National Union of Workers v Linfox Australia Pty Ltd
[2019] FWC 3274
•17 JUNE 2019
| [2019] FWC 3274 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739—Dispute resolution
National Union of Workers
v
Linfox Australia Pty Ltd
(C2018/3894)
DEPUTY PRESIDENT COLMAN | MELBOURNE, 17 JUNE 2019 |
Dispute arising under an enterprise agreement – classification of employees at distribution centre – inventory and customer service work – classification structure in the Road Transport and Distribution Award 2010 incorporated – correct classifications determined
[1] This decision concerns an application made by the National Union of Workers (NUW) under s 739 of the Fair Work Act 2009 (Act) for the Commission to deal with a dispute in accordance with the dispute settlement procedure in clause 33 of the Linfox and Transport Workers Union Road Transport and Distribution Centres Agreement 2018 (Agreement).1 The Agreement applies to employees of Linfox Australia Pty Ltd (Linfox) at the Coles Regional Distribution Centre, a facility at Truganina in Victoria operated by Linfox which exclusively services a contract with Coles. The NUW is covered by the Agreement.
[2] The dispute is about whether particular employees who undertake inventory and customer service work at the facility are correctly classified and paid in accordance with the Road Transport and Distribution Award 2010 (Award), which the Agreement incorporates. Rates of pay under the Agreement are determined by reference to the work classifications in the Award.
[3] The NUW contends that seven employees undertaking inventory work at the site (‘inventory employees’) should be classified at level 3 in the four grade classification structure in the Award. The company classifies them at level 2, and maintains that this classification is correct. The union’s case presented the circumstances of two of these employees, Mr Ender Dogu and Mr Arthur Bregiannis, as representative of the class of inventory employees. I note that, although Mr Bregiannis is classified at level 2, he is paid at level 3 pursuant to an understanding referred to by the parties as a ‘legacy arrangement’. It was not contended that this arrangement was relevant to the question of whether employees are correctly classified.
[4] The application also contends that three employees who undertake ‘customer service and pallet control’ work (‘CS/PC employees’) should be classified at level 3, whereas the company classifies them at level 1. Ms Gillian Crumplin’s circumstances are said to be representative of these employees. I note that Ms Crumplin is also subject to a special arrangement under which she is paid at level 2, despite the company classifying her at level 1.
[5] The union’s application further contends that both inventory and CS/PC employees sometimes undertake certain work at level 4 and that they should be paid higher duties allowance when they do so. The company says that these employees do not undertake any work that would entitle them to higher duties allowance.
[6] The application was listed for conciliation but was not resolved, and the parties agreed that the matter should proceed to arbitration. Directions were issued for the filing and service of submissions and materials. The application was heard before me on Monday 13 May 2019. The union led evidence from Mr Bregiannis, Mr Dogu and Ms Crumplin. The company led evidence from Ms Rachel Gherbesi, its ‘optimisation manager’ at the site, who is responsible for inventory, systems and continuous improvement.
[7] The parties concurred, and I agree, that the steps in the dispute resolution procedure have been followed and that the Commission is authorised by clause 33 of the Agreement to deal with the dispute by arbitration. The parties asked the Commission to resolve the dispute by answering the following questions: what is the correct classification of Mr Bregiannis and Mr Dogu; what is the correct classification of Ms Crumplin; and should the employees be paid higher duties allowance for working at level 4?
The classification structure in the Agreement
[8] Clause 2 of the Agreement states that it covers employees at the sites listed in Appendix 2. One of the many sites listed in that appendix is the ‘Coles RDC Warehouse’ in Truganina. Clause 4.3 of the Agreement states that certain provisions of Part L of the Agreement apply to employees in Victoria. Division 3 of Part L of the Agreement then sets out the incorporated terms of other instruments. In particular, clause 90.2(r) provides that the Award is incorporated into the Agreement, save for certain provisions that are not presently relevant. Further, Appendix 1 of the Agreement states specifically that the classifications in the Award apply to employees in Victoria.
[9] Accordingly, while the Agreement has a complicated structure, it is clear, and the parties agree, that the classifications relevant to this dispute are those in the Award. Schedule B of the Award contains the following four grade classification structure:
“B.1 Distribution facility employee level 1
B.1.1 Skills/Duties
(a) Responsible for the quality of their own work subject to detailed direction.
(b) Works in a team environment and/or under routine supervision.
(c) Undertakes duties in a safe and responsible manner.
(d) Exercises discretion within their level of skills and training.
(e) Possesses basic interpersonal and communication skills.
(f) Must be competent to perform one or more of the following tasks/duties:
(i) storing and packing of goods and materials in accordance with appropriate procedures and/or regulations;
(ii) preparation and receipt of appropriate documentation including liaison with suppliers;
(iii) allocating and retrieving goods from specific warehouse areas;
(iv) basic visual display unit (VDU) operation;
(v) periodic housekeeping and stock-checks; or
(vi) operating company small delivery vehicle.
B.2 Distribution facility employee level 2
B.2.1 Skills/Duties
(a) Able to work from complex instructions and procedures.
(b) Able to co-ordinate work in a team environment under limited supervision.
(c) Responsible for the quality of their own work.
(d) Possesses sound interpersonal and communication skills.
(e) Must be competent to perform one or more of the following tasks/duties:
(i) inventory and distribution facility control, including:
• licensed operation of all appropriate materials handling equipment;
• use of tools and equipment within the warehouse (basic non-trades maintenance);
(ii) VDU operation; or
(iii) operates three to six tonne truck.
(f) In addition to the above, may possess a duly recognised first aid certificate.
B.3 Distribution facility employee level 3
B.3.1 Skills/Duties
(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 distribution facility 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.
(f) Must be competent to perform one or more of the following tasks/duties:
(i) use of a VDU for purposes such as the maintenance of a deposit storage system, information input/retrieval, etc;
(ii) operation of all materials handling equipment under license, where required;
(iii) development and refinement of a distribution facility layout including proper location of goods and their receipt and dispatch; or
(iv) operates truck with a capacity in excess of six tonnes up to and including 13.9 tonnes GVM.
(g) In addition to the above, may be responsible for the proper application and maintenance of appropriate occupational health and safety standards.
B.4 Distribution facility employee level 4
B.4.1 Skills/Duties
(a) Implements quality control techniques and procedures.
(b) Understands and is responsible for a distribution facility or a large section of a distribution facility.
(c) Highly developed level of interpersonal and communication skills.
(d) 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.
(e) Exercises discretion within the scope of this level.
(f) Exercises skills attained through the successful completion of an appropriate certificate and must be competent to perform one or more of the following tasks or combination:
(i) liaising with management, suppliers and customers with respect to distribution facility operations;
(ii) detailing and co-ordinating activities of other distribution facility workers; or
(iii) maintaining control registers including inventory control and being responsible for the preparation and reconciliation of regular reports or stock movement, dispatches, etc.”
