Industrial Relations Commission of New South Wales CITATION : Eraring Energy v Labor Council of NSW and others [2002] NSWIRComm 23 Eraring Energy Labor Council of New South Wales PARTIES : Construction, Forestry, Mining and Energy Union, (NSW Branch) Electrical Trades Union of Australia, NSW Branch Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales FILE NUMBER: IRC6146 of 2000 CORAM: Harrison DP Notification of industrial dispute pursuant to s 130 of Industrial Relations Act of 1996 - Application of award - Agreement between parties determined rate of pay in conjunction with award CATCHWORDS : Policy does not override award - Acting in higher grade policy does not establish rate of pay if appointed to position - Individial assessment required not undertaken - Payment ordered LEGISLATION CITED : Industrial Relations Act 1996 CASES CITED : Electrical Trades Union of Australia, NSW Branch v Pacific Power IRC99/1254, 21/7/99, Harrison DP unreported Pacific Power v Construction, Forestry, Mining and Energy Union (NSW Branch) and ors IRC97/2973, 17/6/99, Harrison DP unreported HEARING DATES: 12/10/2001 DATE OF JUDGMENT: 02/20/2002 APPLICANT Mr S Durie Eraring Energy LEGAL REPRESENTATIVES: RESPONDENT Mr K Endacott Construction, Forestry, Mining & Energy Union (NSW Branch) JUDGMENT: - 17 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP 20 February, 2002 Matter No IRC 6146 of 2000 Notification under section 130 by ERARING ENERGY of a dispute with Labor Council of new South Wales and others re work bans DECISION [2002] NSWIRComm 23 1 This matter was subject to extensive, though unsuccessful, attempts at conciliation by Mr Commissioner Redman in the first instance and subsequently by the Commission as presently constituted. These proceedings resolved the issue of work bans and identified associated issues of dispute, being the payment of employees required to act in higher grade. 2 A Certificate of Attempted Conciliation was issued on 12 June 2001 and directions issued that the Construction, Forestry, Mining and Energy Union (New South Wales Branch) ('the Union') file and serve a notice of claim and remedy required, with a statement of grounds and reasons in support thereof, consequent upon which the matter would be relisted and scheduled for arbitration. 3 On 30 August 2001 the union filed Particulars Of Small Claim pursuant to s379 of the Industrial Relations Act 1996 ('the Act') seeking orders for payment to Mr Anthony Purcival of $1,118.61 and to Mr Stephen Jones of $1,450.97, being amounts calculated from detailed schedules attached, said by the Union to be properly payable to Messrs Purcival and Jones arising from occasions upon which they were required to act in higher grade. 4 The matter was subject to directions proceedings in September 2001 and consequently proceeded to arbitration on 10 December 2001. 5 On hearing Mr K Endacott appeared on behalf of the Union with Mr L Brydson and Mr A Drew. Mr S Durie appeared on behalf of Eraring Energy with Mr S Shawcross. 6 Mr Endacott brought evidence from Mr Jones and Mr Purcival. 7 Mr Durie brought evidence from Mr Shaun Edwards, employed by Eraring Energy in the capacity of Manager Operations since April 2001, prior to that time in the position of Operations Engineer. 8 Mr Jones has been employed by Eraring Energy and its predecessors since June 1982. At the relevant time he was appointed to the position of Assistant Power Plant Operator (APPO) at salary point (SP) 29 with payment of one additional salary point to SP 30 in recognition of additional experience and qualifications. 9 Mr Purcival has been employed by Eraring Energy and its predecessors since 1979. At the relevant time he was employed in the position of Operator E & C Technician at SP 24 and paid an additional salary point to SP 25 in recognition of additional skills and experience. 10 The employment of Messrs Jones and Purcival is regulated by the Pacific Power Employees Consent Award 2000 325 IG 1108 ('the award'), and an agreement made between Eraring Energy and the union titled, "Production Group Skills Development Career Path and Remuneration Program", commonly known as "the Matrix Agreement". 11 The Matrix Agreement was made between the parties following extensive consultation, mediation and conciliation before the Commission as presently constituted in matter number IRC 2973 of 1997. It sets out the number of employees required in each category for the normal operation of a shift, cross skilling and acting into higher grade; in particular cl 7, Shift Self Containment provides: Each of the five (5) shift panels will initially contain 20 employees, as per the following, or their equivalent name under the matrix. 