The Australian Workers' Union v Minerals and Metals Group

[2013] FWC 9054

[2013] FWC 9054

FAIR WORK COMMISSION

DECISION

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

The Australian Workers' Union
v
Minerals and Metals Group
(C2013/4012)

COMMISSIONER ROE MELBOURNE, 25 NOVEMBER 2013

Redundancy- actual position of an employee.

Introduction

[1] Minerals and Metals Group Ltd (MMG or the Respondent) operates a large underground mine at Rosebery Tasmania. Mr Brannigan the General Manager gave uncontested evidence that in the second half of 2012 the amount of work available to Jumbo operators decreased for operational reasons. During this period the Jumbo operators were more frequently required to perform other duties such as work on Simba Drills (a position classified in the award as production driller and a level 1 position like a Jumbo operator) or as service crew (level 2 roles) or as truck drivers (level 3 roles). MMG considered how to restructure the business and what redundancies may be required. In February 2013 MMG put out a tender for the mining contract which had a different scope to the earlier contract. As a consequence restructure was required.

[2] In early 2013 Mr Brannigan says that the company made a definite decision to make four Jumbo operator positions redundant. During January and February 2013 MMG went through a process to select the four operators to be made redundant. The affected employees were advised on 4 April 2013. Some additional level 3 truck driver positions were created by the restructure. Mr Berryman was one of the four employees selected. Those selected were offered the choice of redundancy payment or redeployment to a truck driver position which is at a lower classification and pay rate. Mr Berryman disputed his selection on the grounds that his actual position at the time of the redundancy was not as a Jumbo operator. Mr Berryman was represented by the Australian Workers Union (AWU).

[3] This matter was the subject of conciliation before Commissioner Lee. It was agreed, based upon the recommendation of Commissioner Lee, that Mr Berryman would be retained as a truck driver whilst the dispute was resolved. The parties agreed that the dispute should be settled pursuant to the disputes settlement procedure in Clause 38 of the MMG Rosebery Mine - Underground Agreement 2012 (the Agreement). The parties agree and I am satisfied that the relevant steps of that procedure have been followed. To be covered by the procedure the matter must be “arising from this Agreement or matters pertaining to the employment relationship” (Clause 38.2). I am satisfied that the matter in dispute is a matter which both arises from the Agreement and pertains to the employment relationship. Commissioner Lee determined and the parties agree that the matter cannot be resolved by conciliation. I am satisfied that I can determine this matter by the private arbitration power conferred by virtue of the Agreement.

[4] At the conclusion of the hearing on 15 November 2013 I advised the parties of my decision and that I would publish my reasons.

[5] The parties agreed that the initial question to be determined is as follows:

“Whether Mr Berryman was identified as redundant in accordance with clause 15.1 of the MMG Rosebery Mine- Underground Agreement 2012 because MMG no longer wished to employ any person in the Company in the actual position occupied by Mr Berryman as at 4 April 2013?”

[6] The Respondent says that this means the following two questions must be considered:

(a) What was Mr Berryman’s actual position as at 4 April 2013; and
(b) Was that position identified as redundant as at 4 April 2013. 1

[7] During the proceedings I identified Clauses 6, 7, 15, 16 and Appendix 1 - Salary arrangements of the Agreement as relevant to the determination of this matter. The parties agreed that these were the relevant clauses. The following provisions of the Agreement are of particular relevance:

“6. PRINCIPLES OF THE AGREEMENT

...

6.2 All tasks are to be undertaken without demarcation of restrictions on individuals or jobs provided that employees are working within their skill andcompetence in accordance with the classification structure definitions.

7. PERFORMANCE OF DUTIES

....

7.2 Employees must:

....

(i) diligently and faithfully perform all the duties and responsibilities of their employment, and such other duties as may be reasonably required by the Company from time to time, that are within their skill, competence and training;

(j) provide instruction and training to other employees in their work area or classification as required;

(k) learn any job or skill within their classification, and any job or skill within a higher or lower classification, as required by the Company;

15. REDUNDANCY PROVISIONS

15.1 If an Employee's employment is terminated because the Company no longer wishes to employ any person in the Company in the actual position occupied by the Employee at the time of termination, then on termination the Employee will be entitled to the payments in the table below or in accordance with the National Employment Standards (whichever is the greater):

...