Submissions of the parties
[10] The union contends that Mr Bregiannis, Mr Dogu and Ms Crumplin undertake tasks and display skills at levels 3 and 4. It says that they should be reclassified at level 3 and be paid higher duties allowance when they undertake work at level 4. 2 The union submits that all three employees work with minimal or no supervision, and that their work is of an overall grade and quality as to fall with level 3 and, at least at certain times, level 4.3
[11] In relation to the inventory employees, one theme in the union’s case is its contention that a distinction is to be drawn between the reference to ‘inventory’ in the indicator at item (e) of level 2 and the inventory work performed by Mr Bregiannis, Mr Dogu and their colleagues. The union contends that the level 2 indicator’s reference to ‘inventory’ is limited to the manual handling side of inventory control tasks, such as the use of ‘materials handling equipment’, whereas the inventory employees do not do such tasks, and undertake work that is based primarily in the office, rather than on the floor of the distribution centre. The union further says that the work undertaken by the inventory employees engages various elements of the level 3 classification.
[12] The union also submits that Mr Bregiannis and Mr Dogu prepare reports, exercise discretion in decision-making, and use computers, and that in these respects they and their colleagues are different from other employees with whom they are currently co-classified at level two, who undertake pick and pack duties. It says that these latter employees, unlike the inventory employees, receive regular instructions and supervision, including through their headsets, in the course of the day. It says that Mr Bregiannis and Mr Dogu, and also Ms Crumplin, rarely interact with managers.
[13] In relation to the CS/PC employees, the union says that the company undervalues the grade of work performed by Ms Crumplin and her colleagues, and that they meet various descriptors at the level 3 classification.
[14] The union produced tables comparing tasks outlined in the witness statements of Mr Bregiannis, Mr Dogu and Ms Crumplin against certain descriptors at levels 3 and 4 in the Award. The tables identify a paragraph number from the relevant statement in one column, and then in the next columns the text of indicators from the grade 3 or 4 level. The tables did not explain why the tasks in the paragraphs of the witness statements met the descriptions in the relevant indicators however the union’s outline and submissions in reply addressed various purported connections.
[15] Linfox contended that a proper analysis of the employees’ duties and skills, when compared against the Award descriptors for levels 2, 3 and 4, shows that all employees are properly classified. It submitted that Ms Crumplin’s role is clerical and properly aligned with the level 1 classification descriptors. It says that the inventory work undertaken by Mr Bregiannis and Mr Dogu falls squarely within level 2 and that the ‘inventory control’ work contemplated by item (e) of level 2 is not, on the plain wording of the indicator, confined to the ‘manual handling’ side of inventory work. It said that office-based inventory control work is perfectly compatible with the level 2 classification.
[16] The company further submitted that the work undertaken by the inventory employees includes working both in the warehouse and in the office, and that their duties are substantially directed to housekeeping and stock-checking through the use of certain tools, including a visual display unit (VDU) to operate the Coles Warehouse Management System (WMS). It says that this is standard and regular inventory work properly classed at level 2, not the higher grades of level 3 or 4.
[17] The company contended that Mr Bregiannis, Mr Dogu and Ms Crumplin have minimal discretion, are required to follow procedures laid down by the company, and that they do not require supervision because they only need to follow these procedures. It also said that management maintains oversight of the work they perform.
Consideration
[18] The resolution of a dispute as to an employee’s correct classification under an industrial instrument requires the Commission to review the classification structure of the instrument, consider the evidence of the work performed by the employee, and determine which if any of the classifications covers the work.
[19] The descriptors in a classification structure may require interpretation. In the present case, neither of the parties contended that any of the provisions in the structure are ambiguous however in certain respects they have competing interpretations and it will be necessary for me to determine the correct construction. In this regard, the principles that apply to the interpretation of an enterprise agreement are well known and I will not repeat them, other than to note that interpretation begins with a consideration of the ordinary meaning of the relevant words, having regard to the relevant context and purpose.4
[20] It is relevant to note that the classification structure in the Award lists various duties and skills at each of the four levels, but does not provide instructions about how the structure is to be applied. It is an industry award and necessarily aspires to a certain level of generality so as to be of relevance to a reasonable spectrum of work within the sector.
[21] In considering what is the correct classification of an employee, the Commission should consider all of the evidence about the employee’s work and then identify which if any of the classifications in the instrument covers the work, having regard to all of the indicators of each classification in the context of the classification structure as a whole. A practical and common sense approach should be adopted. Whether an employee meets some, many or all of the descriptors of a particular classification will be relevant to the question of how the employee is properly to be classified. Some descriptors or duties may be more significant than others, and it may be appropriate to afford them more weight in assessing the correct classification.
[22] In Fonterra Brands, 5a Full Bench of the Commission stated that, where an employee’s duties are comprehended by more than one classification, it is necessary to determine the ‘substantial character’ of the role by reference to the level of responsibilities and the duties of the position to determine the most appropriate classification from the range of classifications in the agreement.6 The ‘substantial character’ approach has been formulated in other similar ways, such as by reference to the principal, or major or substantial aspect of the employee’s employment.7
[23] I will now consider the work undertaken by Mr Bregiannis, Mr Dogu and Ms Crumplin, with a view to identifying which of the descriptors in the classification structure they meet. I note that there was no significant factual disagreement between the parties about precisely what duties employees perform. In contest was rather the characterisation of those duties and how they align with various classification descriptors.
Mr Bregiannis and Mr Dogu
[24] The union did not dispute that, generally, the inventory employees possessed skills referred to in the level 2 classification. Its case was that their work went beyond this, such as to bring them within the level 3 classification. For example, it was not contested that they were able to work from complex instructions and procedures, and that they possessed, at the least, sound interpersonal and communication skills for the purposes of items (a) and (d) at level 2. However, it was said that they operate at a higher level and meet the descriptors in levels 3 and had ‘advanced’ communication and interpersonal skills (item (b) of level 3).
[25] In one respect however the union contended that Mr Bregiannis’ and Mr Dogu’s work was of a kind not contemplated at all by a descriptor in level 2, namely that at item (e). The union contended that the reference at level 2 to employees being competent to perform the task of ‘inventory and distribution facility control’ only applies to the ‘manual handling’ side of inventory control tasks, such as the use of ‘materials handling equipment’, and that because Mr Bregiannis and Mr Dogu work principally in the office and not on the floor, their work does not fall within this descriptor. In its reply submissions the union put this contention more broadly, stating that the level 2 descriptors generally ‘should be read as being limited to the manual handling side of inventory tasks’.