1 x Shift Manager 4 x PPO 10 x APPO 1 x DAPO 1 x ADAPO 1 x E&C Technician 1 x Production Tradesperson 1 x Production Powerworker Significant cross skilling into maintenance duties will occur to facilitate shift self containment. Cross skilling will occur on a daily, casual and continuous (basic maintenance) basis, however appropriate certification and competence will be demonstrated prior to employees assuming such duties. Cross skilling on a daily (full shift) basis will involve acting into a vacant position to cover scheduled absences and the incumbent will respond to the full range of duties required. [Emphasis added] Cross skilling on a casual basis will require the relevant Operator to leave his/her operating duties and respond to maintenance issues directly and immediately affecting megawatts where the maintenance position is not filled or the incumbent is not available because of equally important maintenance issues. Basic maintenance is minimally defined, but not limited to minor repairs and adjustments that can be completed during an operators normal duties with basic tools in less that 20 minutes (nominal). All Operating staff are required to provide this minimum requirement with the help of training modules. This maintenance will be appropriate to their position. 12 Mr Jones is one of the 10 APPO's on his shift. Mr Purcival is the Electrical and Control ('E&C') Technician on his shift. 13 It is Mr Jones' evidence that from time to time he is required to act in the position of Power Plant Operator (PPO); the dates and times he has been required to act in this position from 23 November 1999 to 28 October 2000 are detailed in the Particulars of Small Claim filed on 30 August 2001. 14 Mr Purcival deposes that from time to time he is required to act in the position of APPO; the dates and hours he has been required to act in this position from 21 October 1998 to 2 December 1999 are detailed in the Particulars of Small Claim filed on 30 August 2001. 15 The Award provides a 40 point salary scale but does not provide specific classifications or the associated salary point. Clause 9 of the Award, titled Classification Advisory Committee, provides a mechanism for valuation of classification/s at the appropriate salary point/s. For Operators at Eraring Power Station the classifications and salary points are set out in the Matrix Agreement. Those parts of the agreement applying to APPO and PPO classifications are set out below: (f) APPO - SP 26 - New Appointee APPO - SP 27 Increase in base salary due to increased productivity attributed to: Increased work scope. Plant upgrades. Covering multiple positions. Implementation of computerized systems, and Basic maintenance APPO - SP 28 Shift Maintenance relief (Technician or Shift Fitter), or PPO relief (T Man), or Ash and Dust. (g) PPO - SP 31 - New Appointee PPO-SP 32 Increase in base salary due to increased productivity attributed to: Increased skills and work scope. Plant upgrades Implementation of computerized systems Leadership development Prepared to carry out APPO duties (new appointees mandatory) 16 The salary range for APPO is SP 26 -28 and for PPO SP 31-32. When called on to act as an APPO Mr Purcival was paid at SP 27. When called on the act in the position of PPO Mr Jones was paid at SP 31. 17 Mr Jones claims payment at SP 32 (compared with SP 31) whilst acting as PPO. Mr Purcival claims payment at SP 28 (compared to SP 27) whilst acting in the position of APPO. The claims are based upon cl 16, Higher Grade Work and Pay of the award, in particular 16.1 and 16.2 set out below: 16.1 Employees must carry out work at a higher grade as directed where reasonable and practicable for them to do so and must be paid in accordance with the provisions of this Clause. 16.2 Employees who are required to perform the duties and assume the responsibilities of a higher grade position which is vacant or the appointee of which is absent or is working in another position, must be paid the salary to which the employees would have been entitled if appointed to that position. [Emphasis added] Where employees are required to perform additional duties or assume additional responsibilities above those for their current position for a specified period, payment shall be made in line with the additional duties and responsibilities undertaken. Wherever practicable the rate of pay applicable to the higher graded duties shall be determined prior to the commencement of the acting. Employees who work at a higher grade for more than four hours must be paid at the higher grade rate for all ordinary time worked during the day or shift. The performance of higher graded duties must not continue for more than six months without the Chief Executive's approval. This will only occur in exceptional circumstances. 