[2020] FWC 247

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Wayne Cameron
v
National Australia Bank T/A National Australia Bank
(C2019/4207)

DEPUTY PRESIDENT MASSON

MELBOURNE, 4 FEBRUARY 2020

Alleged dispute about any matters arising under the enterprise agreement and the NES s186(6).

Introduction and background

[1] On 10 July 2019, Mr Wayne Cameron (the Applicant) applied to the Fair Work Commission (the Commission) to deal with a dispute pursuant to s. 739 of the Fair Work Act 2009 (the Act) under the dispute resolution procedure at clause 64 of the NAB Enterprise Agreement 2016 1(the Agreement). The Respondent in the matter is the National Australia Bank (the NAB). The background to the matter may be shortly stated as follows.

[2] The Applicant commenced employment with the NAB in 1989 and in his 30-year career with the NAB has held a number of information technology (IT) positions including that of Senior Commercial Analyst, Enterprise Architect, Domain Architect and Architecture Services. 2

[3] From 2007 up until an organisational change that took effect on 1 April 2019 the Applicant was employed as a Solutions Architect (the Old Role) within the Strategy & Architecture division, which is responsible for defining and delivering IT solutions for the business. 3 The architecture teams are the IT interface between the various parts of the NAB business and the IT specialists who ‘build, develop and/or code the technology’.4

[4] In his Old Role, the Applicant was responsible for liaising with the business and other parts of the Strategy & Architecture and Technology divisions at NAB, including developers and designers who would put together the particular IT ‘solution’. Prior to the organisational change that took effect on 1 April 2019, there were seven Solutions Architecture teams primarily aligned to one of several business units, those being;

● Shared Services Technology;

● A&D SP Wealth;

● Distribution;

● Technology Platforms;

● Payments;

● Markets and Workplace; and

● Banking. 5

[5] The Applicant worked across a number of different business units during the time that he was working in the Old Role and immediately prior to the organisational change was working within the Solutions Architect Banking team. While not required to develop products in his Old Role, the Applicant was responsible for understanding the technical capability and service that is realised through various applications and platforms at NAB in order to provide an ‘end-to-end’ technology solution.

[6] On 1 April 2019, an organisational change was implemented, a key element of which was the creation of a new role of ‘Service Architects’ who are highly skilled architects with specialised skill in specific technologies. Aligned with that change was the establishment of a ‘Flex’ pool of Solutions Architects who are now referred to as ‘Architect Solutions’ (the New Role), a role to which the Applicant was deployed on 1 April 2019 when his Old Role was made redundant. 6

[7] The Flex pool of Architect Solutions are responsible for supporting peaks and troughs in project/initiative demand and in some cases may be required to backfill Service Architect roles. Unlike the structure that existed prior to the organisational change, the Applicant in the New Role may be deployed on projects/initiatives across the NAB business rather than supporting a particular business unit. 7

[8] The Applicant contends that his New Role is not a ‘Comparable Position’ to that of the Old Role within the meaning of Clause 5 of the Agreement and as a consequence he is entitled to a redundancy benefit under Clause 54 of the Agreement. The NAB disagree and contend that the New Role is a Comparable Position to that of the Old Role and that no redundancy entitlement arises.

Jurisdiction

[9] Section 739 of the Act empowers the Commission to deal with certain disputes under enterprise agreement dispute settlement terms. The Agreement contains such a term, which is clause 64 ‘Dispute settlement procedure’ (the DSP). The relevant sub-clauses going to the jurisdiction of the Commission in the settlement of disputes are as follows:

“64. Dispute resolution procedure

64.1 Where a dispute or grievance about any matters arising under this Agreement or in relation to the NES arises, the following procedure must be followed:

(a) The issue shall be raised with the immediate People Leader who will attempt to resolve the matter. When meeting with the People Leader, an aggrieved employee may choose to have a representative in attendance.

(b) If the matter is not resolved, or discussion with the immediate People Leader is not appropriate, the employee or people leader may raise it with the People Leader's manager and, if applicable, the employee's representative.

(c) If the matter is still not resolved, it shall be referred to the appropriate FSU official or other representative and the head of the relevant business unit.

(d) If the dispute remains unresolved, the National Office of FSU or other representative shall refer it to NAB's Workplace Relations team.

(e) If no agreement is reached at this stage, the issue may be referred to the Fair Work Commission for conciliation.

(f) If conciliation does not resolve the matter, then it may be referred to the Fair Work Commission for arbitration.

……………..”

[10] It was not contested that the question to be determined by the Commission was capable of constituting a dispute over the interpretation or application of the Agreement. Nor was it in dispute that the steps taken by the parties to resolve the dispute constituted compliance with the dispute resolution provision of the Agreement. Having regard to the information in the Form F10 application and the views of the parties, I am satisfied that the Commission has jurisdiction to deal with the dispute, including by arbitration.

[11] Conciliation before the Commission did not resolve the dispute and the matter is now to be determined by the Commission by arbitration.

The hearing

[12] The matter was listed for hearing on Tuesday, 26 November 2019, in advance of which the parties were required to file statements and material on which they intended to rely.

[13] The Applicant appeared on his own behalf and also gave evidence. NAB were represented by Ms N Gasper of Freehills who was granted permission to appear on behalf of NAB pursuant to s. 596 of the Act. Ms Gaspar called evidence from;

● Mr Jason Payne (Mr Payne) – NAB Principal Architect, Technology Platforms

Issues for determination

[14] The question agreed between the parties for determination by the Commission is as follows:

“Is Mr. Cameron’s new position i.e. Architect Solutions comparable to his old position i.e. Solutions Architect based on the definition provided by the NAB Enterprise Agreement 2016, Section A, Clause 5 “Definitions” Comparable Position, Paragraph (c).

Comparable Positions means a position which:

(c) does not entail a change in duties significant enough to be unreasonable in the circumstances of the employee’s skills, ability, previous work experience and training required to fill the role;”

Agreement provisions

[15] A number of Agreement provisions are relevant to determination of the dispute. Clause 52 of the Agreement details the principles to be applied in managing organisational change and relevantly states as follows;

“52. Principles in organisational change

52.1 NAB and FSU are committed to the following principles in respect to organisational change and its effect on employees:

(a) maximising redeployment opportunities for displaced employees;

(a) minimising retrenchments;

(b) minimising forced retrenchments;

(d) anti-discrimination provisions contained in the NAB Award are applied.

52.2 In order to avoid retrenchment, NAB will wherever possible:

(a) use natural attrition;

(b) curtail external recruitment to the affected business unit;

(b) seek employee preferences in a business unit affected by redundancies;

(c) select for retrenchment amongst those employees who have expressed an interest in voluntary retrenchment (subject to NAB's right to retain an employee's services due to ongoing skill requirements);

(e) consult with affected employees and the FSU.”

[16] Clause 54 of the Agreement deals with redundancy and relevantly provides as follows in respect of redeployment;

“54. Redundancy

54.1 Where an employee's position is made redundant, the employee will be advised in writing and the employee will be placed "On Deployment" unless:

(a) the employee is immediately deployed upon redundancy, or

(b) NAB and the employee agree that retrenchment will occur immediately.

54.2 An employee who has their position made redundant while on extended leave (excluding parental leave) will be placed "On Deployment" on their return to work.”

[17] Clause 55.11 of the Agreement deals with deployment of an employee to a Comparable Position;

“55.11 Deployment to a Comparable Position

(a) NAB may deploy an employee "On Deployment" to a Comparable Position.

