Industrial Relations Commission of New South Wales CITATION: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales and others v Macquarie Generation [2009] NSWIRComm 29 NOTIFIERS Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (PSA); Construction, Forestry, Mining and Energy Union (New South Wales Branch) (CFMEU); PARTIES: Unions NSW; RESPONDENT Macquarie Generation FILE NUMBER(S): IRC 927 of 2007; IRC 1479 of 2007 CORAM: Harrison DP Notification under section 130 of industrial dispute - application of enterprise agreement and operational agreements - ban on training of power plant operators for succession planning and operational needs - ban removed - training course commenced - dispute over use of employees trained as operators but not appointed to the position - dispute whether Structural Efficiency Principle applies or whether use of employees in other classifications as operators is work across classifications which requires agreement - whether clause 15, Higher Grade Work and Pay, of enterprise agreement empowers employer to direct qualified employees from other classifications to work as operators as required without agreement. CATCHWORDS: Held - No limit on training - use of qualified employees as operators is work across classifications - agreement is required - agreement must not be unreasonably refused - clause 15 Higher Grade Work and Pay is predominantly about payment - management right to direct subject to obligations to agreement on working across classifications and test of reasonableness. Structural Efficiency Principle replaced by structural efficiency considerations - would only apply if new classfications or positions established. Application of Structural Efficiency Principle is by consultation and agreement. Determination made. LEGISLATION CITED: Industrial Relations Act 1996 Industrial Relations Act 1991 1989 State Wage Case 30 IR 107 Notification under s 204 by The Federated Engine Drivers and Firemen's Association of Australia (NSW) of a dispute with Electricity Commission of NSW re unilateral dumping of manning agreements for Operators [1994] NSWIRComm 1; Macquarie Generation v Construction, Forestry, Mining and Energy Union (NSW Branch) and ors re Acting in Higher Grade [2003] NSWIRComm10; CASES CITED: Electricity Commission of NSW and Electrical Trades Union [1995] NSWIRComm 101; Macquarie Generation Employees (State) Award 2002 [2006] NSWIRComm 32; Macquarie Generation and Labor Council of NSW [2005] NSWIRComm 327; Eraring Energy and Construction Forestry Mining and Energy Union (NSW) [2005] NSWIRComm 13; Notification under s 130 by Pacific Power of a dispute with the Construction Forestry Mining and Energy Union of Australia, NSW Division and Others re Work Restrictions - Eraring Power Station [1999] NSWIRComm 271; Goodlet v The Electricity Commission of NSW T/as Pacific Power (CIM96/0269) ; HEARING DATES: 29 September 2008, 30 September 2008, 1 October 2008, 25 November 2008. DATE OF JUDGMENT: 13 March 2009 APPLICANTS Mr A Bukarica CFMEU LEGAL REPRESENTATIVES: RESPONDENT Counsel Mr J Phillips SC JUDGMENT: - 55 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Friday, 13 March 2009 Matter No IRC 927 of 2007 Notification under section 130 by Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales of a dispute with Macquarie Generation and others re breaches of the Bayswater Operator Agreement Matter No IRC 1479 of 2007 Notification under section 146A by Construction, Forestry, Mining and Energy Union (New South Wales Branch) to refer dispute with Macquarie Generation and others re Trainee Operators at Liddell Power Station DECISION [2009] NSWIRComm 29 1 These matters arise by notification by Macquarie Generation pursuant to section 130 of the Industrial Relations Act 1996 ("the Act"). 2 Macquarie Generation has entered into a referral agreement with Unions NSW and affiliates pursuant to s 146A of the Act. The referral agreement (NREF 44 of 2007), filed with the Industrial Registrar, commits the parties to the provisions of the Act and the powers of the Commission conferred thereby. 3 The central issue of dispute in Matter No IRC 927 of 2007 is the intention of Macquarie Generation to train and utilise a number of employees as Operators at Bayswater Power Station ("Bayswater"), without appointment to the classification of Operator, in the position of Senior Generation Controller (SGC) in accordance with the Bayswater Operator Agreement. The relevant supplementary agreement at Bayswater, titled Macquarie Generation Operator Restructuring Document Bayswater Power Station ("Bayswater Operator Agreement") was made in 2002 arising from proceedings in Matter No IRC 771 of 1998 before the Commission as presently constituted 4 Macquarie Generation propose that the employees concerned remain in their substantive classification, predominantly tradespersons, and work in the Operator position as required. Macquarie Generation contends that this is consistent with obligations of employees in accordance with the Structural Efficiency Principle of the 1989 State Wage Case Principles 30 IR 107 and permitted by clause 15, Higher Grade Work and Pay, of the Macquarie Generation Enterprise Agreement 2008 (EA08/17) ("2008 Enterprise Agreement"). 5 The Unions contend that the traditional and customary approach to training and appointment, and that required by the Bayswater Operator Agreement, has been to await a vacancy and then, through a process of advertisement and merit based selection, offer the position to an employee subject to satisfactory completion of training. 6 The training required is usually in excess of six months and can be up to a year. During this time the trainee is in his/her substantive position and paid as such, however, on successful completion of training is appointed to the Operator classification in the relevant position. 7 Macquarie Generation propose to offer training to employees selected by advertisement and merit based process prior to the occurrence of a vacancy so that trained employees are able to be appointed without delay when a vacancy occurs. 8 There is no objection to this proposal by the Unions, which accept that sensible succession planning requires the availability of trained personnel. There is objection to the number to be offered training, which the Unions contend is a much larger number than required to meet vacancies due to retirement, resignations or the like. 9 The Unions object to the use of Operator certified staff not appointed to the Operator classification to meet intermittent needs without specific agreement. 10 The Unions submit that the proposal by Macquarie Generation to use Operator qualified staff in this way constitutes "working across classifications" which is permitted by the 2008 Enterprise Agreement only where the relevant employees and/or unions have agreed. 11 Under the proposal advanced by Macquarie Generation these trainees would remain in their substantive classifications, be paid accordingly, and on completion of training be available at the direction of management to work as Generation Controllers as and when required to maintain their skills and for operational purposes. 12 When working in the Operator classification on completion of training these employees may or may not be on shift as required, and would be paid as Operators only for the time spent acting in that grade. 13 When not working as Operators these employees would carry out the duties of their substantive positions. 14 The dispute in Matter No IRC 1479 of 2007, concerns the duties that employees at Liddell Power Station ("Liddell") who have completed Operator training may perform. Macquarie Generation contends that employees with Operator qualifications may be required to work as Operators, as and when required, and be paid for the time so worked on the Operator rate of pay in accordance with cl 15, Higher Grade Work and Pay. 15 The Unions assert that this is working across classifications and is not available to Macquarie Generation without agreement. 16 A further dimension of dispute is the Unions' contention that more Operators need to be appointed to meet the operational needs of the power station. 17 Macquarie Generation asserts that the 2008 Enterprise Agreement permits management to direct employees in the manner proposed, and obliges employees to comply. 18 Macquarie Generation submits that its proposal involves employees working in only one classification at a time and accordingly does not constitute working across classification so as to require the agreement of employees or unions. 19 In their respective written submissions both the Construction, Forestry, Mining and Energy Union (NSW Branch) (CFMEU) (Ex 1) and Macquarie Generation (Ex 32) expressed a desire to resolve the matters by negotiation and agreement at any time up to a determination by the Commission. 20 There were a number of attempts at resolution by agreement which occupied the parties in conciliation and direct negotiations for over 18 months. During this period Macquarie Generation agreed not to pursue the commencement of the training schools pending the outcome of their negotiations. 21 It is regrettable that the parties were not able to give substance to their preference to resolve the matter by agreement, particularly when it is a matter not unique to Macquarie Generation and has been resolved by agreement by other electricity generators in NSW. Macquarie Generation has the benefit of the terms of such agreements, having formally sought and been granted access to the Commission's file in Matter No IRC 508 of 2007, which documents agreement on this and other matters between the Unions and Delta Electricity. The Eraring Energy Housing Agreement is exhibit 2A in these proceedings. 22 The matters were formally joined in proceedings on 21 July 2008, a Certificate of Attempted Conciliation was issued and directions made to prepare the matters for Hearing. The Hearing was deferred at the request of the parties who sought further negotiation. This was unsuccessful and the matters proceeded on 29 and 30 September 2008, 1 October 2008 and 25 November 2008. 23 Mr Bukarica, appearing on behalf of the Unions, brought evidence from Mr Allen James Drew, President of the NSW Energy District of the CFMEU; Mr Wayne Edward Smith, an Assistant Power Plant Operator (APPO) employed by Macquarie Generation at Liddell; and Mr Steven Palfrey, employed by Macquarie Generation as an Operator at Bayswater and Vice President of the NSW Energy District of the CFMEU. 24 Mr Phillips SC, appearing on behalf of Macquarie Generation, brought evidence from Mr John Charles Dyson, employed by Macquarie Generation as Production Manager at Bayswater. 25 The Unions submit that other electricity generators in New South Wales with similar enterprise agreements have accepted that the working across classifications provision applies and have come to agreements, usually in the course of conciliation proceedings in this Commission, to accommodate succession planning and other operational considerations. Those agreements are termed "housing agreements" as they deal with the "housing" of employees that hold qualifications and accreditation in two classifications. 26 The Unions seek a determination in the terms of Schedule A to the CFMEU's written submissions, set out below: Schedule A "Housing" of Prospective Operators at Macquarie Generation Operations The "housing" provisions of this determination will be activated when those employees who have successfully completed the APPO/SGO training program have not been appointed to fill a permanent APPO/SGO vacancy at completion of training. 