Transport Workers' Union of Australia v Qantas Airways Limited and QCatering Limited

[2017] FWC 3437

[2017] FWC 3437

FAIR WORK COMMISSION

DECISION

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

Transport Workers' Union of Australia
v
Qantas Airways Limited and QCatering Limited
(C2016/5263)

COMMISSIONER CAMBRIDGE SYDNEY, 28 JUNE 2017

Dispute settlement procedure - interpretation of terms of enterprise agreement - dispute about classification level assigned to position following a restructure - agreed question for determination - interpretation of relevant terms provided.

[1] This Decision is made in respect of an application that was taken under section 739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a dispute in accordance with a Dispute Settlement Procedure (DSP). The application was lodged at Sydney on 2 September 2016, and it was made by the Transport Workers’ Union of Australia (the TWU), and taken against Qantas Airways Limited and QCatering Limited (the employer or Qantas).

[2] The Commission is empowered to deal with this matter by virtue of a DSP which can be found at clause 12 of the Qantas Airways Limited and QCatering Limited - Transport Workers Agreement 2015 (the Agreement). There was no argument that the relevant procedural requirements of the DSP contained in the Agreement had not been followed, or that the Commission was otherwise not properly empowered to determine the issue of contest identified in the application.

[3] The application was the subject of unsuccessful conciliation proceedings held on 17 October and 14 November 2016. The matter has subsequently advanced to arbitration proceedings which involved a Hearing conducted in Sydney on 30 and 31 May 2017.

[4] At the Hearing, the Commission granted permission, pursuant to s. 596 of the Act, for the Parties to be represented by lawyers or paid agents. Mr M Gibian, barrister, appeared for the TWU, together with Ms W Carr. Mr Gibian introduced evidence by way of two witness statements made by two individuals, neither of whom was required for cross examination. In addition, Mr Gibian called four witnesses who provided evidence that was the subject of cross examination.

[5] The employer was represented by Ms H McKenzie solicitor, from Ashurst Australia, and she was accompanied by Ms A Linton and Ms A Rochford. Ms McKenzie introduced evidence from three witnesses, all of whom were cross examined by Mr Gibian.

[6] Mr Gibian and Ms McKenzie both made oral submissions in elaboration of documentary material that each had filed on behalf of the respective Parties.

Background

[7] There was essentially no factual contest between the Parties about the circumstances which gave rise to the dispute in this matter.

[8] The employer is a business within the Qantas group of Companies which provides catering services to Qantas as well as third party airlines. In order to provide those catering services the employer operates catering centres in conjunction with airports located in Sydney, Melbourne, Brisbane and Perth.

[9] In around 2014, the Brisbane catering centre implemented a restructure of its operations which coincided with relocation to a new centre at the Brisbane airport. This restructure involved, inter alia, the abolition of the position referred to as level 8 Senior Airline Services Coordinator, and the introduction of a position referred to as level 6 Dispatch Allocator. The restructure at Brisbane also involved the introduction of a position called a Duty Operations Manager. The Duty Operations Manager position was fixed at what was described as an SPG1 level pay rate, as extracted from an instrument which covered the Australian Services Union (ASU) rather than the TWU. Consequently, the newly created level 6 Dispatch Allocator positions reported to the equally new Duty Operations Manager (SPG1) positions.

[10] Historically, the various catering centres have used different terminology to identify a broadly similar position which essentially involved the coordination of the various teams of individuals who actually provision the catering for aircraft. In the various centres, and at different times, this position had been variously titled; Senior Airline Services Coordinator, Dispatch Supervisor, or Dispatch Allocator. Despite the interchangeability of its title, prior to the Brisbane restructure in 2014, this position was fixed at all locations at a level 8 pay classification in the Agreement and predecessor instruments. Essentially, the restructure at Brisbane meant that the level 8 roles were abolished and replaced with level 6 positions who reported to a SPG1.

[11] In early 2016, the employer reviewed the catering operations in each of the catering centres, and it decided to replicate the Brisbane restructure in Perth and Melbourne, with Sydney anticipated to follow in 2017. The employer consulted with the employees impacted by the restructure and their representatives, including the TWU. Although various aspects of the restructure were resolved through consultation, the Parties could not agree that the restructured Dispatch Allocator position was appropriately fixed at a level 6 pay classification. Consequently, the TWU filed the dispute application in this matter as a means to resolve the question of the appropriate pay level classification that should apply to the restructured Dispatch Allocator position.