[26] I cannot identify any basis to read down the descriptor at B.2.1(e) in this way. It states simply that employees ‘must be competent to perform one or more of the following tasks / duties’. The first is ‘inventory and distribution facility control’, which is said to include both ‘licensed operation of all appropriate materials handling equipment’, and ‘use of tools and equipment within the warehouse (basic non-trades maintenance)’. I accept that ‘materials handling equipment’ suggests the use of machinery or other devices on the warehouse floor, and that ‘basic non-trades maintenance’ connotes physical maintenance and repair. ‘Tools’ however is not necessarily confined to use in ‘maintenance’; the words ‘non-trades maintenance’ that appear in brackets are in my view an example. But even if these are words of limitation, and confine the reference to ‘use of tools and equipment’ to maintenance work, the two dot points are not an exclusive statement of the type of activity that might fall within ‘inventory and distribution facility control’. They are examples of things that are included in inventory and distribution facility control work. The alternative construction, that they are mandatory components of this indicator, seems unlikely and impractical in the setting of an industry award of broad application, as there are clearly many tasks and duties in this sector that might relate to inventory and distribution facility control other than the matters referred to in the two dot points. In my view, the indicator contemplates other activities that fall within ‘inventory and distribution facility control’, including activities that might be undertaken in an office of a warehouse, or on the warehouse floor.
[27] Two further points of interpretation concerning item (e) of level 2 should be noted. The first is that the ordinary meaning of ‘control’ in the present context is a power or duty to direct, to regulate or to check things. In my view it involves a mental activity of an organisational character, and although there can also be a physical dimension to ‘control,’ it is by no means confined to this. The second is that item (e) states that a person ‘must be competent to perform one of more’ of the relevant tasks. It does not say that the task must actually be performed. Even if the union’s narrow interpretation of item (e) were accepted, there appears to be little doubt that Mr Bregiannis and Mr Dogu are competent, to say the least, to use tools and equipment within the warehouse for inventory control purposes.
[28] I reject the union’s contention that ‘inventory and distribution control’ in item (e) of level 2 is confined to the manual handling side of warehouse operations, or that any of the other indicators of this level as a whole are to be read down in this way.
[29] Based on the evidence of Mr Bregiannis and Mr Dogu, it is clear that inventory and distribution facility control is an important and significant component of their duties. Much of their work concerns identifying, checking, and reporting on what is in the warehouse – the inventory. In my assessment, both Mr Bregiannis and Mr Dogu are competent to perform, and do perform, inventory and distribution facility control. They have skills and perform duties at items (a) to (e) of level 2. The question is whether they also perform work meeting the descriptors of level 3.
[30] The witness statements and oral evidence of the employees addressed various aspects of their duties and skills, which were then linked by the union in its submissions, and in particular by the tables referred to earlier, to the various classification descriptors at level 3 and also level 4.
[31] I will next consider what alignment there may be between the skills and duties of Mr Bregiannis and Mr Dogu and the descriptors in level 3 of the classification structure. I note that in his statement, Mr Bregiannis said that he had read Mr Dogu’s statement and that he agreed with Mr Dogu’s explanation of the way the inventory team works.
(a) Quality control standards
[32] The first descriptor in the level 3 classification states: ‘Understands and is responsible for quality control standards’. It was not clear to me from the union’s submission exactly what these quality control standards were said to be or how Mr Bregiannis and Mr Dogu were said both to understand and be responsible for them. The witness statements of Mr Bregiannis and Mr Dogu addressed ‘quality control’, but not quality control standards. They each referred to work they perform that is referable to ‘quality control’, but without identifying the relevant standards, and why they are responsible for them. As I explain below, their ‘quality control’ work appears to me to concern ‘inventory control’.
[33] At paragraph 11.2 of his witness statement, Mr Dogu said that he is required to undertake many tasks related to ‘quality control’. He provides two examples. First, he conducts physical checks of cigarette cartons. If he notices that there is any damage to cartons he will raise this with Coles and request a particular form. The supplier will later visit the site, collect damaged stock and replace it. Under cross-examination Mr Dogu agreed that his role here is to undertake paperwork and perform stock checks. He also agreed that the customer, Coles, is in charge of the quality control process, and that his role is undertaken pursuant to detailed instructions. Further, the evidence of Ms Gherbesi was that it is the responsibility of all employees to identify and report damaged stock.
[34] The second example given by Mr Dogu of quality control work he undertakes is responding to emails from Coles to investigate ‘quality control’ issues affecting, stock such as infestation. Mr Dogu said that after checking the stock, he uses his discretion to ‘lock out’ the relevant pallet if it has ‘quality issues’. He says that the function he uses on his visual display unit to lock out stock is a ‘supervisor’ function. But as I explain below, the appearance of the letters ‘supv’ is a label produced by software and does not necessarily point to the relevant activity being supervisory in nature. Under cross-examination Mr Dogu acknowledged that when the customer asks him to look into a matter, there is a process that he is required to follow. He does not have any significant discretion about what to do.
[35] I do not consider either of these examples to show Mr Dogu or Mr Bregiannis to be responsible for ‘quality control standards’. They report damaged stock and check inventory at the client’s request, and take action in accordance with the relevant procedural requirements laid down by the company.
[36] Mr Bregiannis said in his statement at paragraph 10.2 that he has undertaken investigations into stock problems arising from confusion between ‘masters’ being picked as ‘inners’. ‘Inners’ are individual items, and a ‘master’ is the box that contains them. Sometimes an employee will be directed to pick a certain number of boxes, but instead of taking master boxes, he takes inners. This can result in short supplying. Mr Bregiannis gave evidence that he took the initiative to look into this problem and received an employee of the month award. In his oral evidence, Mr Bregiannis described this as an exercise in ‘sleuthing’ which showed that he had used his discretion and worked at a higher level. Under cross-examination, Mr Bregiannis acknowledged that he had in effect undertaken a mini stock check. The client had raised a concern and Mr Bregiannis had counted the stock.
[37] In my view these activities cannot properly be described as ‘responsibility for quality control standards’. They pertain to ‘inventory control’ at level 2 and ‘stock-check’ at level 1. It is important to appreciate that inventory control is of central importance to the service that Linfox provides to its client Coles, and that in a broad sense Mr Dogu, Mr Bregiannis and their colleagues are of course engaged in work that is relevant to ‘quality control’. Linfox aims to provide Coles with a quality service. It does this with the good assistance of its workers, as illustrated by Mr Bregiannis’ good work described above. But this does not mean, and it has not been established, nor is it the case, that Mr Dogu and Mr Bregiannis are responsible for quality control standards.
[38] In its reply submissions, the union disputed the company’s characterisation of this work as routine, and said that, in any event, the fact that a task is routine does not mean it cannot fall within grade 3 or 4. I agree that a task being routine does not necessarily say anything about its grade. But I reject the implication of this contention, namely that this work is not only not routine, but of a qualitative nature to bring it within level 3 or 4. This is not the case.
[39] I asked Ms Gherbesi about what she considered to be the relevant ‘quality control standards’ and who was responsible for them. She said that the client had quality standards that it was responsible for, and that Linfox also had its processes that were relevant to quality standards, and in relation to these, the ‘buck stops’ with her.
