of the view that the correct classification for Ms Ninkovic is C9. The language of the classification level C8 makes clear that in the context of exercising the skills required at C9 level that an employee “is required to exercise judgement and skill in excess of that required at the C9 level under the supervision of technical or professional staff.”
[58] There would appear to be no requirement placed on Ms Ninkovic to “exercise judgement and skill in excess of that required at the C9 level under the supervision of technical or professional staff”. It may very well be that Ms Ninkovic, who has a higher set of skills and qualifications than is required for the job, does perform work at a higher level of skill than the C9. However that merely brings the discussion back to the issue raised by the NUW: Should Ms Ninkovic be classified on the basis of the skills utilised rather than on the basis of the skills required.
[59] In the present matter I am not prepared to find that Alton must pay Ms Ninkovic for the skills she uses which are greater than the skills required to be utilised. Alton contended that Ms Ninkovic embellished her evidence as to what she did. I accept that Ms Ninkovic may have put the best gloss possible when describing her work over the years but her best gloss was at least offset by Alton’s worst gloss on the evidence as to the work actually performed by Ms Ninkovic. Also the adding of a ‘gloss’ to Ms Ninkovic’s evidence was done so as to argue that the appropriate classification was C6. The real issue here though is whether Ms Ninkovic, by using skills acquired but not required, added real value to Alton or Leading Synthetics so that classification at C8 level would be the fair thing to do. Having regard to all of the evidence I am not satisfied that even where Ms Ninkovic utilises skills acquired but not required that the value of any additional work would require Ms Ninkovic to be reclassified to C8.
[60] The way in which the matter has been put to the Tribunal only requires the Tribunal to decide on the proper classification for Ms Ninkovic as at the date this dispute arose. However the logical conclusion of the decision of the Tribunal that Ms Ninkovic was performing work which required her to be classified at the C9 level under the Award is that prior to the date of the decision Ms Ninkovic was also performing work at the C9 level. Given the evidence in this matter it is clear that since Ms Ninkovic was employed by Alton to work for Leading Synthetics she has been performing work at the C9 level.
[61] I determine that Ms Ninkovic is, and has been, performing work for Alton which falls within the classification level of C9.
[62] To give proper effect to this decision Alton would need to pay Ms Ninkovic the C9 rate of pay for the work she has performed and will perform whilst engaged in the laboratory of Leading Synthetics.
[63] Whilst this decision will give Ms Ninkovic a right to take action to recover underpaid wages, I would recommend that Leading Synthetics, Alton, Ms Ninkovic and the NUW engage in discussions as to how to best give effect to this decision.
COMMISSIONER
Appearances:
D. Mujkic for the Applicant
J. Rutherford for the Respondent
Hearing details:
2011
Melbourne
December 21, 22
Final written submissions:
Applicant by 13 February 2012
Respondent by 27 February 2012
APPENDIX A
APPENDIX B
1 Transcript at PN1423 - PN1425
2 Applicant’s Outline of Submissions of 13 February 2012
3 Transcript at PN1031
4 PR945391
5 [2011] FWA 6004
6 PR954795 (6 January 2005)
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