Ventia Australia Pty Ltd v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) - [2025] FWCFB 20

[2025] FWCFB 20

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604 - Appeal of decisions

Ventia Australia Pty Ltd
v

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU)

(C2024/5864)

VICE PRESIDENT GIBIAN
DEPUTY PRESIDENT MILLHOUSE
DEPUTY PRESIDENT HAMPTON

SYDNEY, 3 FEBRUARY 2025

Appeal against decision [2024] FWC 2079 of Commissioner Tran at Melbourne on 5 August 2024 in matter number C2023/5897 – application for reclassification under the terms of an enterprise agreement – interpretation of classification provisions drawn from a modern award – whether relevant competency standards and associated units were correctly assessed and applied to the work – permission to appeal granted – appeal allowed and dispute redetermined.

Background

Ventia Australia Pty Ltd (Ventia) has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (the Act), for which permission is required, against a decision[1] of Commissioner Tran delivered on 5 August 2024 (the Decision). The Decision dealt with an application lodged by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (the AMWU) against Ventia under s 739 of the Act for the Commission to deal with a dispute arising from the Broadspectrum DMSS Enterprise Agreement 2019[2] (the Agreement) in relation to the classification of an employee, Mr Butterfield.

Mr Butterfield is a vehicle mechanic employed by Ventia at the Puckapunyal military base. Ventia provides a wide range of services to support the military operations at the base and these include the servicing of vehicles in which Mr Butterfield was engaged. The s 739 application required the Commissioner to determine the correct classification of Mr Butterfield. The classifications themselves and the associated rules are set by clause 20.2 of the Agreement which incorporates the classifications and reclassification provisions set out in clause 24.3(b) of the Manufacturing and Associated Industries and Occupations Award 2010 (the Award) as it stood at the time of making the Agreement. These include the terms of the National Metal and Engineering Industry Competency Standards Implementation Guide (the Implementation Guide).

The dispute largely involved the implications of the service and repair work being undertaken by Mr Butterfield on the M88A2 Recovery Vehicle, a military vehicle largely used to recover tanks. The M88A2 Recovery Vehicle has the appearance of a tank due to the fact that it has tracks rather than tyres, and its purpose is to recover disabled defence vehicles in the field. It has a crane, a winch, and a spade and there are separate control systems for each of those three hydraulically operated devices. The M88A2 Recovery Vehicle has been operated by the Australian Army for many years.

The resolution of the dispute involves the contested application of three Metal and Engineering Training package qualifications and competency unit documents (the competency standards) that operate in conjunction with the Implementation Guide. In brief terms, if Mr Butterfield was entitled to the additional competency units provided by MEM27025 Maintain, diagnose and rectify fluid controls in mobile equipment, he was eligible to be reclassified as a level C7 (from level C8) under the Agreement.

Ventia contended for various reasons that MEM27025 was not relevant, or at least that the competency units involved were not available to Mr Butterfield, given his existing classification and the nature of the work involved with the M88A2 vehicles.

The Commissioner determined that Mr Butterfield was entitled to be classified at level C7 under the Agreement on the basis that he was eligible to be awarded the relevant competency units under MEM27025 given the work he was performing and the terms of the respective competency standards. That finding is the focus of the appeal.

The Australian Industry Group (the Ai Group) sought to be heard on the appeal. We considered that the submissions from the Ai Group would assist the Commission to inform itself under s 590 of the Act. The considerations leading to that view included that the Ai Group and the AMWU had a significant interest in the proper and consistent application of the Implementation Guide and associated classifications given the broad coverage of the relevant modern award from which they were drawn by the Agreement. These organisations were also directly involved in the creation and administration of these matters at an industry level, and the AMWU was already involved in the matter as a party. In addition, part of the classification assessment process undertaken by the parties under the dispute resolution processes conducted prior to the application included an Assessor engaged by the Ai Group.

All parties and organisations appearing in the appeal were granted permission to be represented by (external) lawyers under s 596 of the Act.

For the reasons set out below, we have determined that permission to appeal should be granted, and the appeal upheld. The basis for these conclusions and the consequential redetermination of the application are set out below.

Permission to appeal

Clause 11 of the Agreement sets out the dispute settlement procedure to be followed in the event of a dispute arising between an employee, or group of employees, and Ventia. Clause 11.6 permits a dispute to be referred to the Commission as follows:

11.6 If a dispute in relation to a matter arising under the Agreement is unable to be resolved at the workplace, and all the steps at sub-clauses 11.4 or 11.5 for resolving it have been taken, the dispute may be referred to the Fair Work Commission (“FWC”) for resolution by mediation and/or conciliation and, where the matter in dispute remains unresolved, arbitration. If arbitration is necessary, FWC may exercise the procedural powers in relation to hearings, witnesses, evidence and submissions which are necessary to make the arbitration effective. Appellant rights normal to the federal industrial relations tribunal will apply.

Where a dispute is referred to the Commission, the member of the Commission hearing the matter acts as a private arbitrator. The final sentence of clause 11.6 provides that “appellant rights normal to the federal industrial relations tribunal will apply”. This is to be understood as a reference to the provision which is made in s 604 of the Act to appeal a decision of the Commission.

An appeal under s 604 of the Act is an appeal by way of rehearing. The Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. This is so because on appeal the Commission has power to receive further evidence, pursuant to s 607(2).[3] There is no right to appeal under the Act and in this case no right to appeal has been created by the relevant terms of the Agreement. Accordingly, an appeal may only be made with the permission of the Commission.[4]

Permission to appeal must be granted if the Commission is satisfied that it is in the public interest to do so. Permission to appeal may be granted on grounds other than the public interest.[5] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[6] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated.[7] However, the fact that the first instance decision maker made an error is not necessarily a sufficient basis for the granting of permission to appeal.[8]

The AMWU submits that the dispute concerning the classification of Mr Butterfield is an evaluative decision involving the application of broad principles to facts and, as a result, the discretionary standard is to be applied on appeal.[9] That is wrong. The fact that the determination of the correct classification that applies to Mr Butterfield’s work can be characterised as evaluative, or is on a topic on which minds might reasonably differ, does not mean that decision is properly to be described as discretionary. The line is drawn by reference to whether the legal criterion applied to reach the conclusion demands a unique outcome, in which case the correctness standard applies, or tolerates a range of outcomes, in which case the House v The King standard applies.[10] The dispute concerning the interpretation and application of the classifications in the Agreement to Mr Butterfield is capable of having only one legally correct answer.[11] Either Mr Butterfield is entitled to be reclassified, or he is not. The correctness standard applies to that question. The issue on appeal, if permission is granted, is simply whether the answer given by the Commissioner was correct or incorrect.

Ventia submits that it is in the public interest for permission to appeal to be granted and that the decision contains significant errors and should not be allowed to stand. It further asserts that “the reclassification rules in clause 24.3(b) of the Award, including those in the Implementation Guide (see clause 24.3(b)(ii)), apply to all employers and employees to whom the Award applies and those covered by enterprise agreements that incorporate the Award provisions.”[12] Ventia’s position is that if the decision stands, the interpretation adopted by the Commissioner of the reclassification rules in the Implementation Guide:[13]

Would have costly implications for the Appellant given its large workforce.
·Could lead to a large number of employees in the industries and occupations covered by the Award making reclassification claims.

·Would have costly implications for a large number of employers covered by the Award, given the reclassifications that would most likely occur.

·Would be unjust for the Appellant and other employers covered by the Award.

·Could lead to industrial disputation in many workplaces covered by the Award.

·Would demonstrate that the reclassification processes in the Award are unworkable.

·Would impose a substantial barrier on the updating of the Manufacturing and Engineering Training Package (MEM) to ensure that it remains relevant. Any additional weighted competency units that are added to the industry training package would most likely result in employees being reclassified, without any change to the employees’ skills or duties. An outdated industry training package would impact upon training and skills enhancement in the manufacturing and engineering industries, to the detriment of employees and employers.