18 Clause 16.6 denies payment to employees who are training in higher grade, stating: 16.6 Employees undertaking training for the purpose of gaining experience in a higher graded position must not be paid at the higher grade rate where: (a) The appointed occupant of the position remains on duty and retains the responsibilities of the position- (b) The periods of training do not exceed a continuous period of three months; (c) In the case of non continuous training the periods of training do not exceed six months during a twelve calendar month period. 19 The Matrix Agreement was an arrangement of mutual benefit which detailed career development and skills enhancement arrangements within the concept of shift self containment and appropriate remuneration based on productivity improvement arising from the acquisition and use of additional skills. The objectives are set out in cl 2 in the following terms: To promote and remunerate productivity improvements within the self-contained production teams. Specifically this entails: (a) Establishing clearly defined career paths and entry points. (b) Providing accredited training to enhance the self managed teams flexibility and ability to respond to a wider range of plant variables. (c) Recognizing productivity improvements already made and identifying further opportunities for improvement. (d) To create a work environment where workers are able to develop both occupationally and personally and where the concept of continual improvement is recognized and supported. 20 Clause 3 details entry and career path opportunities; cl 3.4, 3.5 and 3.6 detail specifically advancement and payment in the following terms: 3.4 Incremental advancement will be based upon completion of the agreed skills development plan for each person set out in consultation with the Shift Manager. 3.5 Promotion to higher graded classifications, will be based upon merit. Candidates will be considered from all shifts across the matrix. 3.6 Advancement from within the matrix is preferred. However, if suitable applicants are not available, expressions of interest from within the station will be sought. Failing these avenues, advertisement via the PVC will be used. 21 The Matrix Agreement deals with payment for skills at cl 6 in the following terms: Payment is for skills acquired which meet the future needs of Eraring Power Station and individual employees. Increments of pay will be available by progression to the next pay point on completion of training and demonstration of competence in the defined skills. Employees required to work into a higher graded position, as per the Consent Award, will be paid the incremental rate appropriate to the skills they may be required to use in that position . Example being an E&C Technician trained to act in the Ash and Dust will be paid at the top level (to be defined). [Emphasis added] Optional Increment To recognize the contribution that individuals make to the performance of the shift, Eraring Power Station and Pacific Power as a whole, the option is open to all employees covered by this agreement to receive an additional salary point above their appointed salary level. This payment will be based upon an assessment conducted by members of the shift, the Shift Manager and the Production Manager or Operations Engineer if so desired (max. 5), using an agreed criteria, and will look at the persons overall approach, application and dedication to his/her position, their participation and performance in other work related areas and their general attitude and relationships with other workers and the workplace. All shift members will be required to take part in assessing other members of the group. 22 The Matrix Agreement further provides for the settlement of disputes in cl 9 in the following terms: A committee of two management representatives, and two employees covered by this agreement will mediate disputes arising from the agreement. Employee reps. to be elected by the production group. If any dispute arises between this document and Pacific Power Consent Award, the latter will prevail. A merit system will be developed incorporating the provisions of this agreement to ensure appointment decisions are made according to consistent criteria. This can also be used both in competency assessment and soft skill evaluation. 23 The evidence of Mr Jones is that in discharge of his duties as an APPO he works in conjunction with PPOs carrying out some of the PPO tasks in accordance with the principle of Shift Self Containment. 