[12] Following unsuccessful attempts to conciliate the dispute, the Parties accepted that the resolution of the dispute required the Commission making a determination of the outstanding issue of the correct pay classification that should apply to the restructured Dispatch Allocator position. Accordingly, the Parties formulated the following question upon which the Commission was asked to make a determination to resolve the dispute:

“Is the correct classification for the position of allocator/dispatch allocator under clause 18 of the agreement level 6 (as proposed by Qantas) or level 8 as proposed by the TWU?”

The TWU Case

[13] In summary, the TWU has asserted that the matter involved a classification dispute which should be determined to provide for the restructured Dispatch Allocator position to be fixed at level 8 rather than level 6 as had been decided by the employer.

[14] Mr Gibian made submissions on behalf of the TWU which firstly referred to the correct approach that should be adopted for resolution of a classification dispute. Mr Gibian submitted that the correct approach involved an interpretation of the classification descriptors in the Agreement, and an application of those descriptions to the facts and circumstances that were revealed by the evidence. The submissions made by the TWU stated that the particular terms of the Agreement had to be given a construction that would be understood in light of the context of the Agreement as a whole and in particular the various classification levels that were set out in clause 18 of the Agreement.

[15] According to the submissions made by the TWU the correct process of interpretation commenced with a consideration of the actual words in the Agreement, and it was asserted that those words should be given their ordinary meaning in the context of the document as a whole. The TWU submissions referred to various authorities including the Decision of a Full Bench of the Commission in the matter of The Australasian Meat Industry Employees Union v Golden Cockrell Pty Limited  1 (Golden Cockerel). The TWU submitted that the construction to be given to the terms of the Agreement required an objective determination both in the context of the Agreement itself, and having regard for consideration that industrial instruments are properly to be seen as beneficial instruments and therefore a generous construction should prevail over any strictly literal approach.

[16] Mr Gibian submitted that the basis upon which the correct classification should be established involved an examination of evidence of the work actually performed and responsibilities undertaken, including the particular Position Description (PD) documents that had been developed for the restructured Dispatch Allocator position. Mr Gibian said that upon examination of all of the evidentiary material, the particular terms used in the Agreement for the level 8 classification which identified “significant operational responsibility and/or manpower control in excess of level 7 employees ” were appropriately identified by way of the duties, responsibilities and major activities which actually applied to the restructured Dispatch Allocator position.

[17] It was also submitted by Mr Gibian that an examination of the changes that were involved with the restructure established that very little of the duties and responsibilities that were previously part of the level 8 position were actually removed from the restructured level 6 position. Consequently, according to the submissions made by Mr Gibian, the significant operational responsibilities and activities of the level 8 position were retained as significant components of the restructured Dispatch Allocator position. It followed therefore that the restructured Dispatch Allocator position retained the level of significant operational responsibility and/or manpower control that was relevant to the level 8 classification when properly evaluated against the Agreement descriptors used for levels 5, 6 and 7 classifications.

[18] Mr Gibian made submissions which referred to particular aspects of the major activities that were identified in the PD for the restructured Dispatch Allocator position. Mr Gibian emphasised that there were four significant key result areas which supported the proposition that the restructured Dispatch Allocator position should be fixed at the level 8 classification. In this regard, Mr Gibian identified; (1) overall responsibility for ensuring the on time operations in the customer delivery area and the meeting of the timeliness requirements; (2) the financial responsibility primarily ensuring Labour costs are managed consistently with departmental budgets; (3) allocation of work and supervision of employees, not a group or a number of groups of employees, but across all of the employees involved in the customer delivery function; and (4) responsibility with respect to regulatory requirements concerning food safety, occupational safety, customs regulations, security regulations, and compliance with all of those obligations. Mr Gibian said that the collection of these responsibilities was clearly well beyond what would be contemplated within the level 5, 6 and 7 classifications.

[19] In further submissions, Mr Gibian rejected that the consequence of the restructure which did involve the removal of certain people management functions, in any way diminished the primary operational responsibilities of the role. Mr Gibian acknowledged that there was some alleviation of the people management or human resource responsibilities and duties which were taken up by the Duty Operations Manager (SPG1) as part of the restructure. However, Mr Gibian said that the operational responsibilities and the operational roles had been maintained, such that when one applied the level 8 criteria there was sufficient basis for the position to remain within the level 8 classification. Further, Mr Gibian submitted that the operational responsibilities were clearly of the higher order relevant to the level 8 classification.