Ventia also contends that this would be the first time that the relevant Award provisions, which are called up by the Agreement, have been considered by a Full Bench.

The AMWU submits that the “public interest is not satisfied by the identification of an error, or a preference for a different result.”[14] It further contends the appeal does not raise any issues of importance or general application and that no evidence was supplied by Ventia to support the assertions about the impacts of the Decision. According to the AMWU, the appeal relates to “a single unit of competency, a single employee, and a single vehicle on which the employee works” and the grounds of appeal are motivated by a preference for a different result.

We are satisfied that it is appropriate to grant permission to appeal in this matter. As will be apparent from the reasoning below, we consider that the decision of the Commissioner is attended by sufficient doubt to warrant its reconsideration. Furthermore, the Agreement and its classification structure applies to other employees engaged by Ventia and the issues raised have potential consequences for the relevant modern award more generally. For those reasons, it is in the public interest for permission to appeal to be granted and, even if the public interest was not enlivened, we would exercise the residual discretion to grant permission to appeal.

The decision under appeal

The decision issued by the Commissioner dealt with a dispute about the correct classification of Mr Butterfield under the Agreement. Mr Butterfield contended that he should be classified as a C7 rather than C8 (his then current classification).

The decision recorded that there was no dispute about the classification process itself in the following terms:

[5] The parties agree that the classification process is contained in the Agreement at Clause 20.2.3. Clause 20.2.3 provides that where there is a dispute about classification, Clause 24.3 of the Manufacturing and Associated Industries and Occupations Award 2010 (the Award) applies. Clause 24.3 of the Award provides that the procedure for classifying employees is a set out in the National Metal and Engineering Industry Competency Standards Implementation Guide.

Each party identified a qualified skilled assessor to attend the workplace and inspect Mr Butterfield’s work and write an assessment report as part of the classification process.[15] Mr Murray from the Ai Group undertook that task on behalf of Ventia and Mr Baxter did the same on behalf of the AMWU. The Commissioner observed:[16]

[7] There was significant agreement in the assessment reports of Mr Baxter and Mr Murray. However, Mr Baxter’s assessment awarded a competency unit – MEM27025 – to Mr Butterfield that Mr Murray did not. The parties agreed during the hearing that the only question to be determined by me is whether Mr Butterfield is entitled to the competency unit MEM27025. If I answer yes to that question, then the parties agree that Mr Butterfield must be classified to C7.

The Commissioner found Mr Butterfield was entitled to the competency unit provided by MEM27025 and this was based upon an understanding about how the competency standards and associated units applied commencing with the different competency unit bands as follows:

[18] MEM27025 is a B Band unit of competency; MEM27017 and MEM27016 are both A band units of competency. B Band units require more complex understanding of a specific area than A Band units.

The Commissioner then described the relevant competency standards (units) in the following terms:

[22]     Competency unit MEM27025 “defines the skills and knowledge required to install and repair and/or rectify fluid power controls used in mobile equipment applications. It applies to hydraulic fluid power systems control circuits. […] It covers fault finding of fluid power systems control circuits, maintaining and repairing or replacing system control components.”
[23]     In contrast, competency unit MEM27017 “defines the skills and knowledge required to test, fault find and rectify hydraulic systems used in the earthmoving, agricultural and transport industries. It covers identifying the hydraulic system components used on mobile plant, general servicing and identifying faults that are related to electronic and fieldbus controls and communication.” Competency unit MEM27017 requires that other competency units are referred to where skills and knowledge relating to rectification of electronic controlling systems, communication systems and fieldbus controls on mobile and stationery plant are used.
[24]     One of those competency units – MEM27016 – “defines the skills and knowledge required to test, diagnose and fault find electronic control systems associated with mobile and stationery plant and equipment.” MEM27016 “applies to whole of equipment diagnosis and rectification.”

In differentiating between the three competency standards and determining which competency units were relevant to Mr Butterfield, the Commissioner concluded:

[26]     Competency units MEM27017 and MEM27025 deal with hydraulic systems, whereas MEM27016 deals with electronic systems. Competency unit MEM27025 requires more complex skills and knowledge and deals with more complex hydraulic equipment and components because what is being maintained and repaired using the competencies covered by MEM27025 is a more complex, whole control system that involves sequencing, whereas MEM27017 relates to maintenance and repair of hydraulic systems or components within a system. Both MEM27025 and MEM27016 deal with whole systems, but MEM27025 deals with a hydraulic control system, whereas MEM27016 deals with an electronic whole system.
MEM27025 is the competency unit that best fits
[27]     Both Mr Baxter and Mr Murray agree that in applying the Implementation Guide to a classification issue in a workplace, the general principle is to find the most appropriate competency unit that reflects the work being performed. I am of the view that the work performed by Mr Butterfield on the M88A2 Recovery Vehicle is properly recognised in competency unit MEM27025.
[28]     The M88A2 Recovery Vehicle is specialised vehicle used to recover heavy military tanks which cannot right themselves if they roll over. The M88A2 is used to exert significant power via crane and winch to lift the weight of the tank, to allow any people to escape.
[29]     The key system powering the operating purpose of the M88A2 Recovery Vehicle is hydraulic, so MEM27016 is not an appropriate competency unit to cover the work involved in maintenance, diagnosis and repair of the hydraulics in the M88A2.
[30]     In turning to whether MEM27017 fully recognises the work involved in maintenance, diagnosis and repair of M88A2 Recovery Vehicles, I consider the distinction between the two units regarding complexity, control systems and sequencing. In particular, I have regard to inclusion of transducers, fieldbus control units, joysticks, timers, and counters as examples of fluid power control systems in the range of conditions described in MEM27025, which can be contrasted with simpler components of actuators, pumps, valves, reservoirs and fittings referred to in MEM27017.

The Commissioner indicated that she was persuaded that Mr Butterfield could demonstrate that he meets each of the elements within competency unit MEM27025. With respect to elements 2, 3, 4 and 5, the Commission observed that whether Mr Butterfield was able to demonstrate these elements relies on an assessment of the complexity of the system with which he must interact.[17] With respect to element 6, the Commissioner concluded:

[39] Element 6 deals with the control circuit and sequence. Mr Butterfield gave evidenceof the whole sequence of events and that he must track from a component (the example he gave was a lever) ‘all the way down’ to find if the transducer, or something else in another part of the sequence is the problem. It was clear that Mr Butterfield understood that he must consider the circuit and the sequence in checking and repairing the power control systems in the M88A2.

The Commissioner assessed Ventia’s submission that Mr Butterfield’s work on the M88A2 was only a very small part of his duties and concluded:[18]

… I do not consider it necessary to determine the relevance of the amount of time that Mr Butterfield spends on this work. I understand my task to be assessing whether Mr Butterfield meets the requirements to have awarded to him the competency unit MEM27025.

In relation to Ventia’s contention that reliance upon MEM27025 represented an inappropriate double counting of competency units, the Commissioner determined as follows:[19]

… I have earlier discussed the distinction among the competency units and my conclusion regarding Mr Butterfield achieving the competency unit of MEM27025. That is the only question I was asked to answer in respect of Mr Butterfield’s re-classification, as the parties otherwise agreed in relation to Mr Butterfield achieving other competency units, which enable him to be re-classified if he could also demonstrate competency unit MEM27025.

In effect, the Commissioner concluded[20] that Mr Butterfield should be reclassified to level C7 under the Agreement as he is required to hold and use the competencies covered by the competency standard (unit) MEM27025.