[40] The union’s contentions that inventory employees should be classified at level 3 relied also on Mr Dogu’s evidence about his ‘email’ work, which it says demonstrates that he and his colleagues understand and are responsible for quality control standards. 8 Mr Dogu said that as part of his ‘inventory’ duties he ‘receives emails from … Coles about certain items which require some kind of action’. He provides five examples. First, there are emails about items that are on special and to be allocated to the stores. For this he assigns extra pick slots, without consulting management.9 Secondly, he receives emails about product recall, which requires him to check whether the site is affected, ‘click on the product recall response form and fill in the required details’. He also sends an email to the inventory team to confirm that the matter has been dealt with, and ‘locks’ the affected pallets so that they cannot be picked.10 Thirdly, Mr Dogu receives requests from the Coles supply planner to check whether there are ‘deleted lines’ in the facility. Mr Dogu does a physical pallet check and responds with the appropriate stock count for the relevant item.11 The fourth example he cites is queries from Coles about ‘quit dates’, which I return to below in reference to another descriptor at level 3.
[41] Mr Dogu places emphasis on the fifth example of his email activities, which concerns what Mr Dogu describes as requests from the supply manager at Coles for investigations into quality control issues on certain items. 12 He gives an example of an ‘extensive investigation’ he conducted, which is attached to his statement. It shows an email trail commencing with a request from Coles for the inventory teams at various facilities to check whether there are any cookies of a particular type with a ‘best before date’ of 14 February 2019, and if not, to ascertain when the cookies were shipped out.13 Mr Dogu responds in an email stating that he has checked and found no such product. He attaches screen shots showing details of the cookies on stock. Shortly afterwards he sends a further email stating that he has identified one pallet of the product in question that had been in facility the previous month, and he lists the stores that might have received the product.
[42] In my view, none of these matters show that Mr Dogu is ‘responsible for quality control standards’. He is responsible for receiving and responding to queries about products in the warehouse. These are examples of inventory control work at level 2. The last example does not show an ‘extensive investigation’ into a quality control issue. He was asked to check whether a particular stock item was in the facility and if not, when it had left the facility. Mr Dogu used the company’s inventory system to find the answer and responded accordingly. I note that he responded quickly. He received an email of thanks. He did a good job. But it was not a job at level 3. Further, the fact that Mr Dogu was attending to a query that related to ‘quality control’ does not mean that he is responsible for the relevant quality control standards. Here, Coles sets and monitors its product standards. Linfox has operating and client service standards. Ms Gherbesi is responsible for these. Mr Dogu and Mr Bregiannis do not have to worry about whether these standards are effective or appropriate, or complied with by others; they have to do their job which involves a range of inventory control matters, including the many different queries that are raised by Coles.
[43] It is abundantly clear, and I find, that Mr Bregiannis and Mr Dogu do not undertake what is contemplated by item (a) of level 3. While they may understand the relevant quality control standards, they are not responsible for them.
(b) Advanced communication skills etc.
[44] The second item in classification level 3 states: ‘Possesses an advanced level of interpersonal and communication skills’ (B.3.1(b)). This can be compared with item (e) in level 1, which states ‘Possesses basic interpersonal and communication skills’, as well as the fourth item of level 2, which refers to an employee at that level having ‘sound’ interpersonal and communication skills.
[45] It is clear that Mr Bregiannis and Mr Dogu interact with representatives of Coles in relation to a range of matters, including by responding to questions and preparing certain data and information. In its reply submission the union contended that the ‘sheer volume of emails, the constant liaising with management, suppliers and customers and the nature of the teamwork required of these employees’ show that they have a high level of communication skills. I reject this submission. The evidence does not establish that there is a very large volume of emails, but even if it did, the number of emails requiring employees’ attention does not say anything about the level of communication skills required to deal with them.
[46] Having considered Mr Dogu’s and Mr Bregiannis’ evidence, and examined the examples of their responses to customer queries and ‘reports’, it is reasonable to infer, and I find, that they have sound communication and interpersonal skills. The evidence shows examples of them doing their jobs well and interacting effectively with others. But I cannot identify any basis to conclude that they have advanced skills in this area. I draw this conclusion taking into account my analysis below of the employees’ other work.
(c) Keyboard skills
[47] The third descriptor at level 3 is ‘competent keyboard skills’. Mr Dogu and Mr Bregiannis use a visual display unit and communicate by email. They clearly have ‘competent keyboard skills’; that is, they have adequate working knowledge of how to use a keyboard. They are competent at this task. Linfox does not dispute this. I would note however that some level of computer competence appears to be contemplated by the other levels too (for example, the preparation of documentation in item (f)(ii) of level 1). Further, it cannot be disputed that this descriptor concerns a relatively mundane facet of level 3 work, and is not of the same importance as ‘responsibility for quality control standards’.
(d) and (e) Discretion within the grade, minimal supervision
[48] The next descriptors at level 3 are those in items (d) and (e): ‘Sound working knowledge of all distribution facility duties performed at levels below this grade, exercises discretion within scope of this grade’; and ‘May perform work requiring minimal supervision either individually or in a team environment’.
[49] Linfox does not appear to contest that Mr Bregiannis and Mr Dogu have sound knowledge of the level 2 duties, or those of level 1. But it denies that they ‘exercise discretion within the scope of this grade’, that is, level 3.
[50] Mr Dogu and Mr Bregiannis both provided examples in their evidence of situations where they are required to use their discretion. Mr Dogu stated that he deals with requests from Coles concerning items that are approaching their ‘quit dates’ – that is, dates by which an item is supposed to have left the distribution centre, taking into account the item’s remaining store life. Mr Dogu stated that he uses his discretion to extend the ‘quit dates’ on stock items to assist Coles in allocating the stock. 14 He attached an example.15 It shows a note from another member of the inventory team to Coles requesting that it raise allocations for certain stock items that are approaching their quit date. This occurs. Mr Dogu then follows up with a note to Coles stating that for ‘peace of mind he has extended the quit date by two days’. However by notifying the customer in this way, Mr Dogu is also effectively obtaining its approval to extend the quit date. Further, although Mr Dogu said that he is exercising discretion in the preparation of regular quit date reports, it is clear that the inventory employees are required by Linfox to prepare such reports.
[51] Mr Dogu gave evidence that he and his colleagues exercise discretion in preparing allocation reports and identifying high volumes of certain items so that appropriate pick slots can be assigned. He said they used discretion to spread the product across the warehouse as required. 16 Mr Bregiannis said that he uses discretion to find appropriate pick slots but he acknowledged that the company’s systems recommend an automatically generated aisle in the warehouse and that it is usually just a question of deciding where in that aisle to put the stock.
[52] The instances of discretion referred to by Mr Dogu and Mr Bregiannis involve discretion of a narrow kind. And although this work is not subject to close supervision, this is because employees are required to work according to set procedures laid down for them by the company which do not require day to day supervision. There is simply no reason why a manager would need to supervise an inventory employee deciding whether, within an aisle recommended by the company’s systems, he or she should decide to allocate a pick spot in one place or another.
[53] Like most employees, Mr Dogu and Mr Bregiannis exercise some discretion. But I do not see how it is discretion ‘within the scope’ of level 3. In my view it is discretion within the scope of level 2, which covers inventory and distribution facility control. Further, although the union contends that inventory employees work with ‘minimal supervision’ for the purposes of item (e) of level 3, I think it more apt to speak of their working under ‘limited supervision’ as described in item (b) of level 2, this being the overall supervision of Ms Gherbesi, the optimisation manager.