[20] In summary, Mr Gibian submitted that the evidence provided proper basis to confirm that the restructuring of the catering operations had not removed the higher order operational responsibilities/activities from the restructured Dispatch Allocator position. Mr Gibian submitted that the correct interpretation of the relevant terms of clause 18 of the Agreement, which involved identification of significant operational responsibility and/or manpower control, were applicable to the higher order operational responsibilities that had been identified from the evidence. Mr Gibian urged the Commission to reject the proposition that the identified level of operational responsibilities and duties of the Dispatch Allocator position meant that it was appropriately fixed at the level 6 classification as Qantas had decided. Mr Gibian submitted that the Commission should resolve the dispute by determining that the role of the restructured Dispatch Allocator was a position that fell within the level 8 classification under clause 18.3.9 of the Agreement.

The Employer’s Case

[21] Ms McKenzie appeared for the employer, and she made submissions in amplification of the written submissions which had been filed on behalf of the employer.

[22] The submissions made by Ms McKenzie referred to the restructure of catering operations which had been initially undertaken in Brisbane, and subsequently extended to Melbourne and Perth. Ms McKenzie said that the restructure had been undertaken to improve efficiency and productivity of the business, and to also achieve consistency across all of the four catering centres. Ms McKenzie observed that the restructure resulted in a clear separation of operational responsibilities and management responsibilities whereby the new level 6 Dispatch Allocator was able to focus on the day of operations requirements, whilst the management responsibilities were undertaken by the Duty Operations Manager.

[23] Ms McKenzie submitted that Qantas was entitled to organise its business operations in the way that it believed to be appropriate. In this regard, the restructure which had been initiated in Brisbane had improved the on time performance and performance management of that particular catering centre. Ms McKenzie stressed that it was not correct to characterise the restructuring as involving a downgrading of particular roles or a reduction in pay for those particular individuals. Rather, according to the submissions made by Ms McKenzie, the restructure involved the abolition of certain positions, and the creation of new positions. Ms McKenzie said that the level 8 roles had been made redundant, and some of the previous occupants of those positions had been recruited into the new level 6 Dispatch Allocator role. Further, one of the previous level 8 individuals had been successful in obtaining one of the new Duty Operations Manager positions.

[24] The submissions made by Ms McKenzie also addressed the correct approach that should be adopted in order to determine the correct classification that should apply to the newly created position of level 6 Dispatch Allocator. Ms McKenzie said that it was necessary to properly ascertain the particular work that was performed and was required to be performed by the employer. Ms McKenzie made submissions which distinguished between the work that the employer required of the new position as opposed to the work that one or a few of the employees may wish to do, or may be sufficiently experienced or skilled to do, above and beyond what might actually be required by the employer. Ms McKenzie stressed that the classification was to be ascertained for the position rather than an employee.

[25] Ms McKenzie referred to various authorities which she said established the correct approach to determination of the classification that should apply to the work required of individuals in a particular position. Ms McKenzie summarised the correct approach as involving an examination of the highest function performed on a regular basis which is a reasonable component of the work of the position and which the employer requires to be performed in that position. Ms McKenzie submitted that in the present circumstances it was necessary to draw a distinction between the requirements of the new job and the requirements of the old job, as understood by the individuals who were familiar with working in the previous position. Ms McKenzie said that evidence taken from the occupants of the former role could lead the Commission into error because it would be unduly influenced by the perception of the individuals who had performed the old role, rather than to look objectively at the requirements of the new position.

[26] Ms McKenzie further submitted that the Commission should assess the requirements of the Dispatch Allocator role as a newly created position, and to apply the classification descriptions contained in the Agreement by way of an objective analysis of the role of the new position. In this regard, Ms McKenzie made submissions which referenced the classification structure contained in the Agreement, and she stressed that the Agreement applied to all transport workers employed by the employer including business areas such as freight, ramp services, cleaning and other related operations.

[27] The submissions made by Ms McKenzie provided a detailed analysis of the various levels of classification contained in clause 18 of the Agreement. Ms McKenzie said that the various definitions for the different levels were descriptive rather than prescriptive, and that the various levels had to be considered in context, rising from level 1 as an entry level, through to the highest level being level 8. Ms McKenzie noted that for present purposes level 5 introduced the first level at which an individual was taking greater responsibility for coordinating operations within a work area. Ms McKenzie submitted that when an objective analysis of the work required of the Dispatch Allocator was properly considered, it would be correctly fixed at a level 6 role which identified a degree of responsibility and authority greater than that of the level 5 descriptor.