15.3 No redundancy payment will be payable to an Employee if the Company is able to offer, or cause to be offered to the Employee, another suitable alternate position at the Rosebery site or by mutual consent another site that is:

(a) within the Employee's skill, competence or training;

(b) on substantially similar terms and conditions of employment; and

(c) with continuity of service, whether or not that employment is with the Company.

16. CLASSIFICATION STRUCTURE

16.1 Employees classified in accordance with the classification structure hereunder will be paid consistent with the salary ranges as referred to inappendix one.

Classification	Mine Positions	Description
Level 1	Jumbo Operator Production Driller Remote Bagger Operator L 1 Remnant Miner	Ensuring development targets are achieved

....

16.2 The following are guiding principles around the classification structure and salaries:

16.3 The number of Employees in each position in the structure shall be determined by the Company to enable flexibility, productivity, safety and innovation.

16.4 To be eligible for a vacant position an Employee must satisfy the entry levelskills of that position.

16.5 Any Employee can be moved to a position within the same level or a lower classification level as required by the Company to ensure maintenance of skills or retraining.

16.6 Where an Employee is required to move to a position at a lower classification level for maintenance of skills or retraining, the rate of pay for that Employee shall not be reduced.

16.7 Where an Employee has requested to be moved to a position at a lower classification level permanently, the Employee shall be paid at the midpoint of the lower level provided the Company gives three months' notice that the transfer is permanent.

16.8 When an Employee, deemed competent, is required to work in a higher classification for 4 or more consecutive shifts, they will receive an allowance of 10% of their base salary for all hours worked at the higher classification.

16.9 When an Employee is required to undertake Shift Manager duties, the Employee will be paid the appropriate Shift Manager rate for such time in which he/she is expected to undertake such duties.

16.10 As part of providing Employees with development opportunities, they may be given the opportunity to undertake a temporary assignment in a staff role.

16.11 There will be no loss of earnings while on temporary assignment. When relieving for a supervisor for more than one (1) block, employees will be paid at the supervisor's rate.”

[8] I have considered the submissions made by the parties and also the evidence of Mr Berryman for the Applicant and Mr Brannigan and Mr Gardam for the Respondent.

Consideration

[9] The test for redundancy in Clause 15 is: “if the employee’s employment is terminated because the company no longer wishes to employ any person in the company in the actual position occupied by the employee at the time of termination.” The Agreement classification structure (Clause 16) defines “mine positions” at level 1 as Jumbo operator, Production driller, Remote bogger operator, L1 Remnant Miner. I am satisfied that the actual position of Mr Berryman as a level 1 classified employee can only be as a Jumbo operator, or Production driller (also known as Simba operator), or Remote bogger operator, or L1 Remnant Miner.

[10] It is accepted that four Jumbo operator positions were no longer required by the company from 4 April 2013. MMG argues that Mr Berryman occupied the actual position of Jumbo operator at that time and that he was selected for redundancy. MMG also argues that there was consultation about the change, namely the reduction in the need for Jumbo operators due to changes to the operational needs of the business. MMG also argues that there were no other opportunities for redeployment other than the lower classified job offered to Mr Berryman. Mr Berryman was given the opportunity of redundancy pay if he did not want the lower classified job.

[11] The AWU on behalf of Mr Berryman submits that the actual position occupied by Mr Berryman at the time he was selected for redundancy was not as a Jumbo operator. The AWU submits that the primary or substantive duties of Mr Berryman at the time were not those of a Jumbo operator. The AWU submits that the substantive duties of Mr Berryman at the time were as a Simba operator and that the position of Simba operator on the shift occupied by Mr Berryman as at 4 April 2013 still exists. They accept that Mr Berryman was engaged on some other duties as well as a Simba operator and did perform some duties as a Jumbo operator in the period prior to 4 April 2013 but say that his predominate or substantive duties were not as a Jumbo operator. The AWU also argue that there was inadequate consultation about the change leading to the redundancy situation and that there were other opportunities for redeployment including to a position as Simba operator.

