The Australian Workers' Union v Melbourne Cement Facilities

[2015] FWC 5253

[2015] FWC 5253

FAIR WORK COMMISSION

JURISDICTIONAL DECISION

Fair Work Act 2009
s.739—Dispute resolution

The Australian Workers’ Union
v
Melbourne Cement Facilities
(C2015/4527)

COMMISSIONER RYAN MELBOURNE, 31 JULY 2015

Arbitration relating to whether the Melbourne Cement Facilities & Independent Cement and Lime Pty Ltd (Despatch Employees) Enterprise Agreement 2012-2015 covered a former employee.

[1] On 30 June 2015 the Applicant filed the application in this matter identifying a dispute concerning the entitlements of a former employee of the Respondent pursuant to the Melbourne Cement Facilities & Independent Cement and Lime Pty Ltd (Despatch Employees) Enterprise Agreement 2012-2015 (the Agreement). The Commission conducted a conciliation of the dispute on 10 July 2015.

[2] At the conciliation it became clear that the Respondent contended that the Agreement did not apply to the employee concerned.

[3] The parties agreed that the preliminary jurisdictional issue of whether the Agreement applied to the employee should be determined before any further proceedings took place. Both parties agreed that the preliminary jurisdictional point could be determined by the Commission on the papers. Both parties filed detailed written submissions in relation to the preliminary jurisdictional point.

[4] The background to the dispute is as follows.

[5] The employee had been employed by the Respondent since April 2008 and covered by the Agreement. On 4 August 2014 the employee submitted a notice of resignation of employment with effect from 29 August 2014. On 20 August 2014 the employee suffered a workplace injury to his shoulder. The Respondent accepted that the employee’s injury was a compensable work related injury and made the appropriate WorkCover payments.

[6] On 5 January 2015 the employee’s treating medical practitioner certified the employee as fit for work but with restricted duties.

[7] The Respondent agreed to reemploy the employee as from 5 January 2015 to enable the employee to work under the Suitable Duties Plan prepared by the employee’s medical practitioner.

[8] The Contract of Employment (the Contract) entered into by the employee and the Respondent was not a usual contract for employees employed under the Agreement but rather was specifically crafted to deal with the employees return to work under the Suitable Duties Plan. Relevantly the Contract provided as follows:

“We are pleased to offer you a position at Melbourne Cement Facilities (MCF) to undertake the tasks set out in the Suitable Duties Plan.
Duties. You must perform with due care and skill all responsibilities and tasks which MCF assigns to you in accordance with a Suitable Duties Plan which is agreed between your treating medical practitioner, the MCF Return to Work Co-ordinator and yourself. These duties will be reviewed as they fall due.
Termination. Your employment will cease at the earlier of, either when you are fully rehabilitated or a Suitable Duties Plan cannot be agreed between your treating medical practitioner, the MCF Return to Work Co-ordinator and yourself. MCF may terminate your employment immediately and without payment in lieu of notice in any circumstances where MCF is entitled to dismiss you summarily at common law.”

[9] The Suitable Duties Plan identified the proposed duties to be performed by the employee as “alternate duties” which were alternative to the duties which the employee had been performing for the Respondent at the time of the workplace injury. The proposed alternate duties were:

1. Spare Parts stocktake
This task requires [the employee] to locate and Identify all parts & record findings.

2. Updating all QA paperwork
This task Involves reviewing all paperwork being used. [The employee] will be required to check that correct forms are available on the Intranet and updating as necessary.

3 Painting of external pipework
This task involves the painting of large diameter pipes used for pneumatic conveying.

[10] There is nothing in the Contract which identifies any position title for the employee and nothing in the Contract which refers to the Agreement.

[11] The Agreement covers employees of the Respondent “engaged by the Employer to perform work in a classification covered by Clause 16 of the Agreement”.

[12] Clause 16 of the Agreement is as follows:

“16. Classifications and Job Descriptions

16.1 An Employee must be appointed to a job classification and level in accordance with the job descriptions contained in Schedules 2 to 7.

16.2 To progress from Level 1 to Level 4, as defined in relevant Schedule, Employees must demonstrate their ability to competently and consistently apply the skills and perform the duties required at the applicable level.

16.3 Production Employees are those Employees employed as Production Employees
(Schedule 2), Despatch Operator Employees (Schedule 3) and Production Supervisors
(Schedule 6).

16.4 Maintenance Employees are those Employees employed as Site Maintenance
Operator Employees (Schedule 4), Tradesperson General Employees (Schedule 5) and
Maintenance Supervisors (Schedule 6).

16.5 Support Operatives are those employees employed in a multi-functional role able to work between the areas of Maintenance, Despatch, and Production (Schedule 7).”

[13] Each of the Schedules to the Agreement provides general descriptions of the classifications referred to in clause 16.

[14] A careful examination of each of the Schedules reveals that the specific tasks identified in the Suitable Duties Plan are not specifically mentioned yet the nature of the tasks are such that each of the three tasks would fit within the general description of work contained in the Schedules.