[54] The union said in its reply submissions that the discretion exercised by employees is evident from the fact that it is up to the team to allocate many of the relevant tasks (such as client queries that must be actioned) among themselves, and that they exercise discretion in determining the priority of those tasks. It is true that queries are often sent to the ‘inventory team’ inbox and team members decide which of them will respond. But again this is a very narrow discretion. Further, the fact that queries are sent to a group inbox underscores the fact that employees are not responsible for quality control standards. They are each required to deal with queries, but as part of a group, and it is not clear that it especially matters which member of the team responds. The work performed by employees attending to the ‘inventory inbox’ appears to me to meet the description of ‘co-ordinating work in a team environment under limited supervision’ at item (b) of level 2.
[55] It was suggested by the union that Mr Dogu acts in a supervisory capacity, and that this in turn demonstrated that he exercises discretion at the level 3 classification. The union relied on an attachment to Mr Dogu’s witness statement that showed a screenshot from the Visual Display Unit, referred to earlier, which indicates that inventory employees are required to log in as a ‘supervisor’, shown on the screenshot as ‘supv’, in order to complete some of their tasks. 17 The union says that this substantiates Mr Dogu’s statement that he can ‘lock out’ stock using his own discretion. It says that this is a ‘supervisor only’ task and one which is not done by the level 2 picker/packers and other workers on the floor.
[56] To contend that a person performs a supervisory role because a prompt generated by a computer programme is ‘supv’ puts form over substance. The fact that the designer of the software has chosen to use this designation says nothing about what the substance of the relevant function might be. Even if Linfox designed the software (who created it is not in evidence), the designation ‘supv’ is a mere label. And although picker / packers might not perform this task, this is because it is not their job, just as it is not Mr Dogu’s job to drive a three tonne truck. None of this means or suggests or supports the contention that Mr Dogu is acting in a supervisory capacity. In my view the work performed by Mr Bregiannis and Mr Dogu does not engage items (d) or (e) at level 3.
(f) Must be competent to perform one or more of the following tasks
[57] The sixth descriptor commences: ‘Must be competent to perform one or more of the following tasks/duties…’ The three matters that follow are use of a VDU for relevant purposes; operation of materials handling equipment under licence; and development and refinement of distribution facility layout. Given the word ‘must’, this is a mandatory requirement of level 3. It is a necessary, but not in my view a sufficient, condition of falling within this level.
[58] The evidence clearly establishes that Mr Dogu and Mr Bregannis use a VDU, and that one of the purposes of this is ‘information input / retrieval’. There was no evidence that they undertake either of the next two tasks mentioned, namely operation of ‘materials handling equipment under licence’, or ‘development and refinement of a distribution facility layout including proper location of goods and their receipt and dispatch’. Nor was it suggested that the employees operate trucks with a capacity of more than six tonnes. However, it is enough, in order to satisfy this descriptor, that employees undertake one of the tasks.
[59] I conclude that Mr Dogu and Mr Bregannis satisfy this descriptor.
(g) May be responsible for certain standards etc.
[60] The final descriptor at level 3 is as follows: ‘In addition to the above, may be responsible for the proper application and maintenance of appropriate occupational health and safety standards’. Although they are elected health and safety representatives, there was no evidence that Mr Dogu, Mr Bregiannis or their colleagues are responsible under their contracts of employment for these standards being applied. In my view, at level 3, this descriptor connotes something more than every employee’s express or implied contractual duty to observe occupational health and safety standards in the course of their employment. Mr Dogu and Mr Bregiannis do not meet this descriptor.
Conclusion in relation to Mr Dogu and Mr Bregiannis
[61] Mr Dogu and Mr Bregiannis meet two of the seven descriptors of level 3. They have competent keyboard skills and are competent to use a VDU for purposes such as information input and retrieval. I do not consider that they meet any of the other descriptors at this level. Significantly, they do not carry either of the two ‘responsibilities’ that are referred to in the indicators of level 3, at items (a) and (g).
[62] Assessing the correct classification of an employee is not simply an exercising in counting how many attributes of one classification or the other the employee might be said to satisfy. As I have explained, some descriptors may be more important than others. In the present instance, the fact that the employees are not responsible for quality control standards is in my view much more significant than the fact that they use a VDU for a relevant purpose. The former consideration goes to the quality of the grade, and concerns an accountability that one might expect of a higher level.
[63] I have also had regard to the evidence of Mr Dogu and Mr Bregiannis about all of their duties, including those that might be said not to fall obviously within one or other of the classification descriptors at level 3. For example, they both gave evidence, which I consider further below, about the work they perform preparing various ‘reports’. I have considered whether it could be said that these reports involve the exercise of any significant discretion, or some form of indirect responsibility for quality control standards, or whether, considered from a global perspective, they might inform the assessment of what is the substantial character of their role. The evidence of the report writing is, I understand, relied on in support of claims that the employees are entitled to higher duties allowance at level 4 however it is also relevant to consider this evidence in respect of the contention that employees should properly be classified at level 3.
[64] However, as I explain below, the various reports referred to are in my assessment routine tasks that are connected with inventory control. Moreover, they are reports that are generated substantially by the company’s own systems, once the relevant data sets have been entered by the employees. The generation of these reports is something that inventory employees are required to do. I do not consider the evidence of these activities to assist the union’s contention that the employees are properly to be graded at level 3.
[65] The union contended that the company was wrong to characterise Mr Bregiannis and Mr Dogu as ‘performing warehouse functions’ and said that the bulk of their time is in the inventory role. But this contention appears premised on some notion that ‘warehouse’ work is level 2 and ‘inventory work is level 3. No such distinction is reflected in the classification structure.
[66] Mr Dogu and Mr Bregiannis are properly classified at level 2. The substantial character of their role relates to inventory control. The fact that they work predominantly in the office rather than on the floor of the distribution centre does not change this fact.
Ms Crumplin
[67] It is uncontroversial that Ms Crumplin comfortably meets the description of the indicators at level 1, but it is said that her skills and duties go well beyond this to engage the descriptors at higher classifications.
[68] Linfox contends that the work undertaken by Ms Crumplin and other employees in the customer service area involves collating information and responding to customer queries and that the work is of a clerical nature. It says the pallet reconciliation work they perform relates to ‘preparation and receipt of appropriate documentation including liaising with suppliers’ for the purpose of item (f)(ii) of the level 1 classification. The union says that this understates the employees’ role and duties and that Ms Crumplin and her colleagues should be classified at level 3.