Appeal Grounds

The eleven appeal grounds Ventia relies upon are as follows:

Appeal Ground 1: The Commissioner erred by not following the reclassification rules in the Implementation Guide.
Appeal Ground 2: The Commissioner erred in deciding that competency unit MEM27016 does not adequately cover the relevant maintenance and repair work that Mr Butterfield carries out on the electronic control system of the M88A2 recovery vehicles.
Appeal Ground 3: The Commissioner erred in holding that MEM27016 deals with an electronic whole system (para [26] of the Decision) rather than an electronic control system, and that it is distinct from and not appropriate (para [29]) to the control of hydraulics in the M88A2 recovery vehicle.
Appeal Ground 4: The Commissioner erred in deciding that competency unit MEM27017 does not adequately cover the maintenance and repair work that Mr Butterfield carries out on the hydraulic systems on the M88A2 recovery vehicles.
Appeal Ground 5: The Commissioner erred in deciding that the combination of the competency units MEM27016 and MEM27017 does not adequately cover the work that Mr Butterfield carries out on the fluid power system and its controls in the M88A2 recovery vehicles.
Appeal Ground 6: The Commissioner erred in deciding that the relevant work that Mr Butterfield carries out meets the requirements of competency unit MEM27025.
Appeal Ground 7: The Commissioner erred by failing to give any apparent weight to the Performance Evidence, the Knowledge Evidence and other elements of the Assessment Requirements for MEM27016, MEM27017 and MEM27025.
Appeal Ground 8: The Commissioner erred by failing to apply the important rule in the Implementation Guide that there is to be no ‘double counting’.
Appeal Ground 9: The Commissioner erred by focusing on the question – ‘which competency unit is the best fit?’

Appeal Ground 10: The Commissioner erred by disregarding the fact that Mr Butterfield was re- classified to C8 in 2019 for the work that he was, and still is, carrying out, and that the relevant work has not changed since that time.
Appeal Ground 11: The Commissioner erred by failing to take into account the common tasks that Vehicle Mechanics in 2024 are required to carry out in performing their duties, including using diagnostic devices that are connected to engines and other vehicle components.

The submissions of the parties

Ventia submissions

In submissions, Ventia grouped the various grounds of appeal, and we have adopted this approach in summarising its position on the appeal.

Appeal Grounds 1, 8 and 9

These grounds relate, in effect, to how the Commissioner approached the determination of the correct classification. Ventia contends that “if particular competency units have been matched to the skill requirements of the job and these adequately cover the work performed, it is not appropriate to go searching for further competency unit/s to cover the work.”[21] Ventia further contends that the Commissioner erred by considering only whether Mr Butterfield was entitled to competency unit MEM27025.[22] Rather, the broader question that was required for determination was “Is Mr Jake Butterfield entitled to be reclassified to a C7 classification pursuant to the Broadspectrum DMSS Enterprise Agreement 2019”. This it contends required the Commissioner to consider two key questions, namely:

… do competency units MEM27016 and MEM27017 adequately cover the relevant work that Mr Butterfield is carrying out on the M88A2 recovery vehicles; and, second, if so, is Mr Butterfield entitled to claim competency unit MEM27025 for the work that he is carrying out?

Ventia submits that “if MEM27016 and MEM27017 adequately cover the relevant work, the issue of MEM27025 does not arise and Mr Butterfield is not entitled to be reclassified to C7”.[23] This, it contends, arises from the correct application of step 3 in the 5-step process in the Implementation Guide on the basis that “MEM27016 and MEM27017 were awarded to Mr Butterfield in 2019 for the work he is now basing his reclassification claim upon” and which has not changed since 2019.[24] Ventia further contend that step 3 does not require an assessment of whether MEM27016, MEM27017 or MEM27025 are the “best fit”,[25] and that assessment would only be relevant if none of the three competency units had been awarded to Mr Butterfield.[26]

Ventia also relies upon the requirement of Step 3 which requires ‘double counting’ be avoided.[27] Ventia contends that under the reclassification rules, MEM27025 can only be awarded if the relevant skills have not already been recognised through competency units previously awarded to Mr Butterfield.[28] Ventia alleges that the Commissioner’s decision[29] indicates that the avoidance of ‘double counting’ was not taken into account which was a material consideration, and this failure led to an error.

Appeal Grounds 2 and 3

With respect to grounds 2 and 3, Ventia contends that Mr Butterfield’s claim for reclassification was largely based upon the work he performs in “calibrating transducers and replacing them if faulty”.[30] It further submits the work Mr Butterfield performs is “squarely covered by MEM27016” which is why he was credited with this unit in 2019. Ventia’s position is that Mr Butterfield’s work in calibrating transducers is covered by MEM27016, as was indicated by Mr Murray.[31]

Ventia submits there is no basis for the Commissioner’s conclusion that “MEM27016 deals with an electronic whole system rather than an electronic control system”[32] or that MEM27016 is not applicable to the electronic control system that controls the hydraulics on the M88A2 vehicles.[33]

Appeal Grounds 4 and 5

With respect to grounds 4 and 5, Ventia contends that, consistent with Mr Murray’s evidence, “Mr Butterfield’s work in identifying, tracing and repairing faults in the hydraulic systems in the M88 recovery vehicles is squarely covered by MEM27017 (except for the work in calibrating transducers, which is covered by MEM27016).”[34] Ventia asserts that, as a consequence of Mr Butterfield being awarded MEM27017 in 2019 and being reclassified from C9 to C8 and paid for the use of these skills, he is not entitled to be paid twice.[35] Ventia also contends that the combination of competency units MEM27016 and MEM27017 adequately covers the work of Mr Butterfield in relation to the fluid power systems and its controls on the M88A2 recovery vehicles. The contrary conclusion of the Commissioner was said to be an error.

Appeal Ground 6

This ground deals with the findings of the Commissioner as to the requirements of MEM27025. Ventia suggests that, if appeal ground 5 is upheld, the Full Bench will not have to turn their mind to this ground on the basis that once a skill is recognised by awarding a competency unit, it would be a breach of the reclassification rules to award another competency unit for the same work, and doing so would constitute ‘double counting’.

In the alternative, Ventia’s position is that Mr Butterfield’s work does not include the essential element of MEM27025, and the Commissioner did not provide reasoning as to why she concluded Mr Butterfield meets the requirements of elements 3, 4, and 5 other than referring to “the complexity of the system he must interact with”.[36] Further, it contends that references in the Decision to Mr Butterfield having to “consider the circuit and the sequence in checking and repairing the power control systems in the M88A2”[37] were not examples of checking and adjusting sequences of fluid power controls as contemplated by MEM27025.

Ventia contends Mr Butterfield does not understand ‘control sequencing’ or engage in it, and submits that this concept does not relate to the order in which maintenance tasks are carried out.[38] Ventia argues that “sequencing circuits are those that automatically program two or more hydraulic cylinders (actuators) on a machine to cause them to extend and retract in a predetermined sequential order on every cycle.” It further highlights the Australian Industrial Relations Commission has noted the complexity of hydraulic machinery that incorporates control sequencing technology.[39] Ventia suggested that it was evident Mr Butterfield had little knowledge of various types of equipment and concepts referred to in the Knowledge Requirements for MEM27025 including analogue controllers, pulse width modulation and solenoid coils.[40]

Appeal Ground 7

With respect to ground 7, Ventia contends that the Commissioner failed to give any weight to the “Performance Evidence, the Knowledge Evidence and other elements of the Assessment Requirements” for the relevant competency units.[41] This, it submits, included ‘knowledge of the operations and principles of transducers used in control systems’ (MEM27016), the performance requirements of element 3 of MEM27016, and the knowledge requirements of MEM27025 including in relation to analogue controllers, pulse width modulation and solenoid coils.

