Robert Vardy v Valoriza Water Australia Pty Ltd T/A Southern Seawater Joint Venture
[2011] FWA 1600
•16 MARCH 2011
[2011] FWA 1600 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Robert Vardy
v
Valoriza Water Australia Pty Ltd T/A Southern Seawater Joint Venture
(U2010/12720)
DEPUTY PRESIDENT MCCARTHY | PERTH, 16 MARCH 2011 |
Termination of employment - jurisdictional objection - remuneration.
Background
[1] Mr Robert Vardy (the Applicant) lodged an Application for unfair dismissal remedy (the Application) regarding the termination of his employment by Valoriza Water Australia Pty Ltd Trading as the Southern Seawater Joint Venture (the Respondent). The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (the AMWU) is the Applicant’s representative.
[2] The Applicant was employed on 13 November 2009, in the position of Materials Manager for the Southern Seawater Desalination Project with the Respondent.
[3] The Respondent asserts that Fair Work Australia (FWA) does not have jurisdiction to deal with the matter on the grounds that the remuneration of the Applicant was greater than the high income threshold and he was not employed under a modern award or an enterprise agreement.
[4] The Applicant contends that his occupation is covered by the Manufacturing and Associated Industries and Occupations Award 2010 (the Award). It was submitted by the AMWU that if that Award did not cover the Applicant’s employment there was no other award that did.
[5] The Fair Work Act 2009 (the FW Act) provides at s.382 that a person is protected from unfair dismissal at a time if, at that time:
“(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”
[6] It is not disputed that the Applicant had completed a period of employment of at least the minimum period, nor is it disputed that the Applicant’s annual rate of earning was above the high income threshold. It is also not disputed that there was no enterprise agreement that applied to the Applicant’s employment.
[7] The issue for me to determine is whether the Applicant was covered by an award.
The Evidence
[8] The Applicant contends that he was employed in the technical field. He submitted that his duties involved the planning, scheduling and coordinating of all aspects of inspecting, handling, processing and delivering of materials on site. This required the inspecting of materials for any coverage, shortage and damage. This also included supervising the unloading of materials, as well as checking the documentation that accompanied the materials for warehousing by checking the quantity received against the delivery dockets and purchase orders for quality control purposes. In order to plan, schedule and coordinate the materials being received, handled, processed and delivered, required technical knowledge of the Applicant in order to manage the materials handling process.
[9] The Applicant says he was required to process requisition orders for outgoing materials, which included scheduling time lines for delivery and location of materials for off-loading purposes. The types of materials the Applicant was required to process, inspect and coordinate included piping, fittings, valves and other construction materials, as well as electrical switchboards, reverse osmosis panels and micro filtration banks. The Applicant says he was responsible for coordinating and scheduling of materials for delivery of approximately four to 10 trucks per day.
[10] The Respondent says that they were involved in the business of construction of a desalination plant. They say that the Applicant was the manager of the warehouse and his responsibility was to ensure the following were completed:
(i) ensure that appropriate safety signage is erected in the warehouse and yard;
(ii) ensure that the warehouse, yard storage and lay down areas are clearly marked with location numbers and/or names;
(iii) ensure that all staff are aware of mandatory site safety requirements e.g. PPE, correct tools;
(iv) ensure that a Job Hazard Analysis is completed for all tasks as necessary, including unloading trucks;
(v) ensure that daily pre-start and weekly tool box meetings are held with warehouse personnel;
(vi) ensure that all staff have correct, current tickets for operation of machinery e.g. forklifts;
(vii) ensure that materials are quarantined as necessary;
(viii) advise the warehouse supervisor of daily deliveries and ensure associated documentation is correct e.g. packing lists;
(ix) where materials are not delivered to site, ensure that the relevant contractor is advised of ETA;
(x) supervise the provision of material picking lists to the warehouse supervisor;
(xi) ensure that requisitioned materials are issued to contractors in good order and a timely manner; and
(xii) ensure that dangerous goods are stored correctly and safely.
[11] The Applicant was not required to perform the tasks identified in the previous paragraph himself.
[12] The Respondent says that the primary responsibilities of the Applicant were:
(i) interviewing Applicants and employing staff in the warehouse;
(ii) providing and implementing Warehouse Material Control Procedures (including all requisite forms, e.g. Over, Short &/or Damage, Materials Receipt Reports);
(iii) liaising with project management to provide and implement storage and preservation procedures;
(iv) approving lifting equipment hire company timesheets and invoices for machinery and personnel working in and for warehouse/yard;
(v) raising requisitions as necessary to purchase equipment & materials for warehouse operations (including safety sign age, tools etc);
(vi) designating quarantine areas in the warehouse and yard;
(vii) selling up and managing the Cable Reel Register, the Over Short & lor Damage Report Register and the Dangerous Goods Register; and
(viii) setting up and managing the material tracking database (receipt, issue, current stock levels, locations).
The Award
[13] The Award came into operation on 1 January 2010. The Award covers employers throughout Australia of employees in the Manufacturing and Associated Industries and Occupations who are covered by the classifications in this award and those employees. 1
[14] The AMWU says that the Applicant is covered by Wage Group C.4 in Clause B.3.1 of Schedule B.