(b) If an employee does not accept deployment to a Comparable Position the employee is not entitled to the retrenchment payments.

(b) The process of identifying a comparable position is not designed to de-skill NAB employees. The process is designed to maintain, enhance or broaden an employee's principal skills to meet business and operational requirements.”

[18] Clause 5 of the Agreement relevantly defines the terms ‘Redundancy’ and ‘Comparable Position’ as follows;

“………………

Comparable Position means a position which:

(e) is above or at the same TEC as the position the employee held which was made redundant;

(b) fills the same number of hours per 4-week cycle;

(c) does not entail a change in duties significant enough to be unreasonable in the circumstances of the employee's skills, ability, previous work experience and training required to fulfil the role;

(d) does not involve an unreasonable change in daily start and finishing times (to be determined by such factors as the degree of the change and the employee's family responsibilities and personal needs); and

(f) is at the same location or at another location which is in reasonable commuting distance (to be determined by reference to factors including the employee's duties and responsibilities, family responsibilities and historical use of private and public transport).”

………………

Redundancy means a situation where the employee's position is made redundant because the role being done by the employee (or the major part of it) is no longer required to be done in that location or a location within a reasonable commuting distance as a result of reorganisation, changed business practice, technological change or downturn in business.

…………….”

Case for the Applicant

[19] The Applicant states that on the 1 April 2019 his Old Role was abolished along with the majority of all other Technology architecture positions. He also states that in the lead up to the 1 April 2019 reorganisation, the Senior People Partner for Technology made it clear that there would be no voluntary redundancies. According to the Applicant, all architects were asked to submit an expression of interest (EOI) for up to three positions in the new structure. The Applicant did not submit an EOI based on his understanding of the new architecture roles and his rationale based on the definition of Comparable Position in clause 5 of the Agreement, that being the New Role was not a Comparable Position to that of the Old Role. The Applicant was subsequently placed into his New Role in the ‘Flex’ Architecture Team. 8

[20] The Applicant agrees that the New Role meets the clause 5 definition of a Comparable Position in respect of sub-clauses (a), (b), (d) and (e) in that it;

● is at or above the Total Employment Cost (TEC) of the Old Role;

● requires the same number of hours per 4-week cycle, which in the Applicant’s case involves part-time hours of 3 days per week;

● does not require a change in the Applicant’s daily start and finish times; and

● is based at the same location as the Old Role.

[21] It is only in respect of sub-clause (c) of the definition of Comparable Position that the Applicant contends that New Role is not a Comparable Position to that of his Old Role. The Applicant refers to sub-clause (c) of the definition of Comparable Position and in summary submits that the New Role will;

● require an unreasonable uplift in his technology skills and ability;

● the training that would be required to develop his skills and ability to an acceptable level would be significant and unreasonable; and

● his learning, comprehension and memory retention capabilities have declined such that he would require considerable additional learning time in addition to what is already an unreasonable amount of training required for the New Role.

[22] The Applicant states that the NAB’s Chief Architect Sergei Komarov (Mr Komarov) has implemented major changes to NAB’s technology architecture and has communicated a clear view of the new Operating Model and organisation changes that were implemented on 1 April 2019. According to the Applicant the following key points arise from those changes;

● NAB is redefining how it architects;

● there is a need for deep and credible technical knowledge;

● there is a need to deliver at high velocity;

● there are heightened expectations on architects to deliver more efficient Agile technology;

● there is a move from ‘Project’ based solutions to a ‘Services’ architecture; and

● the new operating model is underpinned by a ‘Cloud first’ architecture strategy. 9

[23] The Applicant agrees that the Old Role and the New Role are the same in respect of his being responsible for architecting solutions for an initiative or project, that both roles require him to have regard to the requirements of the internal customer and that he is required to liaise with IT subject matter experts. He also accepts that he was required to architect solutions for different divisions of the NAB in his Old Role 10.

[24] The Applicant gave evidence that there are currently some 2500 applications used across the bank and of those, 400 are currently Cloud hosted. Further, it is the objective of the bank to progressively transition applications/systems from on-premises hosted to Cloud hosted with a 3-year target of having approximately 800 applications Cloud based. 11 The Applicant further states that the significance of that strategy is that most project/initiative work that Architect Solutions will be focussed on will necessarily be Cloud based solutions, and not using existing on-premises architecture12.

[25] The Applicant states that the fundamental difference between the New Role and Old Role is that of the unreasonable and considerable uplift he will require in his technology skills relevant to Cloud architecture. He states that the new operating model is based around delivery of Cloud based architecture using Agile methods, in which he would be expected to be proficient and on which he would be measured in terms of his performance. He states that he would be unable to perform in the New Role if he ignored the Cloud first strategy 13.

[26] The Applicant readily concedes that changing technology has been a constant feature of his IT roles at NAB, that he has been required and willingly undertaken training in the past to support new technology as it was introduced and that a move to Cloud based architecture was a continued evolution of that technological advancement relied on by the NAB 14. Further, he accepts that the move to Cloud architecture is not distinguishable from the nature of technological change that has occurred over the past 30 years at the NAB. He does however state that his capacity to manage that change in terms of memory retention and his ability to cope has deteriorated15.

[27] The Applicant also confirmed in his evidence that the NAB’s shift to the strategy of Cloud first architecture followed the arrival of Mr Komarov who joined the bank in August 2018, and that the announcement of the Cloud first strategy occurred towards the end of 2018 and certainly before the organisational change that took effect on 1 April 2019 16. He also accepted that the NAB’s ‘Book’, which is approximately 400 pages in length, is mandatory and describes principles on all key topics relevant to Cloud architecture, was released prior to the organisational change17.

[28] In respect of Agile methods the Applicant states that it requires him in his New Role to architect solutions in a timely and responsive manner 18, that it is a methodology used by project managers, designers and developers within NAB and that Agile training is necessary to participate collaboratively in Agile practices. He concedes however that Agile methodology was introduced one or two years ago or perhaps even before that19, and that its introduction was unrelated to and pre-dated the organisational change that led to the redundancy of his Old Role20.

[29] The Applicant refers to differences between the Role Purpose Statement (RPS) of the Old Role which relevantly included that he would ‘most likely have’ particular tertiary qualifications in a technology discipline, 8-10 years’ experience in technology architecture and strong awareness and understanding of hardware, networks, software technologies and applications. 21 He contrasts those general statements with the RPS of the New Role which includes requirements of; ‘5 years’ experience in Software Development and Design’, ‘experience and demonstration of agile practices’ and ‘experience with both packaged and custom build software’. He states that he has no experience in respect of these particular requirements as set out in the new RPS.22

[30] The Applicant further states that without significant training to develop Cloud architecture skills and knowledge, his past training and experience would no longer qualify him for an Architect role under the new operating model. He further refers to a ‘push’ within NAB to get all architects certified at the Amazon Web Services (AWS) ‘Associate Architects’ level by the end of 2019, that all architecture contractors must now be Cloud certified and that he would also be required to backfill specialist Service Architect roles from his New Role. The latter requirement would, according to the Applicant, impose a greater demand for him to develop his Cloud architecture skills and knowledge. 23

[31] The Applicant describes how he believes the change to the operating model and move to ‘Cloud Target Architecture’ will require major changes to the way of working due to a pivot from ‘project based to durable service architecture’. He states that the New Role will require him to work closely with a number of Service Architects depending on the size of the project/initiative and that he will, where required, have to backfill Service Architect roles across potentially any and all ‘Service Domains’ within the Bank. That would require an unreasonable uplift in knowledge, particularly in respect of Cloud architecture as there are, according to the Applicant, some 60 Service Architects working across 82 Service Domains within the NAB. 24

[32] The Applicant further states that he will be expected to immediately perform against his ‘Scorecard’ 25 relative to the new operating model which clearly has Cloud architecture as the target state architecture. This will, according to the Applicant, require a significant and unreasonable amount of training, reading and comprehension of Cloud architecture, otherwise he would be unable to perform against his Scorecard. The Applicant variously refers to elements of his Scorecard which would require skills and knowledge which he currently does not possess and would require a significant increase in his understanding of Cloud architecture. This relevantly includes ‘Technical Debt’ calculation, a material shift in speed of design and delivery through Agile and understanding and applying the Book.