24 Mr Jones deposes that PPOs in his area of work are paid at SP 32 and that when he is required to act in the position of PPO it is only in the event of absence of a PPO. It is his evidence that on these occasions he is then considered one of the four PPOs on shift carrying out the duties, accepting the full range of function and responsibility of the absent PPO who is paid at SP 32. 25 Mr Jones deposes that he was not informed of a position adopted by Eraring Energy that required him to undertake 800 hours of acting in higher grade at SP 31 prior to qualification for payout of SP 32. Mr Jones' evidence is that he was first shown a memo from Mr Edwards to this effect (att. 7 to ex 1) as a consequence of his investigation into the rate of pay for acting in higher grade. 26 Mr Jones sought the assistance of the Union which initiated discussion pursuant to the disputes avoidance procedure of the Award by lodging an internal DAP form on 15 November 2000 (ex 2). Mr Edwards evidence is that he did not regard this as appropriate having regard to the terms of the Matrix Agreement which he considered had been negotiated in accord with the disputes avoidance procedure. 27 The memo provided to Mr Jones (att. 7 to ex 1) issued by Mr Edwards on 18 February 1999 states: After consideration of submissions made by some newly appointed T-men in regard to recognition of prior experience in rates paid for AIHG, the following has been determined by Eraring management. Newly appointed T-men at Eraring will be paid SP 31 for the first 800 hours of AIHG in the position of PPO, after which time they will, after documented evidence to management from their team leader (Shift Manager) that their application to their duties and performance in the role of PPO are to a satisfactory standard, be eligible for SP 32 when AIHG in the PPO position. For those newly appointed T-men at Eraring with previous appointment as a PPO, or 1000 hours previous AIHG experience as PPO on 660MW generating plant, they will be paid SP 31 for the first 400 hours of AIHG in the position of PPO, after which time they will, after documented evidence to management from their team leader (Shift Manager) that their application to their duties and performance in the role of PPO are to a satisfactory standard, be eligible for SP 32 when AIHG in the PPO position. 28 Mr Jones deposes that on completion of 819 hours of acting in the position of PPO he has received payment of SP 32 for all subsequent acting in the position. 29 The evidence of Mr Purcival is that he completed training in the necessary skills to undertake the duties of an APPO in October 1998 and was subsequently required to act in the position of APPO, first filling this role on 21 October 1998. 30 Mr Purcival deposes that on 22 October 1998 he was informed by his immediate supervisor that he would be paid at SP 27 whilst acting in the APPO position until he had completed 800 hours of acting. Mr Purcival's evidence is that he questioned this arrangement and on 6 November 1998 he was provided with a document titled "Guidelines for acting in higher grade and payment following promotion under Eraring Operator Matrix" issued by Mr Edwards on 6 November 1998 which enunciated the 800 hour requirement. Mr Purcival and Mr Sylvester, an employee in the Operator Group at Eraring Power Station, questioned this arrangement by e-mail to Mr Edwards, transmitted by Mr Sylvester on 9 November 1998 (att. 4 to ex 6), stating: I've read 1997 consent award on Videotex, RE: AIHG, Sect 18.2 & 18.3 Re: Your Outlook Message 6/11/98. To me this clearly states, if you AIHG you will be paid at the same rate as the employee who's position you are acting into. As all the existing APPO's at the moment are being paid SP28 as far as I could find out, then shouldn't Myself & Tony Purcival also be paid SP28 when we "act up". Also, would you please let us know where the aggregate of 800hrs came from. 31 A reply was received from Mr Edwards on 10 November 1998 (att. 5 to 3x 6) in the following terms: Thanks for the enquiry. This situation has arisen since all operator positions went from single salary points (eg APPO 26) to a salary range (APPO 26-28). As with all other positions in the station that have an associated salary point range, people acting into this position initially receive the bottom salary point in the range until they have acquired a higher level of capability and experience, after which time they may act into the position at the next salary point. It was considered that 800 hours (approximately 6 months) of experience would sufficiently provide that higher level of capability after which time, in your case, you would be paid SP28 when AIHG. 800hours is not prescribed in any current documentation to my knowledge but I am aware that periods of up to 12 months have been required in Pacific Power in the past before the next increment is allowed for AIHG. Please let me know if you have any other questions. 