Appeal Ground 10

With respect to ground 10, Ventia contends a material consideration the Commissioner failed to contemplate was that Mr Butterfield was reclassified to C8 in 2019 for the work he was and is still carrying out due to the reclassification rule that double counting must be avoided.[42]

Appeal Ground 11

Finally, with respect to ground 11, Ventia suggests that Mr Butterfield relies heavily on the fact that he calibrates transducers in the M88A2 vehicles by connecting a maintenance support device and he agreed to perform this work prior to 2019 when he was reclassified to C8. It further suggests that most vehicle mechanics under the Award connect diagnostic devices to engines and are classified at C10 and there is no indication the Commissioner took this into consideration.[43]

AMWU submissions

The AMWU submits there was no error by the Commissioner in finding Mr Butterfield was entitled to be awarded competency unit MEM27025. In broad terms, it contends that neither MEM27016 nor MEM27017 cover the nature of the sequencing work performed by Mr Butterfield on the M88A2 vehicle, whereas MEM27025 does. This, it contends, means that the additional competency units applied and classification C8 was appropriate.

In dealing with the dispute, the AMWU contends that the Commission should not approach the matter based upon the presumption that the 2019 reclassification of Mr Butterfield was appropriate or that it prevented access to the additional competency units relied upon by the Commissioner. As to the factual findings made by the Commissioner, the AMWU submits that she had the benefit of seeing and hearing the witnesses and M88A2 vehicle, and observing a demonstration conducted by Mr Butterfield. Further, it contends, in effect, that the Commissioner stated the basis upon which certain evidence was preferred, and that this was open to her.

In the alternative, it submits the matter should be remitted to the Commissioner for redetermination on the basis the case turns on the consideration of factual material and real-world observations, and the Commissioner had the benefit of observing first-hand Mr Butterfield’s work which is unavailable to the Full Bench on appeal.[44]

As with the submissions of Ventia on the appeal grounds, we have grouped the submissions of the AMWU on the various appeal grounds to reflect the manner in which they were advanced.

Appeal Grounds 1 and 8

These grounds all relate to the alleged failure of the Commissioner to follow the Implementation Guide. The AMWU asserts that double counting could only occur if MEM27016 and MEM27017 adequately cover the work performed by Mr Butterfield (in which case MEM27025 would be “double counting” those competencies). If not, there can be no double counting.[45] On this basis, the AMWU contends grounds 1 and 8 fail for the same reason grounds 2, 4 and/or 6 fail. That is, MEM27016 and MEM27017 do not adequately cover the relevant work performed by Mr Butterfield.[46]

Appeal Grounds 2 and 3

The AMWU contends Ventia wrongly generalises that a sensor (as a type of transducer) comprises all forms of transducers.[47] It further submits the evidence at first instance was that Mr Butterfield performed work on hydraulic actuators which was not covered by MEM27016, and, on this basis, the Commissioner correctly found this competency did not cover Mr Butterfield’s work on the hydraulic systems of the M88A2 vehicle.[48]

The AMWU submits Mr Butterfield performs work which covers the entire fluid power system and incorporates the following functions:[49]

(a)       electronic control systems; and
(b)       transducers (electric and hydraulic); and
(c)       actuators (which convert energy into mechanical motion); and
(d)       the sequencing of the above.

In differentiating the functions and scope of the various competency units, the AMWU contends:[50]

19.     MEM27016 is focused primarily on the electronic control systems. If MEM27016 does mention a subset of transducers (sensors), it does not cover their sequencing and integration within the entire fluid power system.
20.     MEM27017 is focused primarily on the hydraulic system (which does not include pneumatic components). If MEM27017 does mention actuators, it likewise does not cover their sequencing and integration within the entire fluid power system.
21.     MEM27016 and MEM27017 not only (1) do not cover all kinds of transducers but also (2) treat components in effect in isolation, divorced from their sequencing and integration within the entire fluid power system.
22.     The key difference with MEM27025 is that it covers the entire fluid power system—not only the separate hydraulic components and the electronic control systems that manage those components, but also, their integration. That is, it deals with the sequencing of the system (the order of operations of different components in time). Further, it deals with transducers without limitation to a specific subtype.”

The AMWU maintains that, even if appeal ground 3 was an error, it is not capable of materially affecting the decision.

Appeal Grounds 4 and 5

The AMWU submits that these grounds of appeal are largely dealt with under ground 2. In any event, it submits that Ventia’s approach that “an actuator is a type of transducer” is not based on any evidence and fails to acknowledge that if an actuator is a type of transducer, it is a subset of transducer and does not cover the full range.[51] That is, there are different kinds of transducers including electrical and hydraulic and these are treated differently under the competency standards.

Appeal Ground 6

The AMWU contends that the primary issue raised by Ventia is whether Mr Butterfield performs “sequencing work”. The AMWU asserts that both Mr Butterfield and Mr Baxter provided evidence that he performed sequencing work. Further, it submits that the Commissioner did not confuse sequencing work with tracing faults as indicated by the fact that the Decision references both control sequencing and fault tracing.[52]

The AMWU contends fault tracing and control sequencing can work together and the fact that the Commissioner referred to only one does not mean the two concepts have been confused or that Mr Butterfield does not perform both.[53] The AMWU submits there is no evidence to support Ventia’s assertion that the M88A2 vehicle lacks control sequencing as contemplated by MEM27025.[54] Further, that the Commissioner appropriately assessed the complexity of the systems, the control system and sequencing in reaching her conclusions and there was no other way in which the sequencing work involved here could have been captured.[55]

Appeal Ground 7

With respect to ground 7, the AMWU maintains that the Commissioner was not required to refer to each element of the Performance Evidence, Knowledge Evidence and other elements of the Assessment Requirements for MEM27016, MEM27017 and MEM27025.[56] That is, the competency standard itself was the relevant document. Further, it relies upon the Commissioner’s statement that “While I may not engage with every argument or submission made, I have considered all of the materials in reaching my decision.”[57]

Appeal Ground 9

As to the focus of the Decision, the AMWU contends the key question the Commissioner asked was “whether MEM27016 and MEM27017 fully recognises the work involved in maintenance”,[58] which is the same as asking whether those units “adequately” cover the work. This, it asserts, is the very question Ventia claims the Commissioner failed to ask at first instance.”

In the alternative, the AMWU contends that the Commissioner would have reached the same conclusion regardless of how the question was posed.[59] It summarises the Commissioner’s conclusion as being that MEM27016 and MEM27017 (together and separately) do not adequately recognise the work Mr Butterfield is carrying out (in relation to sequencing) and, as a corollary, Mr Butterfield is entitled to claim competency unit MEM27025, which does cover sequencing.[60]

In the further alternative, the AMWU puts that it was open to the Commissioner to consider which unit was the “best fit” as the Implementation Guide stresses “the unit at the right level of complexity for the job must be selected”.[61]

Appeal Ground 10

With respect to ground 10, the AMWU asserts it is unclear what this ground is alleging and submits that the Commissioner had regard to Mr Butterfield’s reclassification and gave reasons for why it was not a relevant consideration given the question the parties asked the Commission to answer.[62] It further contends that, in any event, double counting does not occur for the reasons set out in their submissions at appeal ground 8.[63]

Appeal Ground 11

With respect to ground 11, the AMWU submits that “the Commissioner did not decide that Mr Butterfield’s work was covered by MEM27025 because he “connected devices to vehicle engines and other components to enable the software on those devices to diagnose problems””.[64]

Ai Group submissions

The Ai Group supports the submissions of Ventia and contends the decision should be overturned by the Full Bench given the “substantial errors” made by the Commissioner. It maintains that Mr Butterfield is correctly classified at C8 and if his work changes in the future, he is able to apply for reclassification at that time. The Ai Group also made additional submissions in relation to the classification process under the Award, its associated history, the reclassification rules, and the operation of the Implementation Guide.

Consideration and disposition of the appeal

The dispute required that the Commissioner consider and decide whether the work performed by Mr Butterfield warranted his reclassification to level C7. This, in turn, required the Commissioner to consider the proper application of the Implementation Guide and the competency standards and associated units to his work, and in particular, the work undertaken on the M88A2 recovery vehicles, which was the focus of the reclassification request.

We observe that there are a large number of competency standards and associated competency units that have been issued in connection with the classifications in the Award, although we only need to deal with the three relied upon by the parties in this matter.