1. Prospective operators will be reclassified as Macquarie Generation Operators and appointed as APPO/SGO under the classification structure upon successful completion of the training program. 2. Prospective operators will be paid at the appropriate salary point for an APPO/SGO under the Bayswater Operator Agreement or the Liddell Operator Memorandum (inclusive of annualised salary loading) from the date of this appointment. 3. Prospective operators will be rostered Monday-Friday day shift and report to the Shift Manager of the day to be allocated duties. 4. Prospective operators may be rostered to a rotating operating shift to cover secondments, long service leave, or long term sick leave. 5. Prospective operators will be rostered to fill permanent vacant APPO/GO positions on the rotating operator shift in their original order of merit as vacancies occur. 7. Prospective operators rostered on Monday-Friday day shift who have not been rostered to fill a permanent vacancy within 12 months of the commencement date of their training program will be rostered to a rotating operating shift permanently. 8. Any proposed change to this agreement will be subject to consultation, negotiation and if necessary, arbitration. Immediate Appointment of Certain Bayswater Employees 9. Recognising the intent of the "Transitional Arrangements" contained in the Bayswater Operator Agreement, and notwithstanding the terms of this "housing" determination, the following employees shall be immediately appointed to the role of Generation Officer at the Bayswater power station: • Colin Taylor • Richard Francke • Russell Passfield • Anne Jurd • Rod Williams 27 In the course of this matter both parties referred to the Decision of her Honour Justice Schmidt in Matter No IRC 2950 of 1993 [1994] NSWIRComm 1, wherein her Honour determined the abolition of manning scales in the then Electricity Commission of NSW. Her Honour said: "The Electricity Commission it seems to me needs to appreciate that part of the exercise of its responsibilities and rights of management involves obtaining the co-operation of its workforce if it wishes to avoid becoming involved in complex and protracted litigation. " 28 There is an unfortunate dearth of evidence that any real or genuine attempt to obtain the co-operation of employees has occurred in this matter. It is equally unfortunate that some employees concerned have at times adopted a pedantic, non-cooperative attitude in their dealings with management and towards those other employees of Macquarie Generation who aspire to obtain Operator skills and career advancement. 29 That said, agreement did not totally elude the parties. 30 On 19 November 2008 a further affidavit was filed by Mr Dyson which sought an interim order that a training school for Operators at Bayswater commence forthwith. 31 In support of this application Mr Dyson deposed that, since his evidence of 1 October 2008, there was an immediate need to appoint three or four Operators at Bayswater, and that in the next twelve months there will be six to eight vacancies. Two Operators have unexpectedly retired and one has given notice of intention to retire in February 2009, increasing the number of immediate and projected vacancies. 32 Mr Dyson deposed that training of two persons is uneconomical and that there was an immediate and compelling need to commence training of eight to ten employees to avoid serious staff shortages in 2009. 33 This aspect of the matter was resolved by agreement and the selection process for commencement of the training course commenced. Appeals by two employees contending that they should have been selected were heard and determined in separate proceedings and a training course for eight employees commenced in February 2009. JURISDICTION 34 The parties put some attention to this subject in their submissions. It is not necessary to canvass those submissions here, suffice to say there was no disagreement that the Commission could determine the matters in the traditional manner having regard to the agreement between the parties pursuant to s 146A of the Act . 35 The no extra claims provision of the 2008 Enterprise Agreement does not apply. The industrial dispute concerns application of the agreement and in some part invokes s 175 Powers of interpretation of the Act in resolution of the dispute. 36 The issues do not go to the establishment of new rights or obligations, but an argument over what particular rights and obligations are prescribed by the 2008 Enterprise Agreement and how they may be reasonably applied. THE EVIDENCE Mr Allen Drew 37 Mr Drew has been a full time union official involved in the NSW electricity industry since 1989, and prior to that was employed by the Electricity Commission of NSW ("EC") at various power stations. Whilst employed by the EC Mr Drew was an elected delegate of the Federated Engine Drivers and Firemen's Association (FEDFA). Upon amalgamation of the FEDFA with a number of other unions, resulting in creation of the CFMEU, Mr Drew became President of the Energy District of the amalgamated union and continues in that position. 38 In his affidavit of evidence (Ex 2) Mr Drew deposed that he has been involved in all major industrial issues and agreements in the industry since the late 1990's, including restructure of classifications and site specific agreements in most of the power stations in NSW, including those which are now Macquarie Generation sites. 39 Mr Drew's evidence is that the power industry unions took part in the industry restructure process to obtain benefits for members in relation to training and career path, removing demarcation in favour of skills-based advancement. 40 Mr Drew deposed that career opportunities became restricted and the intention frustrated by a trend towards trained employees being denied appointment but required to perform Operator duties in an acting capacity for months, and in some cases years. 41 Mr Drew deposed that these circumstances have led to agreements between the unions and some employees to ensure that acting Operators were not being used as an alternative to appointment. 42 Attached to exhibit 2 is a copy of a document setting out the procedures agreed at Eraring Power Station. Mr Drew deposed that an in principle agreement has been reached with Delta Electricity to meet their circumstances. The Delta Electricity agreement was concluded in conciliation proceedings in Matter No IRC 508 of 2007 before the Commission as presently constituted. 43 Macquarie Generation made formal application for access to the Commission's file in that matter, which was allowed without objection from any of the parties thereto. 44 Mr Drew's evidence is: 15. The basis of both agreements is that training of operators should be directed to filling permanent operator positions and not the creation of a floating pool of operator trained employees. The housing agreements are also designed to prevent employees trained as operators acting up in higher grades for years, as has occurred in certain power stations. 45 In the course of cross examination by Mr Phillips, Mr Drew put that the agreement with Delta Electricity on the Central Coast has been in place for some two years and he is aware of three Operator training schools which have been run in accordance therewith. 46 Mr Phillips took Mr Drew to the Trade Skills Development Programme introduced into the EC (Ex 3) which arose from the award restructure proceedings of 1991, and application of the Structural Efficiency Principle of the applicable State Wage Case Principles. 47 Mr Drew refuted any assertion of relevance of the Trade Skills Development Programme to the present matter, putting that the acquisition of Operator skills by tradespersons was brought about by negotiation with Operators, not from the trades sector. This agreement led to appointment of tradespersons to an Operating shift and acting in higher grade within the shift. 48 Mr Drew accepted that, under the shift self-containment agreements, tradespersons were trained in Operator duties without appointment as Operators. 49 Mr Phillips took Mr Drew to cl 18, Higher Grade Pay of the Electricity Commission of New South Wales Employees Award 269 IG 896 (Ex 5, tab 2). Mr Drew acknowledged the application of cl 18, putting that the industrial agreement must be read in conjunction with all other agreements, in particular in this case the Bayswater Operator Agreement which is specifically referred to by the 2008 Enterprise Agreement as taking precedence. (Clause 6.7 (b) concerning balance time; cl 10.40 Annualised salary; and cl 9.10 Movement of Staff Between Sites, are examples thereof.) 50 In response to questions from Mr Phillips, Mr Drew accepted that from the 1990's the award and enterprise agreements which replaced it have been made by consent of the parties, including the variation to cl 15, Higher Grade Work and Pay, which inserted a limitation to acting in higher grade of six months from 1999. 51 Mr Drew acknowledged that from 1996 there have been separate negotiations by Delta Electricity, Eraring Energy and Macquarie Generation which have resulted in different industrial agreements applying to each entity, which have evolved in different directions with differing provisions. The Delta Electricity industrial instrument is different to that applying at Macquarie Generation in respect to acting in higher grade, in particular the six months limitation on acting in higher grade is not found in the Delta Electricity Employees Enterprise Agreement 2008 (EA08/19). 52 Mr Drew acknowledged exhibit 6, which is correspondence from the Labor Council of NSW (now Unions NSW) concerning classification flexibility and career path opportunity. Exhibit 6 states: Further to our discussions on Tuesday 29 July regarding a new award, in particular on "classification flexibility", I advise as follows. Please note that the concerns detailed at our meeting are listed below in order of priority: 1. Where an employee is required to use skills and competencies. payment should be made at a rate that adequately reflects the value of such. 2. Such payment would continue without limitation once the skills and competencies are utilised by the employee. 3. Implementation of "classification flexibility" does not lead to a reduction of employees of great magnitude. 4. Implementation of "Classification flexibility" genuinely embraces career paths and opportunities within Macquarie Generation for all employees. 5. Appropriate training is offered to all employees with priority given to those employees, who to date, have had no limited access to training. 6. That the principles of equity are applied where improvements in allocated salary points are made as a result of "classification flexibility". 53 Mr Phillips asserted that there is nothing in the 2008 Enterprise Agreement which affords precedence to the Bayswater or Liddell Operator Agreements over cl 15, Higher Grade Work and Pay. 54 Mr Drew was obliged to accept that, while there are a number of provisions in the 2008 Enterprise Agreement which give precedence to the Operator Agreements, there is no reference to the Bayswater or Liddell Operator Agreements in, or in connection with, cl 15. 