[69] In her witness statement, Ms Crumplin explained her regular duties. She starts her day by checking her emails to see what messages need to be answered. She has two principal roles or functions, namely customer service and ‘pallet control’. She described six aspects of the customer service role, which all involve answering customer queries of different kinds. 18 First there are ‘failure to receive pallet’ queries. When a store has not received an entire pallet, Ms Crumplin says that she has to ‘investigate’. She agreed in cross-examination that in essence, she receives a query from the customer, refers it to the dispatch manager, and then relays the answer. Next there are queries about ‘short deliveries’ and ‘over deliveries’ where the process is similar to the ‘failure to receive pallet’ queries.19 Ms Crumplin says that she exercises discretion in responding to these queries however she acknowledged that she follows procedures that have been laid down for her.
[70] A fourth type of query concerns ‘allocations’, where a store requests certain items to be allocated, in some cases after the wrong item has previously been sent to it. A fifth category is ‘transport queries’, which concern deliveries that are running behind. Here, Ms Crumplin calls the affected stores and tells them that deliveries are delayed, and then documents this into a ‘spreadsheet’ and forwards it to the dispatch manager and various other people.
[71] The sixth type of query that Ms Crumplin identifies in her statement are ‘cigarette queries’, which she describes in more detail. These queries concern missing tobacco products. Ms Crumplin said that she responds to the customer by saying that she will ‘investigate’, then she emails the inventory team and requests a ‘cycle count’ (a form of stock check). She checks who the relevant loader of the product was and how many boxes were ordered. She goes into the warehouse management system and checks who the picker was and when it was picked. She prints off the order that was picked and highlights the missing item. Ms Crumplin provides this information to the dispatch manager, who will conduct his own checks and tell her whether to approve the customer’s claim. Ms Crumplin acknowledged that the company requires her to follow this process, and that she has been trained how to do so.
[72] The level 3 indicators which the union claims to be engaged by the above ‘customer service’ activities are items (c) (competent keyboard skills), (d) (sound knowledge of all distribution facility duties below this grade and exercising discretion within the scope of level 3), and (e) (working under minimal supervision). I agree that Ms Crumplin appears to display ‘competent keyboard skills’ but as I explained earlier, this is not one of the more significant indicators at level 3, as various duties at lower levels appear to assume keyboard competence. I do not agree that the above tasks entail discretion at the level 3 classification; there is a modicum of discretion in deciding how to respond to customer queries, but this is contemplated by item (d) of level 1 (‘exercises discretion within their level of skills and training’). The work described above is customer service work involving ‘stock-checks’, and dealing with questions about documentation (see level 1(f)(ii) and (v)).
[73] Ms Crumlin’s witness statement also addressed her ‘pallet control’ duties, which she said are undertaken without management involvement. 20 These duties also involve responding to customer queries and there is clearly overlap between what constitutes ‘customer service’ and ‘pallet control’ work. The two main types of pallet queries referred to by Ms Crumplin concern ‘receivables dockets’ and ‘supplier queries’.
[74] Ms Crumplin stated that each day she receives all of the ‘receivables dockets’ (records of all pallets that have been delivered into receivables) from the previous day through a software programme called SAVI. She enters these in a spreadsheet, then checks the information she has entered against the individual dockets. She checks another programme called ‘C3’ to see if the full load was received, or whether part of the load was rejected, perhaps because it was damaged. Some loads need to be redelivered, with a new booking code, which Ms Crumplin attends to. Ms Crumplin says that she uses her discretion to do this work and that she is not under management supervision.
[75] As to the supplier queries, Ms Crumplin explained that these relate to missing palates, problems with paperwork (for example, a driver completing a delivery without the required paperwork), queries from suppliers about unprocessed or incorrect dockets (here Ms Crumplin must look into the matter, amend the figures and ‘reconcile’ the system), and requests from suppliers seeking copies of dockets. Another task she performs is to correct pallet information in the ‘CHEP’ or ‘Loscam’ systems. This is needed if a pallet docket has not been processed. Ms Crumplin will receive a request from Linfox Pallet Support. She looks up the pallet information in the relevant systems to obtain or process the information and make relevant corrections. She says management has no involvement in this process.
[76] The union contends that these activities are aligned with the level 3 descriptors at items (e) (working with minimal supervision) and (f) (use of a VDU for various purposes). 21 I disagree. As I noted earlier, relatively simple tasks that are undertaken pursuant to procedures laid down by management might be described as ‘unsupervised’, but that is because there is no need for supervision. Guidance has been provided by management, the employee understands what is required, and performs it in the manner expected of them. Although no one is monitoring her daily responses to queries, Ms Crumplin’s work is subject to the overall oversight of management. Further, ‘discretion’ connotes a freedom or latitude to decide what must be done in a particular situation. When the customer sends a query to Ms Crumplin, she does not have a discretion about what to do next; she must consider the query, find the right answer and respond. Ms Crumplin does this in the manner that the company requires of her, consistent with her training. The union also says that in responding to queries, Ms Crumplin must use her reasoning. So much is clear and I agree. She must find an answer to the query. But any ‘discretion’ here is of a very narrow kind. It is not discretion ‘within the scope’ of level 3. All employees exercise some level of discretion. Indeed level 1 contains a descriptor concerning exercise of discretion within the skills and training at that level (see item (d)). There is nothing unusual about an employee in the entry level classification undertaking work that is process-based and that does not need to be closely monitored. That does not mean there is no control. Ms Gherbesi has oversight of the facility as the optimisation manager, assisted by her team leader.
[77] I accept that Ms Crumplin uses a VDU and that the relevant purposes of this use might be said to include ‘information input and retrieval, as per item (f)(i) of level 3. However, the essence of the duties described by Ms Crumplin appear to me to concern ‘preparation and receipt of appropriate documentation, including ‘liaison with suppliers’ and ‘periodic stock checks’, for the purposes of items (f)(ii) and (v) at level 1.
[78] The union also points to an email, attached to Ms Crumplin’s statement, that was sent to the customer service team from the company’s ‘outbound shift manager’, advising that if they need to raise an allocation for a ‘mispick’, they must raise it with the appropriate manager, but that ‘you no longer need to utilise Rachel (Gherbesi) for allocations, you can raise and monitor them yourself.’22 Ms Crumplin and the union say that employees in customer service have been working under the assumption that these instructions are accurate and that they have been given the autonomy to raise allocations themselves. This is further proof, in their view, of customer service employees working with minimal supervision. But Ms Gherbesi explained in her evidence that the instruction in the email was not worded correctly and that it should have said that if team members need to request to raise an allocation for a ‘mis-pick’, you need to raise it with the appropriate supply planner.”23 Ms Gherbesi goes on to say that employees in customer service do not actually raise allocations, rather they make this request to the Coles Supply Planner who then will raise the allocation.’24 I accept this evidence.
[79] I consider that Ms Crumplin is correctly classified at level 1. Her work meets the description of items (f)(ii) and (v) at level 1. I appreciate that her duties might on one view also be descried as ‘inventory control’ work at level 2, item (e). Mr Dogu and Bregiannis also deal with and respond to queries from the customer and look into matters. However, unlike Mr Dogu and Mr Bregiannis, Ms Crumplin does not generate the various reports referred to below, which in my view constitute an additional substantive component of their inventory control activities. This work has an additional ‘complexity’ for the purposes of the descriptor at item (a) of level 2 which is not reflected in Ms Crumplin’s work. However I would assess her interpersonal and communication skills as ‘sound’ ((item d) at level 2).
