National Union of Workers v Bidvest (Victoria) Pty Ltd

[2010] FWA 8815

[2010] FWA 8815

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.739—Dispute resolution

National Union of Workers
v
Bidvest (Victoria) Pty Ltd
(C2010/3733)

COMMISSIONER GOOLEY MELBOURNE, 18 NOVEMBER 2010

Alleged dispute in relation to an employee being assigned a classification [Classification 4.1.4] that relates to an alternate industrial instrument. The employees industrial instrument allegedly does not have the classification to which he has now been assigned. .

[1] The National Union of Workers (the NUW) and Bidvest (Victoria) Pty Ltd (Bidvest) are parties to the Bidvest Melbourne & Geelong Warehouse - Enterprise Agreement 2009-2011 (the Agreement) . 1

[2] On 17 May 2010 the NUW notified a dispute to Fair Work Australia pursuant to the dispute resolution procedure in the Agreement. The application was referred to conciliation on 28 May 2010 and when it did not resolve, the NUW referred the matter for arbitration and it was heard on 12 August 2010.

[3] At the hearing Mr Mujkic appeared for the NUW and Mr D’Arcy, a legal practitioner, sought leave to appear for Bidvest. Permission to appear was granted.

[4] Mr Dempster and Mr McNamee, employees of Bidvest, gave evidence on behalf of the NUW and Mr McNish, the Warehouse Manager, Ms Fullalove, an Administrative Officer and Ms Sprigg, the General Manager gave evidence for Bidvest.

The matter in dispute

[5] Bidvest operate a warehouse in Clayton Victoria. As part of the operation of the warehouse, a function called “goods receipting” is required to be performed.

[6] Prior to May 2010 this function had been performed by a warehouse employee covered by the Agreement and predecessor agreements. 2

[7] In March 2010 the decision was made to reallocate the “good receipting” role to an administrative employee in the administrative centre of the Bidvest business. 3 As a result Bidvest held discussions with Mr Dempster who was then performing the role and Mr Davis the NUW delegate. The position was advertised and Mr Dempster did not apply for the position because the position was said not to be covered by the Agreement and was to be paid “significantly less for the same work.”4

[8] On or about 26 April 2010 the NUW organiser advised Bidvest that the NUW objected to the reallocation of the duties and asked that the goods receipting duties be returned to Mr Dempster. Bidvest did not accede to the request and on 28 April 2010 Bidvest gave Mr Dempster and the NUW two week’s notice that the goods receipting duties were being reallocated and on 10 May 2010 Ms Fullalove a clerical employee took on those duties. 5 Mr Dempster was reallocated to normal warehousing duties.

[9] The NUW contend that the job of the goods receipting is within the classification structure of the Agreement and therefore the position should be classified under the Agreement and hence the person who occupies the position is within the scope of the Agreement.

The industrial instrument

[10] Clause 1.3 of the Agreement provides for the coverage of the Agreement as follows:

“This Agreement is binding on:

(a) Bidvest (Victoria) Pty Ltd (ACN 053 695 855) Trading as Bidvest Melbourne (548 Clayton Road, Clayton Victoria 3168) and Bidvest Geelong (304 Boundary Road, Breakwater, Victoria, 3219); and

(b) The National Union of Workers (Victorian Branch) of 833 Bourke Street Docklands, Victoria, 3008 (“NUW”); and

(c) All employees classified under this Agreement.”

[11] Clause 4.1 sets out the classifications under the Agreement as follows:

“PART 4 WAGES AND RELATED MATTERS

4.1 CLASSIFICATIONS

4.1.1 Storeworker Grade 1 - Casual/Probationary Level

A Storeworker Grade 1 willbe a new employee or a casual employee and will:

(a) Responsible for the quality of their own work subject to detailed direction.

(b) Work in a team environment and/or under routine supervision.

