Nicole Krause v Hastings Deering (Australia) Limited T/A Hastings Deering
[2020] FWCFB 1097
•28 FEBRUARY 2020
| [2020] FWCFB 1097 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Jesse Hawke; Jacob Price; Ben Hinchcliffe; Nicole Krause
v
Hastings Deering (Australia) Limited T/A Hastings Deering
(C2019/7596)
Hastings Deering (Australia) Limited t/a Hastings Deering
v
Jesse Hawke; Jacob Price; Ben Hinchcliffe; Nicole Krause
(C2019/7759)
VICE PRESIDENT HATCHER | SYDNEY, 28 FEBRUARY 2020 |
Appeal and cross-appeal against decision [2019] FWC 7974 of Commissioner Hunt at Brisbane on 22 November 2019 in matters C2019/4365; C2019/4789; C2019/4790 and C2019/4791
Introduction
[1] This decision concerns an appeal and a cross appeal against a decision of Commissioner Hunt issued on 22 November 2019 1 (decision). The decision was made in respect of applications made by four employees of Hastings Deering (Australia) Limited (Hastings Deering) for the Commission to exercise dispute resolution powers pursuant to the dispute settlement procedure in clause 4.4 of the Hastings Deering (Australia) Limited Enterprise Agreement 2018 (Agreement). The dispute concerned a proposed change to the training package to be offered to apprentices engaged by Hastings Deering. Three of the applicants (Jacob Price, Ben Hinchcliffe and Nicole Krause) are apprentices affected by the change and a fourth (Jesse Hawke) is a tradesperson and trainer of apprentices, and is also an employee representative. The applicants contended that the proposed change to the training package contravened clause 15.4 of the Manufacturing and Associated Industries and Occupations Award 2010 (Manufacturing Award), which is incorporated into the Agreement by clause 1.3. This was rejected by the Commissioner in the decision. The Commissioner also declined to find that there was jurisdiction to determine the application lodged by Mr Hawke.
[2] The notice of appeal identified Mr Hawke, Mr Price, Mr Hinchcliffe and Ms Krause as the appellants. However, at the hearing of the appeal, we were advised that Ms Krause and Mr Price no longer sought to prosecute the appeal, leaving Mr Hawke and Mr Hinchcliffe as the appellants. Their appeal challenges the conclusion in the decision that the proposed change to the training package did not contravene clause 15.4 of the Award and also the jurisdictional conclusion concerning Mr Hawke’s competence as an applicant.
[3] The cross-appeal by Hastings Deering concerns a finding contained in the decision that Auto Skills Australia Ltd (ASA) was not, for the purposes of clause 15.4 of the Manufacturing Award, the successor of Manufacturing Skills Australia (MSA). Hastings Deering’s appeal was filed seven days after the 21-day time period prescribed by rule 56(2)(a) of the Fair Work Commission Rules 2013. The appellants did not oppose the grant of an extension of time pursuant to rule 56(2)(c). Accordingly such an extension of time is granted.
The dispute
[4] Although not dealt with in the decision, we were advised by Hastings Deering in the appeal, without objection, that its business in its current form is concerned with the sale, rental and servicing of heavy trucks and plant used in a range of industries, in particular mining and construction. It services such trucks and equipment both in its own workshops and in the field, and engages diesel engine fitters in that connection. Hastings Deering is a registered training organisation (RTO) and is authorised to provide training and assessment pursuant to a range of training packages. The apprenticeships in question are for the purpose of training persons to become diesel engine fitters in the business, and Hastings Deering delivers the relevant training package to its apprentices.
[5] Clause 15.4 of the Manufacturing Award provides:
15.4 An apprentice may be engaged under a training contract approved by the relevant apprenticeship authority, provided the qualification outcome specified in the training contract is consistent with that established for the vocation in the training package determined from time to time by Manufacturing Skills Australia or its successors and endorsed by the National Skills Standards Council or its successor. Such apprenticeships include but are not limited to the following trades: Engineering Tradesperson (Mechanical), Engineering Tradesperson (Fabrication), Engineering Tradesperson (Electrical/Electronic), Higher Engineering Tradesperson and Advanced Engineering Tradesperson. An apprentice may also be engaged where the qualification outcome specified in the training contract is consistent with the qualifications established for electrical vocations within the relevant electrical/utilities training package and endorsed by the National Skills Standards Council or its successor.