As correctly identified by the Commissioner, the Implementation Guide recognises two different bands of competency units, A and B band units. Some units are recognised as dual A and B band units. The Implementation Guide also establishes different requirements associated with each of the classification levels. Up to level C7, both A and B band units may be utilised. At the C8 level and above, only B band (or dual A and B band) competency units are relevant. The C7 level is the equivalent of the former tradesperson special class level II[65] under the arrangements that predated the introduction of the current award structure.

Mr Butterfield holds formal qualifications for the C10 level and has been accredited with the additional competency units to lead to classification level C8. This included recognition in 2019 of sufficient competency units, including under MEM27016 and MEM27017 based on his work, which include the present work being undertaken on the M88A2 vehicles. We observe that Mr Butterfield, who had previously worked on the M88A2 vehicles, undertook a 12-week Defence Department course on maintaining them in 2018.

Consistent with the Implementation Guide and related requirements, to qualify for level C7, Mr Butterfield required a total of 36 additional ‘points’ above the C10 level, and these must be B band or dual A and B band units. Accordingly, given Mr Butterfield’s circumstances, he would only be entitled to be reclassified to level C7 if the B band competency units provided by MEM27025 applied. This is not in dispute.

The process contemplated by the Implementation Guide includes the following steps as directly relevant to this appeal:

(a)Skills analysis (and redesign) of the position – requiring in effect an analysis of the work performed, and the skills used on the job to perform that work;[66] and
(b)Matching of the identified skill requirements to the competency standards.[67]

In relation to the second of these steps, the Implementation Guide provides the following summary guidance which draws upon a more detailed explanation in the document:[68]

In this step, objectively analyse the skills and knowledge needed to carry out the work in your enterprise. You do this by matching the work requirements identified in the previous step with the corresponding competency units in the competency standards:
·           Using the index in the competency standards as a guide, select those competency units which best reflect the jobs and skill areas you have identified. The objective is to arrive at a draft list of the competencies which an employee would need in order to undertake the tasks identified during the skill analysis and redesign (Step 2).
·           Go to the relevant competency unit and determine whether it properly reflects the skills required for the job. Be very careful when you do this, because units within the same field may vary considerably in the degree of difficulty, complexity and level of knowledge required. Whether the unit falls into Specialisation band A, B, C or D, and the number of weighting points given to the unit indicate the appropriate level of skill. For example, there is much less involved in the competency unit ‘Plan to undertake a routine task’ than ‘Plan a complete activity’. Take care, too, to avoid double counting, because some of the units overlap — that is they include elements which may also be found in other units. For example ‘Mechanical assembly’ includes the recording and input of data, so it may not be necessary to also select a unit like‘ Organise and analyse information’ as well.
Caution: Do not rely on the unit titles in the index alone, as they are not intended to be a full description of the skills covered by the competency units they refer to, or to their degree of difficulty. Read the unit’s elements, performance criteria and range statement.
… …
Before you do anything with the lists of competency units for jobs or skill areas you have developed in this step, you need to understand and apply the industrial relations principles, particularly the ones described in sections 3.13 to 3.15.
Things to watch are:
·           include pre-requisite units
·           avoid double counting
·           consider underlying knowledge and skills
·           select the unit at the right level of complexity for the job

Although the AMWU invited the Full Bench to treat the “Caution” above as meaning that the associated assessment documents were not relevant, we consider that these documents inform the proper scope and application of the competency standards and the associated units.

We accept that the work of Mr Butterfield has not relevantly changed since he was reclassified as a level C8. We will return to the basis of this reclassification and whether the competency standards were appropriately applied later in this decision. This fact brings into focus the approach taken in the Implementation Guide to the notion of avoiding double counting. The term ‘double counting’ is defined in the guide as follows:[69]

double counting This term is used in this Guide in respect of both competency units and pay increases. Double counting of the weighting points of a competency unit may occur where that competency unit appears more than once in the same skill profile. Double counting may occur in terms of a pay increase where an employee has already received a payment for the skills.

Consistent with this definition, the avoidance of double counting is referenced in two ways including that set out earlier as applying to the use of the competency standards. The notion of double counting is also referenced in the “Industrial Relations Issues” section of the guide in the following terms:[70]

3.7 Reclassification and actual wages
The effect of reclassification on the actual wages of an employee will vary as outlined in the following examples:
· When the extra skills or knowledge identified in the competency standards are exactly the same as the ones for which the employee is already receiving a specific additional payment (such as through a certified agreement, or an Award or over-Award payment), then there is no double counting. Any increase as a result of reclassification may be discounted by the specific additional payment already received; that is, the additional payment already received can be subtracted from any increase due to reclassification.

· When there are already other employees in your enterprise doing work of a nature similar to the employee being considered for reclassification, and they are correctly classified at the higher level, then the rate of pay should be based on the employee’s skills and competencies, taking into account the rate already being paid to the employees who are at the higher classification level.
· When there are no other employees in your enterprise already doing work of a nature similar to the employee being considered for reclassification, then a new wage rate for the higher level will need to be determined for your enterprise. This should provide at least a wage increase of the difference between the minimum Award rates for the employee’s old classification level and the minimum Award rates for their new classification level.

In this matter, we consider that it is primarily the potential double counting of skills recognition given the overlap of some of the competency units and the 2019 reclassification that may be relevant. The proper application of this concept is that the Implementation Guide requires that, if the competencies are adequately recognised by the existing competency units and have already been taken into account in the earlier classification process, they are not available as a basis to support additional recognition of the same competencies as units under a different competency standard. We also observe that the 2019 reclassification provided for an increased wage payment and if this was appropriately based on the competency standards relied upon by Ventia and no additional skills or competencies were evident, the rule against double counting provided by the ‘industrial relations issues’ may also be relevant.

Before dealing with the application of these aspects to the circumstances of Mr Butterfield, it is appropriate to consider the coverage and detail of the three competency standards (units) relevant to this matter. Each of the competency standards are potentially applicable to mobile plant and equipment, which would include the M88A2 vehicles, which also have electronic control systems and hydraulic (fluid) systems. Each of the competency standards also have an associated Assessment Requirements document that must also be considered.

Although the primary dispute as identified by the Commissioner directly involves two of the competency standards, all of the competency standards that were utilised in the 2019 reclassification are an important part of the context. MEM27016 applies to the following:[71]

Modification History
Release 1. Supersedes and is equivalent to MEM18047B Diagnose and maintain electronic controlling systems on mobile plant
Application
This unit of competency defines the skills and knowledge required to test, diagnose and fault find electronic control systems associated with mobile and stationary plant and equipment.
It applies to whole of equipment diagnosis and rectification and complements diagnostic and rectification skills contained in individual system units of competency.
Where electronic systems associated with communication between the mobile or stationary plant and external communication sources such as those used for remote guidance or monitoring unit MEM27018 Test, diagnose and rectify mobile and stationary plant external monitoring and control systems should also be selected.
Where the repair of electronic circuitry associated with these systems. is required unit
MEM18056 Diagnose and repair analog equipment and components and unit MEM18057 Maintain/service analog/digital electronic equipment, should also be selected as appropriate.
No licensing, legislative or certification requirements apply to this unit at the time of publication.
Band: A
Unit Weight: 4

The stated elements and performance criteria include the performance of diagnostic tests and the rectification on “electronic controlling systems” and changing operating parameters including the use of appropriate software and hardware. The range of conditions includes the following:[72]

Range of Conditions
This field allows for different work environments and conditions that may affect performance. Essential operating conditions that may be present (depending on the work situation, needs of the candidate, accessibility of the item, and local industry and regional contexts) are included.
Plant and equipment systems include one (1) or more of the following:
•          discrete logic
•          analogue monitoring
•          microprocessor monitoring
•          control systems