[12] Some aspects of the factual matters in dispute became clear from the evidence. I am satisfied from that evidence that:

● Throughout the period during which Mr Berryman worked as a Jumbo operator he was required on occasion to work on other duties such as a trainee Simba operator or on loading. This situation was common to other employees.
● The requirement to work on other duties may arise due to the absence of other employees, because the Jumbo machine was being serviced or for operational reasons which led to shortage of particular work or additional demand for particular work.
● Following a rock fall Mr Berryman and other operators were allocated alternative duties.
● During the period from June 2012 until September 2012 inclusive Mr Berryman worked primarily on the Jumbo machine. He did work a total of approximately five shifts as a trainee Simba operator and one shift as a loader. In the period from October 2012 until January 2013 inclusive he worked approximately 24 shifts on the Jumbo machine, 16 shifts as a trainee Simba operator or as a Simba operator, and 6 shifts as a loader. 2

There were operational reasons why there was less work on the Jumbo machine during the period October 2012 to January 2013. This was not confined to Mr Berryman.

Mr Berryman was never told that he was transferred to another position prior to 4 April 2013.

An employee who has not been certified as a competent Simba operator is under company policy only able to operate the machine with another employee or if by themselves only able to drill a particular type of holes. Mr Berryman had completed necessary training and paperwork and was experienced on the machine but his competence had not been certified by a qualified trainer and assessor. It was Mr Berryman’s uncontested evidence that the reason why the sign off had not occurred was because of the unavailability of the qualified assessor and Mr Berryman’s period of long service leave from February 2013. Notwithstanding this Mr Berryman was rostered and allocated work as a Simba operator on an unrestricted basis on at least two occasions and the Mine Forman, Mr Garden, gave evidence that he believed he was qualified.

Mr Berryman was not at 4 April 2013 qualified to be appointed to a position as a Simba operator and was not appointed to a position as Simba operator even though he was rostered to do such work on occasion prior to 4 April 2013.

In the period since 4 April 2013 a number of employees whom the company says are classified as truck drivers have been performing some work at higher levels including as Simba operators. The AWU argue that this demonstrates that Mr Berryman could be redeployed to such work. Even if I accept the evidence of Mr Berryman that one of these employees has never worked as a truck driver since their appointment in June or July 2013, the evidence did not establish that these employees have been appointed to a level 1 operator position or that any vacancy exists for level 1 operators. There is no evidence that any such vacancy existed as at 4 April 2013.

[13] The Agreement allows or requires employees in a particular position to be moved to other roles for operational reasons or for reasons of training or skills maintenance (Clauses 6.2 and 7.2(i) and (k) of the Agreement). The Agreement provides for higher duties payments where the employee in a particular position is required to perform duties at a higher level and for salary maintenance where required to perform duties at a lower level (Clauses 16.5 and 16.6 of the Agreement). The clause clearly implies that employees are appointed to positions as the concept of a number of employees in each position and vacant positions is covered in Clause 16 of the Agreement (Clauses 16.3 and 16.4 of the Agreement).

[14] I note that the “daily shift plans” show the particular duties to be performed by an employee at a particular time. This is essential for rostering and safety purposes, however, it is not determinative of the actual position held by an employee. The actual position held is not something which changes from day to day just because the particular duties required change. I note that the “underground team list” provided by Mr Berryman for 20 June 2013 shows that Mr Andrew Maine is in team 2 as a production driller. 3 Mr Brannigan gave evidence that Mr Maine did not commence employment until 14 July 2013 and that although he has been acting as a production driller he does not occupy such a position as there are no vacant production driller positions. It is not necessary to resolve this conflict in the evidence. However, the evidence is insufficient for me to be satisfied that there are any vacant production driller positions or that there were any such vacancies as at 4 April 2013.