[33] The Applicant states that he would be required to undertake a significant and unreasonable amount of training in order to comprehend and retain Cloud architecture learning. He states his belief that professional architects at NAB could be expected to be certified (proficient) in a number of different Cloud platforms, in part due to NAB’s need for dual technology suppliers 26. The certifications he refers to and his estimate of the training time required are as follows;

● Amazon Web Services (AWS) Architect;

○ Associate Architect 27 - (58 hours);
○ AWS Professional Architect 28 - (80 hours);

● Microsoft Azure Architect 29 - (involves 13 categories which would take 1 month per category assuming 4 hrs per day)

● Google Cloud Services 30 (GCP) – (not estimated)

[34] The Applicant concedes that his estimation of the amount of training that he would require is subjective and would vary from person to person. While conceding there was some risk that he had overstated the training he would require 31 and that he may not need to do all the training he has identified, he further states that he would in any case need to do a substantial amount of training and certainly more than the 3-day introductory AWS course which he has attended32. He also acknowledged that he has been offered additional training to assist him in the New Role, including Cloud based training33.

[35] The Applicant states he is no longer capable of undertaking the significant amount of learning and retention required to understand and become competent in Cloud architecture and would require a significant amount of additional time. He refers to the physical and mental stress which has impacted on him to the point of seeking professional medical help. 34

[36] Due to continuing concerns raised by the Applicant regarding the New Role the NAB wrote to him on 8 November 2019 to clarify requirements contained in the RPS for the New Role (the Position Requirements Letter). The correspondence relevantly stated the following;

“………………

For the avoidance of doubt, in your new position:

● you are not directed to become cloud certified;

● should you wish to broaden your awareness of cloud, NAB will support you to do so. This training will be paid for by NAB and will be conducted during business hours;

● you are not required to backfill for Service Architects;

● alignment to ‘Target State’ technologies means that you continue to be required to provide project/initiative architecture solutions which bring together the composing services to achieve project outcomes – with consideration of the service Target State of those services required. These Target States are produced by Service Architects and are available to read/reference and for discussion by all Architects. The composing services may have components that are Cloud hosted (which will be documented in the Target States) as has been the case since business commenced the focus on Cloud in 2017-2018;

● you are not required to manage a functional group;

● you will be selected for projects and work based on your skill, experience, expertise and aspiration; and

● you continue to be required to architect solutions by liaising with developers, designers and service architects, this is known as ‘leading’ the initiative;

● Leading conversations on dependencies means that you will be required to lead conversations as the Architect Solution assigned to a project/initiative, as you were required to do in your Solutions Architect role. Technical and SME knowledge will continue to be leveraged from the Technical Delivery Teams with the detailed technical Service Architecture to be provided by the Service Architect;

● you are not required to have experience in software development or design, nor are you required to develop or design software;

● you are not required to have experience with both packaged and custom build software;

● agile practices mean that you must architect solutions in a timely and responsive manner, with a focus on delivering smaller more, frequent updates and features for our customers. There is no specific agile training required; and

● you must work collaboratively with the business, projects and technical teams.

……………………’ 35

[37] In response to the Position Requirements Letter the Applicant indicated in his evidence a level of distrust in the NAB’s clarification of the position requirements, particularly in respect of the statement that he is not required to be Cloud certified 36. While acknowledging that the letter made clear he would not be required to backfill Service Architect positions he states that he would still have to communicate with the Service Architects and to do so effectively would require him to have much greater skills and knowledge in Cloud technology37. Further he did not accept that it was realistic to deploy him only on projects/initiatives that allowed him to use his existing skills and abilities on on-premises architecture, this view being due to the need to view all architecture projects/initiative through the prism of the Cloud first strategy.38

[38] The Applicant summarised his case in the following terms;

● His Old Role was abolished, and he was placed in the New Role which was not a comparable position.

● Technical proficiency is required across multiple Cloud vendors.

● He rejects the contention that he can perform in the New Role with only high-level knowledge of Cloud architecture.

● Documentation of expectations for training, study and comprehension relevant to Cloud architecture was provided in his evidence.

● He estimates that the amount of training and study he would require in Cloud architecture is both significant and unreasonable.

● His RPS which refers to Cloud architecture would necessitate a significant uplift in his skills and knowledge.

● His personal Scorecard on which his performance is assessed annually, refers to Cloud architecture, again emphasising the need for a significant uplift in his skills and knowledge.

● The working relationship between the specialist Service Architect roles and the Applicant’s New Role would require a good understanding of Cloud architecture and again a significant uplift in his skills and knowledge on his part.

● The amount of time, effort and training for the new operating model and Cloud target architecture would be unreasonable in his specific case.

● He also believes that his age may have played a part in the original leadership team decision not to consider him for redundancy.

Case for NAB

Evidence of Mr Payne

[39] Mr Payne states that he commenced employment with the NAB in 1996 and is currently the Principal Architect, Technology Platforms and has held that position since April 2019. Prior to moving to that role he held the position of Head of Architecture Services from September 2016 to April 2019 within the Strategy & Architecture division. 39 Mr Payne further states that he worked with Mr Komarov during the latter part of 2018 on the development of a new operating model, that “would ensure that NAB could realise its IT strategy and move from a reactive project driven architecture function, to a forward looking/strategic and durable architecture function”. The strategy informed the organisational change.40

[40] Mr Payne states that the Flex pool of Architect Solutions, in which the Applicant now sits, are responsible for supporting peaks and troughs in project/initiative demand and in some cases, Service Architect demand. As was the case under the previous structure Architect Solutions are assigned to either service architecture or project/initiative architecture demand across the business according to their skill, experience, expertise or aspiration. 41

[41] According to Mr Payne the Applicant’s Old Role and New Role were and are both responsible for understanding the technical capability and service that is realised through various applications and platforms at NAB. The Applicant was not required in either role to develop products and applications himself 42 but was required to understand the requirements and needs of the project/initiative and create a technology solution to fulfil those requirements in order to meet the business/project needs43. A common feature of both roles was the need to draw together IT specialists to help understand what can be delivered to meet the business need.44 Mr Payne states that the main difference between the roles is that under the Old Role the Applicant was allocated to a particular team (i.e. Banking) whereas under the New Role the Applicant is in one of five Flex teams which are designed to take on ‘overflow work’ which may arise in any part of the business.45

[42] Mr Payne responded to the Applicant’s evidence regarding Agile and states that Agile is a ‘software development framework that focusses attention on delivering capability to customers faster’, that no specific training in the methodology is required and was first introduced into NAB ‘about five years ago’. 46

[43] As regards Cloud based technology Mr Payne variously states that;

● NAB announced its Cloud first strategy in 2017/2018 prior to the organisational change. 47