55 Mr Phillips required Mr Drew to examine the Operator Agreements closely and obliged him to concede that there is nothing on the face of the Liddell Operator Agreement which prohibits or restricts a person from another classification with Operator skills using those skills in an Operator's role. 56 In respect to the Bayswater Agreement Mr Drew responded that point 3 of the Negotiated Outcomes requires agreement, which has thus far eluded the parties (Ex 8 p6): 3. The parties will confer in respect to introducing tradespersons and associated classifications into the career path structure. 57 Mr Drew's evidence is that until an agreement is reached qualified personnel must be appointed as Operators to undertake the functions of an Operator. 58 In response to Mr Phillips, Mr Drew put that there is no fundamental objection by Operators to training, however, there is an objection to using those skills by acting in higher grade, as the trainee could then have greater merit in a merit selection process for a vacant Operator's position, which in the present case would hinder ambitions of Operators who wished to move from Liddell to Bayswater (or vice versa) as vacancies arose. Mr Wayne Smith 59 Mr Smith is employed by Macquarie Generation at Liddell. Mr Smith was employed as a fitter and turner at Liddell from 1979 to 1998 prior to appointment as an APPO. 60 Mr Smith gave evidence by affidavit (Ex 15) and orally. Mr Smith swore a second affidavit (Ex 16) in reply to the evidence of Mr Dyson. 61 Mr Smith deposed that he has been a union delegate at Liddell since 2003 and is currently a member of the Board of Management of the NSW Energy District of the CFMEU. 62 Mr Smith's evidence is that he has been involved in the application of an agreement between the Unions and Liddell management dealing with restructure of the Operator's classification, known as the "Liddell Operators Memorandum" (Ex 15, attach. WES 1). 63 Mr Smith put that this agreement is mainly concerned with the job description and duties of Operators post restructure, setting out how employees can progress by attaining additional skills and responsibilities. 64 Mr Smith deposed that: 9 There is no provision in the Liddell Operators Memorandum for employees to act up as operators, except if they are already existing APPOs, who have been selected to train up as Power Plant Operators ('PPOs'). The relevant part of the Liddell Operators Memorandum reads: Clause 1(h): New appointees are to be prepared to train and act in the position of P.P.O., if the considered suitable [sic] . Current incumbents considered suitable, with appropriate skills and qualifications will have the opportunity to train and act in the position of P.P.O., on a station needs basis. When acting in the position of P.P.O., payment will be made at the applicable rate for this position; 65 Mr Smith's evidence is that he is not aware of the Union being approached to agree to training other than in accordance with this provision. 66 Mr Smith deposed that he was not aware of employees from classifications other than Operator acting into the Operator classification, with the exception of one person who did so by agreement with the Union and sanctioned by the Commission. 67 Mr Smith's evidence is that he is aware of strong opposition by Operators at Liddell to any proposal for employees to be trained to act up as Operators other than for appointment to a permanent position. 68 Mr Smith disputes Mr Dyson's deposition that acting Operators have been in place by agreement in the past. Mr Smith acknowledges that there have been some exceptions, which were subject to dispute. 69 In restating his opposition to acting in higher grade Mr Smith put: 7. The operating position at Liddell is an all encompassing one. The APPO runs all plant connected with Liddell power station. There are no separate coal plant, ash and dust or water plant operators. To be deemed competent at Liddell, a trainee must be fully trained in all facets. This is why Liddell operators have continued to object to acting operators, as to be properly trained an employee needs to have constant exposure to the job, on shift, to keep abreast of the job idiosyncrasies. 70 In the course of cross examination Mr Smith confirmed that whilst employed as a tradesman at Liddell he had applied to undertake Operator training without any guarantee of appointment as an Operator. 71 Mr Smith confirmed that selection for this training was by response on his behalf to a call for expressions of interest followed by a series of interviews and aptitude tests. 72 In response to Mr Phillips, Mr Smith accepted that the training expanded his understanding of the power station, increased his skill level, and was generally beneficial to his career. 73 Mr Smith subsequently applied to do further training to qualify him as an Operator Maintainer which made him eligible for appointment as an APPO. 74 It is Mr Smith's evidence that, on completion of the Operator Maintainer training, he and others were appointed as Coal Plant Operators and trained in all aspects of this job, which coincided with and facilitated the making of the 1998 Liddell Operators Restructure Agreement and the last round of redundancies at Liddell. 75 Mr Smith deposed that when all existing Operators were trained in accordance with the 1998 Liddell Operators Restructure Agreement the Coal Plant Operators, as he then was, were eligible to apply for vacant Operator positions, ultimately resulting in all them being appointed. 76 Mr Smith was adamant that he did not act as an APPO until after he was appointed as a Coal Plant Operator. 77 In cross examination Mr Smith argued that APPO training for tradespersons would improve their knowledge of plant, make them more effective tradespersons and open up opportunity for advancement. Mr Smith conceded that there was nothing in the Liddell Operators Agreement that prohibits persons who are not appointed as Operators from acting as Operators, however, contended that this is not the intent. 78 Mr Smith maintained that tradespersons who had gained APPO skills had not acted into that position without the agreement of the Union or direction of this Commission. 79 Mr Smith acknowledged that he was one of 56 people who had recently responded to a call for expressions of interest to undertake Operator training at Bayswater without guarantee of appointment on completion, which Mr Phillips put to him was inconsistent with the position of the Union he supported in this matter. 80 Mr Smith refuted Mr Phillips' assertion that, in adopting the policy of no training without appointment, Operators were taking care of their own interests at the expense of career opportunities for other classifications. 81 Mr Smith accepted that he became eligible to act as an APPO from 3 February 1996. Exhibit 17 is correspondence from Liddell Employee Services informing him of this and confirming that he would receive an annualised salary including the "shift fitter's allowance". 82 Mr Smith completed Coal Plant training and was reclassified as an Operator from 8 September 1997 at SP 24. This was confirmed to Mr Smith in correspondence of 12 September 1997 from the Manager, Liddell (Ex 18). 83 Mr Smith was appointed as an APPO from 31 March 1999 at SP 28, which was confirmed to him by correspondence from the Manager, Human Resources on 8 April 1999 (Ex 19). 84 Mr Smith accepted that from 3 February 1996 to 31 March 1999 he had, from time to time, acted in the position of APPO (and been paid acting in higher grade), which had increased his knowledge and contributed to his selection for appointment. 85 Mr Smith's evidence in re-examination is that he acted into the APPO position as required from February 1996 until his appointment as an APPO in March 1999 in accordance with a shift self-containment agreement (known as Exhibit L) as he was permanently attached to the shift, which he distinguishes from those persons who returned to day work in the workshop or such other location. Mr Smith deposed that the shift self-containment agreement no longer applies, having been removed on application by Macquarie Generation. 86 Mr Smith conceded during cross examination that a number of employees had undertaken APPO training at Liddell without guarantee of appointment; and he had recently undertaken training in the duties of a Power Plant Operator (PPO), without guarantee of appointment, with a view to advancing his skills and knowledge to assist his advancement to that position when a vacancy arises. Mr Smith asserted that this was consistent with the Liddell Operators Agreement involving advancement within the classification. Mr Smith refuted Mr Phillips' assertion that this was a double standard which allowed Operators to do more Operator training, whereas other classifications were excluded from Operator training. 87 Mr Smith accepted that there was no restriction on APPOs who had met the functional requirements to work as a PPO acting up in that position as required, as this was regarded as in-line acting; whilst the acting of tradespersons qualified to work as APPOs is cross-classification acting which cannot occur without agreement. Mr Steven Palfrey 88 Mr Palfrey is employed by Macquarie Generation as an Operator at Bayswater. Mr Palfrey worked as an Operator at Liddell and Wallerawang Power Stations prior to appointment to Bayswater in 1985. He has been a union delegate since that time and is currently the combined unions site delegate and Vice President and on the Board of Management of the NSW Energy Division of the CFMEU. 89 Mr Palfrey gave evidence by affidavit (Ex 23) and orally. 90 Mr Palfrey deposed that he has been involved in every significant negotiation involving Operators at Bayswater since 1985. It is Mr Palfrey's evidence that his activities as a union representative have provided him with a good understanding of the industrial arrangements that apply to Operators throughout the industry. 91 Mr Palfrey deposed that he was directly involved in the negotiation of the Bayswater Operator Agreement 1998, which he testified gave effect to certain provisions of the Macquarie Generation Enterprise Agreement at site level. 92 Mr Palfrey corroborated Mr Drew's evidence that the general result of award restructuring in the 1990's was to remove demarcation barriers and increase flexibility in return for an improved career path for employees. 93 Mr Palfrey's evidence is that it was agreed in the restructuring arrangements of the early 1990's that the employer could maintain a pool of persons to relieve appointed Operators during periods of temporary absence. 94 Mr Palfrey put that during the negotiation of the 1998 Bayswater Operator Agreement a consensus was reached between management and unions that this was not working as intended. 95 Mr Palfrey's evidence is that a large number of Bayswater employees acted up from SP (salary point) 14 to SP 21 for a number of years without appointment, identifying one person who had been held in this position for five years without appointment to a substantive position. 96 Mr Palfrey deposed that the 1998 Bayswater Operator Agreement resulted in the existing "actors" being phased out by appointment, and an agreement that implementation of training for future Operators would only occur by agreement. 97 Mr Palfrey referred to Award review proceedings in 2000 which had an effect on the Bayswater Operator Agreement and the Award, resulting in the removal of reference to certain manning arrangements (known as Exhibit L) and salary arrangements (known as Exhibit M). 98 Some aspects of these provisions were considered obsolete and others were moved from inclusion by reference to the exhibit as an appendix to the body of the Award, and are now incorporated in the enterprise agreement. 