[28] Ms McKenzie further submitted that the Position Summary contained in the PD that the employer had developed for the Dispatch Allocator position was the most helpful indicator of what the overall substantive character of the position was, rather than any line by line analysis of the activities undertaken by the Dispatch Allocator. Ms McKenzie stressed that the restructure involved a deliberate intention to focus the Dispatch Allocator’s work back onto the day of operations responsibilities. Further, she stressed that the restructure involved the introduction of the Duty Operations Manager position which involved responsibility for the overriding operations in catering such as the management of people and financial management.

[29] It was further submitted by Ms McKenzie that it was relevant to consider the amount of training that was required to become a Dispatch Allocator. Ms McKenzie submitted that the evidence established that the training was essentially on-the-job for a period of time of up to about five weeks, and there was no particular technical training required. The level of training was a further factor which Ms McKenzie said established that the position was correctly classified at level 6 rather than level 8.

[30] Ms McKenzie also submitted that the evidence established that there was a narrowness of responsibility attached to the Dispatch Allocator position. Ms McKenzie said that the particular activity coordinated by the Dispatch Allocator was part of a chain of responsibility which involved various other groups of workers. Further, Ms McKenzie stressed that the work supervised by the Dispatch Allocator involved a number of crews that comprised two persons who were essentially Drivers that conveyed the catering carts to and from the aircraft.

[31] In summary, the employer submitted that the Dispatch Allocator position did not involve overall responsibility for ensuring that the catering requirements for aircraft were met. Instead, this responsibility had been transferred to the Duty Operations Manager and ultimately the relevant Transport Manager. Consequently, Ms McKenzie submitted that the employer had correctly determined that the classification of the role of Dispatch Allocator should be fixed at level 6.

Consideration

[32] The dispute in this instance has involved a contest regarding the correct classification level that should apply to a restructured position of Dispatch Allocator. In order to resolve this question, the Commission has been required to interpret the terms of clause 18.3 of the Agreement which sets out various classification definitions for various wage rate levels between level 1 and level 8. Logically, an analysis of the descriptors that are used in respect of each of the levels must be undertaken. Further, the actual work performed and requirements of the position of Dispatch Allocator have to be carefully assessed in order to properly align that position with the correct level within clause 18.3 of the Agreement.

The Agreement Terms

[33] The various classification descriptors used within clause 18.3 of the Agreement have been examined and considered in the context of both the scheme of wage rate classifications that they create, and the broader context of the overall operation of the Agreement as it applies to various business operations of the employer extending beyond catering operations. It is therefore relevant to examine the detailed terms of clause 18.3 of the Agreement which reads as follows:

“18.3 Classification definitions

18.3.1 Level l - Trainee airlines services operator

• Entrance Level for all new employees.

• A maximum of 12 months on-the-job training and induction.

• Work in all areas up to and including Level2 and 3 duties.

• Employees are required to hold a current State driver's licence, and

where required, DLI licence.

Minimum standards include:

• Company induction

• attendance and punctuality

• defensive driving techniques

• dangerous goods awareness

• consistency and quality of work

• acceptable attitude

• work performance

• ability to work safely, adherence to safe work practices

• three letter port codes

• operation of basic communication and computer aids; and

• acceptable reading and writing skills

An employee must meet and maintain all minimum standards prior to

progressing to another Level.

18.3.2 Level 2 - Airlines services operator

• All functions associated with cleaning, preparation, packaging of

catering equipment, aircraft stores and amenities kits

• General cleaning duties including aircraft and cabin presentation

• Baggage and freight function (non-aircraft AAF only)