32 Mr Purcival deposes that APPO's whom he replaced when acting in higher grade were paid at SP 28 and that he was paid at SP 27 until he completed 785 hours acting in higher grade, and from then at SP 28. 33 The evidence of Mr Edwards is that in his capacity as Operations Engineer he participated in the negotiation of the Matrix Agreement and was actively involved in the drafting of the final arrangement which was signed off by management and employee representatives in September 1997. 34 Mr Edwards deposes that during the second half of 1998 a number of APPOs were selected to do PPO training. Once trained these trainee PPOs (known as "T-men") would be required to act in the position of PPO during the absence of the appointed PPO. Mr Edwards notes that the introduction of the Matrix Agreement moved operators (APPO and PPO) from a single salary point to a salary range, i.e APPO from SP 26 to SP 28 with SP 29 available for higher performance; PPO from SP 31 to salary band 31-32. 35 It is Mr Edward's evidence that he sought to clarify pay rates for operators when acting in higher grade given the introduction of the range, proposing that SP 31 be paid for the first 800 hours and thereafter SP 32 be paid, recognising that: ".. the newly trained operators would grow into the position, building their experience and skills with time spent in the role, after which recognition would be made of this experience by the payment of the extra salary point. This was consistent with past custom and practice elsewhere in the organisation, where the first Salary Point in the range was paid when AIHG into that range until certain levels of experience were achieved and demonstrated." (Pt 9 ex 9) 36 It is Mr Edwards' evidence that subsequent to implementation of the 800 hour policy he received replies from Mr Mark McDonald and Mr Phil Clews, both new T-men, proposing that some consideration be made of their prior experience as T-men and PPOs at other power stations. Mr Edwards revised his proposal, retaining the 800 hour criteria for newly appointed T-men at Eraring Power Station and introducing a criteria of 400 hours of acting in higher grade for newly appointed T-men at Eraring Power Station with previous appointment as a PPO, or 1000 hours previous acting in higher grade experience as a PPO at a 660 megawatt generating plant at other power stations for advancement to SP 31. 37 The evidence of Mr Edwards is that Mr McDonald and Mr Clews accepted this and he regarded the matter resolved. 38 Mr Edwards deposed that Mr Purcival and Mr Sylvester were not part of the operator group at the time the Matrix Agreement was made. Subsequently vacancies occurred for E&C Technicians on shift leading to the appointment of Mr Purcival who then began his APPO training which he completed in October 1998, thus qualifying him to act in the higher grade. SUBMISSIONS 39 Mr Endacott's primary submission is that the specific wording of cl 16 of the Award required a person acting in higher grade to be paid at the rate applicable to the employee replaced as the duties and responsibilities of the employee replaced are those undertaken by the person acting in higher grade; which he distinguished from the circumstance of an employee being required to undertake some specific additional duties, the value of which may require specific assessment. 40 Mr Endacott relied upon the evidence of Mr Jones and Mr Purcival, which he put demonstrates that they undertook the full range of duties of the employees replaced, who were paid at SP 32 and 28 respectively. 41 In dealing with Mr Purcival's position Mr Endacott noted that the APPO's duties at SP 28 include "shift maintenance relief (Technician or Shift Fitter)", a requirement not found in the description of duties apposite APPO SP 27. 42 Mr Endacott put that Mr Purcival is qualified as a technician and accordingly the employer has the benefit of these skills whilst he is acting as an APPO and accordingly Mr Purcival qualified for payment at SP 28 from the outset. Mr Endacott supports this submission by reference to the cl 6 of the Matrix Agreement which provides that: Employees required to work into a higher graded position, as per the Consent Award will be paid the incremental rate appropriate to the skills they may be required to use in that position." 43 Mr Endacott submits that whilst the award should be applied on the basis of copying the skills of the employee replaced, cl 6 of the Matrix Agreement allows an assessment of the skills held by the employee acting in higher grade that may be required to be used and payment made having regard to those skills held by the employee acting in higher grade. 