● The aspiration is for IT to begin hosting new applications and systems in the Cloud, but that the shift to Cloud based technology is an organic one. 48

● The Cloud first strategy recognises that while the business aspires to shift new applications to the Cloud, it may not be possible and that in some cases new applications as well as many existing applications will continue to be hosted on-premises. 49

● While Mr Komarov stated in February 2019 that he was committed to supporting NAB’s architects becoming certified in Cloud based technology, it was not a directive, but rather a means to support architects upskill in this technology. 50

● The Applicant was advised by Ms Keira Howlett, Manager Employee Relations with the NAB, that the NAB would support any additional training required in relation to the new Cloud technology. 51

● Just as it was unnecessary for Solutions Architects under the old structure to have deep technical knowledge of on-premises infrastructure it was unnecessary for Architect Solutions to have deep technical knowledge of Cloud services in the new organisational structure. This was due to the additional SME support provided by Service Architects. 52

[44] As regards technology within the NAB, Mr Payne gave evidence that the only constant in technology had been that of change and that staff had been required to adapt to that change over time. He further spoke of the evolution from old mainframe systems, ‘clunky’ personal computer (PC) based applications and on-premises servers/infrastructure to Cloud based hosting of systems and applications. 53

[45] Mr Payne confirmed that there are currently 400 out of a total of 2200 applications that were Cloud hosted, 54 that the target within a 3 year timeframe was to have 800 applications Cloud hosted and that it was a ‘fair assumption’ that that there would be a lot of Cloud work required to achieve that target. He went on to state that the remaining on-premises applications were complex in nature, could not be easily picked up and moved to the Cloud55, and that moving forward there would still need to be solutions hosted by on-premises software and servers.56

[46] Mr Payne goes on to state that the Applicant is not required to have deep technical knowledge of Cloud technology in the New Role. Nor is he required to perform detailed technical work in respect of Cloud technology, as is the case in respect of applications and systems hosted on-premises. A level of understanding is required in respect of all impacted systems at a practical and conceptual level. 57 He disagreed with the Applicant that he would be unable to undertake the work of the New Role and spoke of an ‘abundance of project-related activity’ waiting to be done and that any really good experienced architect could help deliver those projects.58

[47] He further states that approximately 21% of the 150-160 architects employed by the NAB are Cloud certified. He disagreed with the Applicant as to how much training was required to obtain certification. He cited his experience of the last 6 months in that he had observed some people get certification immediately on completion of the 3-day AWS introductory course whereas others required 10 hours of additional time. He was not aware of any architect having had to invest a lot of time to become certified. 59 He further states that in his current role he was responsible for looking after a ‘domain’ of technology, most of which was Cloud based, that he led a team of SMEs and he felt capable of doing so without having gained Cloud certification.60

[48] With respect to the Applicant’s concerns regarding the RPS for the New Role, Mr Payne states that the RPS is ‘generic’ and intended to be used for both external recruitment and also as an internal guide to the new roles. Further, the RPS supports two types of assignments that can be allocated to Architect Solutions, the first type being ‘project/initiative’ work, which is the work the Applicant would be deployed onto. The second type is that of the ‘demand’ work, which is providing support to the Service Architects, is highly specialised and requires technical expertise that is not required with project/initiative work. 61

[49] Mr Payne states that the Applicant has raised a number of concerns in relation to the New Role, all of which have been addressed as follows;

● The Applicant is not required to have all of the skills identified in the RPS;

● The Applicant’s Scorecard is not based on the RPS or the Book but rather is based on the key business objectives that the NAB is aiming to achieve for Strategy & Architecture.

● The Applicant will not be required to do overflow work by backfilling Service Architect roles. The Applicant will be assigned to work based on his skills and experience and only highly specialised Architect Solutions will be assigned to backfill Service Architects.

● The Applicant is not required to be Cloud certified. The Cloud first approach is in respect of new applications, on-premises architecture will be retained and NAB still requires architects such as the Applicant to architect on-premises applications.

● An Architect Solution who is not Cloud certified will not be asked to architect a new or complex Cloud based solution.

● Given the evolving nature of technology, continuing professional development has always been necessary for all employees, including the Applicant.

● Should the Applicant wish to increase his Cloud knowledge, NAB will support him in that. That is in addition to the 3-day AWS introductory program he has already completed, and which Mr Payne believes is more than sufficient for the Applicant to develop a greater understanding of Amazon AWS. 62

[50] Mr Payne also states that the NAB values retaining the skills and knowledge of employees by maximising redeployment and minimising retrenchments. Further, he regards the Applicant as having ‘immense experience within NAB and a skill set that is essential to the Business’. 63 Mr Payne rejected the Applicant’s submission that he was not selected for redundancy because of his age and states that he was selected for the New Role because of the leadership team’s belief that he had the ability to do the work.64

NAB Submissions

[51] The NAB submits that it is not in dispute that sub-clauses (a), (b), (d) and (e) of the clause 5 definition of Comparable Position are met and that it is only sub-clause (c) that needs to be considered. Further, in considering sub-clause (c) it is necessary to read it in conjunction with the principles of organisational change set out at clause 52 of the Agreement.

[52] The NAB contends that there is no change in duties between the New Role and the Old Role, or in the alternative, any changes are negligible and certainly not enough to be unreasonable in the Applicant’s circumstances. They further submit that both roles are architect roles that require the Applicant to architect technological solutions for projects/initiatives, or issues with the NAB’s applications.

[53] The only difference between the Old Role and the New Role, according to the NAB, is that rather than being assigned to a particular division (i.e. Banking) as was the case under the Old Role, the Applicant may now be more readily assigned to projects/initiatives across other divisions having regard to his particular skills and experience.

[54] The NAB refer to subclause (c) of the clause 5 definition of Comparable Position and submit that the well-established principles of construction 65 and the ordinary meaning of the relevant words in sub-clause (c) of the clause 5 definition of Comparable Position are well traversed. They specifically refer to Paul Heath v National Australia Bank66(Heath) in which Deputy President Sams reviewed and applied the relevant authorities. The NAB submit that in considering the plain and ordinary meaning of sub-clause (c) of the clause 5 definition of Comparable Position and the principles considered and applied in Heath, the following three questions are relevant;

(1) Is there a relevant connection between the duties of the two roles or was there a significant change in the Applicant’s duties?

(2) Would any changes be unreasonable in the circumstances of the Applicant’s skills, ability previous work experience and required training?

(3) Could a reasonable person in the same position as the Respondent have made the decision in question?

[55] In relation to question (1) the NAB submit that the Applicant must architect IT solutions in both roles, the only change between the two positions is the ‘client’ and that as the Applicant is now assigned to a Flex team, he could be assigned to a project/initiative in any business unit within the NAB based on his skills and experience.

[56] In terms of the Applicant’s skills, ability, previous work experience and required training the NAB variously submits that;

● Even if the there was a change in duties (e.g. a requirement to architect Cloud based solutions) that change would not be unreasonable.

● The Applicant is not required to backfill the highly specialised Service Architect roles.

● Contrary to the Applicant’s submission, the shift to Cloud based architecture has occurred organically, preceded the organisational change, is aspirational and may in some circumstances not be possible.

● The Applicant is not required to be Cloud certified in the New Role and that no additional training is required for the New Role.

● Continuing professional development was a necessary requirement for both the Old Role and New Role.

● The RPS, which the Applicant is concerned about, is a generic document and not a position description against which the Applicant will be assessed for competence. Further the Applicant is required to perform the same duties in the New Role as he was required under the Old Role.