99 Mr Palfrey deposed that in this process the original provisions dealing with the creation of a pool of employees available to act as Operators was removed over objection by the Union and an insistence by management that such a pool of employees was not required. 100 Mr Palfrey's evidence is that, as a consequence of the review process in 2000, the following paragraph was added to the Bayswater Operator Agreement: There is no current plan to have operators work from day work or regularly relieve from day work. It is recognised that should this be required in the future that both parties would be obliged to deal with the matter in consultation and discussion. 101 Mr Palfrey deposed that, following conclusion of the 1998 Bayswater Operator Agreement, the issue of Acting Operators subsided to return again in 2003. 102 Mr Palfrey's evidence is that the instant dispute was initiated by him on behalf of Operators who are concerned that the training of a pool of qualified Operators is in breach of the agreement made between management and employees. Mr Palfrey deposed that management's intention to train 19 employees is significantly in excess of needs to meet succession planning, given anticipated retirements and resignations, which he put would result in a number of employees in the acting pool for many years only using their skills on an intermittent basis. 103 Mr Palfrey expressed support for training and development, putting that on resolution of these issues he will be involved in training and mentoring successful candidates. 104 Mr Palfrey also put objections on the basis that the training program is not the result of consultation and agreement with the unions as required by the Bayswater Operator Agreement and the 2008 Enterprise Agreement. 105 In cross examination Mr Palfrey confirmed that he had completed an apprenticeship as a Fitter and Turner and had become a Mechanical Fitter and was not employed in the industry when he responded to an advertisement by the EC in 1980 for an APPO position at Wallerawang Power Station. 106 Mr Palfrey completed an aptitude test and undertook an interview process prior to engagement and training for the position. Mr Palfrey deposed that he was paid as a tradesperson during the course of training and, on successful completion, he took up the duties of an APPO and was appointed to that position. 107 Mr Palfrey accepted that application of the Structural Efficiency Principle is an ongoing process which does not end, noting that "to stay alive as a business you've got to keep going through restructure, I suppose, in modern times" (TR 30.9.08, p 28). 108 Mr Palfrey acknowledged that when structural efficiency changes have been made, employees have received payment in the form of general wage increases and review of certain classifications. 109 Mr Palfrey accepted that structural efficiency initiates a move forward, not backward, adding that Bayswater Operators had contributed many ideas to progress and retained the values of reducing demarcation barriers, advancing multiskilling, training, retraining and broad banding. 110 Taken to the substance of Operator training Mr Palfrey responded that the actual content and competencies had not changed much at Bayswater since 1980. Mr Palfrey was adamant that the Operator training courses were developed by an Operator Training Committee, of which he is a member, for trainees who are to work as Operators on a full time basis on completion, and were not suitable for a person who was to become a part time operator. 111 Mr Palfrey made this distinction on his assessment that a part time Operator would face different issues to a full time Operator, particularly in maintenance of skills in both operating and other disciplines. 112 Mr Phillips took Mr Palfrey to the decision of the Honourable Deputy President Mills in Electricity Commission of New South Wales Employees Award (Matter No 993 of 1990, 13/12/91) in which his Honour commented favourably on the availability of training, and that training would be available by reference to a skills audit. 113 Mr Palfrey expressed agreement with DP Mills' decision, putting that Macquarie Generation had not conducted a skills audit to guide the need for training, which was one of the sticking points in negotiations. 114 Mr Palfrey accepted that there had been what he called "a rough go" at a skills audit in 1997, but there had been no continuing effort in respect to a hybrid classification and appropriate remuneration. 115 Mr Palfrey took no issue with his Honour's statement that (p31): This Commission is loathe to propose any brake that there be put on training" and (p38): "There is a need to encourage training to enhance multiskilling and to improve efficiency". 116 Mr Palfrey maintained his position that these sentiments must be in the context of a skills audit to guide training to relevant areas. 117 Mr Phillips took Mr Palfrey to a decision of a Full Bench of this Commission in Electricity Commission of NSW and Electrical Trades Union [1995] NSWIRComm 101 which upheld an appeal by Macquarie Generation against orders that it appoint three persons who had been acting in higher grade for some years. 118 Mr Palfrey responded that this exemplified the concerns of the Unions, noting that the industrial agreement had been changed since to put a limit of six months on acting in higher grade; however, there remained one Operator who has been acting in higher grade without appointment for nine years, and another who is not an Operator who as been acting into Operator duties for some four years. 119 This is disputed in the evidence of Mr Dyson who asserts that the persons referred to by Mr Palfrey are not acting in higher grade but are paid an allowance of additional salary point/s in recognition of duties. 120 Mr Palfrey was not sufficiently familiar with the events to respond to Mr Phillips' questions in respect to new positions which drew from skills of two distinct classifications, for example, a combination of Engineering Officer and Professional Officer duties. 121 Mr Palfrey made the distinction that restructure to establish a new position is completely different to acting in higher grade across classifications, which he continued to assert can only occur by agreement of the parties. 122 Mr Phillips put a number of questions to Mr Palfrey in regard to the Bayswater Operator Agreement. Mr Palfrey responded that it did not address the issue of acting in higher grade, which he put is a subject regulated and limited by cl 15 of the enterprise agreement. 123 In response to Mr Phillips, Mr Palfrey responded that Macquarie Generation's plan to train 19 people in Operator duties without appointment led to a conclusion that there would be an abuse of acting in higher grade by excessive deployment of trainees. 124 Mr Palfrey expressed the view that, given the large amount of overtime worked at Bayswater, the Operators were understaffed, however, Macquarie Generation did not like the Operators Agreement and did not want to appoint any more people to work in accordance with it. Mr John Dyson 125 Mr Dyson is employed by Macquarie Generation as Production Manager at Bayswater. Immediately prior to his appointment to his present position in May 2004 he was Production Manager at Liddell from July 2001. Mr Dyson has worked in the electricity generation industry in NSW since 1978, 126 Mr Dyson gave evidence by affidavit (Ex 33). Mr Dyson deposed that he had read the affidavits of Mr Drew, Mr Smith and Mr Palfrey. 127 Mr Dyson recited some of the events in this matter, noting the principle objection by Operators to training without appointment. Mr Dyson deposed that he is unable to comprehend this opposition, given that training without appointment had existed at Liddell for a considerable time until recently disputed. 128 Mr Dyson deposed that from 2001 to 2004, the time he was Production Manager at Liddell, a number of persons were trained on shift without the promise of appointment to an Operator position, and that on completion of training acting up into an Operator position was a common feature. 129 Mr Dyson deposed that he had put the existence of this practice at Liddell to Mr Drew in the course of discussion concerning this matter. Mr Dyson asserted that Mr Drew acknowledged the practice, responding that "no-one complained at the time and he had no issue; now there were complaints and accordingly the Union opposed it". 130 In his oral evidence Mr Drew refuted Mr Dyson's assertion that acting in higher grade by trainees had been common practice at Liddell and denied the conversation attributed to him by Mr Dyson. 131 I prefer the evidence of Mr Drew which has a greater internal consistency and is corroborated by the evidence of Messrs Smith and Palfrey. 132 In addressing the content of the proposed training course Mr Dyson deposed that this had been established by agreement some years ago within the Bayswater Operator Training Committee, which includes Operator representatives, and no changes were proposed for the school subject to this dispute. 133 Mr Dyson's evidence is that the purpose of the proposed training course is to provide employees with additional skills for career path opportunities and to conform with Macquarie Generation's succession plan by ensuring that there are sufficient numbers of trained staff to meet future needs. 134 Mr Dyson deposed that in the current business environment it was no longer practical nor sensible to train as vacancies arise. Mr Dyson's evidence is that this form of skills development applies to: § Electricians, who are given training in technician skills without guarantee of appointment, and act as technicians to meet peak workloads until a vacancy occurs; § Maintenance Tradespersons who undertake training in skills to act as Engineering Officers (Contract Administrators) in the Plant Owner Groups; § Apprentices - Macquarie Generation has an annual intake of apprentices without guarantee of continual employment as tradespersons; § Study assistance and reimbursement of fees in degree, diploma, and certificate courses without any guarantee of appointment. The main criteria for support of employees in these courses is that acquisition of skills or qualifications has the potential to cater for future business needs of the company. 135 Mr Dyson deposed that there is no basis to treat Operators differently. Mr Dyson noted that persons who obtain Operator skills have a broader skill base for any advancement opportunity that may occur. 