44 Mr Endacott submits that no assessment was made of the skills held by Mr Purcival and that failure to undertake that assessment must result in payment of SP 28 having regard to his qualifications and experience as a technician. 45 In addressing the circumstances of Mr Jones, Mr Endacott relies on his primary submission that the proper application of the award would result in payment of SP 32 to Mr Jones, that being the salary of the PPO he is replacing. 46 In further argument in support of payment at SP 32 for Mr Jones, Mr Endacott relies upon the entry provision at cl 3.3 of the Matrix Agreement which states: Employees entering the production group, not presently covered by this document, will be required to demonstrate the ability and intent to progress within the production group. Such new appointees will be paid at the new appointee rate pending progression to a level determined by shift needs and equivalent to their skill level. 47 Mr Endacott submits that a proper application of this provision is that only employees coming into the production group not previously covered by the Matrix Agreement are paid at the entry rate and that all employees within the group must be assessed on the basis of skills and competencies. 48 Mr Endacott supports this argument by reference to the entry level requirement for PPO at SP 31, found within the Matrix Agreement, which he notes carries no list of duties and functions as distinct from the SP 32 step which does carry a description of duties and functions. Mr Endacott relies upon the evidence of Mr Jones, which he put was uncontested, that he undertook all of the duties and responsibilities described for PPO at SP 32. 49 Mr Endacott submits that the 800 hour requirement imposed by management was purely arbitrary and inconsistent with the award and the Matrix Agreement. 50 Mr Endacott notes that the extent of acting in higher grade for Messrs Jones and Purcival set out in the notice of claim is not contested; the only issue being the applicable salary point. 51 Mr Durie relies upon the definition of "industrial instrument" found in s 8 of the Act to support his submission that the matrix Agreement is not an industrial instrument so defined and accordingly not capable of enforcement. 52 Mr Durie submits that there has been no breach of the award, putting that the real test posed by cl 16 of the Award is what the employee would be entitled to if appointed to the position. He notes further that cl 16 also requires that: Whenever practicable the rate of pay applicable to the higher grade duties be determined prior to commencement of the acting." 53 Mr Durie submits that this took place by the posting of what is conveniently described as "the 800 hour policy" by Mr Edwards by email to employees, and inclusion in the Eraring Energy Policy documents on the intranet site. 54 Mr Durie submits that the employees concerned did not progress any objection to this arrangement at the relevant time and must be taken to have accepted this arrangement by failure to object and acceptance of payment. 55 Mr Durie submits that all employees were obliged to conform to Eraring Energy Policy, such being a requirement of their initial appointment. Mr Durie relies upon letters of appointment to Mr Jones (ex 5) and Mr Purcival (ex 7) in 1982 and 1978 respectively, which state in part: Your appointment is made and your service with the Commission will be subject to the Electricity Commission Act, 1950 (as amended) and the regulations and by laws thereunder and, in particular, to the Seniority Code, rules, directions and orders issued by or on behalf of the Commission from time to time relating to the employment or service of employees of the Commission in so far as such Seniority Code, rules, directions and orders relate to your case as a servant of the Commission. 56 Mr Durie traced the line of Statutory authority from the Electricity Commission of New South Wales to creation of Pacific Power and then to Eraring Energy, which he contends maintains the contractual obligation to comply with policy set out in ex 5 and ex 7 above. 57 Mr Durie submits that the case advanced by the union fails to recognise the salary range which recognises the scope for growth of the individual in a position and that there is a difference in performance between a person newly appointed and another of substantial experience. 