Indicative of the tasks which an employee at this level may perform are the following:

(a) storing and packing of goods and materials in accordance with appropriate procedures and/or regulations;

(b) allocating and retrieving goods from warehouse;

(c) responsible for housekeeping in own work environment;

(d) use of non-licensed material handling equipment.

Promotional criteria

An employee (with the exception of a casual employee) remains at this level until they are capable of effectively performing through assessment or appropriate certification the tasks required of this function so as to enable them to progress to the next level as a position becomes available.

4.1.2 Storeworker Grade 2 - Base Permanent Level

A Storeworker Grade 2 willhave proven and demonstrated skills (including as appropriate, appropriate certification) to the level required of this grade and will:

(a) Able to understand detailed instructions and work from procedures.

(b) Able to co-ordinate works in a team environment under limited supervision.

(c) Responsible for quality of they’re own works.

(d) Possesses sound interpersonal and communication skills.

Indicative of the tasks which an employee at this level may perform are the following:

(a) storing and packing of goods and materials in accordance with appropriate procedures and/or regulations;

Promotional criteria

An employee remains at this level untilthey are capable of effectively performing through assessment or appropriate certification the tasks required of this function so as to enable them to progress to the next level as a position becomes available.

4.1.3 Storeworker Grade 2A

A Storeworker Grade 2A will have proven and demonstrated skills (including as appropriate, appropriate certification) to the level required of this grade and will:

(a) Able to understand detailed instructions and work from procedures.

(b) Able to co-ordinate works ina team environment under limited supervision.

(c) Responsible for quality of their own works.

(d) Possesses sound interpersonal and communication skills.

Indicative of the tasks which an employee at this level may perform are the following:

(a) Licensed operation of all appropriate materials handling equipment;

Promotional criteria

An employee remains at this level untilthey are capable of effectively performing through assessment or appropriate certification the tasks required of this function so as to enable them to progress to the next level as a position becomes available.

4.1.4 Storeworker Grade 3

A Storeworker Grade 3 will have the following proven and demonstrated skills (including as appropriate, appropriate certification) to the level required of this grade and will:

(a) Understands and is responsible for quality control standards;

(b) Possesses an advanced level of interpersonal and communication skills.

(c) Competent keyboard skills.

(d) Sound working knowledge of all warehousing/stores duties performed at levels below this grade, exercises discretion within scope of this grade.

(e) May perform work requiring minimal supervision either individually or in a team environment.

(a) Ability to supervise and provide direction and guidance to other employees including the ability to assist in the provision of on-the-job training and induction.

Indicative of the tasks which an employee at this level may perform are the following:

(a) Use of a V.D.U. for purposes such as the maintenance of a deposit storage system, information input/retrieval, etc. At a level higher than Grade 2;

(b) operation of all materials handling equipment under licence;

(c) development and refinement of a store layout including proper location of goods and their receipt and dispatch; and

(d) employee who is responsible for the supervision of and the responsibility for the conduct of work of up to ten employees.

(e) maintaining control registers including inventory control and being responsible for the preparation and reconciliation of regular reports or stock movement, despatches, etc.

Promotional criteria

An employee remains at this level until they are capable of effectively performing through assessment or appropriate certification the tasks required of this function so as to enable them to progress to the next level as a position becomes available.

4.1.5 Storeworker Grade 4

A Storeworker Grade 4 will have proven and demonstrated skills as follows:

(b) Implement quality control techniques and procedures.

(c) Understands and is responsible for the warehouse or a large section of the warehouse.

(d) Highly developed level of interpersonal and communication skills.

(e) Ability to supervise and provide direction and guidance to other employees including the ability to assist in the provision of on-the-job training and induction.

(f) Exercises discretion within the scope of this grade.

(g) Exercises skills attained through the successful completion of an appropriate warehousing certificate.