• Operation of basic communication and computer aids

18.3.4 Level 3 - Airlines services operator

• Hands-on activities in all areas of work including that which is both

directly and indirectly associated with aircraft handling, and/or AAF

PUD drivers

• Operate equipment and vehicles including tow motors, small vans

tarmac buses, mobile steps, belts, non-tarmac fork-lift and equipment

requiring similar operational skills associated with ramp cargo,

freight, catering, aircraft servicing and general transport operations

• Carry out basic serviceability and maintenance checks of vehicles

and/or equipment, including refuelling of vehicles

• Operate basic communication and computer aids

18.3.5 Level 4 - Airlines services operator

• Operate all in hold aircraft systems and all ground handling and

commercial type airport equipment

• Ground handling equipment means all equipment associated with

ramp, freight/cargo, catering, aircraft servicing and general transport

operations

• Operate communication and computer aids

• Compile reports and documents

• Work without direct supervision

• Carry out basic serviceability and maintenance checks of vehicles

and/or equipment, including refuelling of vehicles

18.3.6 Level 5 - Airlines services co-ordinator

• Responsible for a group of staff in a work area

• Ensure that productivity and performance criteria are met in the

designated area of responsibility, including completion of regular

performance assessment reports

• Responsible for the control, supervision and training of designated

staff

• Make recommendations on all aspects of the operation,

identification of opportunities to improve performance and

productivity

• Organise and co-ordinate work within their area of responsibility

• Carry out various administrative and reporting duties, including the

operation of communication and computer aids

• Form part of the assessment panel for probationary employees

• Must demonstrate leadership, decision making and organisational

skills necessary to efficiently meet performance requirements in a

changing work environment

18.3.7 Level 6 - Senior airlines services co-ordinator

• Responsible for a number of groups of staff

• Otherwise as per Level 5

18.3.8 Level 7 - Senior airlines services co-ordinator

Full responsibility for the loading and unloading of aircraft, including:

• securing of all loaded items

• checking all safety locks and/or other safety devices

• locking aircraft cargo doors

Sign appropriate documentation certifying that the aircraft has been loaded

in accordance with these requirements.

18.3.9 Level 8 - Senior airlines services co-ordinator

• Report to responsible Manager/Supervisor

• Accept significant operational responsibility and/or manpower

control in excess of Level 7 employees; and/or

• Responsible for the development, implementation and co-ordination

of State/Network Training Programmes”

[34] It is also relevant to note that clause 18.4 of the Agreement provides further reference to the skill descriptors used in clause 18.3, and it reads as follows:

“18.4 Skill Descriptors

This classification structure is to be read in conjunction with the Report of the TWU

Classification Structure Review conducted in accordance with terms contained within the Transport Workers (Qantas Airways Limited) Enterprise Agreement IV (1998-2001) that was signed by the parties on 30 April 1999.”

[35] A copy of the 1999 TWU Classification Structure Review Report (the 1999 Report) referred to in clause 18.4 of the Agreement was admitted into evidence during the Hearing. However, the 1999 Report did not provide any particular clarification or other assistance in respect to the resolution of the dispute in this instance. The 1999 Report did demonstrate that the particular terms used in clause 18.3 of the Agreement appear not to have been updated for some considerable period of time. Consequently, it may be appropriate for a comprehensive review of the classification descriptors to be conducted in conjunction with any future agreement negotiations.

[36] The classification level structure contained in clause 18.3 of the Agreement introduces a level of supervisory responsibility at level 5. Significantly, the terminology of “operator” which is found in levels 1 to 4 is replaced with the terminology of “co-ordinator”. There are eight bullet points contained within the level 5 descriptors which can be compared and contrasted with the descriptors used in lower levels. The bullet point descriptors used in level 5 introduce supervisory and organisational responsibilities and functions which are clearly distinct from the descriptors that are used in levels 1 to 4.

[37] The supervisory and organisational responsibilities and functions which are introduced at level 5 are expanded upon for the level 6 to the extent that these responsibilities and functions are applied to a number of groups of staff as opposed to a single group as would be the case for level 5. The expanded scope of the exercise of the supervisory and organisational responsibilities and functions for level 6 is reflected by the introduction of the terminology “senior”.

[38] Consequently, in broad terms, an analysis of the overall structural arrangement established by clause 18.3 of the Agreement can provide for the identification of three distinct groupings. The classification levels 1 to 4 are all of the “operator” group. The classification level 5 is the first level of the “co-ordinator” group. The classification levels 6, 7 and 8 form the “senior co-ordinator” group. There was no suggestion that the restructured Dispatch Allocator position could be classified in any other than the “senior co-ordinator” group. It was also agreed that the classification level 7 had no application to catering operations. Therefore, the functions and responsibilities of the restructured Dispatch Allocator position have been assessed so as to determine whether or not that position would satisfy the terminology used in the descriptors for the level 8 classification or whether, alternatively, the level 5 descriptors applying to a number of groups of staff were appropriate to the position.