[57] In assessing whether a reasonable person in the same position as the Respondent would have made the decision in question, the NAB submits that;

● The Old Role and New Roles are in essence the same roles within broader organisational structure changes.

● Of particular relevance to the question of reasonableness is that the Applicant’s performance of other duties is expressly contemplated by his Contract of Employment dated 16 July 2001 67 where it relevantly states as follows;

“…………….

Position and Duties

……………….

The duties and responsibilities in your Position have been previously discussed with you. You may be required to undertake other duties and responsibilities from time to time….. In some circumstances you may be required to undertake another Position….”

● The NAB’s shift to Cloud hosted applications/systems, of which the Applicant has expressed concerns, preceded the organisational change and as such does not impact the New Role.

● Also relevant are those factors summarised by Deputy President Sams in Heath that will generally not be included in consideration;

● Feelings of loss of status;

● Feelings of loss of importance;

● Whether the employee dislikes the new role;

● Whether the employee feels uncomfortable about the new role; and

● Whether the employee is unhappy or dissatisfied with the process of consultation.

[58] The NAB also submit that the guiding principles for organisational change found at clause 52 in the Agreement are relevant. Specifically, that the NAB is required to maximise redeployment opportunities for displaced employees and minimise retrenchments 68 and that in any case there is no discernible difference between the Old Role and New Role.

Consideration

[59] The normal principles applying to the construction of enterprise agreement terms 69 are relevant and the necessary starting point is that of the terms of the Agreement. Relevantly, clause 5 defines the meaning of the term Redundancy and in the present case both parties agreed that the Applicant’s Old Role was no longer required and as such I am satisfied that the position was redundant.

[60] Importantly, clause 52 deals with the principles of organisational change, that being the NAB will seek to maximise redeployment of employees whose positions have been made redundant and minimise retrenchments (be that forced or otherwise), having regard to employee preferences and anti-discrimination provisions of the NAB Award.

[61] Clause 54 provides for the re-deployment of staff whose roles have been made redundant, into alternate roles. So long as an alternate role is a Comparable Position the non-acceptance of the alternate role would disentitle the relevant employee to retrenchment payments. A Comparable Position is relevantly defined to require a number of criteria to be met, those being that the new position;

● is at or above the TEC of the old role;

● requires the same number of hours per 4-week cycle;

● does not entail a change in duties significant enough to be unreasonable in the circumstances of the employee's skills, ability, previous work experience and training required to fulfil the role;

● does not require a change in the Applicant’s daily start and finish times; and

● is based at the same location as the former role.

[62] It follows from the above that the Agreement envisages that organisational change may occur and that where such organisational change arises, the NAB is required to take steps to avoid retrenchments wherever possible, including by redeployment of affected staff. In circumstances where an employee is redeployed to an alternate role, it is necessary to assess whether the alternate role is a Comparable Position by consideration of the conjunctive criteria specified in the clause 5 definition. That is, each of the five criteria must be assessed and met in order for the new role to be a Comparable Position.

[63] Both parties agreed, and I accept, that the only criteria in contest in the present case is sub-clause (c) of the definition. Each of the other 4 criteria are satisfied for the purpose of establishing that the New Role is a Comparable Position to that of the Old Role. As is apparent from a plain reading of sub-clause (c), it clearly anticipates that there may be a change in duties for the Applicant between his Old Role and the New Role. However, for the New Role to be a Comparable Position when compared to the Old Role, any change in duties cannot be so significant as to be unreasonable by reference to the Applicant’s skills, abilities, previous work experience and training required to fulfil the New Role.

[64] Therefore, a focus is necessarily required firstly on the nature and scope of the changes in duties (if any) between the Old Role and the New Role. Once those changes are identified and assessed in terms of their nature and scope, it is then necessary to consider the significance of the change in duties and whether the changes are unreasonable having regard to the Applicant’s skills, ability, work history and training requirements.

[65] Central to the analysis is that of the meaning of the term ‘unreasonable’ which has been previously considered in a number of authorities to which I was referred by the NAB. Those authorities were helpfully identified and considered by Deputy President Sams in Heath 70in which case the Deputy President considered the meaning of the equivalent provision in the NAB Enterprise Agreement 201171 (the 2011 Agreement). Of particular significance in the Deputy President’s decision in Heath was the reasoning of Moore J in Hawkins & Another v Commonwealth Bank of Australia72 (Hawkins).

[66] From the authorities considered in Heath I draw the following principles to be applied in the present case in assessing whether the New Role is a Comparable Position;

● The test of whether the Applicant’s New Role is a Comparable Position to that of the Old Role is an objective one and does not turn on the opinion of either the Applicant or the NAB 73;

● Whether there is a correlation between the duties of the New Role and Old Role or whether there was a significant change in duties 74;

● Was the change in duties so significant as to be unreasonable having regard to the Applicant’s skills, ability, previous work experience and required training 75; and

● Would a reasonable person in the position of making the decision have made the same decision as the NAB? 76

[67] To the above I would also respectfully adopt the summary provided by Deputy President Sams in Heath of those factors that will generally not be included in considering whether a position is a Comparable Position. The Deputy President relevantly stated as follows;

“[453] A consideration of whether a position is a ‘comparable position’ will generally not include factors such as:

• feelings of a loss of status within the Bank;
• feelings of a loss of importance to the Bank;
• whether the employee dislikes the new role;
• whether the employee feels uncomfortable about the role; and
• whether the employee is unhappy or dissatisfied with the process of consultation leading to redundancy or deployment.” 77

[68] I now turn to consider the nature and scope of the change in duties between the Old Role and New Role.

[69] The Applicant’s case was advanced almost entirely on the grounds of the NAB’s adoption of a Cloud first strategy and the impact that strategy would have on the Applicant in terms of training required to perform in the New Role. Central to his case was that the NAB’s adoption of the Cloud first strategy was a critical element of the change in duties arising from the organisational restructure. This is apparent from the following evidence of the Applicant when being questioned by me during his oral evidence;

“Can I just stop you there, just so I can understand the general nature of your role? I think Mr Payne gives some evidence in relation to that. I'm probably something of an IT Luddite, right? So excuse me if I try and dumb this down so I can understand it. But there might be a need identified in the business for a particular application and at the other end you have all these highly, deeply technically competent people that would prepare and develop a particular software for a particular application. Is my understand correct, that your role in large measure is to act as the interface between the business and the specialists who prepare and develop particular applications - understanding the business needs and being able to communicate that to the developers and vice versa?---Yes, definitely; understanding the business need.

………………….

I may be dumbing it down too much?---No, that's fine. The responsibility of the architect solution is to be responsible for the end-to-end solution, so all the way through. Large projects - and the bank has many large projects - cover many different service domains which would have service architects and you need to liaise with each of those and understand their part of their service and move through the whole thing so you've got an end-to-end solution of what the business wants and what is going to perform.

But you're not expected as an architect solution to actually develop the particular software?---No.

It's to have sufficient knowledge of it to be capable of overseeing and managing the end-to-end solution, as you say?---Exactly - so the whole basis of my case is that to get sufficient cloud knowledge I will need to do a significant amount of training. That's the whole basis of my thing. So what I'm trying to show is that - - “(emphasis added) 78

[70] The Applicant also conceded during cross-examination by Ms Gaspar that, putting aside the Cloud first strategy, there was little if any difference between the Old Role and the New Role;

“Mr Cameron, over your 30-year history at the bank you have previously, haven't you, architected solutions for divisions of the bank other than the banking team?---Yes.