[15] The Classifications in Schedule B of the Award prescribes the Classification Structure and Definitions. Clause B.3.1 of Schedule B states that the classification definitions are to be read in conjunction with the stream and field definitions in the Award.
[16] The stream definitions are the engineering streams as defined in Clause 3 -Definitions and Interpretation. Those streams are the “three broad engineering streams recognised within the classification definitions set out in Schedule B namely, electrical/electronic, mechanical and fabrication.” Each of the streams is defined in Clause 3.
[17] The field definitions means the vocational field also defined in Clause 3 of the Award. There are five vocational fields recognised within the classification structure of the Award, namely, trade, technical, engineering/manufacturing, supervisor/trainer/coordinator and professional. Each of those vocational fields is also defined in Clause 3 and the further definitions of Clause B.3.1.
[18] The technical field is defined in Clause 3 as follows:
“(b) technical field which includes:
(i) production planning, including scheduling, work study, and estimating materials, handling systems and like work; or
(ii) technical work including inspection, quality control, supplier evaluation, laboratory, non-destructive testing, technical purchasing, and design and development work (prototypes, models, specifications) in both product and process areas and like work; or
(iii) design and draughting and like work.”
[19] The Wage Group of C4 provides for an Engineering Associate/Laboratory Technical Officer - Level I which is defined as:
“(i) An Engineering Associate/Laboratory Technical Officer —Level I means an employee who works above and beyond a technician at the C5 level and who has completed the minimum training requirements specified in clause B.2.1 of Schedule B or equivalent and is engaged in:
• making of major design drawings or graphics or performing technical duties in a specific field of engineering, laboratory or scientific practice such as research design, testing, manufacture, assembly, construction, operation, diagnostics and maintenance of equipment facilities or products, including computer software, quality processes, occupational health and safety and/or standards and plant and material security processes and like work and/or developing test procedures or manuals from test standards and like work; or
• planning of operations and/or processes including the estimation of requirements of staffing, material cost and quantities and machinery requirements, purchasing materials or components, scheduling, work study, industrial engineering and/or materials handling process.”
[20] Clause B.3.1 also requires that the Wage Group classification definitions, in this case Work Group C4, should be read in conjunction with the stream or field definitions and definitions of “Or equivalent”, “Work within the scope of this level” and “Engineering Associate/Technician.”
[21] “Or equivalent” is defined as:
“• any training which a registered provider (e.g. TAFE), or State recognition authority recognises as equivalent to a qualification which Manufacturing Skills Australia recognises for this level, which can include advanced standing through recognition of prior learning and/or overseas qualifications; or
• where competencies meet the requirements set out in the Manufacturing Skills Australia competency standards in accordance with the National Metal and Engineering Competency Standards Implementation Guide.”
[22] The National Metal and Engineering Industry Competency Standards Implementation Guide outline the manner of linking the skills of a person to the classification structure. Competency standards were established at that time for that purpose. Competency standards were described as a set of descriptions of the level of skill and the depth of knowledge employees require to work competently at various skill levels in an industry. 2
[23] “Work within the scope of this level” is defined as:
“• for an employee who does not hold a qualification listed as a minimum training requirement, that the employee can apply skills within the enterprise selected in accordance with the National Metal and Engineering Competency Standards Implementation Guide, provided that the competencies selected are competency standards recognised as relevant and appropriate by Manufacturing Skills Australia and endorsed by the National Quality Council; or
• where an employee has a qualification, clause clause 24.3(b)(iii) applies.”
[24] “Engineering Associate/Technician” is defined as follows:
“Engineering Associate/Technician is a generic term which includes technical officers in a wide range of disciplines including laboratories and quality assurance, draughting officers, planners and other para-professionals.”
[25] For the Applicant to be covered by the Award then as an employee covered by Work Group C4 he must:
1. work above and beyond a technician at the C5 level; and
2. have completed the minimum training requirements specified in Clause B.2.1 of Schedule B or equivalent; and
3. be engaged in performing technical duties in a specific field of engineering, laboratory or scientific practice or planning of operations and/or processes, including estimation and the like.
[26] It is not enough for the Applicant to be engaged in the duties of planning of operations and/or processes, including estimation and the like. He must have work above and beyond a technician at the C5 level and have completed the minimum training requirements specified or equivalent. By application of the definition or “or equivalent” it would require an equivalent qualification or the level of skill and the depth of knowledge employees require to work competently at that skill level.
[27] The C5 level is either:
(a) Advanced Engineering Tradesperson - Level II; or
(b) Engineering/Laboratory Technician - Level V.
[28] For the Applicant to be covered by the classification then he must have been performing work beyond that of an Engineering/Laboratory Technician - Level V. This would require that heis “an employee who have (has) had training of the C5 level Advanced Engineering Tradesperson - Level II or equivalent so as to be able to apply skills within the scope of that level. The skills exercised by the Engineering/Laboratory Technician - Level V are in the technical field including draughting, planning or technical tasks requiring technical knowledge.”