[6] Clause 1.3 of the Agreement relevantly provides:
1.3 Application and Award Incorporation
(a) Subject to the provisions contained in this clause, the Agreement incorporates the Manufacturing and Associated Industries and Occupations Award 2010 (the Award) as in operation as at the commencement of this Agreement.
(b) Where there is an inconsistency between the terms of this Agreement and the Award, this Agreement prevails. For the avoidance of doubt and except where otherwise provided, where this Agreement provides for a particular term or condition of employment, it covers the field with respect to that particular term or condition of employment and the Award provision will not apply.
. . .
[7] The factual background to the dispute was described in the decision, uncontroversially, as follows:
“[18] During February 2019 the Respondent took on a new cohort of first year apprentice diesel fitter employees, including Mr Price, Mr Hinchliffe and Ms Krause. Those diesel fitter apprentices agreed to complete apprenticeships with the Respondent to obtain the ‘MEM30205 – Certificate III in Engineering – Mechanical Trade qualification’ (the MEM30205 qualification). The MEM qualification falls within the broader ‘MEM – Manufacturing and Engineering Training Package’ (the MEM training package). On or about 26 June 2019, the MEM30205 qualification was superseded by the MEM31419 – Certificate III in Engineering – Fixed and Mobile Plant Mechanic (the MEM31419 qualification) offered under the MEM training package.
[19] After substantial consultation with the AMWU, but without the AMWU’s agreement, the Respondent decided to change the training package and qualification outcome offered to its first year apprentice diesel fitter employees to the ‘AUR – Automotive Retail, Service and Repair Training Package (the AUR training package) and the ‘AUR31216 – Certificate III in Mobile Plant Technology’ (the AUR qualification). The Respondent’s position is that the AUR qualification provides superior training outcomes when considered against the superseded MEM30205 qualification and the current MEM31419 qualification.”
[8] The MEM training package is one authorised by MSA. As at 1 January 2010, when the Manufacturing Award came into effect, the MSA had authority for training packages in respect of the automotive industry as well as manufacturing and other industries. To that end, it had authority for the “AUM08 – Automotive Manufacturing” and “AUR05 – Automotive Industry Retail Service and Repair” training packages. ASA was established as a subsidiary of MSA on 17 December 2010, and from that date took responsibility for the automotive industry training packages. From 1 August 2014 the ASA separated from MSA and had sole responsibility for the automotive industry. Subsequently, a new model of Industry Reference Committees (IRCs) supported by Service Skills Organisations (SSOs) was established. In 2015 the Manufacturing and Engineering IRC was established to replace the remnant MSA, and in 2016 Innovation and Business Skills Australia became its SSO. Five automotive IRCs, one of which was the Automotive Heavy Vehicle IRC, replaced the ASA, with PricewaterhouseCooper’s Skills for Australia being its SSO.
[9] The applicants in the proceedings contended that the qualification outcome of the AUR training package which Hastings Deering proposed to use was not consistent with that for the MEM training package established by MSA, and was thus not permissible under clause 15.4 of the Award. Hastings Deering’s position was that the AUR training package was consistent with the MEM package, and in any event ASA was the successor to MEM in the automotive industry and the AUR training package was the one established for the vocation by the ASA pursuant to clause 15.4.
[10] The dispute was required to be resolved pursuant to the dispute resolution procedure in clause 4.4(a) of the Agreement, which provides:
4.4 Dispute Resolution Procedure
(a) Where there is a dispute about matters arising under this Agreement or the NES, the following steps will apply:
(i) The Employee/s concerned will first discuss the issue with their immediate supervisor who will take all reasonable steps to resolve the matter within five working days.
(ii) If the matter remains unresolved, the matter shall be committed in writing using the Company dispute form (HDAL-HR-18-F13) and referred to the supervisor’s manager allowing five working days for resolution.
(iii) If the matter remains unresolved, the Employee may refer the matter to the relevant functional manager allowing five working days for resolution.
(iv) If the matter is not resolved at this stage the matter must be referred to a HR representative. A written reply from the HR representative must be provided to the Employee within seven days of receiving the dispute form.
(v) By agreement of the parties, any of the above steps may be bypassed to assist in expediting a resolution.