Indicative of the tasks which an employee at this level may perform are the following:

(a) liaising with management, suppliers and customers with respect to stores operations;

(b) detailing and coordinating the activities of other storeworkers and acting in a leading hand capacity for in excess of ten storeworkers; and”

[12] The Agreement provides for the resolution of disputes at clause 2.2 as follows:

“2.2 Dispute Resolution

2.2.1 Resolving disputes

Any dispute or claim (whether any such dispute or claim arises out of the operation of this Agreement or not) as to the wages or conditions of employment of any of the employees covered by this Agreement or as to any work-related matter, including a claim that the Agreement, the NES (including subsections 65(5) or76(4)) or a General Protection (not involving dismissal) has been breached, or as to the relationship between the Employer and the Union, shall be settled in the manner outlined in this clause.

Step 1

Resolving disputes at a workplace level

The Employer and the affected Employee(s) must genuinely attempt to resolve the dispute at the workplace level. This may involve the affected Employee first discussing the matter with their Supervisor or a more Senior Manager as appropriate.

Step 2

Where the dispute cannot be resolved by Employer and employee(s)

If a matter cannot be resolved at the workplace level and the employee requests the NUW to represent their interests then the Employer, affected employee(s) and the NUW will attempt to resolve the dispute in good faith at the workplace level.

Step 3

FWA Conciliation and/or Arbitration

The parties agree that the FWA may conciliate and/or arbitrate upon application of either party. If arbitration is necessary the FWA shall have the power to exercise procedural powers in relation to directions, hearings, witnesses, evidence and submissions which are necessary to make the arbitration effective. Further the parties agree that the decision of the FWA will be binding upon the parties. The parties agree that the either party may appeal the decision of the FWA.

2.2.2 Obligations of Employee during a Dispute

An Employee must, whilst a dispute is being resolved, continue to work in accordance with their contract of employment unless the Employee has reasonable concerns about an imminent risk to their health and safety and comply with any reasonable direction(s) given by their Employer to perform other available work either at the same workplace or at another workplace. Provided that in directing the Employee to perform work the Employer will have regard to any law of the Commonwealth or of a State or Territory dealing with occupational health and safety that apply and whether that work is appropriate for the Employee to perform. Further provided that any product, requiring refrigeration and not under mechanical refrigeration at the time of a grievance or dispute, and or any meeting shall be put away into cold rooms before work is stopped.

2.2.3 Status Quo will Prevail

Until the dispute is resolved or determined, the status quo will prevail

2.2.4 Representation

An employee may be represented at any of the above steps by the NUW delegate or Organiser.”

Jurisdiction of Fair Work Australia

[13] The NUW and Bidvest accept that a dispute over whether a particular position is within the scope of the Agreement is a dispute contemplated by clause 2.2.1 of the Agreement. The evidence established that the steps set out in clause 2.2.1 had been complied with.

Characterisation of the dispute

[14] The NUW characterise the dispute as whether the position receivables clerk should be classified as a store worker grade 3. 6 While this characterisation of the dispute is supported by Bidvest,7 Bidvest submitted that “the question before the Tribunal is whether Ms Fullalove is classified under the Agreement or the Clerks Private Sector Award 2010 (the Clerks Award).”

The evidence of the NUW

Mr Dempster’s evidence  8

[15] Mr Dempster was employed as a store worker grade 3 under the Agreement. He had occupied the position of goods receipting from mid 2009 for approximately nine months.

[16] His role involved processing all invoices that accompanied goods received by Bidvest (approximately 80-110 invoices per day). Processing invoices involved inputting data into the purchasing system. The purchase price in the system had to be matched with the purchase price on the invoice. If there was no match a note was placed on the invoice to follow up the variance. He was required to ensure that the quantity/description of goods on the invoice matched the quantity/description of the goods on the purchase order. If not, he was required to check the actual goods delivered (by locating them in the warehouse) to assess whether the variance was due to an invoice error or to an incorrect delivery. When stock failed to arrive or was delivered on another day he created a new purchase order to match the stock that was delivered late. He also notified purchasing staff of any problems that arose with particular suppliers.