58 Mr Durie referred to the decision of the Commission as presently constituted in Electrical Trades Union of Australia, New South Wales Branch v Pacific Power (IRC 1254 of 1999, 21 July 1999, unreported) in which the orders sought by the ETU on behalf of a Mr Donaghoe recognised the nature and process of progression through a position carrying a salary point range which remains in place. Those orders sought were: "That Mr Stephen Donoghue be appointed as an Electrical and Control Technician in the Coal Plant at Eraring Power Station with a salary point range of 18 to 20 as in clause 7 of the Pacific Power Employee's Consent Award 1997. As Mr Donoghue has been receiving SP 18 permanently now since August 1994 he should be appointed to SP 19 from the date 16 October 1997 and after an appropriate time for assessment, we would say 12 months, then Mr Donoghue should be appointed to SP 20 from 16 October 1998. 59 Mr Durie also refers to the Decision by the Commission as presently constituted in Pacific Power v Construction, Forestry, Mining and Energy Union (New South Wales Branch) and other (IRC 2973 of 1997, 17 June 1999, unreported) in which the establishment of salary points for Shift Managers was determined. Mr Durie relies specifically upon the following passage at p61: As found earlier in consideration of the claims by PPOs acting in the Shift Manager role, there is a proper distinction between short term acting in the position and long term acting in the position. There is in my view an equal case for growth within the position on the basis of experience. and at p62: In my view SP 34 remains appropriate on appointment; SP 35 is an appropriate incremental step after twelve months experience; SP 36 is appropriate for competent performance; SP 37 is appropriate to be available on assessment of superior performance as currently assessed Mr Durie does not rely on the balance of the paragraph found on p 62 which completes in the following terms: … which would for example put Mr Hollis and others now at SP 36 to SP 37. The effectiveness of this will require management to accept a pro-active role in the administration of the PADP process and an understanding by Shift Managers that rewards will come from initiative and innovation. There is no restriction on earlier assessment of competent performance at SP 36. 60 In his submission in reply Mr Endacott put that the assertion by Mr Durie that the Matrix Agreement is not an industrial instrument is not made out and is inconsistent with industrial dealings between the parties Further, whether it is an industrial instrument within the definition found in s 8 of the Act, it is in any event part of the contract of employment. 61 Mr Endacott submits that it is not necessary to examine the issues of policy and procedure raised by Mr Durie as the award must prevail; and that it is not lawfully available to hold out a policy which results in payment less than that prescribed by the award. 62 Mr Endacott submits that the assertion that there had been agreement on the 800 hour criteria in accordance with either the award or the disputes mechanism set out in the Matrix Agreement is not supported by any evidence to that effect. Mr Endacott put that Eraring Energy is unable to rely on discussion with Messrs Clews and McDonald who were representative of no-one but themselves. CONSIDERATION 63 The essence of this matter is the application of cl 16 of the Award in the circumstances described by the evidence, which on issues of relevant fact is largely not disputed. 64 The question is (as advanced by both Mr Endacott and Mr Durie) what is the salary to which the employee would be entitled if appointed to that position? 65 This question cannot be determined without reference to the Matrix Agreement. It is not material to this matter whether the Matrix Agreement is an industrial instrument for the purposes of s 8 of the Act. The Agreement is not in itself severable from the Award, which cannot be read to determine the rate of pay for the relevant classifications without reference to it. 66 The argument advanced by Mr Durie that employees are bound by Eraring Policy is misplaced in the circumstances of this matter. It is appropriate to note that the "800 hour" policy is promulgated in the form of guidelines only. 67 While policy and guidelines may be useful to management and supervisors in the application of the Award and/or Agreement, they neither replace nor override the Award or Agreement. 68 The Award requires the rate for acting in higher grade to be established in advance. The promulgation of guidelines does not do this, as suggested by Mr Durie. 69 The Matrix Agreement provides an incremental scale which, as put by Mr Durie, recognises and rewards the development of skill and capability obtained through experience. This is to be by assessment, not merely the passage of time. The assessment is to be of individual capability and progression and is not open to a general rule or policy of the 800 hour criteria enunciated by Mr Edwards. 