136 Mr Dyson took issue with some of the evidence of Mr Palfrey; in particular: · Acting in higher grade for comparatively long periods of time has been a long standing feature of the NSW power industry, as evidence by the EC Manual of Personnel Policies Part 22 (Ex 33, attach. JCD07) last amended 1985; · In respect to the abolition of Exhibits L and M, Mr Dyson deposed that this occurred during award review proceedings pursuant to s 19 of the Act culminating in the decision of the Commission as presently constituted in Macquarie Generation Employees (State) Award 1999 (Matter No IRC 4640 of 2001, 25 October 2001) whilst the amendment to the negotiated outcomes in the Bayswater Operator Agreement notes that it is following negotiations on 24 March 2000. Mr Dyson's evidence is that he was involved in these proceedings, putting that there was no intention to change rights and obligations in respect to acting in higher grade and that there was no change in the outcome; · Mr Dyson deposed that Mr Palfrey is confused in his evidence concerning award review and amendment to the Bayswater Operator Agreement, being some seventeen months out of sequence, which he put is clear from the Decision of the Commission as presently constituted in Matter No IRC 4640 of 2001, Application by Macquarie Generation for variation re cl 2.2 of the Macquarie Generation Employees (State) Award 1999 (25/10/01, unreported) (Ex 33, attach. JCD08); · The 1998 Bayswater Operator Agreement did not abolish acting in higher grade, noting that Mr Palfrey's evidence is that it was reduced, not eliminated. Mr Dyson deposed that the staffing arrangements detailed at page 5 of the Operators Agreement specifically acknowledges and allows acting in higher grade. · The training of 19 employees in Operator skills is necessary to meet succession planning requirements over the next five years, which he supports by an analysis of the number of Operators and an assessment of potential for retirements at age 60. 137 Mr Dyson refutes the evidence of Mr Smith in respect to training of Operators. Mr Dyson noted that expressions of interest for Operator training were sought in 2005 without any guarantee of appointment or objection by unions or employees, resulting in the training of five employees, two of whom were appointed in September 2007, one in January 2008, and two yet to be appointed. CONSIDERATION 138 Much of the submissions by Macquarie Generation rest upon exercise of management prerogative and rights authorised by the enterprise agreement. 139 It is argued that these management rights have been bought and paid for by wage increases arising from application of the Structural Efficiency Principles of the State Wage Case Principles existing from time to time. 140 It is appropriate to record here the terms of the Structural Efficiency Principle as it stood at the outset of the process of evolution advanced by Macquarie Generation as leading to the present entitlements and obligations (1989 State Wage Case 30 IR 107 at 117): STRUCTURAL EFFICIENCY Structural efficiency adjustments allowable under the State Wage case decision of 4 October 1989 will be justified in accordance with this principle if the Commission is satisfied that the parties to an award have co-operated positively in a fundamental review of that award and are implementing measures to improve the efficiency of the industry and provide workers with access to more varied, fulfilling and better paid jobs. The measures to be considered should include but not be limited to: establishing skill-related career paths which provide an incentive for workers to continue to participate in skill formation; eliminating impediments to multi-skilling and broadening the range of tasks which a worker may be required to perform; creating appropriate relativities between different categories of workers within the award and at enterprise level; ensuring that working patterns and arrangements enhance flexibility and the efficiency of the industry; including properly fixed minimum rates for classifications in awards, related appropriately to one another, with any amounts in excess of these properly fixed minimum rates being expressed as supplementary payments; updating and/or rationalising the list of respondents to awards; addressing any cases where award provisions discriminate against sections of the work-force. Structural efficiency exercises should incorporate all past work value considerations. 141 As can be easily gleaned from a reading of the Principle, the essence is positive co-operation of the parties. 142 Macquarie Generation provided extensive written submissions (Ex 41) which canvassed the history of restructure, structural efficiency, and work practice flexibility by reference to decisions of the Commission in: (i) Macquarie Generation v Construction, Forestry, Mining and Energy Union (NSW Branch) and ors re Acting in Higher Grade [2003] NSWIRComm10 (ii) Electricity Commission of NSW t/as Pacific Power and Electrical Trades Union of Australia, NSW [1995] NSWIRComm 101 (iii) Macquarie Generation Employees (State) Award 2002 [2006] NSWIRComm 32 (iv) Macquarie Generation and Labor Council of NSW [2005] NSWIRComm 327 (v) Eraring Energy and Construction Forestry Mining and Energy Union (NSW) [2005] NSWIRComm 13 (vi) Notification under s 130 by Pacific Power of a dispute with the Construction Forestry Mining and Energy Union of Australia, NSW Division and Others re Work Restrictions - Eraring Power Station [1999] NSWIRComm 271 143 Macquarie Generation suggests that the principles applied in those cases support their contentions. 144 This submission is misdirected. The matters above dealt with specific disputes and did not address the requirement for agreement to working across classifications, nor did they require a consideration of the limits on application of cl 15 such as arise in this matter. 145 In (i) the matter dealt with a ban on acting in higher grade for the collateral industrial purpose of pressing demands in respect to Operator restructure and annualised salary and was confined to the Operator classification, i.e. APPOs refused to act in PPO positions. 146 In (ii) a Full Bench was asked to consider a limitation to acting in higher grade of six months. This matter was determined pursuant to the Industrial Relations Act 1991 in the context of the limitation being in policy, not in the industrial instrument where it now resides. It is wrong to suggest that this judgment endorsed long term acting in higher grade, which is now limited by the 2008 Enterprise Agreement. 147 The Decision in (iii) (which conveniently assembles the history of award making in the industry leading to the Macquarie Generation Award 2005) goes no further in so far as this matter is concerned than demonstrating the continued application of the Structural Efficiency Principle and then structural efficiency considerations. This matter serves to demonstrate the continued increase in flexibility over time, which is a credit to all concerned, not the least of whom are the unions respondent to the 2008 Enterprise Agreement. If anything, this case is against the argument advanced by Macquarie Generation as the current Enterprise Agreement, as discussed elsewhere, is a product of continued positive co-operation and consultation which Macquarie Generation seeks to abandon in favour of managerial edict based on its interpretation of cl 15. 148 In (iv) consideration is given to the application of cl 3.8(c) in respect to tradespersons and power workers working across classifications, and whether Macquarie Generation was in breach of the award by not having invoked the job evaluation process in respect to specific situations. This matter went to the Skills Development Programme for tradespersons and power worker and the limits to the extent of salary points available. 149 In (v) a Full Bench dealt with a question as to whether the position of Acting Operator existed, finding in the negative. The proposition by Macquarie Generation that a mid point between tradesperson and Operator be established, which has not found agreement and is not pressed in this matter, is suggestive of the establishment of an Acting Operator or such similar position. The decision of the Full Bench does not address the issue of working across classifications which arises here. 150 In (vi) it was held that: Completion of training is not an event which would ordinarily lead to an increase in salary in respect to the skill required. It is the unfettered application of those skills which gives rise to the entitlement to a wage increase. 151 This does not assist Macquarie Generation as this matter goes to the unfettered use of the Operator skills required, which Macquarie Generation seek to pay for on an intermittent basis in accordance with Higher Grade Work and Pay. 152 Selective reference to these matters which misunderstands them for the purpose of these proceedings is unfortunate. 153 I consider the historical context argued by Macquarie Generation to be unhelpful in determination of this matter. 154 The consideration of the Commission must be directed at the specific terms of the applicable enterprise agreement. 155 Both parties rely upon the provisions of the 2008 Enterprise Agreement in support of their argument.: Intent and Scope 2.1 The Agreement applies to all Macquarie Generation employees employed in classifications prescribed herein. It is based on the mutual understanding that there is an obligation to serve the people of New South Wales by providing a high standard of service at the lowest possible cost. As part of its obligations Macquarie Generation is committed to the continued development of its skilled workforce to provide an effective service . In order to meet its objectives as set down under the Energy Services Corporations Act, 1995 Macquarie Generation and its employees are committed to: (i) being a successful business; (ii) operating at least as efficiently as any comparable businesses ; (iii) maximising the net worth of the State's investment in it; (iv) operating efficient, safe and reliable facilities for the generation of electricity; (v) being an efficient and responsible supplier of electricity; (vi) being a successful participant in the wholesale market for electricity. The achievement of these objectives will be based on a climate of co-operation and understanding. [emphasis added] 156 Macquarie Generation contends that the training of personnel to undertake Operator duties is consistent with its obligation to the continued development of its skilled workforce, and necessary to meet the objectives of safety, efficiency and reliability. 157 The Unions do not oppose training, however, contend that to train more than is needed to meet foreseeable requirements is contrary to the commitment to efficiency. The Unions' submission asserts that Macquarie Generation is putting its view of efficiency ahead of safety and reliability, and fails to understand the career path aspiration of employees. 158 Macquarie Generation asserts that objection to training and use of trained employees in acting positions is no more than Operators selfishly seeking to retain an elite position with significant overtime earnings potential. 159 This is refuted by the Unions. 160 Macquarie Generation asserts that the primary obligation to co-operation by employees is found in cl 3, Salaries which states: 3. Salaries 3.1 Employees covered by the Agreement will receive a 4.5% increase in base rates of pay payable from the first pay period commencing on or after 1 July 2008. This payment will be paid in consideration of: (a) A commitment to the continuing development of the Macquarie Generation workforce so that staff can work flexibly in order to more readily adapt to changes in our business needs. (b) A commitment to participation in the development of the Training and Development Program referred to in 3.3, including the development of a job evaluation and remuneration system for all employees. (c) Maintain strict confidentiality of commercial information. (d) The express intention of the parties for Macquarie Generation to continue in a period of industrial stability and that the company will be spared the consequences of industrial action. 