[17] Mr Dempster’s evidence was that this work took 90% of his time. His remaining time was spent relieving the employee, who organised the truck deliveries (Bidvest Time Slots), who worked in the same office. If there was no work to do in the office he would help out the boys on the docks. 9

[18] In cross examination Mr Dempster gave evidence that whilst he was in the position he was required to operate manual handling equipment including a pallet jack and a forklift. He also loaded and unloaded boxes and participated in the stock take. 10 Mr Dempster gave evidence that he was classified as a store worker grade 3 prior to accepting the position and he took that classification with him.11

[19] Mr Dempster’s evidence was that he would perform his role from 7.00 am and that the first invoice would arrive at 7.15 am to 7.30 am and that generally trucks arrive before 8.00 am. When the position of receivables clerk 12 was advertised in 2010 Mr Dempster did not apply for the position because he would not have been classified and remunerated in accordance with the Agreement.

Mr McNamee’s evidence  13

[20] Mr McNamee occupied the position of goods receipt from mid 2004 to mid 2009 and when he occupied that position he was a store worker grade 3. He currently occupies the position of Time Slots. He books all deliveries to the warehouse and generates a purchase order for each delivery which he matches to goods once the goods are delivered. In his current position he checks the invoices against the purchases. He described the goods receipt role and his current role as “very similar to the point that I see it as just a little bit reversed. I’m currently checking the invoice against the purchase order and once it is received and it gets to goods receipting the same procedure is done, the purchase order and the invoice are checked and then put into the system. 14 He also performs traditional warehouse work like picking and driving the forklift.15

[21] In cross examination Mr McNamee accepted that he operated at forklift when he was in goods receipting, as well as physical stocktaking.

The evidence of Bidvest

Mr McNish’s evidence  16

[22] Mr McNish is the Warehouse Manager at Clayton and he gave evidence about the decision to allocate the tasks of “good receipting” from a function performed in the warehouse by a warehouse employee to a function performed by an administrative employee in the administrative centre. 17

[23] Mr McNish performed the role of goods receipting for three years from 2001 to 2003. He described the process followed when goods were received and described the role of goods receipting.  18 Mr McNish’s evidence was that there was no good receipting work to be done until 8.00 am and that it would continue until 2.30 pm and that consequently Mr Dempster was required to work overtime to complete his goods receipting role.

[24] He also gave evidence of the additional functions of the goods receipting role when it was performed by a storeworker which was consistent with the evidence of the NUW witnesses.

[25] In cross examination Mr McNish said that prior to 2001 when the company was owned by Metcash the work of goods receipting was performed by administrative staff who had to enter the warehouse. His evidence was that this was an issue with the Union “because they didn’t have safety shoes and high-vis vests and things like that. So they decided to bring it over to the warehouse.” 19

[26] Mr McNish’s evidence was that the position was advertised and that it was advertised as a storeworker grade 3 position. 20

Ms Fullalove’s evidence 21

[27] Ms Fullalove applied for and obtained the position of receivables clerk. In her statement she said that her work as receivables clerk occupied about 70% of her time and that she performs other clerical duties in the remaining 30% of her time. 22 At the time of the hearing, the time spent as a receivables clerk was 50-60% of her time. Her evidence was that she does not have the following skills.

a. possess a sound working knowledge of all warehouse store duties performed at Storeworker Grade 3 or of the classifications below;

b. supervise any other Bidvest Melbourne employee;

c. use a VDU for the purposes such as the maintenance of a deposit storage system for input or retrieval of stock;

d. operate any materials handling equipment under license;

e. develop or refine the Bidvest Melbourne store layout; or

f. maintain control registers for Bidvest Melbourne.  23

Ms Sprigg’s evidence 24

[28] Ms Sprigg, the General Manager of Bidvest, made the decision to reallocate the tasks of good receipting role to a clerical employee. Her evidence was that this was done to reduce overtime worked by warehouse employees, because the functions could be more effectively performed by a clerical worker because of their proficient computer and clerical skills and because the receivables clerk could interact more readily with other relevant departments and customers and management.