70 It appears incongruous that Eraring Energy negotiate an arrangement such as the Matrix Agreement with employees to recognise and reward individual skills and then propose a generic criteria based on time served rather than assessment of skills acquired and used. 71 The Matrix Agreement provides at cl 3.4 that there be an individual development plan for each employee established in consultation with the Shift Manager. There is no evidence of such a plan for Mr Jones or Mr Purcival. 72 The Matrix Agreement provides for a dispute settlement procedure. There is no evidence of resort to this process. 73 It is not open to management to rely upon the discussion with Messrs Clews and McDonald, who were, as Mr Endacott put, representative only of themselves. The outcome of these discussions, however flawed, most probably could be considered to form part of the individual development plan for Messrs Clews and McDonald, but not others. 74 The argument advanced by Mr Durie that all employees, and by implication the unions, have accepted the 800 hour policy by working to and accepting payment, is not sustained in the two particular cases here. The evidence is that both Mr Jones and Mr Purcival have consistently disputed the application of the 800 hour policy, Mr Purcival from 1998 and Mr Jones from 1999. 75 In the absence of specific arrangements for Messrs Jones and Purcival consistent with the Matrix Agreement I find in favour of the argument advanced by Mr Endacott that an employee appointed from those covered by the Matrix Agreement would not be appointed at the entry level to a position for which they had been trained whilst working with the operations group at Eraring, but at the next step. This recognises a degree of experience and familiarity with plant which, in a default position where management have failed to apply the Matrix Agreement by development of an individual plan of progression, is appropriate. 76 This does not mean that in the future, or in other cases, all acting in higher grade is at a salary level above the entry point. Nor does it mean that the duties, skills and rate of pay of the person replaced are simply copied , to use the term advanced by Mr Endacott. Individual assessment and development plans may be arrived at which recognise that at a particular time a person working within the operator ranks at Eraring Power Station may be appointed to a higher classification at the entry level until assessed as having the abilities to merit movement to the next salary point; and until so assessed the application of cl 16 may result in a conclusion that said employee would be appointed to that position at the entry level. The circumstances of each employee must be assessed on an individual basis. 77 Management failed to make an assessment in respect to Mr Jones and Mr Purcival. The circumstances of Mr Purcival, who came into the group after the commencement of the Matrix Agreement completing APPO training in 1998, may well be those which, if appointed to the position of APPO, would be at SP 27; however, the absence of assessment in the manner required by the Matrix Agreement results in a determination of SP 28. 78 I find that a proper application of cl 16 of the Pacific Power Employees Consent Award 2000 in the circumstances of this matter affords Mr Jones payment at SP 32 as claimed, and Mr Purcival payment at SP 29 as claimed. 79 It is appropriate to emphasise that the findings here are made on the particular facts and circumstances in evidence in respect to Messrs Jones and Purcival, and should not be seen as a basis for claim by employees who accepted the application of the 800 hour policy without demur. 80 The inherent notion within the 800 hour policy that a person will gain experience in a position and progress through the salary structure remains unshaken. The flaw here is the failure to make assessment of individual skill and to negotiate effective procedure with the parties to the Matrix Agreement. I recommend that the parties attend to these issues with some alacrity. 81 Orders for payment issue herewith. INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Wednesday, 20 February 2002 Matter No IRC 6146 of 2000 Notification under section 130 by ERARING ENERGY of a dispute with Labor Council of new South Wales and others re work bans ORDERS 1. Eraring Energy is ordered to pay Mr Stephen Jones the sum of one thousand four hundred and fifty dollars and ninety seven cents ($1,450.97 within 21 days of this decision. 2. Eraring Energy is ordered to pay Mr Anthony Purcival the sum of one thousand one hundred and eighteen dollars and sixty one cents ($1,118.61) within 21 days of this decision. The Hon R W Harrison Deputy President DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.