[15] The task of painting external pipework is clearly a task which falls within either, the skill requirement of “ability to carry out semi-skilled duties unsupervised” appearing in relation to a Level 2 Site Maintenance Operator, or the skill requirement of “Ability to carry out the routine maintenance requirements of the site” appearing in relation to a Level 2 Tradesperson.

[16] The task of spare parts stocktake is clearly a task which falls within either, the skill requirements of “ability to order spare parts/maintenance stores under direction of, or in the absence of, an authorised supervisor” or “partially competent in the use of the maintenance stores computer system” appearing in relation to a Level 3 Tradesperson, or the skill requirement of “competent in the skills associated with spares/stores purchasing and control” appearing in relation to a Level 4 Tradesperson. Given the low level of skill and responsibility associated with a spare parts stocktake this task may very well fall within the generic skill requirements and duties of a Site Maintenance Operator classification.

[17] The task of updating all QA paperwork by reviewing all paperwork being used and then checking that correct forms are available on the Intranet and updating as necessary would necessarily require a knowledge of the QA requirements that employees need meet and the forms needed to be completed in relation to these QA requirements. Given the limited nature of the task it would appear that it would fall within the skill requirements identified for a Level 2 Tradesperson which includes as mandatory site skills both the “ability to detect and report on Quality System ‘non-conformances’” and “knowledge of the Quality Systems and of the Work Instructions, Standard forms etc”.

[18] The Respondent contends that because the employee was not required to exercise a number of the required skills for a Tradesperson at every level then the employment of the employee could not have been under the terms of the Agreement. This contention misses the point. The classification descriptions in the Agreement (as in any enterprise agreement) provide a clear definition of the skills that employee must have in order to be classified to a particular classification or to a particular level within a classification. The classification descriptions do not require that an employee must exercise every required skill or perform every indicative duty each and every day in order to maintain an entitlement to be classified at a particular level. The Agreement will cover an employee if the employee falls within one or more of the classifications listed in clause 16 and explained in the Schedules.

[19] Each of the tasks that the employee was required to perform under the new Contract of Employment and the Suitable Duties Plan are tasks which are within the coverage of the Agreement. The very fact that the employee was employed as a Level 2 Tradesperson by the Respondent at the time of employee’s workplace injury is a clear admission from the Respondent that the employee possessed the necessary mandatory skills to meet the requirement to be classified as a Level 2 Tradesperson.

[20] The Respondent contends that because the Contract provides for a specific termination process then this supports a conclusion that the Agreement cannot or does not cover the employee.

[21] Whether the Agreement covers the employee will not and can not be determined by reference to different termination provisions in the Contract and the Agreement.

[22] In the present matter the difference in the language between the termination provisions of the Contract and the Agreement may not be significant and it is possible that the termination provisions of the Contract are consistent with the termination provisions of the Agreement.

[23] The termination provision of the Contract is based on either of two alternative events occurring. Either the employee is assessed as fully rehabilitated or the Respondent and the employee’s treating medical practitioner cannot reach agreement on a Suitable Duties Plan.

[24] There are three ways in which the termination provision of the Contract could operate consistent with the termination provision of the Agreement.

[25] Firstly, if either event referred to in the Contract occurs then the Respondent need only give the necessary notice period specified in the Agreement in order to terminate the employment relationship. Secondly, if the termination provision of the Contract operates so as to make the Contract one of employment for a specific period then it is possible that the termination provisions of the Agreement may not apply. Thirdly, as the Contract is for the performance of specific tasks it is possible that the termination provisions of the Agreement may not apply.

[26] The resolution of issues surrounding the specific application of the termination provisions of the Agreement or the Contract need not be determined at this time.

[27] The Respondent contends that it did not at any time consider or accept that the employee’s employment under the Contract was covered by the Agreement. I am quite prepared to accept that the Respondent didn’t intend for the employee to be covered by the Agreement. The very existence of the dispute in this matter also shows that the employee, the employee’s family and the employee’s union all considered that the employee would be covered by the Agreement. However, whether or not the Agreement covers any employee is to be determined having regard to the coverage provisions of the Agreement. Even if both the employee and the Respondent had specifically agreed that the employment of the employee was not to be covered by the Agreement that would not have prevented the Agreement from covering the employee. The subjective intentions of the parties cannot oust the operation of the Agreement where objectively the work of the employee is covered by the Agreement.

[28] In the present matter I determine that the employee was covered by the Agreement whilst employed under the Contract.

[29] In its written submission the AWU poses and answers two questions: Did the employee receive all of his accrued personal leave? and Was the employee entitled to or granted discretionary sick leave in accordance the Agreement?. These questions have not been considered by the Commission as they are questions which only arise after the Commission has determined that the Agreement covers the employee.

[30] The application in this matter will be listed for mention by telephone to program further disposition of the application.

COMMISSIONER

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