(vi) In the event there is no resolution, the parties may jointly or individually refer the matter to the Fair Work Commission for conciliation and/or arbitration. This must occur within seven working days if either party considers the dispute unresolved.
[11] The term “Parties” is defined in clause 1.4(q) to mean “…the parties who are covered by this Agreement as shown at clause 1.2”. Clause 1.2 provides that the Agreement covers Hastings Deering in respect of its operations conducted in Queensland and the Northern Territory, the employees of Hastings Deering appointed to work in a classification listed in Appendix 1 of the Agreement, and the AMWU.
[12] Hastings Deering contended before the Commissioner that there was no jurisdiction for the Commission to deal with Mr Hawke’s application because he was not an apprentice and was therefore not an “Employee concerned” for the purpose of clause 4.4(a)(i).
The decision
[13] The Commissioner considered that the question which the dispute required to be resolved was:
“Does the change from the MEM qualification to the AUR qualification, and the training associated with such a change contravene clause 15.4 of the Manufacturing and Associated Industries and Occupations Award 2010, incorporated by virtue of Clause 1.3 of the Hastings Deering (Australia) Limited Enterprise Agreement 2018?” 2
[14] The Commissioner answered the question in the negative. In her reasoning, the Commissioner proceeded (as did the parties) on the basis that the critical issue to be determined was whether the AUR qualification was consistent with the MEM qualification. In respect of this issue, the Commissioner concluded:
“[231] On the evidence before the Commission relevant to the hours of training required across the two qualifications, and having regard to the various modules of training, on those points alone, I am satisfied that the AUR qualification is consistent with, and in all likelihood, better for the indentured employee than the MEM qualification. It matters not whether it is marginally better, or substantially better for the employee, if it all. What I consider to be most important is that the AUR qualification is not sub-standard when compared with the MEM qualification. Being as good as or perhaps even better is, in my view, equal to “consistent with”. Respectfully I do not subscribe to Mr Curry’s view that because the employee completes the training with substantially more hours of training when they might receive the same classification result of C10, there should be some resistance to embrace the greater training provided under the AUR qualification.
[232] As I understand it, with additional modules of training completed under the AUR qualification, it has the potential to push the qualified employee closer to a higher classification, in time, dependent upon the industrial terms the employee is employed under at the time with the relevant employee’s employer.
[233] The Applicants submitted that because the MEM qualifications squarely match up with the classifications within the Manufacturing Award, and the AUR qualifications do not, the Commission should find the classification structure within the Manufacturing Award is intrinsic with MSA and the framers of clause 15.4 of the Manufacturing Award. I find that the question for clause 15.4 of the Manufacturing Award is not relevant to the Respondent’s classification structure within the Respondent’s Agreement and it need not be considered.
[234] Given the expression within clause 15.4 relevant to the Engineering Tradesperson qualifications being included but not limited to the qualifications listed, it cannot be said that unless the apprentice receives the nominated qualification, clause 15.4 is not met. The clause is not exhaustive; it is far from it.
[235] I note that the Manufacturing Award stipulates the C10 classification requiring the following minimum training requirement:
‘Recognised Trade Certificate, or Certificate III in Engineering—Mechanical Trade, or Certificate III in Engineering—Fabrication Trade, or Certificate III in Engineering—Electrical/Electronic Trade, or equivalent.’ (my emphasis)
[236] I am satisfied that the term ‘or equivalent’ is expansive and can and does include the AUR qualification – Certificate III in Mobile Plant Technology. The vocation of diesel fitter as opposed to mobile plant technician or mobile plant mechanic is not so extreme; they can each be and they are a C10 classification on completion of the qualification. I do not support the Applicants’ submission that because it is an automotive qualification that is achieved, and an automotive-titled vocation that it doesn’t have a place in the Manufacturing Award.
[237] Relevant to the concern that the Respondent’s employees will not be able to be called diesel fitters upon achieving their AUR qualification, I note that it is not necessary to determine whether a failure to hold the MEM31419 qualification will prevent an employee from being called a diesel fitter as the Respondent has indicated that the relevant first year apprentices, once qualified, will be employed in a different restricted calling, that of an Automotive Mechanic (Heavy Vehicle Mobile Plant).’