That's right. Thank you. Mr Cameron, do you agree that in both your current - your new role of architecture solution and your previous role as solutions architect, so comparing both roles, your responsibilities for both were to architect IT solutions for an initiative or a project. That's so?---Yes.

You also agree that in both roles, part of your responsibilities, you have to have regard to the requirements of the client, the internal customer, of the particular business unit at NAB that you're architecting the solution for. Is that so?---Yes.

Part of both those roles requires you to liaise with the appropriate IT subject matter experts?---Yes.” 79

[71] I am satisfied based on the evidence of both the Applicant and Mr Payne that the nature of Old Role and the New Role is essentially the same, save for the adoption of the emerging Cloud technology by NAB which the Applicant contends is part of the change in duties, of which contention I will shortly deal with. I am further satisfied that the Old Role and the New Role both have the same duties and features in that the Applicant is;

● required to understand the technical capability and service that is realised through various applications and platforms at NAB;

● not required in either role to develop products and applications himself;

● required to understand the requirements and needs of the project/initiative to which he was deployed and create an end-to end technology solution to fulfil those requirements in order to meet the business/project needs;

● required to liaise with IT subject matter experts that were responsible for developing the particular applications/solutions;

● required to have a level of understanding of impacted systems across the NAB although he is not required to have deep technical knowledge of the various systems/applications;

● not required to backfill technical specialists, or as is now referred to in the new organisational structure, Service Architects; and

● is required to architect solutions.

[72] I also accept that in moving from the Old Role to the New Role the Applicant is now part of a Flex team and may be deployed on projects/initiatives across the various divisions of the NAB, whereas under the previous organisational structure in the Old Role he was attached to the Banking division immediately prior to the organisational change that took effect on 1 April 2019. The Applicant concedes however that he had worked across various divisions of the Bank while engaged in his Old Role.

[73] I now turn to the Applicant’s contention that the NAB’s adoption of the Cloud first strategy represents a change in duties arising from the organisational change and which is a requirement of the New Role. This contention is in my view misconceived for the following reason.

[74] The Cloud first strategy was, on the evidence of both the Applicant and Mr Payne, implemented prior to the organisational change that took effect on 1 April 2019. It may well be that the changes to the organisation structure and architect roles were implemented to support the new IT architecture strategy. However, the move to a Cloud first strategy adopted by the NAB was occurring prior to and independently of the organisational change. The Book which was referred to by both the Applicant and Mr Payne was also released prior to the change. Simply put and quite unsurprisingly having regard to the evolution of technology, the NAB was on a path of moving to Cloud hosted applications/systems prior to the Organisational change that led to the Applicant moving into the New Role.

[75] I am satisfied that while the move to Cloud hosted applications is now a key focus of the NAB’s IT strategy, it is and has been an ‘organic’ process that commenced in 2017/2018 and gathered pace on arrival of Mr Komarov in August 2018. It (the Cloud strategy) clearly preceded the organisational change. I am consequently not persuaded that the Cloud first strategy and the impact of that strategy on the Applicant constitutes a change in duties for the purpose of assessing whether the New Role is a Comparable Position to that of the Old Role.

[76] I will also briefly deal with the Applicant’s contention that use of Agile practices also represents a change in his duties. On the Applicant’s own evidence, Agile has been in use within the NAB for at least two years and according to Mr Payne, for up to 5 years. Clearly the implementation of Agile practices pre-dates the organisational change and formed part of the Old Role requirements, even if it were not spelt out in the Old Role RPS. I am not satisfied that the requirement to apply Agile practices in the New Role represents a change in duties.

[77] Having regard to the above, I am satisfied that the only relevant change between the Old Role and the New Role is that of the potential for deployment of the Applicant to projects/initiatives across the various NAB divisions. That is to be contrasted with the former structure where in his Old Role the Applicant was allocated to a particular division of the NAB, that being the Banking division immediately prior to 1 April 2019.

[78] The Applicant did not seek to rely on the change I have described immediately above, readily conceding that he had architected solutions for and across various divisions of the Bank during his time in the Old Role. The Applicant clearly has the skills, ability and experience to architect solutions across different divisions of the NAB. I also note the clear statement provided to the Applicant in the Position Requirements Letter, the veracity of which I have no reason to doubt, that he will be selected for projects and work based on his skill, experience, expertise and aspiration. In these circumstances I do not regard the change in duties described as significant.

[79] It follows from the above and I am satisfied that;

● There is a strong correlation between the duties of the Old Role and New Role.

● The Cloud first strategy and use of Agile methodology was occurring independently of and prior to the organisational structure change of 1 April 2019 and does not constitute a change in duties to be considered for the purpose of assessing whether the New Role is a Comparable Position.

● The potential deployment of the Applicant from the Flex pool to projects/initiatives across the NAB divisions rather than being attached to a particular division does represent a change in duties.

● The change in duties described above is not significant enough to be unreasonable having regard to the Applicant’s skills, ability, experience and training required.

[80] I am further satisfied on the basis of the above findings that the New Role is a Comparable Position to the Old Role. In reaching this conclusion I have excluded from my consideration the adoption by NAB of the Cloud first strategy and the consequent impact of that strategy on the Applicant for the reasons outlined at [74]-[75].

[81] If I am wrong in my conclusion that the Cloud first strategy is not relevant to consideration of the change in duties between the Old Role and the New Role, it falls to be considered whether the change in duties, including the impact of the Cloud first strategy on the Applicant, is so significant as to be unreasonable having regard to his skills, ability, experience and training required. I now turn to that consideration.

[82] The fundamental contention of the Applicant is that NAB’s adoption of a Cloud first strategy will require him to upskill in the area of Cloud technology in the New Role, and that the training required will be so significant as to be unreasonable having regard to his claimed declining capabilities.

[83] The Applicant does not contend that the general requirement for IT professionals to upskill to meet the changing technology demands is unreasonable. He in fact concedes that changes in technology have been constant during his career at the NAB which is confirmed by Mr Payne. Further, he states that he has willingly trained and upskilled during his career at the NAB and that it would be unreasonable for the NAB to retrench its IT workforce each time there was a change in technology. The Applicant further concedes that the move towards Cloud hosted applications/systems is no different in nature to that of previous technology changes. The following exchange during questioning of the Applicant by me is relevant;

“Right - what distinguishes that new technology from the process of technological evolution or revolution or whatever you'd like to call it over the last 30-odd years of your time at the National Australia Bank? Nothing - I've lived with change in technology for 50 years from primitive stuff to where we are now. The issue I'm trying to make is that under the enterprise agreement 5(c) it says: 'Significant and unreasonable amount of training.' It also considers the employee's ability. So what I've maintained is that over time, my memory retention capability has decreased and what I'm showing in my submission is that to get a reasonably good understanding of cloud technology, I would have to do a significant amount of training, which - I can put some figures on it. Now, the bank is arguing I don't need that training. I think Jason stated something along the lines of a three-day course he considered adequate. So I did that three-day course, even though they said at meetings in March, May and June they offered that course to me, I did that course November 2018. It's a three-day course, a lot of prac work in it, so half the time, 1.5 days, was a bit of theory. The rest was just showing how easy it was to configure things. The issue with that is I can't stand up as an architect and talk to people that are dealing with cloud technology in depth with basic 1.5 days. So when you look at the training that is needed for AWS to become an associate architect and then there is the AWS professional architect, which I may not need, then we use Microsoft Azure as well, so Microsoft Azure training and down the track, maybe Google cloud services. To understand those you can do an introductory course, but the introductory course is always very high level. Technology courses that I've done over many years - and I've got a lot of experience in training - is they have an introductory course and then you're into the depth.