History of the Clause

[29] The Bidvest Melbourne & Geelong Warehouse -Certified Agreement 2005 -2008 (the 2005 Agreement) provided that it was binding on:

“All persons employed by BIDVEST as:

(a) Store workers, packers or sorters;

(b) assistants to store workers, packers or sorters;

(c) assemblers, collectors or checkers of goods in cause of receipt or dispatch; and

(d) employees engaged in reception, handling, storage, preparation, packing and delivery of goods and merchandise and processes and activities incidental or ancillary to such reception, handling, storage, preparation, packing and delivery; and

(e) persons engaged by Bidvest in site maintenance and cleaning ancillary to store work;

This clause wherever expressed may be read alternatively or collectively in any combination whatsoever.”

[30] No evidence was put before the Tribunal about any other predecessor agreements.

[31] The NUW submitted that it was not the intention of the parties in changing the scope clause in the Agreement to change the scope of the Agreement.  25 Bidvest made no submissions that the change in the scope clause was indicative of any intention by the parties to exclude positions from the Agreement which had previously been covered by the 2005 Agreement.

[32] There were some changes to the classification structure in the Agreement. For example, there is an additional indicative task for a storeworker grade 3 which is to “maintain control registers including control and being responsible for the preparation and reconciliation of regular reports or stock movements, despatches etc.” No submissions were made about this change.

Submissions of the NUW

[33] The NUW filed written submissions 26 and final submissions in reply to the respondent’s final submissions.

[34] The NUW submit that in resolving this dispute the Tribunal should have regard to the classification structure in the Agreement. The NUW submits that the goods receipt role is able to be classified under the Agreement.

[35] The NUW submit that when a comparison is made of skills and indicative tasks of the classification of storeworker grade 3 and the role of goods receipting the Tribunal could be satisfied that the role was properly classified as a storeworker grade 3 under the Agreement. 27

[36] Further the NUW submit that given the Agreements broad coverage and ambiguous classification structure the Tribunal should have regard to its industrial purpose, commercial context and historical application. 28

[37] The NUW submit that the goods receipting role has been classified under the storeworker grade 3 classification since at least mid 2004. In fact the evidence established that the position became a storeworker grade 3 position in 2001. Mr McNish’s evidence was that he was a storeworker grade 2 at the time he applied for the position. It was advertised as a grade 3 storeworker position. The evidence suggests the position remained unchanged until the decision was made to readvertise it in 2010 as a non agreement position. No written job description for the position held by Mr Dempster was tendered.

[38] The NUW submit that while the coverage clause of the Agreement differs to the predecessor the Tribunal should conclude that there was no intention to change the scope of the Agreement.

Bidvest’s submissions

[39] Bidvest filed written submissions and final submissions.

[40] Bidvest’s primary submission is that the industrial instrument that applies to the position of receivables clerk is the Clerks Award not the Agreement. 29

[41] In support of this they submit that the totality of the duties performed in the new position are those of a clerk.

[42] Bidvest submit that the job performed by Ms Fullalove does not fit within the classification structure in the Agreement because:

a. that the principal purpose for which Ms Fullalove is employed is to perform clerical functions that includes the goods receipting duties, which are also clerical duties; and

b. the place and context in which the role is performed is in a clerical/ administrative office; and

c. the total duties performed by Ms Fullalove differ significantly from the duties undertaken by Mr Dempster; and

d. Ms Fullalove does not have the spread or range of skills and qualifications expected of a storeworker grade 3 as defined under the Agreement. 30

[43] Bidvest submit that the goods receipting duties have been incorporated into a new position and it is the new position which needs to be examined. 31

[44] Bidvest submit that Ms Fullalove does not have a number of the skills required of a storeworker grade 3 nor does she perform a number of the indicative tasks set out in the classification descriptor. 32 In addition the position description requires the performance of tasks not required of storeworker grade 3.