[15] I note that Mr Berryman provided a print out of his organisational history. That print out describes his position title as “level 1 operator” for the period since 2009 and as “level 1 Jumbo operator” from 2006 to 2009. 4 For the reasons discussed earlier the Agreement defines the actual positions of a level 1 operator as being Jumbo operator, or Production driller (also known as Simba operator), or Remote bogger operator, or L1 Remnant Miner. The organisational history print out does not assist in determining which of these is Mr Berryman’s actual position.

[16] It is not suggested that Mr Berryman was advised that he was appointed to another position than that of Jumbo operator. MMG argues that the shift to other roles was for two reasons - “training and maintenance of skills” or due to shortage of available Jumbo work due to the impending restructure. It was the unchallenged evidence of the witnesses for MMG that the company was redeploying workers to these roles whilst it considered the details of the restructure and then whilst it conducted a selection process from amongst the Jumbo operators. I am satisfied from that evidence that employees, including Mr Berryman, would have been aware of the changes in the business arrangements, the flow of work and operational requirements which occurred during the period from mid 2012 through to 4 April 2013.

[17] I note that the AWU raised some challenge about whether or not the redundancy was a genuine redundancy on the grounds of inadequacy of consultation and failure to exhaust all avenues for redeployment. The consultation matter was a relevant consideration which I have taken into account in assessing the actual position held by the Applicant and whether or not the four Jumbo operator positions were in fact no longer required by the company for operational reasons. Otherwise these matters are not relevant to the question before me but may be relevant to an unfair dismissal application.

[18] The Agreement refers to the “actual position”. I am satisfied that the word “actual” has work to do and requires that I look at the real position occupied by Mr Berryman and not simply rely on his job title at the time or the particular duties he might have performed on a particular day. This is to avoid artificial outcomes which can arise when an employee has a nominal title or position which does not reflect the actual work that they have performed for a considerable period of time or a situation where a person may only be temporarily performing a certain role to cover someone on leave or for operational reasons at the time of the potential redundancy. The Agreement makes it clear that the actual positions for a level 1 classified employee can only be Jumbo operator, or Production driller (also known as Simba operator), or Remote bogger operator, or L1 Remnant Miner. The Agreement also makes it clear that employees are required to work in other roles from time to time. There are clear operational reasons why in the period leading up to the redundancy announcement Mr Berryman was expected to perform a considerable amount of work in other roles. However, I am satisfied that this did not change his real or actual position.

[19] Mr Berryman challenged his selection for redundancy on or about 4 April 2013. I am satisfied that he vigorously pursued other redeployment options with the company. I am satisfied that Mr Berryman genuinely believes that he should be offered work as a Simba operator or in some other role at level 2 or level 1. I am satisfied that Mr Berryman also argued that he was no longer in a Jumbo operator role and therefore should not have been included in the selection process. However, the evidence does not support a conclusion that the actual position of Mr Berryman had changed from that of Jumbo operator as at 4 April 2013.

Conclusion

[20] I determine that the answer to the question of what was the actual position occupied by Mr Berryman as at 4 April 2013 is “Jumbo operator”.

[21] I determine that Mr Berryman was one of four Jumbo operators who were identified as redundant in accordance with Clause 15.1 of the MMG Roseberry Mine - Underground Agreement 2012 because MMG no longer wished to employ any person in these four positions.

[22] It is not in contention that these positions are no longer required by the company.

[23] These determinations resolve the dispute in C2013/4012 which the parties agreed was:

“Whether Mr Berryman was identified as redundant in accordance with clause 15.1 of the MMG Rosebery Mine- Underground Agreement 2012 because MMG no longer wished to employ any person in the Company in the actual position occupied by Mr Berryman as at 4 April 2013?”

[24] Mr Berryman now has the opportunity to either accept redeployment to the position he has been in whilst this dispute has been subject to conciliation and arbitration or he will be terminated and made redundant and receive the benefits under Clause 15 of the Agreement.

COMMISSIONER

Appearances:

Mr R Flanagan appeared for the AWU.

Mr R Collinson appeared for the Respondent.

Hearing details:

2013

Melbourne

November 15

 1   Exhibit R1, at para 4.

 2   Exhibit R4, Attachment B and Attachment A3.

 3   Exhibit A2, Annexure C.

 4   Exhibit A2, Attachment A2.

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