If you want to be a manager that has a middle-sized view of what is going on with technology, you can't get it. You've got to do the depth training. So what I'm saying is that - - -

Have you historically done that?---Yes, you do the depth, and you don't need 100 per cent of it but you don't know what you do and don't need.

But it would be fair to say if you hadn't have done that training over the years, you wouldn't have been able to cope with the new technology?---Exactly, so that's what I'm saying now. I - - -

I'm trying to understand how is this any different?---Well, it's no different. I won't be able to cope with the new technology having to collaborate - -

No, I'm saying how is the requirement - you say you've got to do more training?---Yes.

I'll hear from the employer in terms of their evidence about what they say you need to do but even if I accept your evidence that you will need to do more training, how is that any different to the historical requirement that you continue to upskill as new technology is introduced?---It's not. I've had to do that. If I was younger and more capable - - - 80”

[84] Turning now to the training required to deal with the emerging Cloud technology and its use within NAB. There is a stark difference in the evidence of the Applicant and Mr Payne. The Applicant states that he is likely to require several months of training in Cloud technology in order to succeed in the New Role. Mr Payne on the other hand states that he believes the Applicant can successfully perform the New Role having completed the 3-day AWS introductory course, as Mr Payne has himself done. The Applicant acknowledges that he may have overstated the training requirements but that it would in any case be substantially more than the 3-day course which he has already undertaken.

[85] While I am not able to assess how much training would be required by the Applicant, it seems inherently unlikely that the Applicant would be required to do the volume of training that he has outlined in circumstances where he is not required to possess the depth of knowledge of an SME or Service Architect. On the other hand, I did not find Mr Payne’s downplaying of the training required entirely convincing. The NAB has however made clear to the Applicant in the Position Requirements Letter that he was not required to be Cloud certified, would not be required to backfill Service Architects and would be deployed onto projects/initiatives based on his skills, experience and aspirations. The Applicant is entitled to rely on those statements as do I. Importantly he is not required to be an SME and he will be supported by Service Architects where deep technical knowledge is intended to reside.

[86] It is also relevant that the NAB has identified a target state of Cloud hosted applications/systems that will if, realised in the current 3-year plan, see 800 out of 2200 applications/systems Cloud based. While Mr Payne concedes that growth in Cloud hosted applications/systems will generate a lot of Cloud work it is also clear that there will continue to be a requirement to manage and architect on-premises applications/systems. In these circumstances the skills and experience of the Applicant will remain relevant and are required according to the NAB.

[87] I am not persuaded in the circumstances that the Applicant will have to do the volume of training that he has outlined. I do however accept that he may for reasons of his own professional ‘comfort’ with the new technology, need to do some additional training beyond the 3-day AWS introductory course. The NAB has made clear that should the Applicant feel he needs additional training he will be supported and be able to be undertake the training during working time.

[88] For the sake of completeness in relation to the potential training requirement, I see nothing unreasonable in the NAB expecting and supporting the professional development of its IT staff. That has occurred historically and is unremarkable in circumstances where few professions have confronted change as regularly and dramatically as IT professionals. It would be a nonsense to suggest that each time there was a significant shift in technology that employees would be made redundant and not supported to upskill. The redeployment, upskilling and minimising the impact of change on individuals is in fact what the Agreement requires of the NAB.

[89] I accept that the Applicant is likely in the New Role to be required to architect solutions that are Cloud hosted and that in doing so he will be required to engage with Service Architects who have deep technical knowledge of the Cloud technology. That requirement to engage with technical experts is no different to what he was required to do in the Old Role when architecting solutions within the NAB, that being the need to engage with SMEs in respect of the technical solutions. I am satisfied that while some knowledge of the Cloud will be required, the Applicant is not required to undertake detailed technical work as that will fall to the Service Architects.

[90] To the extent that the need to architect Cloud based solutions may be accepted as a change in duties from the Old Role, I do not accept that the change is so significant as to be unreasonable having regard to the additional training he may require to successfully perform in the New Role. The Applicant is an experienced architect of 30 years’ service within the bank, he is well regarded by the technology leadership team, has a skill set that the NAB wish to retain and he will continue to undertake work consistent with his skills and experience. To the extent that he may need some additional training to enhance his skills, the quantum of which is contested, such a requirement is not unreasonable, has historically occurred and is a necessary part of IT professional development. I am fortified in my view by the explicit statement in the Applicant’s Contract of Employment dated 16 July 2001, that he may be required to undertake other duties and responsibilities from time to time and also undertake another position.

[91] I will also deal with the Applicant’s contention that it is his declining capabilities that render the upskilling and training requirements unreasonable. Aside from the Applicant’s own opinion, the only evidence adduced to support that contention was a medical certificate dated 7 August 2019. It indicated that the Applicant was suffering from work related stress associated with Cloud implementation and that this stress was interfering with his ability to learn new programs, compounding his stress. The medical report further advises that the Applicant was provided with some suitable medication to assist with his ability to handle these issues.

[92] Importantly, the medical certificate expresses no view on the prognosis of the Applicant’s condition or his long-term capacity. It (the medical certificate) also appears to be premised on the Applicant’s view of how much training would be required. As I have stated above, that estimate by the Applicant has been overstated in my view. In any event the medical certificate provides a fragile base on which to conclude that the Applicant’s capabilities have deteriorated to such an extent that he would be unable to handle a reasonable amount of additional training. Even if it were the case that the Applicant’s medical condition was such that he was unable to meet the inherent requirements of the New Role, that would not in my view establish a basis for concluding that the New Role was not a Comparable Position.

[93] I now turn to the Applicant’s contentions regarding the RPS for the New Role and the measurement of his performance in his Scorecard. I accept that there are differences between the RPS for the New Role and Old Role. The differences of significance between the two appear to be the references within the New Role RPS to; ‘alignment to target state technology’ under Role Purpose, the requirement for ‘5+ years’ experience in Software Development and Design’ and ‘Experience and demonstration of agile practices’. The Applicant states that he is unable to meet these requirements.

[94] The NAB sought to allay concerns held by the Applicant in respect of the RPS for the New Role in the Position Requirements Letter. It also confirmed that the RPS is a generic document intended for both external recruitment and for internal reference. The fact that the NAB may seek to recruit staff with expertise in new and emerging technology such as Cloud and/or also seek candidates with Agile and/or software development and design experience is to be expected and does not mean existing architects’ skills and experience cease to be relevant. Any doubt of this in the Applicant’s case has been resolved in my view by the clarification provided in the Position Requirements Letter. While the Applicant expressed misgivings as to the reliability of the assurances provided by the NAB in that letter, there is no basis for me to conclude that the clarifications provided by the NAB could not be taken at face value and relied on. I consequently do not accept that the concerns the Applicant has raised regarding the RPS for the New Role remain valid following the clarifications provided by the NAB.

[95] As regards the assessment of his performance I accept that the RPS will not form the basis for such assessment but rather it will be his personal Scorecard which will continue to be based on the business objective of the Strategy & Architecture division. In my view that does not constitute a change of duties for the purpose of assessing whether the New Role is a Comparable Position.