[29] The training requirements specified in clause B.2.1 of Schedule B for Classification Level C4 is “80% towards an Advanced Diploma of Engineering, or equivalent.” It is not asserted here that the Applicant completed those training requirements.
[30] The minimum trade requirements for a technician at C5 level can be ascertained by examining the types of units involved in, for example, the Advanced Diploma of Civil and Structural Engineering courses run by various educational institutions. The qualification is described in the following terms:
“This qualification will further develop your practical skills and knowledge in the design and draughting of engineering plans to Australian and New Zealand standards. You will learn about different areas in Civil Engineering, including construction, project management, design and testing. Subjects include those covered in the Diploma of Civil and Structural Engineering plus you will learn about the design and draughting of concrete, steel, roads and pipes as well as storm drainage and foundations.”
[31] There is no evidence that there has been any training which a registered provider (e.g. TAFE), or State recognition authority recognises as equivalent to a recognised qualification for this level. Nor is there any evidence that the Applicant has competencies that meet the requirements set out in the Manufacturing Skills Australia competency standards in accordance with the National Metal and Engineering Competency Standards Implementation Guide.
[32] There is no evidence and it was not asserted that the Applicant was an advanced engineering tradesperson or working beyond that level. Nor is there any evidence or assertion that the Applicant was an Engineering/Laboratory Technician or was working beyond that level.
[33] Indeed the AWMU does not assert that the Applicant was involved in the first broad category of work description for Engineering Associate/Laboratory Technical Officer -Level I, viz; the making of design drawings or graphics or performing technical duties in a specific field. Rather, they say that the second of those broad ranges of duties describes the work the Applicant was undertaking, viz; planning of operations and/or processes.
[34] There is also no evidence that satisfies me that the Applicant was engaged in performing technical duties in a specific field of engineering, laboratory or scientific practice or planning of operations and/or processes including estimation and the like.
[35] There is also no evidence that the Applicant can apply skills within the enterprise selected in accordance with the National Metal and Engineering Competency Standards Implementation Guide, provided that the competencies selected are competency standards recognised as relevant and appropriate by Manufacturing Skills Australia and endorsed by the National Quality Council.
[36] The level of skill required for the level of Wage Group C4 can be illustrated by reference to the Stage 2 Australian Engineering Competency Standards. There, the description of the work of an Engineering Associate is described as:
“They may be expert in installing, testing and monitoring equipment and systems, in the operation and maintenance of advanced plant, and in managing or supervising tradespeople in these activities. They may be expert in selecting equipment and components to meet given specifications, and in assembling these to form systems customised to particular projects.”
[37] Further:
“Associates need a good grounding in engineering science and the principles underlying their field of expertise, to ensure that their knowledge is portable across different applications and situations. Context-specific training and experience in a particular job are not sufficient to guarantee generic competency. Given a good knowledge base, however, associates may build further on this through high levels of training in particular contexts and in relation to particular equipment. Aircraft maintenance is an excellent example. The competencies of engineering associates equip them to certify the quality of engineering work and the condition of equipment and systems in defined circumstances, laid down in recognised standards and codes of practice.”
[38] The Training Unit concerned with Engineering Planning is described as “involved in the interpretation of requirements, apply engineering principles, conceptualise options and apply creativity to development of plans and designs that meet the client’s requirements.”
Conclusions and Determination
[39] There is no evidence that the Applicant has completed the training requirements of either the C4 level or the C5 level. Nor is there any evidence that the Applicant has acquired the competencies to be able to perform duties equivalent to the skill level of Wage Group C4.
[40] The evidence that was provided was that the Applicant was engaged in the type of planning and overseeing type functions that one would expect in an operation of the nature that the Respondent was involved in, to ensure that materials and supplies were properly managed and available.
[41] It is my conclusion and finding that the Applicant was not an employee covered by the Award as there is no evidence that he had, either by qualification or level of experience required, attained the skills required to be able to be classified as a Technical Worker within the meaning of the Award.
[42] The nature and structure of the classifications and associated qualification and skill requirements of the Award are directed to those employees that fulfil significantly technical functions associated with engineering.
[43] The responsibility for materials management, which might be described as technical work in a generic sense, appears to me to have been more akin to managerial administrative functions rather than the type of technical work to which the Award refers. The technical work to which the Award refers is work of a type of skill and qualification related to engineering, normally acquired through the skills acquired associated through trade and qualifications related career paths that the classification structure evolved from and is built around.
[44] Whilst a manager might perform functions associated with planning of operations and/or processes, that is a function that any manager would usually be required to perform and it does not in itself make that employee one employed in a technical field.
[45] The Application is dismissed as the Applicant did not satisfy any of the conditions of s.382(b) of the FW Act such that he can make an application for Unfair Dismissal.
DEPUTY PRESIDENT
Appearances:
Ms S Thiel for the Applicant.
Ms P Colreavy with Mr J Batanero for the Respondent.
Hearing details:
2010.
Bunbury:
November 22.
1 Clause 4.1 of the Award
2 seeThe National Metal and Engineering Industry Competency Standards Implementation Guide p5
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