Maintenance includes one (1) or more of the following:
•          wiring harness faults
•          testing and identifying faulty:
•          sensors
•          actuators
•          control components

•          replacing and making adjustments to:
•          input components
•          output components
•accessing data from electronic control unit and applicable manufacturer software/hardware to change operating parameters

Input components include one (1) or more of the following:
•          sensors
•          actuators
•          resistors
•          capacitors
•          diodes
•          transistors
•          integrated circuits (ICs)
•          erasable programmable read-only memory (EPROM)
•          microprocessors
•          joysticks

The performance and knowledge requirements for MEM27016 state the following:[73]
Performance Evidence
Evidence required to demonstrate competence in this unit must be relevant to and satisfy the requirements of the elements and performance criteria on at least two (2) occasions and include:
·   following work instructions, standard operating procedures (SOPs) and safe work practices
·   identifying and interpreting specifications, manufacture/technical manuals and other applicable reference documents to diagnose and maintain electronic controlling systems on mobile plant
·   identifying applicable control unit and using fault codes correctly to access fault codes with indicators, meters or diagnostic tooling then clearing codes from memory and verifying using applicable procedures and manuals
·   tracing the root cause of faults
·   identifying and applying procedures to safeguard electronic components and systems when diagnosing and maintaining typical mobile electronic circuits
·   locating, identifying and testing applicable input and output components
·   repairing/replacing components and selecting replacement parts using manufacturer specifications and data
·   adjusting mechanical clearances and measured electrical and resistance values using appropriate tools and techniques
·   obtaining security codes using correct protocol from manufacturer, plant/equipment identification and using computer and relevant computer applications to download, enter and verify new specifications in accordance with manufacturer procedures.
Knowledge Evidence
Evidence required to demonstrate the required knowledge for this unit must be relevant to and satisfy the requirements of the elements and performance criteria and include knowledge of:
·   safe work practices and procedures and use of personal protective equipment (PPE)
·   applicable fault codes and their meanings and procedures to clear fault codes and verify clearance
·   sources of potential damage to typical mobile plant electronic systems when performing maintenance and diagnostic work and techniques and procedures to safeguard against damage
·   correct troubleshooting procedures, including identifying root causes of faults, including faults related to:
• design
• manufacturing
• operator error (e.g. overload and over speed)
• environment (e.g. contamination, interference and hazards)
• previous service or maintenance error
·   procedures for:
• removal and replacement of faulty components and techniques and procedures
• obtaining security code
• downloading, entering and verifying data
·   various types of input components
·   operation and principles of transducers used in control systems
·   relevant testing procedures
·   component types, functions and locations
·   techniques for repairing components
·   operation and principles of actuators used in control system
·   concepts of erasable programmable read-only memory (EPROM) and microprocessors.

MEM27017 was also utilised in the 2019 reclassification and applies to the following:[74]
Modification History
Release 1. Supersedes and is equivalent to MEM18052B Maintain fluid power systems for mobile plant

Application
This unit of competency defines the skills and knowledge required to test, fault find and rectify hydraulic systems used in the earthmoving, agricultural and transport industries.
It covers identifying the hydraulic system and components used on mobile plant, general servicing and identifying faults that are related to electronic and fieldbus controls and communication.
Where the rectification of electronic controls is required unit MEM27016 Diagnose and maintain electronic controlling systems on mobile and stationary plant should also be selected.
Where the rectification of communication systems is required unit MEM27018 test, diagnose and rectify mobile and stationary plant external monitoring and control systems should also be selected.
Where the rectification of fieldbus controls is required unit MEM27023 Diagnose and rectify fieldbus circuits in mobile and stationary plant and equipment should also be selected.
No licensing, legislative or certification requirements apply to this unit at the time of publication.
Band: A
Unit Weight: 4

It is clear that MEM27017 is designed to apply in conjunction with MEM27016. It also states its relationship with the superseded competency standard.

The performance and knowledge requirements of MEM27017 are:[75]

Performance Evidence
Evidence required to demonstrate competence in this unit must be relevant to and satisfy the requirements of the elements and performance criteria on at least two (2) occasions and include:
· following work instructions, standard operating procedures (SOPs) and safe work practices
· identifying and interpreting specifications, charts, lists, drawings and other applicable reference documents to maintain hydraulic systems on mobile plant
· identifying sources of stored energy and hazardous situations/conditions, including bleeding down accumulators and position actuators, and applying appropriate safety measures
· fault finding hydraulic system down to component level using appropriate fluid power principles and procedures
· inspecting and testing components using appropriate equipment in accordance with procedures
· identifying and tracing fieldbus circuits and control modules related to hydraulic systems on equipment
· removing/refitting faulty components to system, including pipes, hoses, conductors and fittings and where appropriate cutting and assembling conductors to length using appropriate tooling/machine, techniques and procedures
· undertaking calculation and numerical operations associated with maintaining fluid power systems on mobile plant
· testing and adjusting replacement components for correct operation and compliance to specifications
· dismantling linear actuators without damage using appropriate tools, techniques/procedures and safety measures and using specification to identify performance/condition of cylinders and rams for wear and damage
· fitting seals and bearings and reassembling cylinder/ram in accordance with manufacturer instructions
· refitting and testing assembly to machine and verifying repairs on machine circuit and/or test rig to specifications
· carrying out general servicing of hydraulic system in accordance with manufacturer instructions
· recording/reporting service activities in accordance with SOPs.

Knowledge Evidence
Evidence required to demonstrate the required knowledge for this unit must be relevant to and satisfy the requirements of the elements and performance criteria and include knowledge of:

· safe work practices and procedures and use of personal protective equipment (PPE)
· different sources of stored energy and their applications and reasons for bleeding accumulators and actuators and the hazards associated with working on pressurised systems
· open circuit hydraulic systems, including:
•applications
•fixed displacement pump systems, including simple Open centre DCV systems and closed centre with bypass (3 port) compensator inlet
•variable displacement pump systems, including pre and post-compensated systems
•open centre systems
•pump control systems, including proportional displacement control for open circuit pumps
•common faults and preventative maintenance

· closed circuit systems, including:
•applications
•simple fixed/variable pumps with manual control
•common faults and preventative maintenance

· full range of hydraulic system components in a mobile plant application
· information on circuit diagram or manufacturer instructions
· characteristics and operational function of each system component
· impact of other equipment systems on the hydraulic system
· methods and techniques for tracing and localising faults and problems and reasons relating to faulty hydraulic system components/operation in accordance with specifications
· procedures for:
•inspecting and testing hydraulic system components and equipment to be used
•checking and adjusting the system
•dismantling linear actuators and tools, techniques, procedures and safety measures to be used
•fitting bearings and seals
•reassembly/fitting of cylinder/ram and sequence to be used
•testing and verifying repairs using machine circuits and/or test rigs and necessary remedial action

· common faults in hydraulic components
· specifications and correct operation of each hydraulic system component and
conductors
· removal methods for various components
· information in catalogues or electronic media and procedures to obtain replacement parts
· typical conductor types and fittings their applications
· methods for cutting/assembling hoses/tubes/pipework

MEM27025, which was adopted by the Commissioner as the relevant competency standard (unit), unlike the other units, does not expressly define its relationship with other competency standards. It applies to the following:[76]

Application

This unit of competency defines the skills and knowledge required to install and repair and/or rectify fluid power controls used in mobile equipment applications.
It applies to hydraulic fluid power systems control circuits and may also apply to mobile
equipment using pneumatic systems. Where pneumatic controls are also to be maintained, relevant pneumatic units should also be selected.

It covers fault finding of fluid power systems control circuits, maintaining and repairing or replacing system control components, and checking and adjusting the operation of fluid power system controls. System circuit/components are identified, traced, inspected and operational function is assessed and verified using fluid power principles to predetermined specifications interpreted from data sheets and circuit diagrams.
No licensing, legislative or certification requirements apply to this unit at the time of
publication.