[96] Having now taken into consideration the Cloud first strategy as forming part of the change in duties of the New Role I draw the following conclusions;

● The Cloud first strategy is likely to require the Applicant to architect Cloud based solutions although he is also likely to continue to be required to architect on-premises solutions.

● The Applicant may be required to undertake some additional Cloud training beyond the AWS 3-day introductory course although it is unlikely to be as onerous as that claimed by the Applicant.

● The Applicant will not be required to be Cloud certified, will not be required to backfill Service Architects and will be deployed form the Flex pool on to projects/initiatives across the NAB based on his skills and experience.

● The Applicant’s performance will be assessed against his personal Scorecard and not the generic RPS.

● Upskilling and technical training has and continues to be a necessary feature of IT staff professional development within the NAB, which the Applicant has historically undertaken.

● The shift to Cloud hosted applications/systems is not materially different in nature to previous technology changes.

● The change in duties described is not significant enough to be unreasonable having regard to the Applicant’s skills, ability, experience and the additional Cloud training required.

● There continues to be a strong correlation between the duties of the Old Role and New Role.

[97] It follows from the above conclusions in my opinion that a reasonable person in the same position as the NAB would have reached the same decision as to the New Role being a Comparable Position.

[98] Turning briefly to consider those factors that would normally not be considered, and which were summarised by Deputy President Sams in Heath and which I have reproduced at [67], I observe the following. It is evident that the Applicant is apprehensive and uncomfortable about the requirements of the New Role and in particular the Cloud technology. I do not seek to downplay those apprehensions, but it is clear that the NAB has confidence in the Applicant’s ability to perform in the New Role and there is nothing to suggest the Applicant has been set up for failure. That confidence of the NAB should be of some comfort to the Applicant and in particular the commitment of the NAB to provide any necessary training to assist him succeed. In any case, the level of the Applicant’s discomfort with the New Role is not a matter in the circumstances of this case that weighs in my consideration of whether the New Role is a Comparable Position.

[99] It follows from the above that I am not persuaded, taking into account the Cloud first strategy of NAB, that the New Role entails a change in duties so significant as to be unreasonable taking into account the Applicant’s skills, ability, work experience and training that may be required.

[100] For the sake of completeness, it is necessary to address one submission the Applicant made and that was his belief that the denial of a redundancy package to him was linked to his age. The Applicant’s belief does not go beyond suspicion or speculation and he was unable to adduce evidence in support of the submission. Mr Payne gave direct evidence of his participation in discussions regarding the Applicant’s selection for the New Role and flatly denied the suggestion that the Applicant’s age played any part in the decision. I accept that evidence and further find there is no basis to infer the Applicant’s age played a part in his selection for the New Role.

Conclusion

[101] As I have found above, I do not regard the NAB’s pursuit of a Cloud first technology strategy as a relevant factor in assessing whether the New Role is a Comparable Position to that of the Old Role. On that basis, the only change in duties of significance in the New Role is that of the potential deployment of the Applicant onto architecture project’s/initiatives across different divisions of the NAB rather than being allocated to projects/initiatives in a particular division as was the case in the Old Role. That change is not significant enough to be unreasonable having regard to the Applicant’s skills, ability, work experience and training requirements. The New Role is therefore a Comparable Position for the purpose of clause 55 of the Agreement.

[102] In the alternative and in the event that I am wrong in my conclusion that Cloud technology is not a relevant factor to be considered, taking the Cloud first strategy into account, the change in duties is still not so significant as to be unreasonable. That is because to the extent that some additional training may be required by the Applicant, such additional training is unlikely to be as onerous as claimed by the Applicant, such training would be consistent with ongoing professional development requirements and the Applicant will be allocated to projects/initiatives consistent with his skills and experience. The New Role is therefore a Comparable Position for the purpose of clause 55 of the Agreement.

[103] As previously stated, the question to be determined is;

Comparable Positions means a position which:

[104] The answer to that question is yes and the matter is determined accordingly.

DEPUTY PRESIDENT

Appearances:

C Wayne on his own behalf

N Gaspar for the Respondent

Hearing details:

2019
Melbourne
26 November

1 AE421335

2 Exhibit R2, Witness Statement of Mr Jason Payne dated 8 November 2019 at [11]

3 Ibid at [11]

4 Ibid at [5], Transcript at PN100

5 Ibid at [12]

6 Ibid at [17]

7 Ibid at [18]

8 Exhibit A1, Witness Statement of Mr Wayne Cameron, dated 22 October 2019 at [1]-[5]

9 Ibid at [8]

10 Transcript at PN 494-PN496

11 Ibid at PN145-PN146

12 Ibid at PN75, PN147

13 Transcript at PN75

14 Ibid at PN124-PN126, PN129-PN130

15 Ibid at PN127, PN133-PN134

16 Ibid at PN497- PN498

17 Exhibit A1 at [12], Transcript at PN503-PN504

18 Transcript at PN 79

19 Ibid at PN89, PN97

20 Ibid at PN87-PN88

21 Exhibit A1 at Attachment 10

22 Ibid, Attachment 11

23 Ibid at [9]-[10]

24 Ibid at [11]

25 Ibid at Attachment 7

26 Transcript at PN218

27 Exhibit A1 at Attachment 2

28 Ibid at Attachment 3

29 Ibid at Attachments 4, 4a, 5, 5a, 5b

30 Ibid at Attachment 6

31 Transcript at PN234

32 Ibid at PN408-PN409, PN508-PN509

33 Ibid at PN541

34 Exhibit A1 [19], Attachment 8

35 Exhibit R2 at Attachment JP3

36 Transcript at PN523, PN530, PN553-PN554

37 Ibid at PN567-PN570

38 Ibid at PN582-PN588

39 Exhibit R2 at [1]-[4]

40 Ibid at [16]

41 Ibid at [18]

42 Ibid at [6], Transcript at PN710

43 Transcript at PN718, PN767-PN769

44 Exhibit R2 at [28], Transcript at PN745-PN746

45 Exhibit R2 at [29]

46 Transcript at PN646-PN647

47 Exhibit R2 at [19]

48 Ibid at [20]

49 Ibid at [22]

50 Ibid at [23]

51 Ibid at [24] & Attachment JP2

52 Ibid at [26]

53 Transcript at PN756, PN759

54 Ibid at PN651

55 Ibid at PN697-PN698

56 Ibid at PN643-PN644

57 Exhibit R2 at [31]

58 Transcript at PN654-PN656

59 Ibid at PN657

60 Ibid at PN633-PN639

61 Exhibit R2 at [32]

62 Ibid at [33] & Attachment JP3

63 Ibid at [35]

64 Transcript at PN666-PN668

65 AMWU v Berri [2017] FWCFB 3005 at [114]

66 [2014] FWC 3994

67 Exhibit R2, Attachment JP1

68 Clause 52.1 of Agreement

69 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Berri Pty Ltd [2017] FWCFB 3005 at [114].

70 [2014] FWC 3994 at [446]

71 AE884322

72 (1996) 66 IR 322 at pp 348-350

73 Ibid at pg. 348

74 Von Bibra Robina Autovillage Pty Ltd [2007] AIRC 397 at [26]

75 (1996) 66 IR 322 at pg. 348

76 Construction, Forestry, Mining and Energy Union v HWE Mining [2011] FWA 8288 at [12]

77 [2014] FWC 3994 at [453]

78 Transcript at PN100-PN106

79 Transcript at PN493-PN496

80 Transcript at PN127-PN133

Printed by authority of the Commonwealth Government Printer

Wayne Cameron v National Australia Bank T/A National Australia Bank