[45] Bidvest submit that the position is within the scope of the Clerks Award and that Ms Fullalove is a clerical worker not a store worker. 33 Bidvest submit that whether the principal or primary purpose test is applied to Ms Fullalove’s employment “she is engaged substantially in the performance of clerical and administrative duties” and she does not perform “any store work of the kind overwhelmingly described in the classification descriptions.”34

[46] Bidvest submit that the scope of the Agreement is limited to employees directly engaged in the operation of the warehouse.

[47] Bidvest say it was never the intention of the Agreement to cover clerical workers and to support this contention they rely upon an extract from the statutory declaration made by the employer at the time the application for approval of the Agreement was made to Fair Work Australia namely that the “agreement covers all warehouse employees of the employer but excludes the transport, clerical and managerial employees of the employer.” 35

Principles of construction

[48] Vice President Lawler set out detail in Watson v ACT Department of Disability Housing and Community Services the legal principles to be adopted when construing awards and agreements. 36 A Full Bench in The Australian Workers’ Union - West Australia Branch v Co-operative Bulk Handling Limited37 cited Vice President Lawler with approval and made reference to the decision of Logan J in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited.38 Logan J said:

“The starting point must always be the language employed by the parties to an industrial agreement but industrial context and purpose are always relevant when construing that language.”

The Full Bench concluded that

“the extract from Watson and the approach of Logan J, inform the manner in which we approach the test of construing the agreement and leads to the conclusion that regard must be had to extrinsic material in order that the meaning of the clause in question may be properly understood.”

[49] I adopt the approach endorsed by the Full Bench.

[50] Vice President Lawler in Hospira Australia Pty Ltd v National Union of Workers 39considered a dispute about whether the agreement provided for the accrual of rostered days off during annual leave and personal leave. Vice President Lawler said that if the agreements had been greenfields agreements then the construction put forward by the company would have been adopted. However in this case Vice President Lawler held that the terms of the agreement were ambiguous and that “the objective framework of facts in which the current agreements were made is certainly admissible on the construction of those agreements.” Those facts were:

• the agreements were the latest in a series of collective agreements that had applied for many years;



• the custom and practice at the site for over 20 years had provided for such accrual;



• the current agreement replicated terms which had been included in previous agreements; and



• there was no claim for a reduction in the number of RDO’s in bargaining.

[51] Consequently he held that RDO’s accrue during annual leave and personal leave.

The approach adopted by Vice President Lawler is correct. If parties to an agreement have in practice applied a term of an antecedent agreement in a particular way it must be assumed, unless there is evidence to the contrary, that they intended, by including the term in the current agreement, that it be applied as it has always been applied.

Findings

[52] Bidvest submit that the industrial instrument that applies to the position of receivables clerk is the Clerks Award not the Agreement. They contend that I must look at both the classification structure in the Clerks Award and the Agreement and that it is clear that the position is more properly classified under the Clerks Award.

[53] However this is not correct approach. If I were being asked to determine if the position of receivables clerk was within the scope of the Storage Services and Wholesale Award 2010 or the Clerks Award then this would be the correct approach having regard of course to any specific exclusions the scope clauses of the awards.

[54] However section 57 of the Fair Work Act 2009 (FW Act) provides that if an enterprise agreement applies to an employee then a modern award does not apply to the employee.

[55] There is nothing in the FW Act that prevents an agreement being made between an employer and its employees that covers work which is within the scope of more than one modern award. There is for example nothing to prevent Bidvest and its employees making an agreement that covered all employees.

[56] Therefore the question that must be determined is whether the position of receivables clerk currently occupied by Ms Fullalove is within the scope of the Agreement. If it is not, then it may be that the Clerks Award applies. However that does not need to be determined in this case.