Band: B

Unit Weight: 6

The elements and performance criteria include the identification/inspection/installation, changing adjustment, fault finding, maintenance and repair/rectification, check and adjustment of fluid power control systems. The range of conditions contemplated in MEM27025 include:[77]

Range of Conditions

This field allows for different work environments and conditions that may affect performance. Essential operating conditions that may be present (depending on the work situation, needs of the candidate, accessibility of the item, and local industry and regional contexts) are included.

Fluid power system controls include one (1) or more of the following:
•     fieldbus system control unit
•     integrated or separate measurement/testing/data logging equipment
•     electronic proportioning and bus systems
•     proportional and servo-controlled valving and the associated electronic amplifiers and drivers
•     joystick
•     controller variable and/or digital inputs and outputs
•     sensors
•     digital/analog transducers and proximity switches
•     transducers
•     timers
•     counters
•     ancillary equipment.

The performance and assessment requirements of MEM27025 are as follows:[78]

Performance Evidence
Evidence required to demonstrate competence in this unit must be relevant to and satisfy the requirements of the elements and performance criteria on at least two (2) occasions and include:
·following work instructions, standard operating procedures (SOPs) and safe work
practices
·obtaining and interpreting specifications system/circuit diagrams, system operation and control data records and identifying and inspecting system components for compliance with specifications
·planning and undertaking sequential installation of fluid power systems and controls in accordance with manufacturer specifications and procedures
·checking and adjusting control and system operation using appropriate test equipment ensuring that the sequence of operations conforms to specifications and operational requirements
·recording/reporting any modifications/alterations to the system in accordance with SOPs
·fault finding fluid power systems control circuits and controllers using fault-finding techniques and appropriate test equipment and identifying and localising components not conforming to operational specifications for repair/replacement
·repairing/replacing faulty items after testing for compliance to specifications using appropriate tools, equipment and techniques
·reassembling control components to meet specifications
·verifying correct operation of system power control circuit and commission the fluid power system controls to specifications
·initiating maintenance and/or service follow-up procedures and completing maintenance and/or service reports according to SOPs.

… …”

The Commissioner found[79] that each of the competency standards (units) applied to a different system and concluded that competency units MEM27017 and MEM27025 deal with hydraulic systems, whereas MEM27016 deals with electronic systems. Further, that competency unit MEM27025 requires more complex skills and knowledge and deals with more complex hydraulic equipment and components because what is being maintained and repaired using the competencies covered by MEM27025 is a more complex, whole control system that involves sequencing, whereas MEM27017 relates to maintenance and repair of hydraulic systems or components within a system. Finally, that both MEM27025 and MEM27016 deal with whole systems, but MEM27025 deals with a hydraulic control system, whereas MEM27016 deals with an “electronic whole system”.

The Commissioner also found that the key system powering the M88A2 was hydraulic, and that, as a result, MEM27016 was not an appropriate competency to cover the work involved in the work associated with the hydraulics.[80] We observe that whilst this is an appropriate finding, MEM27016 must, for reasons outlined above, be assessed in combination with MEM27017. Further, the Commissioner found that MEM27025 properly recognises that work due to the complexity, control units and sequencing involved.[81] In particular, the Commissioner contrasted the “simpler components” of actuators, pumps, valves, reservoirs and fittings referred to in MEM27017, with the inclusion of transducers, fieldbus control units, joysticks, timers and counters in the fluid control systems contemplated by MEM27025.[82] These findings were also based, at least in part, on the view taken by the Commission as to the proper understanding of sequencing work or systems in the competing competency units.

When read as a whole, it is evident to us that the Commissioner approached the concept of sequencing as including that the operation of the components on the M88A2 vehicle and/or each process of finding and rectifying faults required a particular sequence to be followed. It would be reasonable from the evidence to expect that each operating component of mobile plant operates in a sequence, such as a lifting device, and that the maintenance of such a component requires that it be performed in the proper sequence. The evidence before the Commissioner also confirmed that some control systems operate at a more advanced level where the component control system itself has more advanced (automatic) sequencing of operations.[83] In our view, however, when MEM27025 refers to “operational sequence” and the “correction of sequencing”, this relates to the nature of the control system itself and not to the sequence of undertaking the maintenance work. Further, the concept of control sequencing in that context is best understood as a reference to the more complex electronic and associated fluid/hydraulic control systems.[84]

In what appears to be primary findings about the complexity of the control systems on the M88A2 vehicles, and the consequential knowledge/skill requirements, the Commissioner relied upon the notion of sequencing as discussed above, and the role played by Mr Butterfield’s work on the transducers[85] that form part of the control system. The evidence before the Commissioner included that Mr Butterfield uses a ‘laptop’ (maintenance support device) to assess the transducers and if faulty, he replaces them. If recalibration is required, they are recalibrated by the laptop.[86] Notwithstanding the role played by the laptop, which is relevant to a skills assessment, Mr Butterfield is responsible for recalibrating some transducers as part of his work.

However, this work is also contemplated by MEM27016 which includes vehicles with control systems, and elements which include:

(a)Test, diagnose and fault-find electronic control systems;[87]
(b)Interpret fault codes and other diagnostic test results to determine controlling systems requiring rectification;[88]
(c)Locating, identifying and testing applicable input and output components;[89]
(d)Repairing or replacing components …. ;[90]
(e)Adjusting mechanical clearances and measured electrical resistance values ….;[91]
(f)Knowledge of the operation and principles of transducers used in control systems; and[92]
(g)Change operating parameters through selecting use of software and hardware.[93]

The maintenance and repair of the hydraulic systems or components of the M88A2 vehicles is also appropriately covered by MEM27017.

The evidence before the Commissioner from Mr Murray, which was not significantly challenged on this point, also included that the nature of the control systems used in the M88A2 vehicles was not overly complex in relative terms. This included that the M88A2 vehicles do not utilise the more complex form of (automatic) control sequencing of operations used in more advanced plant, and do not, for instance, contain fieldbus control units.

The fundamental question remains whether the scope and application of the three relevant competency standards and their associated units as applied by the Commissioner was correct. For reasons set out above, we consider that the Commissioner incorrectly discounted the combined application of MEM27016 and MEM27017 to the work of Mr Butterfield on the M88A2 vehicles and overstated the degree of complexity in its systems. MEM27016 and MEM27017 are appropriate to cover that work. However, a finding that, in effect, MEM27025 could also apply to aspects of the relevant work is open on the evidence.

We turn now to consider the issue of double counting. We have earlier set out what the Implementation Guide provided on that matter. The Commissioner did not deal directly with the issue but held, in effect, that the finding on the achievement of the competency unit MEM27025 and what she apprehended was the narrow issue in dispute, namely, whether Mr Butterfield achieved the MEM27025 competency unit, dealt with the issue. Given our findings, the dispute requires that this issue be resolved.

We accept the submission of the AMWU that the fact that there was a reclassification in 2019, and that this was undertaken (by the employer) on the basis of MEM27016 and MEM27017, does not of itself mean that no further inquiry must be made. It is necessary for the Commission to assess for itself the basis of the reclassification and determine whether those competency standards were appropriately applied in any earlier classification exercise and to consider whether there have been any subsequent changes that might impact upon the correct classification. It is open to an employee to contend that an earlier reclassification exercise did not appropriately, or adequately, recognise the work they perform. A change in work functions, or the exercise of additional skills or competencies, since a previous assessment of the employee’s classification is not necessarily required to justify reclassification.

In this case, we consider that MEM27016 and MEM27017 were appropriately applied and the skills and functions relied upon by Mr Butterfield are contemplated by those competency units when taken together. There were no additional work functions, skills or competencies being undertaken by Mr Butterfield since the 2019 reclassification. As a result, although MEM27025 was a potentially relevant competency unit, the competencies that have already been taken into account in the earlier classification process are not available as a basis to support additional recognition of the same competencies under a different competency standard.