[80] Recalling the Full Bench decision in Fonterra Brands, it is necessary to determine, in cases where an employee’s duties are comprehended by more than one classification, the ‘substantial character’ of Ms Crumplin’s role, and to do so by reference to the level of responsibilities and the duties of the position, in order to determine the most appropriate classification from the range of classifications in the agreement. 25 The ‘substantial character,’ or ‘principal or major or substantial aspect’ of her employment, relates to dealing with stock and pallet queries, which I consider to fall within level 1 of the classification structure, and in particular the descriptors at items (f)(ii) and (v). This is the essence of her role.
[81] If there was any question about Ms Crumplin’s correct classification, it was whether she should be level 1 or level 2. Ms Crumplin’s role clearly does not fall within level 3, and in particular she does not meet the descriptors in items (a), (b) or (d). It appears that she has competent keyboard skills (item (c)), as she can correspond effectively by email. But as I have said, this is a rather generic item that is easily satisfied. She is not subject to close supervision, but is ‘responsible for the quality of her own work’ (item (c), level 2) and in my assessment works under limited overall supervision of the optimisation manager. She is competent to use a VDU ((f)(i)) but is not ‘responsible for the proper application and maintenance’ of appropriate OHS standards (see item (g)).
Level 4 and higher duties
[82] The union’s application asks the Commission to determine that all of the employees be paid higher duties allowance at such times when they undertake level 4 work. 26 The evidence of the witnesses explained certain tasks they regularly undertake which, it was said, fall within the level 4 classification.
[83] Clause 19 of the Award, which is incorporated into the Agreement, states that ‘where an employee is required to perform two or more grades of work on any one day the employee is to be paid the minimum wage for the highest grade for the whole day.’ In my view, an employee could in principle perform a higher ‘grade’ of work by performing, on a day, a task or duty contemplated by a higher classification, without necessarily performing a role or acting in a position properly classified at the higher level. The higher duties clause speaks of a ‘grade of work’, not classification. On the other hand, an employee would not necessarily perform a higher ‘grade of work’ simply by satisfying any classification descriptor at the higher level in the course of working on a particular day. As I have said, some classification descriptors are more important than others, and all of the circumstances would be need to be considered.
[84] It is necessary to consider the extent to which the employees’ skills and duties in this case align with the descriptors of the higher level. I will first consider Mr Dogu’s and Mr Bregiannis’ duties against the descriptors for level 4.
[85] As to the descriptors at item (a) and (b) of level 4, I consider that there is no basis in the evidence to conclude that Mr Dogu or Mr Bregiannis ‘implement quality control techniques and procedures’ or that they are ‘responsible for a distribution facility or a large section of a distribution facility’. Their communication and interpersonal skills, whilst certainly ‘sound’, are not ‘advanced’ (see above), and nor are they ‘highly developed’ for the purposes of item (c) at level 4.
[86] The next indicator, at item (d), is ‘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’. It is difficult to see how an employee could ‘perform work’ at a higher grade for the purposes of the higher duties provision in the incorporated award just by having an ‘ability’; that ability would need to be deployed. Further, it is necessary to read this descriptor in the context of the classification as a whole. In the setting of level 4, the descriptor contemplates an ability to supervise and provide assistance and guidance to other employees potentially at level 4, but at least at lower levels, including level 3. I have concluded that both employees are properly classified at level 2. I do not see that they could supervise and provide assistance to employees of a grade which is above their own classification. Both employees are able to provide guidance and direction to employees at levels 1 and 2 but this is not enough to satisfy item (d) of level 4. Based on the foregoing, there is also no basis for me to conclude that Mr Dogu or Mr Bregiannis exercise discretion ‘within the scope of this level’, i.e. level 4 (see B.4.1(e)).
[87] This brings me to the question of whether the report writing activities of Mr Dogu and Mr Bregiannis meet item (f) of level 4, which states: ‘Exercises skills attained through the successful completion of an appropriate certificate and must be competent to perform one or more of the following tasks or combination …’ Before considering the three matters that follow, I note that both Mr Dogu and Mr Bregiannis said in their witness statements that they had obtained certificates in warehousing, although they could not find copies of those certificates at the time they made their statements. I accept their evidence that they have obtained these qualifications. However, I am not satisfied that the certificate they refer to is an ‘appropriate’ certificate for the purpose of level 4, the highest classification in the Award’s structure. A certificate that is ‘appropriate’ for this level would in my view be one that is referable to the skills and duties of level 4, at least at some level of abstraction. I do not preclude the possibility that the certificate might meet this description. But I cannot be satisfied of this, because next to nothing was said about it. Moreover, the evidence does not establish what are the ‘skills’ that are ‘exercised’ ‘through the successful completion’ of the appropriate certificate.
[88] It will be apparent that item (f) is a composite descriptor, which contemplates the possession of an appropriate certificate, and competence to perform one of the three things then mentioned. In light of the above, it is not strictly necessary for me to consider the three matters referred to at item (f), but I make some brief comments about the last of these, which is ‘maintaining control registers including inventory control and being responsible for the preparation and reconciliation of regular reports and stock movement, dispatches etc.’ Mr Dogu and Mr Bregiannis gave evidence about a range of reports that they prepare, which they consider engage with item (f)(iii) in level 4.
[89] I do not consider that the employees ‘maintain control registers including inventory control’, as the relevant data is ‘maintained’ in the company’s systems. But even if this element were satisfied, there is then the question of whether employees are also ‘responsible for the preparation and reconciliation of regular reports’.
[90] Mr Dogu and Mr Bregiannis gave evidence that they prepare the following kinds of reports. First there are the start of shift reports, which include the ‘stock on hand’ report, and other reports drawing data from this report, for example one which identifies high volume pick slots, which are then sent to management. 27 There is the ‘new SKU report’ which shows incoming new products each day.28 The employees generate ‘quit date’ reports, discussed earlier.29 There are also ‘dashboard reports’ which show the current status of the warehouse, including which locations have been ‘locked’, which are being utilised and which are ‘short’, that is, those that do not have the required number of a certain item for a store’s order.30 Other reports referred to in the evidence are ‘allocation reports’ that identify high volumes of certain items, ‘health check report’ that provide details on the status of the stock of various warehouse items, and promotional products reports.31
[91] In large measure these ‘reports’, examples of which were appended to Mr Dogu’s witness statement, are produced by the company’s data systems in response to electronic requests being made and certain data values being entered. The reports consist largely of data, figures and graphics; they are not substantially comprised of written text composed by the employees. In his witness statement, Mr Dogu commences his section on reports by using the words appearing at Level 4(f)(iii), stating that a major component of his role is the ‘preparation and reconciliation or reports’. However, when speaking about six of the seven reports that he prepares, Mr Dogu stated that these reports are ‘generated’. This seems to me to be an appropriate way to describe the process. They are not written, or compiled through detailed analysis, but created, relatively easily, using the company’s data systems. This is not in my view the ‘preparation of reports’ at the top of the classification structure, sitting alongside skills and duties such as responsibility for a distribution facility or implementation of quality control techniques and procedures.