161 Macquarie Generation submits that the 4.5 percent wage increase is in consideration for continuing development of flexible work practices and participation in the training and development program. Macquarie Generation contends that objections by Operators is inconsistent with the flexibility for which they have been paid. 162 The Unions refute this assertion, putting that Macquarie Generation is not meeting its obligations which require agreement with employees and relevant unions as required by cl 3.8 which states: Working Up to Skill Level 3.8 Employees must: (a) Work up to their skill level, competence and training within the categories listed below; and (b) Work in accordance with the classification descriptions, salary points and Skills Development Programs negotiated under Agreement Restructuring. - Administrative Officer - Engineering Officer - Professional Officer - Operator - Power Worker - Tradesperson (c) Classification Flexibility - Following agreement through consultation with classifications affected and/or relevant unions where required, work can be performed across the classifications referred to in sub-clause 3.8(b) above. Those jobs which change as a result of classification flexibility will have the new position evaluated within one week of a signed Position Description becoming available. In the interim, for the three classification groups not covered by the current job evaluation system, additional skill levels can result in additional remuneration. Both parties agree that this clause will not be used to impede the development of flexible work practices. 163 Macquarie Generation contends that the requirement to work up to their skill level (emphasised in cl 3.8(a)) obliges employees who complete the training to qualify as Operators to do so 164 The Unions contend that unless a person works as an Operator on a continuous basis by appointment to that position, skills will be lost, negating the effect of cl 3.8(a). 165 In offering to come to a "housing agreement", the Unions contend that skills maintenance is an integral element of such an arrangement. 166 The Unions contend that the use of trained personnel as Operators without appointment falls within cl 3.8(c), Classification Flexibility, which is only available: "Following agreement through consultation with classifications affected and/or relevant unions" 167 Macquarie Generation submits that it is permitted to direct employees qualified as Operators to work within that classification and that it is not requiring employees to work across classification. 168 Macquarie Generation contends that where a tradesperson, for example, is qualified as an Operator, it does not require that employee to work across both classifications, but to work, and be paid as a tradesperson, and from time to time to work, and be paid, as an Operator. Macquarie Generation submits that the employee is either working in the tradesperson classification or the Operator classification, not across both. 169 There are significant deficiencies and internal contradictions inherent in this submission. 170 Whilst the employee remains appointed to the position of tradesperson that is the contract of employment. 171 The evidence is that a tradesperson with Operator qualifications will have a broader knowledge and bring an additional dimension to the work of a tradesperson, however, the requirement to work up to their skill level is to work up to their skill level within their contract of employment as a tradesperson. 172 Macquarie Generation's submission suggests that once a tradesperson completes Operator training their contract of employment is amended, without specific offer or acceptance, by extension to include work in a classification they are not appointed to or paid for, as and when required. 173 For an employee to have a contract of employment as a tradesperson one day and as an Operator on another day at the prerogative of one party to that contract, without specific agreement, is fanciful and bizarre. 174 The flexibility provision found in the 2008 Enterprise Agreement, with origin in the application of the Structural Efficiency Principle, is a mechanism to provide the employer with the flexibility its seeks by agreement. 175 There may be a basis for Operator qualified tradespersons to have this additional skill recognised by inclusion of the skill in the Trades Skills Development Program and extension of the salary range accordingly. This would need to be advanced by agreement between the parties. 176 The notion advanced by Macquarie Generation that the use of Operator qualified tradespersons as Operators does not constitute working across classifications is, in my view, simply wrong, amounting to a self-serving misapplication of the industrial instrument. 177 The notion requires acceptance that a person can have two separate and distinct contracts of employment which function separately as the employer might require, that is, when required to work in the Operator Classification the contract as a tradesperson is somehow suspended and ignored (despite the fact that trade skills may be applied in execution of the Operator tasks); and when working in the substantive position of a tradesperson there is some pretence that a contract of employment as an Operator exists in suspense until activated by the employer. 178 Macquarie Generation further contends that any reliance upon cl 3.8(c) by the Unions to insist upon agreement is in breach of the commitment not to use the provision to impede development of flexible work practices. 179 The Unions refute this notion, submitting Macquarie Generation's refusal to come to an agreement of a similar nature to other NSW electricity generators. 180 A proposal by management to develop a new position of Trainee Operator as a "mid point" salary range was rejected by the Unions. The reasons for this rejection were not fully explored in these proceedings, however, in the absence of agreement on a new position involving job redesign and evaluation, the present classification structure and attendant rights and obligations set out in cl 3.8 apply. 181 The classifications are broadly based, with each classification covering a number of positions involving various levels of skills, responsibilities and remuneration which are not detailed in the 2008 Enterprise Agreement. 182 Macquarie Generation submit that the primary obligation imposed by cl 15.1 is a compulsion for employees to work in a higher grade as required. 183 The Unions assert that this does not extend to cross classification acting, i.e. from tradesperson to Operator, but is directed to acting in different positions within a classification, which they term "in line acting". Examples of this in the Operator classification are APPOs acting as PPOs, and PPOs acting as Shift Managers. Operator Agreements 184 The parties have, over some decades, preferred to address the issues of operational detail in supplementary agreements. It is not of assistance to chronicle the history of those arrangements here, suffice to say that agreements exist at Liddell and Bayswater dealing with the Operator classification. The Unions rely upon those agreements. 185 The Liddell Operator Agreement (Ex 7) is in the form of a memorandum to Liddell Operating staff re Operator Restructuring, commencing with the following note: This memo contains amendments, as discussed by the parties at a compulsory conference of the Industrial Relations Commission of N.S.W. on 13th November 1998, and supersedes that issued on 5th November, 1998. 186 The Liddell Operator Agreement states: As previously stated, highly reliable and competitive production in the National Electricity Market will require a flexible workforce contributing to reductions in overall production costs and improvements in plant performance. It is essential that implementation of changes result in a cost benefit to the organisation. Increased remuneration for members of Operating Teams must be able to result in an overall financial benefit to Macquarie Generation. 1. A.P.P.O. a) Operate coal receiving plant equipment, including mines conveyors and stockyard equipment, as and when required, either locally, from the Coal Plant Control Room or Plant Control Room, in addition to duties currently undertaken on conveyor equipment; b) Utilise previously attained skills and carry out repairs and maintenance that was formerly considered to be the responsibility of Shift Fitters and E&C Technicians (Technician, Trade, Chemical), in order to meet shift self-containment needs. It may be necessary to attain and apply some of the minor maintenance skills detailed in c) below; c) Operators without trade background or similar formal qualifications will train and utilise minor maintenance skills in order to meet shift self-containment needs. Typically these skills would include assist in changing fabric filter bags, replacing pulse diaphragm valves, fuel oil strainer cleaning and oil gun/spark rod cleaning and replacement, seal oil strainer gasket, face filter element and annulus filter element replacement, conveyor idler replacement, feeder belt and roller bearing replacement, Reheater blanks removal/ replacement, P.F. leak temporary repairs; d) Assist the P.P.O. to operate Hunter Valley Gas Turbines by investigating alarms, carry out required switching, prepare/issue/clear isolations; e) Assist the P.P.O. to operate 33kV switchyard equipment by investigating alarms, carry out required switching, prepare/issue/clear isolations; f) Utilise any I.T. systems installed (including S.A.P., C.P.R., etc.) to perform duties; g) Operate all equipment associated with combusting alternate fuels, considered a part of plant operations (liquid fuels, refuse derived fuels, agricultural derived products, biomass, coal seam gas products and derivatives), prepare/issue/clear isolations. (Refer item 6). h) New appointees are to be prepared to train and act in the position of P.P.O., if considered suitable. Current incumbents considered suitable, with appropriate skills and qualifications, will have the opportunity to train and act in the position of P.P.O., on a station needs basis. When acting in the position of P.P.O., payment will be made at the applicable rate for this position; i) Operate plant following installation of D.C.S. (A review of resource requirements and work practices will be undertaken following D.C.S. installation on all units.). (Refer item 6). Agreement to carry out all of the above requirements and to adopt flexible work practices, will result in progressive Salary Point (S.P.) advancement for A.P.P.O. from S.P. 26 to S.P. 29. (Refer Attachment) 2. P.P.O. a) Operate adjacent out of service unit including test running of plant as required, monitoring items of plant in service, carry out standby job sheeting steps from the P.C.R. (as conditions on in service unit permit such that its continued stable operation is not at risk); b) When not required for panel operations, work within skills levels (other duties including job sheeting, isolations, minor maintenance, plant investigations, other projects as deemed applicable by the Shift Manager); c) Operate all P.C.R. equipment not necessarily unit related, including coal plant, 33kV switchyard, Hunter Valley Gas Turbines, supplementary fuel controls. (Refer item 6). d) Prepared to train and act in the position of Shift Manager. The selection of staff to act in this position will be made by Station Management. When acting in the position of Shift Manager, payment will be made at the appropriate rate for this position; e) Utilise any I.T. systems installed to perform duties (including S.A.P., C.P.R., and that required for participating in National Electricity Market, such as load profile changes in line with unit return to service programs or loss of a major auxiliary); f) Operate two in service units concurrently, subsequent on successful implementation of D.C.S., should that system so allow (A review of resource requirements and work practices will be undertaken following D.C.S. installation on all units.). (Refer item 6) Notes: i) Salary Point advancement for P.P.O., under this restructuring proposal, past S.P. 32 to S.P. 33, must be with the commitment and agreement to operate two in service units concurrently with installation of D.C.S. Appointment to S.P. 34 will be made following installation of D.C.S; ii) A current essential requirement for the position of Shift Manager is the possession of an Engineering Certificate or equivalent. Those P.P.O's, selected by Station Management, who do not possess these formal qualifications will be given the opportunity to act in the position of Shift Manager, however this is subject to further discussion with Shift Managers. 