[57] It is clear that when the Agreement was negotiated, made and approved the position occupied by Mr Dempster was considered by both the NUW and Bidvest to be within the scope of the Agreement and Mr McNamee whose job in Time Slots has a significant clerical component is still considered to be within the scope of the Agreement. Clearly it was accepted by the parties that the goods receipting position was within the scope of the 2005 Agreement.

[58] It is also clear that all the parties accepted that positions with a substantial clerical function were within the scope of the classification description of a store worker grade 3.

[59] The scope clause in the Agreement differs significantly from that in the 2005 Agreement. The scope of the 2005 Agreement is not limited to employees within the classification structure. Parties should be aware that such changes are not insignificant and could lead to unintended consequences.

[60] However I accept the submissions of the NUW that there was no intention to change the scope of the Agreement from that of the 2005 Agreement. I also accept the submission of the NUW that no demand was made by Bidvest when negotiating the Agreement that the goods receipting role be removed from the Agreement.

[61] Bidvest made no submissions that the parties intended that the wording of the scope clause was intended to change which jobs were or were not covered by the Agreement.

[62] Bidvest, hinted at, but did not submit that the position as it was performed by Mr Dempster was not within the scope of the Agreement. I therefore accept that the position as described by Mr Dempster was within the scope of the Agreement.

[63] Bidvest gave uncontested evidence about their rationale for changing the position. While Mr Dempster declined the position because he would have been “paid significantly less for the same work” 40 it was not submitted that the restructuring was a sham designed to avoid Bidvest’s obligations under the Agreement.

[64] It is unfortunate however that Bidvest did not advise the NUW when the Agreement was being negotiated that it wished to remove the goods receipting functions from the scope of the Agreement.

[65] The evidence clearly establishes that both the job done by Mr Dempster and by Ms Fullalove included the good receipting functions. When this job was performed by Mr Dempster he was required to perform additional warehouse functions. When then job was performed by Ms Fullalove she was required to perform additional clerical functions. While goods receipting took 90% of Mr Dempster’s time, Mr Fullalove’s evidence was that once she was proficient she estimated that the good receipting functions would take up 50% of her time.

[66] I do not accept that a physical relocation of a position from the warehouse to the administration area can have the effect of removing a position from the Agreement classification structure. The Agreement’s coverage is not limited to work performed in the warehouse.

[67] I do not accept the NUW’s submissions that “goods receipt is a position or role that is performed by a particular employee.” 41 A position’s classification under the Agreement is not determined by the particular employee who occupies the position. It is determined by the nature of the job required to be performed.

[68] The NUW submitted that the principal or primary purpose test is ineffectual in this case. I disagree. It is appropriate to determine the principal or primary purpose of the position and in this case it is clear that the principal or primary purpose of both the position occupied by Ms Fullalove and that occupied by Mr Dempster is goods receipting. The job description for the position provides that the purpose of the position is “to receipt all incoming stock into the warehouse”. The responsibilities of Ms Fullalove and Mr Dempster as set out in the job description of the receivables clerk were essentially the same. Where their positions differed was in the work they were required to perform when not performing their goods receipting role.

[69] In this matter I am required to decide if the current position description of the receivables clerk is within the scope of the classification descriptor of a storeworker grade 3.

[70] The job description provides as follows:

“Overall purpose of Job:

To receipt all incoming stock into our warehouse

Main Duties

Below is a list of responsibilities that must be performed in accordance with the Bidvest Quality System;

• To collect all paperwork from the Receiving Office

• To receipt all stock received

• Ensure Pricing & Quantities are correct to our Purchase Orders

• Create and generate Purchase orders if necessary

• To raise credits where necessary

• Undertake other clerical duties such as filing, mailing and other duties as required

• To update delivery dates on purchase orders’ .. ,

• To run Out of stock reports

• To Liaise with Purchasing and Customer Service Departments 42“

[71] An examination of the skills listed for a storeworker grade 3 does not assist me, as, except for 4.1.4(d), the skills required of a storeworker grade 3 are so generic as to apply to most positions.