[15] Earlier in the decision, the Commissioner had rejected Hastings Deering’s contention that the ASA or the five automotive IRCs were the successors to MSA. The Commissioner relevantly concluded:
“[213] To be a successor of a body or a person, it is true that the original must not exist in its substantive or authoritative form. The earlier body or person must no longer hold a title in current terms, or the body not have the earlier powers it once had. There must have been a succession.
[214] For this reason, and because of the severance of ASA, I do not accept that from 1 August 2014 ASA became a successor of MSA. I do not accept the Respondent’s submissions that ASA became a successor of MSA by descent and continued to perform some of MSA’s former functions. Further, I do not accept that any of the five automotive IRC’s, administered by PwC Skills for Australia became a successor of MSA.”
[16] The Commissioner also earlier dealt with the jurisdictional issue raised by Hastings Deering concerning the competence of Mr Hawke’s application. The Commissioner determined that while Mr Hawke had an interest in the matter, she did not accept that there was any relevant impact on him such as to render him an “employee concerned”, and concluded:
“[203] As to whether he is an employee concerned by virtue of him being an elected representative of employees, I do not find that he is an employee concerned, particularly when three directly affected employees have made an application over the same issue. It is not necessary, in the present matter to determine if Mr Hawke would have jurisdiction in the absence of the three other Applicants.
[204] I do not find that Mr Hawke has jurisdiction to bring his application for determination by the Commission.”
Appeal submissions
[17] The appellants contended before us that the conclusion reached in the decision was in error because the evidence demonstrated that there was a fundamental difference between the MEM qualification and the AUR qualification, namely that the former related both the fixed and mobile plant whereas the later was concerned only with mobile plant. The Commissioner, it was submitted, failed to recognise this distinction, and also erred in finding that the AUR qualification related only to automotive workplaces and not to the metal, engineering and manufacturing industries. The textual and historical context of clause 15.4 demonstrated that it was not part of its purpose to provide for the completion of a qualification under a different training package designed for a different industry. Further, it was submitted, there was no proper basis for the Commissioner to conclude that completion of the AUR qualification would allow a person to be classified as C10 under the Manufacturing Award. The appellants submitted that permission to appeal should be granted, the appeal upheld, the decision quashed, and the dispute be resolved by the Full Bench asking the question posed for determination by the Commissioner in the affirmative.
[18] Hastings Deering submitted that the appeal should not succeed because there was no error in the Commissioner’s decision that the AUR qualification was consistent with the MEM qualification. In its cross-appeal, Hastings Deering contended that the Commissioner erred in finding that ASA was not a successor of MSA. Clause 15.4 of the Award Manufacturing Award contemplated that there could be multiple successors to MSA, and ASA was the successor in respect of the automotive industry.
Consideration
[19] We consider that the initial task required in the application of clause 15.4 to the facts of this case is to establish the “vocation” in question. It is only once this is done that the qualification outcome in the training package for that vocation can then identified. The ordinary meaning of “vocation” is a person’s employment, occupation or trade.
[20] The Commissioner did not, with respect, clearly establish at the outset what the vocation of Mr Price, Mr Hinchcliffe and Ms Krause was by reference to the work they were being trained to perform in the context of the business operated by Hastings Deering; rather she proceeded on the assumption that the existing MEM training package was applicable to their vocation, and then proceeded to consider whether the qualification outcome of the AUR training package was consistent with that for the MEM package. The appeal before us proceeds on the same premise, but urges a different result.
[21] That premise requires examination. The limited information before us suggests that the vocation for which the three apprentices were being trained was to service and repair diesel engines in heavy trucks, heavy mobile plant and on-site generators sold or hired by Hastings Deering, either in the field (including in remote mine sites) and in the workshop. The position of Hastings Deering itself that the apprentices in question were being trained for the trade of Mobile Plant Mechanic seems to us entirely consistent with the practical position.
[22] The AUR training package describes its qualification outcome as follows:
“Qualification Description
This qualification reflects the role of individuals who perform a broad range of tasks on a variety of mobile plant machinery in the automotive retail, service and repair industry.”
[23] The AUR training package leads to the qualification of Certificate III in Mobile Plant Technology. Under the statutory training regime applicable in Queensland, the AUR qualification allows for employment in the “restricted calling” of “Automotive Mechanic (Heavy Vehicle Mobile Plant)”. The qualification outcome of the AUR training package therefore appears to us to be squarely applicable to, and therefore one established for, the vocation for which the relevant apprentices were being trained.