3. SHIFT MANAGER - current role to evolve towards an operating team leader as detailed in the appropriate Position Description. Specifically the position will be responsible for: a) Managing the resources of an operating team, human and material, such that production targets are achieved in a safe and efficient manner b) Carrying out unit and other PCR operations as required to meet operational schedules, as detailed in the Position Description for PPO, including operation of two in service units concurrently with the installation of DCS. At the discretion of the Shift Manager, it may be necessary to allocate other members of the team to take over panel operations, when Station needs dictate that Shift Manager involvement is required elsewhere on the plant. Remuneration for this position will be at a value of Salary Point 38, however this may be structured as an individual workplace agreement. 4. Discussions will continue with other members of Operating Teams, including currently appointed C.P.O. and M.P.O., in order to develop mutually acceptable agreements which result in flexible work practices, more effective utilisation of resources and financial benefits for Macquarie Generation. 5. It is envisaged that those current members of Operating Teams, specifically "Operators/S.P. 24" who have completed relevant training, will have the opportunity to apply for A.P.P.O. positions in Macquarie Generation. Appointments to these positions at Liddell would be made, after a period considered appropriate (2-3 months), for current appointed A.P.P.O.'s to attain skills required to advance in salary points as detailed herein. 6. Advancement in Salary Points for A.P.P.O. and P.P.O. will be incremental based on training to update or attain new skills, operation of coal plant and supplementary fuels equipment working as required by utilising all skills and committing to D.C.S. requirements. Future discussions will take place regarding systems of work, training requirements and remuneration. Discussions in relation to remuneration will not take place until six months after successful implementation of the D.C.S The timeframe for implementation of the restructuring arrangements would be expected to be completed within approximately 6 months from the time of acceptance of the above by the parties concerned. To enable all participants in the restructuring program the opportunity to attain and utilise new skills and hence acquire increased remuneration at approximately the same time, progression to higher salary points will be staged over a period as indicated on the attached program. 7. Those current members of Operating Teams who do not wish to participate in the restructuring program will remain on their current appointed Salary Point and current incumbents will not be displaced for non-participation in the restructuring program. All new appointees will be required to carry out the duties included in appropriate Position Descriptions which will reflect current duties as well as those detailed in this restructuring document. Those members of Operating Teams not wishing to accept all the restructuring proposals detailed, may advance in Salary Points partially, however, the skills attained/utilised will be dependent upon station needs as will be the accompanying level of remuneration. 8. It is the intention of this proposal to encompass the ongoing technological changes and plant modifications, that will be installed, to facilitate plant operations and control. All current appointed A.P.P.O. and P.P.O. will be given the opportunity to progress to the maximum salary point available under this proposal. 9. All A.P.P.O. and P.P.O. are required to be prepared to train and subsequently perform operating duties at Bayswater Power Station. Future discussions will take place between representatives from both Liddell and Bayswater in order to develop systems of work, training requirements, remuneration, etc. 187 The Unions rely upon item 1 of this agreement to limit the acting of persons not appointed to the Operator classification. This objection is not sustained. 188 The Bayswater Operator Agreement is a comprehensive document setting out the positions of Generation Controller, Senior Generation Controller and Shift Manager with arrangements for further training, cross skilling and acting in higher grade. 189 The Bayswater Operator Agreement states: The Agreement has been developed between Bayswater Operators and Management to enable a system of operating which provides benefit to employees and the business. The benefits of the system are obtained through job re-design, training and operators being able to provide increased flexibility, skills and productivity. The benefit to individuals comes from increased skills, knowledge and remuneration. The fundamental agreement between the parties is for the introduction of a total flexibility arrangement which removes demarcation between classifications, requires all employees to work to the level of their training, skills and ability to acquire additional skills as necessary to enhance productivity and efficiency. A salary structure from salary point 22 to 34 will be paid in return for this flexibility, representing an increase of up to 12%-13% on current salaries. 190 The salary range remains SP 22-34. 191 The Bayswater Operator Agreement states inter alia: Filling of future vacancies When a shift vacancy is to be filled in the future, the need will be met by Expression of Interest within Macquarie Generation and/or external advertisement with merit selection. … … Training All Operating staff will be given the opportunity, through cross skilling and training, to progress to the top salary level in relation to their restructured position. To enable cross skilling or development to be achieved in a reasonable timeframe, training assistance will be required from operators at varying levels within the structure depending on operating expertise held. Assessment will be by Shift Manager, Production/Training Co-ordinator (or equivalent) and operator with the appropriate skill level. Operator training required under this restructure will be included in an annual training plan developed in consultation between management and employees. Training of future staff for operator duties will be undertaken in consultation with operating staff. 192 The Bayswater Operator Agreement also provides for transitional arrangements which at the time foreshadowed further staff reductions after sufficient training and/or introduction of new technology. 193 The Bayswater Operator Agreement provides for staffing in the following terms: Staffing Initial operator staffing will be comprised of all staff trained to operate and based on 7x2 twelve hour shifts at the time of introduction of the restructure. Other staff trained to operate will continue to do so by AIHG into the new positions. 194 The Bayswater Operator Agreement is supported by an annualised salary arrangement and other "negotiated outcomes" which include: 3. The parties will confer in respect to introducing tradespersons and associated classifications into the career path structure. … … 5. There is no current plan to have operators work from day work or regularly relieve from day work. It is recognised that should this be required in the future that both parties would be obliged to deal with the matter in consultation and discussion. 195 The Unions argue that this is a commitment which requires Macquarie Generation to confer and obtain agreement should it require employees qualified to work as Operators to work from day work or regularly relieve from day work as the Macquarie Generation proposal is to treat employees so qualified as Operators from time to time. 196 Macquarie Generation deny that the present proposals are caught by this commitment and rely upon their general proposition that Higher Grade Work and Pay entitles them to direct employees to do work they are qualified to do. 197 I find in favour of the argument put by the Unions. 198 Even if I were to accept Macquarie Generation's argument that a person would be in the Operator classification at one point in time, and in another classification at a different time, and treat the Operator qualified personnel as Operators, there is an obligation to consult. 199 The notion that this commitment does not apply as the Operator qualified personnel are not appointed as Operators, and the commitment only applies to Operators, is an unreasonable approach which puts the Operator qualified persons appointed to non-Operator classifications in some sort of limbo between classifications, which is unfair and unreasonable. 200 Employees are entitled to certainty as to their contract of employment. 201 The entry requirements of the Bayswater Operator Agreement do not require appointment to undertake training nor does it deal by specific inclusion with qualified employees acting into Operator positions. 202 The staffing provisions acknowledge that "other staff" trained to operate will continue to do so by acting into higher grade. There is a dispute between the parties as to whether this reference is to other named staff detailed elsewhere in the agreement, or is a reference to all other staff at the power station. 203 I conclude that the term "continue" and the naming of individuals elsewhere in the agreement favours the narrow application of the terms advanced by the Unions. This is consistent with the language of item 3, which requires the parties to confer in respect to introducing tradespersons and associated classifications into the career path structure, which, in my view, is a further distinction between the classifications. 204 There is no impediment in the 2008 Enterprise Agreement or the Bayswater Operator Agreement/s to constrain management from offering, or employees taking up, opportunity of training to acquire additional skills or knowledge. 205 Opportunity for career enhancement should be available to all classifications of employees, both in line with the skills development program for a specific classification, and/or across classifications. Working across classifications is another matter. Higher Grade Work and Pay 206 The further issue for consideration is whether cl 15 of the 2008 Enterprise Agreement provides an unfettered right to management to deploy suitably trained employees into Operator tasks. 207 The answer to this question is no. 208 The classifications are broadly based, with each classification covering a number of positions involving various levels of skills, responsibilities and remuneration which are not detailed in the 2008 Enterprise Agreement. 