[92] Ms Gherbesi gave evidence that it is Coles that maintains the control registers in WMS, and management that is responsible for preparing such reports, whereas inventory employees run or process a variety of reports. 32 In my view, there is plainly a distinction between maintaining registers and preparing reports on the one hand, and generating reports, in the sense of running or processing reports.
[93] The union contended in its reply submissions that Mr Dogu and Mr Bregiannis reconcile reports. It points to paragraph 10.2.3 of Mr Bregiannis’ statement, in which the union says that he ‘describes adjustments he needs to make to the WMS’. But he does not say this. He says that he performs ‘cycle counts’ (stock checks), that make ‘actual adjustments within the Warehouse Management System’, not to the system. It is of course to be expected that inventory employees will make changes withinthe WMS system, because the system holds data, which reflects the inventory, and this changes from day to day. The other example cited by the union of employees reconciling reports is the activity referred to in paragraph 11.3.2 of Mr Dogu’s statement, where he describes how, having measured the dimensions of cartons, he will ‘update the report’ of incoming new products. However, this updating of information does not in my view amount to maintenance of control registers, or the preparation or reconciliation of reports for the purposes of (f)(iii) at level 4.
[94] The NUW asserts that paragraph 10.2.2.2 of Mr Bregiannis’ statement is an example of supervising and providing direction and guidance to other employees, showing also the ability to assist in the provision of on-the-job training for the purpose of item (f) at level 4. The sentence apparently relied on is where, following Mr Bregiannis’ explanation of how he had resolved the problem of an employee picking ‘masters’ as ‘inners’, he says that ‘feedback was also offered to the team member making the error’. Providing colleagues with informal ‘feedback’ or friendly advice is commendable. But it is not supervision or on-the-job training or induction. The evidence simply does not establish that Mr Bregiannis or Mr Dogu satisfy item (f) of level 4.
[95] I would also note that the reference at level 4(f)(ii) to employees ‘liaising with management, suppliers and customers with respect to distribution facility operations’, work which Mr Dogu and Mr Bregiannis are said to undertake, must also be read in the context of level 4 as a whole. ‘Liaising’ in this context does not mean simply speaking to management, and to suppliers, and to customers, about anything to do with the facility’s operations. Read in such a literal and un-contextualised way, it would mean the same thing as periodic stock-checks at level 1(f)(v), or ‘liaison with suppliers’ at level 1(f)(ii). One of the most common tasks performed in any warehouse is checking what is in it, whether at the request of management or a customer or supplier. To ‘liaise’ is to cooperate on a matter of mutual concern or to assist communication between various groups or people. At the top of structure, taking into account the other descriptors and the level of responsibility and seniority entailed at level 4, ‘liaising with management, suppliers and customers with respect to distribution facility operations’ connotes a substantial level of interaction with and among and between these actors about the work of the facility on an operational level. It does not mean attending to individual queries.
[96] It was also contended that Ms Crumplin performs higher duties work at level 4. The union said that she has a ‘highly developed’ level of interpersonal and communication skills, as contemplated by item (c) of level 4, however I consider her to have ‘sound’, rather than ‘advanced’ or ‘high level’ skills in this area. The latter has simply not been substantiated. It was said that she ‘liaises with management, suppliers and customers with respect of distribution facility operations’, in particular the external pallet providers, but I disagree, for the same reasons that I consider Mr Dogu and Mr Bregiannis not to undertake this function. The union said that Ms Crumplin maintains control registers (it appears to have in mind accessing data on the movement of pallets) and undertakes the report writing activities of item (f)(iii) of level 4, but as I have explained earlier in connection with Mr Dogu and Mr Bregiannis, it is the company that maintains control registers, and I do not consider that Ms Crumplin can be said to write reports at level 4. Ms Crumplin too has a certificate in warehousing but I am not satisfied that this is an ‘appropriate’ certificate for the highest level in the structure, for the reasons mentioned earlier.
[97] On the evidence before me in the present matter, I am not satisfied that any of the employees are required to perform a ‘grade of work on any one day’ that is at level 4 in the classification structure.
Conclusion
[98] For the above reasons, the answers to the questions that the Commission has been requested to answer in order to resolve the dispute are the following:
1. Mr Bregiannis and Mr Dogu are properly classified at level 2.
2. Ms Crumplin is properly classified at level 1.
3. Based on the evidence adduced in this matter, none of the employees are entitled to be paid higher duties for working at level 4.
DEPUTY PRESIDENT
Appearances:
Mr R. Payne for the NUW
Mr G. Katsifolis for Linfox Australia Pty Ltd
Hearing details:
2019
Melbourne:
13 May
Printed by authority of the Commonwealth Government Printer
<PR708227>
1 AE429372
2 Applicant’s outline of submissions, paragraph 37
3 Applicant’s outline of submissions, paragraph 30
4 AMWU v Berri Pty Ltd[2017] FWCFB 3005 at [114]; see also WorkPac Pty Ltd v Skene [2018] FCAFC 131 at [197]
5 [2015] FWCFB 3912
6 At [16]; see also Qantas Ground Services Pty Ltd v TWU[2018] FWCFB 578 at [38]
7 Fair Work Ombudsman v Complete Windscreens (SA) Pty Ltd [2016] FCA 621 at [27]. See also the authorities referred to in Choppair Helicopters Pty Ltd v Bobridge [2018] FCA 325 at [64] – [67]
8 Statement of Mr Dogu, paragraphs 11.1.1 to 11.1.5
9 Ibid, paragraph 11.1.1
10 Ibid, paragraph 11.1.2
11 Ibid, paragraph 11.1.4
12 Ibid at paragraph 11.1.3
13 ED5
14 Statement of Mr Dogu, paragraph 11.1.5
15 ED7
16 Statement of Mr Dogu, paragraph 11.3.5
17 ED 10
18 See generally witness statement of Ms Crumplin, paragraphs 14.1 to 14.6
19 Statement of Ms Crumplin, paragraph 14.2 and 14.3
20 See generally witness statement of Ms Crumplin, paragraphs 15.1 and 15.2
21 See Applicant’s outline of submissions, Table 2
22 GC2
23 Statement of Ms Gherbesi at paragraph 116
24 Ibid at paragraph 117
25 [2015] FWCFB 3912 at [16]; see also Qantas Ground Services Pty Ltd v TWU[2018] FWCFB 578 at [38]
26 See Applicant’s outline of submissions, paragraph 37
27 Statement of Mr Dogu at 11.3.1, ED 11
28 Ibid at 11.3.2, ED 12
29 Ibid at 11.3.3
30 Ibid at 11.3.4, ED 13
31 Ibid at 11.3.5-11.3.7, ED 14, ED 15 and ED 16
32 Statement of Ms Gherbesi, paragraph 78, 134.2(f)
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5
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