The Commissioner determined the reclassification question in the positive. Respectfully, we have come to a different conclusion. In so doing, we have not overlooked the advantage enjoyed by the Commissioner in the assessment of the evidence. This included conducting an inspection, seeing the M88A2 vehicle and a demonstration of the laptop, and hearing the evidence firsthand. However, the conclusions reached do not rely upon different findings of credit or any significant factual dispute. Rather, we have taken a different view about the correct application of the Agreement, and the associated documents, to the circumstances of the parties.

Conclusion and disposition

For the reasons set out above, permission to appeal should be granted and the appeal allowed. On a rehearing, the determination of the dispute is that Mr Butterfield is not presently entitled to be reclassified as level C7 under the terms of the Agreement on the basis contended in the application.

The Full Bench makes the following orders:

(a)Permission to appeal is granted;
(b)The appeal is allowed;
(c)The decision in “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Ventia Australia Pty Ltd [2024] FWC 2079 is quashed; and
(d)The determination in Matter No. C2023/5897 is that Mr Butterfield is not entitled to be reclassified to the level C7 classification.

VICE PRESIDENT

Appearances:

S Smith, solicitor, of Actus Workplace Lawyers for Ventia Australia Pty Ltd.
P Lettau, of counsel, with A Bonello for the AMWU.
L Saccoccio for Ai Group.

Hearing details:

Melbourne
2024
17 October.

[1] [2024] FWC 2079.

[2] [2019] FWCA 6768.

[3] See Coal and Allied v AIRC (2000) 203 CLR 194 at [17] (Gleeson CJ, Gaudron and Hayne JJ).

[4] Fair Work Act 2009 (Cth), s 604(1).

[5] Fair Work Act 2009 (Cth), s 604(2).

[6] O’Sullivan v Farrer (1989) 168 CLR 210 (Mason CJ, Brennan, Dawson and Gaudron JJ); applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] (Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ); Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]-[46].

[7] Wan v Australian Industrial Relations Commission [2001] FCA 1803; (2001) 116 FCR 481 at [30].

[8] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]-[27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], 202 IR 388, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28].

[9] AMWU Outline of Submissions at [3]-[4].

[10] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [49] (Gageler J) and [85] (Nettle and Gordon JJ); GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 97 ALJR 857 at [15] (Kiefel CJ, Gageler and Jagot JJ); Moore (a pseudonym) v The King [2024] HCA 30; (2024) 91 ALJR 1119 at [15] (Gageler CJ, Edelman, Steward, Gleeson and Beech-Jones JJ).

[11] Health Services Union v Northern Health[2025] FWCFB 5 at [22].

[12] Ventia Outline of Submissions at [4].

[13] Ventia Outline of Submissions at [6].

[14] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]-[27], 197 IR 266.

[15] [2024] FWC 2079 at [6].

[16] [2024] FWC 2079 at [7].

[17] [2024] FWC 2079 at [38].

[18] [2024] FWC 2079 at [40].

[19] [2024] FWC 2079 at [41].

[20] [2024] FWC 2079 at [42].

[21] Ventia Outline of Submissions at [8].

[22] Ventia Outline of Submissions at [9].

[23]Transcript PN654-PN655.

[24] Evidence of J Butterfield, Transcript PN48-PN51 and PN85-86; Ventia Outline of Submissions p.3 at [10].

[25] [2024] FWC 2079 at [27].

[26] Evidence of D Murray, Transcript PN435-PN453 (AB p.62-65).

[27] Implementation Guide, section 4.4 p.62 (AB p. 279); Implementation Guide, section 3.4 p.34 (AB p. 251).

[28] Implementation Guide, section 4.4 p.62 (AB p. 279); Ventia’s Outline of Submissions [42]-[43] (AB p. 343).

[29] [2024] FWC 2079 at [41]; Ventia Outline of Submissions.

[30] Witness Statement of D Murray at p.7 [27] (AB p.370); Assessment Report of P Baxter (AB p.184).

[31] Witness Statement of D Murray at p.6 [27] (AB p.370); Assessment Report of P Baxter (AB p.184); Ventia Outline of Submissions p.5 at [17].

[32] [2024] FWC 2079 at [26].

[33] Ventia Outline of Submissions p.5-6 at [19]; [2024] FWC 2079 at [29].

[34] Ventia Outline of Submissions at [22].

[35] Ventia Outline of Submissions at [24].

[36] Ventia Outline of Submissions at [26-27].

[37] [2024] FWC 2079 at [32] and [39].

[38] Ventia Outline of Submissions at [31].

[39] Ventia Outline of Submissions at [34].

[40] Ventia Outline of Submissions at [35]; Evidence of J Butterfield, Transcript PN132-PN144 (AB p. 25-26).

[41] Ventia Outline of Submissions at [36].

[42] Ventia Outline of Submissions at [38].

[43] Ventia Outline of Submissions at [39]-[40].

[44] AMWU Outline of Submissions at [57].

[45] AMWU Outline of Submissions at [44].

[46] AMWU Outline of Submissions at [45].

[47] AMWU Outline of Submissions at [14]-[16].

[48] AMWU Outline of Submissions at [17].

[49] AMWU Outline of Submissions at [18].

[50] AMWU Outline of Submissions at [19]-[22].

[51] AMWU Outline of Submissions at [29]-[30].

[52] AMWU Outline of Submissions at [35]-[36].

[53] AMWU Outline of Submissions at [37].

[54] AMWU Outline of Submissions at [38].

[55] Appeal transcript PN717.

[56] AMWU Outline of Submissions at [38].

[57] [2024] FWC 2079 at [15]; AMWU Outline of Submissions at [40].

[58] [2024] FWC 2079 at [30].

[59] AMWU Outline of Submissions at [50].

[60] AMWU Outline of Submissions at [50] citing [2024] FWC 2079 at [31-34].

[61] AMWU Outline of Submissions at [51].

[62] AMWU Outline of Submissions at [52].

[63] AMWU Outline of Submissions at [53].

[64] AMWU Outline of Submissions at [54].

[65] Implementation Guide at Annexure 2 p.87-90 (AB p.304).

[66] Implementation Guide Chapter 4 - Step 2 p.57-60 (AB p.274-277).

[67] Implementation Guide Chapter 4 – Step 3 p.61-65 (AB p.278-282).

[68] Implementation Guide p.62 (AB p.279).

[69]Implementation Guide p.82 (AB p.299).

[70] Implementation Guide p.35-36; (AB p.252-253).

[71] MEM 27016 p.2; (AB p.405).

[72] MEM27016 p.5; AB p.408.

[73] MEM27017 p.2; AB p.394.

[74] MEM27017 p.2; AB p. 394.

[75]Assessment Requirements for MEM27017 p.2-3; AB p. 400-401.

[76] MEM27025 p.2; AB p.209.

[77] MEM27025 p.5; AB p.212.

[78] Assessment Requirements for MEM27025 p.2-3; AB p.414-415.

[79] [2024] FWC 2079 at [25].

[80] [2024] FWC 2079 at [29].

[81] [2024] FWC 2079 at [30].

[82] [2024] FWC 2079 at [30].

[83] Witness Statement of D Murray p.7 at [33] (AB p.31); Transcript PN 303.

[84] Alcan Australia Limited (Excluding Kurri Kurri Smelter) Award 1982 [1989] AIRC 586, Print H9382.

[85] [2024] FWC 2079 at [33].

[86] Evidence of J Butterfield at Transcript PN81 to PN97.

[87] MEM27016 p.2; AB p.405.

[88] MEM27016 p.4; AB 407.

[89] Assessment Requirements for MEM27016 p.2; AB p.410.

[90] Assessment Requirements for MEM27016 p.2; AB p.410.

[91] Assessment Requirements for MEM27016 p.2; AB p.410.

[92] Assessment Requirements for MEM27016 p.3; AB p.411.

[93] MEM27016 p.3; AB p.407.

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