[39] The relevant descriptors within the level 8 classification are the words found in the second bullet point, “Accept significant operational responsibility and/or manpower control in excess of level 7 employees.” As it is well understood from application of the principles established in the Golden Cockerel Decision, these words are to be given their plain and ordinary meaning unless some ambiguity is identified. Further, the construction to be provided to these words must be made cognisant of their context in the Agreement, and of their broader and recognised industrial purpose.

The Dispatch Allocator Position

[40] Evidence about the functions, responsibilities and other aspects of the restructured Dispatch Allocator position was provided in the form of testimony from various witnesses, and also by way of the employer’s documentary material including the PDs and a Role Comparison document. In this case I have been conscious of the need to treat particular witness evidence with considerable caution. The evidence provided by witnesses who had occupied the pre-restructure level 8 Senior Airline Services Co-ordinator/Dispatch Allocator positions might, quite naturally, assign functions and responsibilities that were attached to that position as perceived requirements of the restructured level 6 Dispatch Allocator position.

[41] Consequently, the initial focus for examination of the restructured Dispatch Allocator position has involved scrutiny of the PD and Role Comparison documents that were developed by the employer. By way of explanation of the analysis that has been undertaken, two specific documents can be identified as example material. Firstly, the PD document developed by the employer for the Melbourne catering centre and marked as Annexure SOB 7 to Exhibit 2 has been examined. Secondly, further analysis of the Role Comparison document which was attached to numerous witness statements including at Annexure AV 1 to Exhibit 6 has been undertaken.

[42] The Position Summary which is found on the first page of the PD document 2 includes the following text extracts;

● “… responsible [for] day of operations (DOOPs) and Organise [sic] and co-ordinate work within their area of responsibility.”

● “… responsible for ensuring all Safety, Security, Customs, Quarantine and Food Safety standards are compliant with the regulated requirements…”

[43] On the following pages of the PD document an extensive list of major activities which are categorised within nine key result areas have been documented. It is relevant to mention only several of the numerous major activities which have been identified, and the following examples include; “Allocate tasks based on available labour… Manage labour cost containment of departmental activities to budget, with particular focus on overtime controls… Complete shift reports… Oversee the activities of the employees to ensure all flights are serviced in accordance to MPS… Monitor and escalate as required Staff behaviour and performance… Ensure all Day of Operations and work allocation processes are aligned… Undertake all possible actions to achieve no Delays… Monitor and supervise staff performance and work practices to ensure compliance to Customs regulations… Review QA / HACCP records, monitor compliance to standards… Ensure that all tasks and responsibilities comply and conform to the relevant regulatory and quality requirements…”

[44] On any objective and reasonable analysis of the PD document there would be strong, almost compelling basis to conclude that the position that it described would satisfy the terminology used in the second bullet point of the level 8 descriptor set out at subclause 18.3.9 of the Agreement. Having regard for the structural configuration established by the various classification levels found within clause 18 of the Agreement, the PD document reflects a role that, on proper contextual assessment, would involve “significant operational responsibility and/or manpower control.”

[45] Upon examination of the details contained in the PDs it is difficult to understand the basis upon which the employer determined that a role of this nature and manifestly significant operational responsibility was appropriately fixed at the level 6 classification. However, some understanding of the misalignment that has occurred can be extracted from an examination of the second important documentary piece of evidence, the Role Comparison document.

[46] The Role Comparison document contains numerous, direct contradictions when assessed against the content of the PD document. The Role Comparison document sought to identify particular functions and responsibilities which had (purportedly) been removed from the pre-restructure level 8 role. However, upon analysis, the Role Comparison document indicated that various “Accountabilities” were not required of the restructured level 6 Dispatch Allocator position, when those very functions or responsibilities where mentioned in the PD documents.

[47] A comprehensive analysis has established that there were many “Accountabilities” which were identified in the Role Comparison document as not being required of the restructured level 6 Dispatch Allocator but which can be found in the PD. These were not minor or inconsequential functions and responsibilities, as the following examples demonstrate.

