[2024] FWC 2079 [Note: An appeal pursuant to s.604 (C2024/5864) was lodged against this decision.]

Fair Work Act 2009

s.739 - Dispute resolution

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

Application to deal with a dispute under an enterprise agreement - classification dispute

• [1] The "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU or Union) has applied for the Commission to deal with a dispute under the Broadspectrum DSS Enterprise Agreement 2019 relating to the classification of its member, Mr Jake Butterfield.

• [2] The Respondent is Ventia Australia Pty Ltd (Ventia).

• [3] Mr Butterfield is employed by Ventia as a Vehicle Mechanic. He is classified as C8 but asserts that his correct classification should be C7. Mr Butterfield sought re-classification in late April 2023.

• [4] There is no dispute between the parties about the classification process.

• [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.

• [6] As part of the classification process, each party identified a qualified skilled assessor, who attended the workplace, inspected Mr Butterfield's work and wrote an assessment report. The Union's skilled assessor was Mr Paul Baxter of Manufacturing Industry Skills Training Apprenticeship Services (MISTAS). Ventia's skilled assessor was Mr David Murray from the Australian Industry Group. There was no dispute between the parties that each of the skilled assessors was appropriately qualified and experienced to assess Mr Butterfield for the purposes of his re-classification.

• [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.

• [8] My answer is that Mr Butterfield is entitled to the competency unit MEM27025. My reasons follow.

• [9] The parties agree, and I am satisfied based on the evidence of Mr Robert Gould, Regional Manager - South Vic/Tas/SA, that the Dispute Settlement Procedure in Clause 11 of the Agreement has been followed and the Union can refer the matter to the Commission for resolution, including by way of arbitration.

• [10] I conducted multiple conferences in this matter on 18 October 2023, 7 December 2023 and 14 February 2024 but was unable to assist the parties to resolve the matter.

• [11] I heard the matter over 2 days on 29 and 30 April 2024.

• [12] The Union relied on its written and oral submissions, as well and the evidence of Mr Butterfield and Mr Baxter. Ventia relied on its written and oral submissions, as well as the evidence of Mr Murray and Mr Gould.

• [13] In the written materials, the parties also provided:
  • - the National Metal and Engineering Industry Competency Standards Implementation Guide;
  • - description of and assessment requirements for the competency units that were the subject of submissions, being MEM27016, MEM27017 and MEM27025; and
  • - extracts from the Technical Manual and Operator's Manual for Recovery Vehicle M88A2.

• [14] I also had the benefit of a site visit on 18 April 2024. During the site visit and accompanied by both parties, I was shown Mr Butterfield's work location, the Recovery Vehicle M88A2 and examples of vehicles that the M88A2 recovered as well as some of the tools used by Mr Butterfield during his work.

• [15] While I may not engage with every argument or submission made, I have considered all of the materials in reaching my decision.

• [16] The titles of each of the relevant competency units are:
  • - MEM27025 - Maintain, diagnose and rectify fluid power controls in mobile equipment;
  • - MEM27017 - Maintain, fault find and rectify hydraulic systems for mobile plant; and
  • - MEM27016 - Diagnose and maintain electronic controlling systems on mobile and stationery plant.

• [17] The Implementation Guide is clear that the title of each competency unit is not to be relied upon and the full description of the skills covered is set out in the unit's elements, performance criteria and range statements.

• [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.

• [19] The description for each competency unit sets out the following:
  • - modification history
  • - application
  • - pre-requisite units
  • - competency fields
  • - elements and performance criteria
  • - foundation skills
  • - range of conditions
  • - unit mapping information

• [20] The assessment requirements for each competency unit sets out:
  • - modification history
  • - performance evidence
  • - knowledge evidence
  • - assessment conditions

• [21] MEM27017 and MEM27016 both have modification histories, indicating that they supersede and are equivalent to other competency units. MEM27025 has no modification history and is a new competency unit, although it is not clear when it was first released.

• [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."

How the competency units are distinct from each other

• [25] All 3 competency units deal with maintaining, diagnosing or fault finding, and repair or rectify faults. However, each competency unit relates to a different system. Both Mr Baxter and Mr Murray acknowledge that there are necessary overlap in units.

• [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.

• [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.

• [31] I accept Mr Butterfield's and Mr Baxter's evidence regarding transducers as part of the hydraulics power system. In particular, Mr Butterfield said:[1]

"There's multiple hydraulic circuits in the M88 that do various operations, and there's various transducers in those circuits."

• [32] He went on to describe what a transducer looked like, what it did and that he was required to check and calibrate it as part of an entire sequence of checking using a maintenance support device, which is similar to a laptop. During the site visit on 18 April 2024, I was shown the maintenance support device, and a short hypothetical example of the sequential operation required in checking, diagnosing and fault-finding when using the device - what Mr Butterfield expressively called - following the bouncing ball.

• [33] Mr Murray's evidence is that the work performed by Mr Butterfield in relation to the transducer is sufficiently covered by elements 3 and 4 of MEM27016, which deal with diagnosing and rectifying electronic controlling systems. This appears to isolate the work on the component transducer without taking sufficient account of the entirety of the system, of which the transducer is a key part.

• [34] Mr Murray's evidence was also that there was no sequencing in the M88A2 and that each of the operations are separate controls, which the operator must perform in a particular order so as to operate the vehicle. However, Mr Butterfield was clear that each of the operations relies on an earlier operation, and he is required to check and follow each operation or task in order when diagnosing and calibrating. I am satisfied that there is a sequence system that Mr Butterfield must be familiar with and perform adjustments to when servicing and repairing the M88A2 Recovery Vehicle.

Mr Butterfield can demonstrate the 6 elements of MEM27025

• [35] I am persuaded therefore that Mr Butterfield can demonstrate that he meets each of the 6 elements within competency unit MEM27025.

• [36] There is no dispute that Mr Butterfield meets element 1, as this is a general element applicable to all units.

• [37] In relation to element 2, there is no dispute that Mr Butterfield can demonstrate this element. However, Ventia argues that it is 'falls squarely' within element 4 of MEM27017, with the distinction relating to an assessment of the complexity of the system. I am of the view the system is complex and can meet element 2 of MEM27025.

• [38] Similarly, in respect of elements 3, 4 and 5, whether Mr Butterfield can demonstrate these elements relies on an assessment of the complexity of the system he must interact with in the M88A2.

• [39] Element 6 deals with the control circuit and sequence. Mr Butterfield gave evidence[2] of 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.

• [40] Ventia raised that Mr Butterfield's work on transducers was only a 'very small part' of his duties. Mr Butterfield gave evidence that there are 3 M88A2 Recovery Vehicles, which need to be serviced and repaired every 6 months and that only he and one other person are qualified to perform that work. 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. There is no dispute that, if he is awarded this unit, then he is to be re-classified. There is also no dispute that Ventia requires Mr Butterfield to perform servicing and repair work on M88A2 Recovery Vehicles, and that he does perform that servicing and repair work. I find that he must hold and use competency unit MEM27025 in doing so.

• [41] Ventia also raised that there is no apparent catalyst for Mr Butterfield to have sought re-classification in April 2023, and that he had been re-classified in or around 2019. Ventia also raised a concern regarding double counting competency units. 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.

• [42] To resolve this dispute, I conclude that Mr Butterfield is required to hold and use competency unit MEM27025. As a result, he should be re-classified to C7 under the Agreement.

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