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The Australian Workers' Union v GrainCorp Operations Ltd

The Australian Workers' Union v GrainCorp Operations Ltd

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Case Copied 9 June 2015 59 min read

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[2015] FWC 2335

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

The Australian Workers' Union
v
GrainCorp Operations Ltd
(C2014/6535)

COMMISSIONER JOHNS

SYDNEY, 9 JUNE 2015

Alleged dispute concerning Appendix 3 of the GrainCorp Operations Ltd - AWU (Victorian Operations) Enterprise Agreement 2013 about the classification of a Grain Operator.

Introduction
[1] This decision is about whether, pursuant to the GrainCorp Operations Ltd - AWU (Victorian Operations) Enterprise Agreement 2013 (Agreement), David Pickering, a Grain Operator, should be paid at the rate of a Grade 4.1 or Grade 5.2 on those occasions when he is the most senior Grain Operator at the Warracknabeal site of GrainCorp Operations Ltd (Respondent).
[2] The application was brought by the Australian Workers’ Union (Applicant/AWU) on behalf of their member, Mr Pickering, under section 739 of the Fair Work Act 2009 (FW Act).
[3] The parties are covered by the Agreement which was approved by the Fair Work Commission (Commission) on 9 January 2014 and which has a nominal expiry date of 30 September 2015. The dispute arises out of the operation of Appendix 3 of the Agreement; it deals with the classification structure for Grain Operators. Clause 8 of the Agreement invests the Commission with jurisdiction to determine the dispute by arbitration.

The hearing

[4] The application was listed for hearing on 17 February 2015. At the hearing:

a) the AWU was represented by Mr C. Winter. Mr Winter called Ronald Hayden, AWU Organiser (Exhibit AWU3) and Mr Pickering, the affected AWU member (Exhibit AWU2), to give evidence; and
b) the Respondent was represented by Mr B. Murray, Solicitor (with permission, pursuant to s.596 of the FW Act). Mr Murray called Gerard Bibby, the Respondent’s Area Manager for the Horsham East cluster and Peter Johnson, the Respondent’s Regional Manager for North West Victoria, to give evidence.

Background

[5] The following matters were either common ground between the parties or not otherwise contested:

a) GrainCorp Operations Ltd provides a grain handling and storage services throughout Australia. 1
b) Mr Pickering has been employed by the respondent or its predecessors since 1986. For the past 10 years Mr Pickering has been employed as a Grade 4.2. 2
c) The matter in dispute relates to whether or not Mr Pickering has been incorrectly classified and whether he should be classified as a Grade 5.1. 3
d) The dispute does not concern other employees and only concerns Mr Pickering. 4
e) The Job descriptions for pay Grades 4 and 5 are not in dispute. 5 The descriptions were agreed to by the AWU when the Agreement was negotiated.
f) When negotiating the Agreement, there were variations made to the job description for a Grade 5.1 employee (as compared to the description in the previous 2010 version of the Agreement). The job description for a Grade 5.1 employee changed:
i. from ‘Acts in a Senior Supervisory Capacity’

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] FWC 2335
Decision Date: 9 JUNE 2015

CaseChat Overview and Summary

The Australian Workers' Union contested the decision of GrainCorp Operations Ltd regarding the classification of a Grain Operator under Appendix 3 of the GrainCorp Operations Ltd - AWU (Victorian Operations) Enterprise Agreement 2013. The matter was heard in the Fair Work Commission. The union argued that the Grain Operator should be classified at a higher level than GrainCorp had assigned, resulting in an appeal against the company's decision. The central issue before the Commission was the interpretation of Appendix 3 of the Enterprise Agreement and the correct classification of the Grain Operator role. The dispute focused on whether the duties and responsibilities of the Grain Operator aligned with the higher classification level as claimed by the union.

The Commission examined the duties and responsibilities of the Grain Operator as outlined in the Enterprise Agreement and the evidence presented by both parties. The union argued that the role involved a high level of skill, responsibility, and decision-making, warranting a higher classification. In contrast, GrainCorp maintained that the role did not meet the criteria for the higher classification. After considering the evidence and arguments, the Commission found that the Grain Operator's role did not align with the higher classification criteria set out in the Enterprise Agreement. The Commission determined that the duties and responsibilities of the Grain Operator were consistent with the lower classification level as assigned by GrainCorp.

In light of the Commission's findings, the appeal was dismissed. The classification of the Grain Operator as determined by GrainCorp was upheld. The Commission's decision was based on a detailed analysis of the role's duties and responsibilities in relation to the criteria outlined in the Enterprise Agreement. The union's appeal was unsuccessful, and the lower classification level assigned by GrainCorp was confirmed. This decision provided clarity on the correct classification of the Grain Operator role within the terms of the Enterprise Agreement.

Orders