[24] Further, and contrary to the conclusion reached by the Commissioner, it appears to us that the AUR training package is one determined by successors to MSA, namely ASA and, subsequently, the automotive industry IRCs. ASA was clearly the successor of MSA, as MSA was when the Manufacturing Award commenced operation, in respect of its automotive industry functions, and the automotive industry IRCs are the successors of ASA. The word “successors” in clause 15.4 needs to be given its ordinary meaning, in context. Whilst an organ that substitutes as a replacement for another that has wholly ceased to exist can be rightly described as a “successor”, that is not the only context in which succession can be said to occur. A succession can likewise be said to have occurred, consistent with the ordinary meaning of the term, when an organ is followed or replaced in a definable part of its field of operation or its functions by another body. The approach taken by the Commissioner whereby the word “successor” is to be construed to mean solely a body that replaced one which no longer exists is artificially narrow and, in the context of clause 15.4, would have the potential to create unreasonable inflexibility in the engagement of apprentices in appropriate training packages when governance changes are made to the institutional structures overseeing industry training.
[25] We consider therefore that the AUR qualification outcome is, for the purpose of clause 15.4 of the Manufacturing Award, that established for the vocation of the apprentices in question by a successor to MSA. The proposed revised training contracts for Mr Price, Mr Hinchcliffe and Ms Krause are consistent with this qualification outcome. No reference to the MEM training package, nor any comparison between the MEM training package and the AUR training package, is required. The use of the AUR training package is in accordance with clause 15.4 as incorporated into the Agreement.
[26] By way of aside, we note that much of the appellants’ submissions concerning the AUR training package and clause 15.4 concerned its alleged incompatibility with the manufacturing and engineering industry and the classification structure in the Manufacturing Award. However it is clear that Hastings Deering is not a manufacturing/engineering firm. Further, in this case clause 15.4 is not to be construed and applied in the context of the Manufacturing Award; rather, it must be considered in the context of the Agreement into which it has been incorporated (including the distinct classification structure in the Agreement) and the business to which the Agreement applies.
[27] For the reasons given, we consider that the conclusion reached by the Commissioner in respect to the question posed for determination was correct, albeit for different reasons than those stated by the Commissioner. Insofar as the appellants sought to challenge that conclusion on a basis which we consider to be misconceived, it is not appropriate to grant permission to appeal.
[28] Insofar as the Commissioner concluded that Mr Hawke’s application may not have been within jurisdiction, we do not agree. The relevant consideration was not whether Mr Hawke was an “Employee concerned” for the purpose of clause 4.4(a)(i), but whether he was competent to refer the already extant dispute to the Commission pursuant to clause 4.4(a)(vi). Because he was a “party” under the Agreement as defined in clause 1.4(q), he was clearly competent to do so. Further, even if it was necessary for Mr Hawke to demonstrate some greater interest in the subject matter of the dispute, we consider that his role as a trainer and a workplace representative of employees would be sufficient for this purpose. However, the Commissioner’s qualified conclusion on the jurisdictional question did not affect the ultimate outcome, and therefore the grant of permission to appeal as to this aspect of the appeal would have no practical utility. Accordingly we will not grant permission to appeal as to this ground of the appeal.
[29] The cross-appeal is arguably not competent under s 604(1) because it does not challenge any decision with which Hastings Deering is aggrieved; rather it only seeks to challenge an intermediate finding in respect of a decisional outcome with which Hastings Deering agrees. In any event, we have already dealt with the issue raised by the cross-appeal in our earlier reasoning. The grant of permission to appeal to Hastings Deering in those circumstances would lack utility.
Conclusion
[30] The answer given by the Commissioner in respect of the question posed for determination was not in error. Permission to appeal is refused in relation to both the appeal and the cross appeal.
VICE PRESIDENT
Appearances:
S Crawshaw SC of counsel with P Turner, solicitor, on behalf of the appellants.
N Le Mare, solicitor on behalf of Hastings Deering (Australia) Limited.
Hearing details:
2020.
Sydney:
18 February.
Printed by authority of the Commonwealth Government Printer
<PR717119>
1 [2019] FWC 7974
2 Ibid at [25]
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