[72] 4.1.4(d) requires the person to have a sound working knowledge of all warehousing/stores duties performed at levels below this grade, exercises discretion within scope of this grade.

[73] The duties performed below this grade include “stocking and packing goods and materials in accordance with appropriate processes and/or regulations and licensed operation of all appropriate materials handling equipment.”

[74] The list of indicative tasks for the classification provides an indication of what may be expected of the position but it is not exhaustive. Further the use of the word “may” does not suggest that employee engaged as a storeworker grade 3 must be able to perform all the indicative tasks. For example Mr Dempster did not have a forklift licence.

[75] Indicative task (f) clearly contemplates some of the tasks in the receivables clerk job description. This task was not included in the 2005 Agreement and no explanation of the change was given by either party.

[76] In addition some of the tasks in the receivables clerk job description involves using a computer to input and retrieve information.  43

[77] However it is clear that a storeworker grade 3 is also expected to be able perform traditional warehousing duties such as operating a forklift, loading and unloading boxes, picking boxes from pick orders and participating in stock take by walking around the warehouse checking inventory. 44

[78] It is clear from the evidence that the new position did not require the performance of these tasks. It is also clear that the additional duties expected to be performed are clerical tasks not warehouse tasks.

[79] Whilst it is clear that the parties intended the classification structure to apply to positions that had a significant clerical component it was only when that component was combined with a requirement to perform other warehouse functions that the position is properly within the classification structure of the Agreement.

[80] I therefore find that the decision of Bidvest to remove from the goods receipting role the traditional warehousing duties and add to the role additional clerical functions has changed the nature of the position. The position currently performed by Ms Fullalove may overlap the position performed by Mr Dempster but it is not the same as the position occupied by Mr Dempster.

Conclusion

[81] I find that the receivables clerk as described in the position description 45 is not able to be classified as a storeworker grade 3. Neither is it appropriately classified under any of the other grades in the Agreement.

COMMISSIONER

Appearances:

D Mujkic for the National Union of Workers.

D D’Arcy for Bidvest (Victoria) Pty Ltd

Hearing details:

2010.

Melbourne:

August 12.

 1   [2010] FWAA 2143

 2   Exhibit B1 at [5]

 3   Ibid at [2]

 4   Exhibit NUW 1 at [4]

 5   Exhibit B2

 6   Exhibit NUW 3 at [28]

 7   Respondents submissions in reply at [1]

 8   Exhibit NUW 3 Attachment A

 9   Transcript PN 198-1999

 10   Ibid PN 205-211

 11   Ibid PN 219-220

 12   Exhibit NUW 6

 13   Exhibit NUW 2

 14   Transcript PN 245

 15   Ibid PN 246

 16   Exhibit B2

 17   Ibid at [2]

 18   Ibid at [9]

 19   Transcript PN 320

 20   Transcript PN 338

 21   Exhibit B3

 22   Ibid at [5]-[6]

 23   Ibid at [8]

 24   Exhibit B1

 25   Exhibit NUW 3 at [26]

 26   Exhibit NUW 3 , NUW 9

 27   Exhibit NUW 3 at [17]-[19]

 28   Ibid at [24]

 29   Respondents outline of submissions at [13]

 30   Ibid at [13]

 31   Ibid at [14]

 32   Ibid at [18]

 33   Ibid at [25]

 34   Ibid at [27]

 35   at [30]

 36   [2008] AIRC 29 at [7]-[15] and

 37   [2010] FWAFB 4801

 38 [2010] FCA 591 at [39]

 39   [2010] FWA 1199

 40   Exhibit NUW 1 at [4]

 41   Exhibit NUW 9

 42   Exhibit NUW 6

 43   Exhibit NUW 7 at 4.1.4

 44   Respondent’s final submissions at [5]

 45   Exhibit NUW 6

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