[48] Firstly, the Role Comparison document indicates that the restructured role does not involve; “OT allocation/approvals authorities” or “Labour hours to budget control” while the PD states; “Manage labour cost containment of departmental activities to budget, with particular focus on overtime controls.” Secondly, the Role Comparison document indicates that the restructured role does not involve; “DOOPs Planning” yet the PD states; “… responsible day of operations (DOOPs) and Organise and co-ordinate work within their area of responsibility.” Thirdly, the Role Comparison document indicates that the restructured role does not involve; “Manage fault reportings[sic]” but the PD states; “Manage any daily operational variance and escalate to the operational leader…” Fourthly, the Role Comparison document indicates that the restructured role does not involve; “Performance counselling discussions PIPs (formal & informal)” while the PD states; “Monitor and escalate as required Staff behaviour and performance…” Fifthly, the Role Comparison document indicates that the restructured role does not involve; “Investigate delay root causes” while the PD states; “Undertake all possible actions to achieve no delays…” Sixthly, the Role Comparison document indicates that the restructured role does not involve; “Review/approve CCP/HACCP records” yet the PD states; “Review QA / HACCP records, monitor compliance to standards.”

[49] There were many more examples of significant contradictions between the PD and the Role Comparison document, such that the Role Comparison document was most notable for its extensive omissions. Further, the witness evidence that was provided overwhelmingly supported the general accuracy of the PD, and further exposed the significant failures of the Role Comparison document to recognise numerous functions and responsibilities which continued to be required of the restructured Dispatch Allocator position.

[50] Consequently, it appeared that the employer may have decided that the restructured role was appropriately fixed at a level 6 classification by reliance to some extent, upon an assessment extracted from the highly erroneous omissions contained in the Role Comparison document. In simple terms, if the restructured role had actually involved the removal of all of the “Accountabilities” as erroneously presented in the Role Comparison document, there may have been some potential basis for adoption of a level 6 classification. However, the evidence has overwhelmingly discredited the Role Comparison document, and it appears to have operated to lead the employer into unfortunate error.

[51] On balance, it must be acknowledged that the restructured Dispatch Allocator position was a new position which did not include certain functions and responsibilities which were transferred to the newly created Duty Operations Manager (SPG1) position. Importantly, the evidence revealed that, historically in both Melbourne and Perth particular level 8 Dispatch Allocators were removed from daily operations to enable them to perform some of the longer term planning and personnel management functions which, under the restructure, became aspects of the Duty Operations Manager (SPG1) position.

[52] Consequently, particular aspects of the pre-restructure level 8 Dispatch Allocator position no longer form part of the restructured level 6 Dispatch Allocator position. However, the primary operational functions and responsibilities which were previously recognised as part of the level 8 position, have been retained in the restructured role, contrary to the perception created by the Role Comparison document.

Conclusion

[53] In this case, the Commission has been required to determine an agreed question arising from a contest about the application of particular terms contained in the Agreement which deal with the basis upon which the work of particular individuals is classified for remuneration purposes. This classification dispute has been determined having regard for the particular terms of the Agreement, and the context in which those terms should properly apply within a classification structure.

[54] The resolution of the agreed question has primarily focussed upon the terms contained in subclause 18.3.9 of the Agreement, when properly considered in the context of the broader classification structure, together with an analysis of the detailed aspects of the work undertaken by and required of the restructured Dispatch Allocator position.

[55] The competing propositions as to the correct classification that should apply to the restructured Dispatch Allocator position have been carefully evaluated and balanced.

[56] In summary, when all of the evidence regarding the functions and responsibilities of the restructured Dispatch Allocator role has been properly considered and assessed against the relevant terms of the Agreement, that position is one that is appropriately described by the words “Accept significant operational responsibility and/or manpower control in excess of level 7 employees” which appear in subclause 18.3.9 of the Agreement.

[57] Therefore, the answer to the agreed question is that:

The correct classification for the position of Allocator/Dispatch Allocator under clause 18 of the Agreement is level 8 as proposed by the TWU.

[58] Consequently, the application made by the TWU has been granted. The interpretation of the contested terms of the Agreement as was asserted by the TWU has been confirmed to be correct. The dispute is determined accordingly.

COMMISSIONER

Appearances:

Mr M Gibian of Counsel, with Ms W Carr, appeared for The Transport Workers’ Union of Australia.

Ms H McKenzie, solicitor from Ashurst Australia, with Ms A Linton and Ms A Rochford appeared for Qantas Airways Limited and Q Catering Limited.

Hearing details:

2017.

Sydney:

May 30, 31.

 1   The Australasian Meat Industry Employees Union v Golden Cockrell Pty Limited [2014] FWCFB 7447.

 2   Exhibit 2 – Annexure SOB 7.

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