209 Macquarie Generation submit that the primary obligation imposed by cl 15.1 is a compulsion for employees to work in a higher grade as required. 210 The Unions assert that this does not extend to cross classification acting, i.e. from tradesperson to Operator, but is directed to acting in different positions within a classification, which they term "in line acting". Examples of this in the Operator classification are APPOs acting as PPOs, and PPOs acting as Shift Managers. 211 The decision of the Chief Industrial Magistrate (CIM) in Goodlet v The Electricity Commission of NSW T/as Pacific Power (CIM96/0269) is distinguished from the present matter on the following grounds: · Mr Goodlet had refused to operate a mobile crane which was a task within the classification skill set of a Power Worker. · Mr Goodlet was a Power Worker who held a Workcover Certificate of Competency to drive the crane and had driven it on previous occasions. · The operation of a mobile crane was not one of the five core or seven general skills accredited to Mr Goodlet for progression to the position of Power Worker Advanced within the Power Worker classification. · Operation of a mobile crane was an available skill for inclusion in the accredited skill set of a Power Worker in the Power Worker Classification. · The CIM held that there was nothing in the enterprise agreement to displace the common law principle that entitled the employer to require an employee to work up to the level of their skills and abilities, thus the direction by the employer that Mr Goodlet drive the crane was a lawful direction. · Mr Goodlet's case was contained to work in the Power Worker classification and did not involve working across classifications. · In this matter, Macquarie Generation's requirement that persons from other classifications undertake work in the Operator classification is subject to the specific provision of cl 3.8(c) which requires agreement. 212 Clause 15 states: 15. HIGHER GRADE WORK AND PAY Obligation to Work in a Higher Grade 15.1 Employees must carry out work at a higher grade as directed and must be paid in accordance with the provisions of this clause. Employees will not be compelled to work in a higher grade, should they object to such work, if it is not reasonable or practicable for them to do so. Payment for Higher Grade Work 15.2 Employees must be paid higher grade pay if they are directed to carry out higher graded work for one hour or more in any one day or shift. These employees must receive the salary specified of an employee performing the particular class of work. Employees who work at a higher grade for more than half-day or shift must be paid at the higher rate for all ordinary time worked during the day or shift. Aggregation 15.3 Any time spent in another position equal to or higher than the grade of the position in which employees are acting must be counted as having been spent in the position under consideration in calculating whether the employees are entitled to higher grade pay for the purposes of this clause. Payment for Leave, Sick Leave etc 15.4 Employees must be paid higher grade pay during annual leave, paid sick leave, or periods of absence on accident pay if they have been paid the higher grade pay: (a) for a continuous period of three calendar months immediately before the leave; or (b) for broken periods which total more than six months, during the 12 calendar months immediately before the leave is taken. 15.5 No payments will be made under this clause to employees on long service leave or for payments for long service leave or retiring allowance. 15.6 Absences on special leave, sick leave, or accident pay, or the carrying out of lower graded work, that total not more than five working days or shifts during the three months continuous period in sub-clause 15.4(a) are not considered to break the continuity of the higher grade work. 15.7 If employees qualify for higher grade pay for periods in accordance with subclause 15.4, those periods must be taken as having been spent on higher grade duties in calculating the rate applicable for continued higher grade duty or for absences on annual leave, sick leave or accident pay. Public Holidays 15.8 Employees must be paid the higher grade rate for any public holiday which occurs during a period of work for which the employees are receiving higher grade pay. 15.9 Employees must be paid higher grade pay for a public holiday if they receive that pay for any part of the days preceding and following the public holiday. Overtime 15.10 Employees who are being paid a higher grade rate must be paid for overtime at that rate if: (a) they have to work outside their ordinary hours in their appointed grade, or in their acting position, or in a grade between their appointed grade and their acting grade, and (b) they have been carrying out the higher grade duties continuously for a period of one or more working days or shifts immediately before the overtime. 15.11 Employees are paid for overtime in their appointed grade at their appointed rate of pay if the overtime: (a) is performed between payment of the higher grade pay ceasing and payment at the appointed grade beginning; and (b) is not continuous with work for which higher grade pay is paid. Lower Graded Work 15.12 Employees must: (a) carry out lower graded work that is temporarily required as directed; and (b) be paid not less than their current salary point. Training in Higher Grade 15.13 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 responsibility of the position, and (b) the periods of training do not exceed a continuous period of three months. Filling Vacant Positions 15.14 Where a vacant position is acted into for a period of six months it is the intention to either fill that position permanently or the position is to be deleted. 213 The first sentence of cl 15.1 constructs an obligation upon the employee to act up as directed by management: Employees must carry out work at a higher grade as directed and must be paid in accordance with the provisions of this clause. whilst the second sentence introduces the limitation of reasonableness and practicality: Employees will not be compelled to work in a higher grade, should they object to such work, it if is not reasonable or practicable for them to do so. 214 The notion of reasonableness is also contained in the first sentence as by imputation the direction by management must be lawful and reasonable. 215 As previously discussed a person may only be required to carry out higher grade duties in accordance with their contract of employment which, if not amended by agreement to include the duties of another classification, is limited to the classification in which they are employed. 216 The classification in which a person is employed is ascertained by reference to the contract of employment, evidence of which is found in the letter of appointment and acceptance thereof. Without appointment to the position of Operator or such other specific arrangement such as an agreement provided for and encouraged by cl 3.8(c), the contract of employment remains that to which the employee is appointed. 217 The contract of employment may not be unilaterally altered to include work of another classification and is not altered by the operation of cl 15, which must be applied within the contract of employment. 218 To seek to apply cl 15 to add or extend the contract of employment is to apply the terms of the clause external to the contract of employment, which, in my view, is not permissible at common law; and specifically constrained by cl 3.8(c) which requires agreement, which, when made, creates a new contract within which cl 15 operates. 219 This is consistent with the evidence of Mr Dyson that Macquarie Generation offer training assistance to a wide range of employees for career advancement without guarantee of appointment or promotion. Completion of the courses referred to by Mr Dyson does not, and did not, change the contract of employment. Subsequent application for a new position and success in a merit based selection process, aided by the benefit of the training undertaken, leads to a new contract of employment in a desired position. 220 Where the parties have been able to come to agreement on the use of trainees they have done so within the framework of providing operational guidelines of what might be considered reasonable in all of the circumstances; thus preventing ongoing disputation on these grounds. 221 The agreements also allow an extension of use of trainees where circumstances may justify in a manner that is required for a reasonable business purpose without unfair disadvantage to any of the parties or employees. 222 The intent and application of these agreements is to provide a framework for daily operations with capacity to review and extend by agreement as changed circumstances may require. 223 In their written submission in reply (Ex 42) the Unions put a secondary position that, if the Commission was not disposed to make the Order sought in Schedule A, the following determinations should be made: (i) Clause 3.3 of the Agreement applies to the proposed intake of operator employees that is the subject of the current dispute. Clause 3.3 imposes an obligation on the parties to reach agreement in respect to each of the matters specified in the clause. The proposed operator training program cannot take place until agreement has been reached between the parties in accordance with clause 3.3. (ii) Clause 3.8(c) operates in respect to the creation of hybrid or blended classifications and to circumstances where non-operator employees are engaged in operator duties without being appointed (acting in higher grade). Consistent with the terms of clause 3.8(c) cross-classification flexibility (in both forms referred to herein) requires the agreement of unions and employees prior to implementation. (iii) Clause 15 requires employees to act in higher grades, subject to the terms of Clause 15 and other relevant provisions in the 2008 Agreement, including for present purposes, Clause 3.3 and 3.8(c). 224 I decline to make the determination in item (i). 225 Clause 3.3 states: 3.3 Training and Development Program – The purpose of the Training and Development Program is to undertake an assessment of the level of skills and competencies that exist within Macquarie Generation and compare this with what the business needs will be in the foreseeable future. This will require a skills audit which can be undertaken by existing resources within Macquarie Generation. There will also be a job redesign process that will provide the best combination of skills and competencies that deliver the business needs. Finally, there will be a job evaluation and remuneration system that applies to all employees. Program Terms of Reference (a) Review the results of a skills audit for Macquarie Generation; (b) Undertake a process of job redesign whereby jobs more readily meet the business needs; and (c) Examine job evaluation and remuneration systems in order to implement a system which applies to all employees. As the process will be developed jointly between employees, management and unions, agreement will be required on each phase prior to implementation. 226 This matter does not go to the issues of job redesign or job evaluation; it involves working across two discrete classifications at separate times and does not cause any consideration of the Skills Development Programme for either classification. There is no limit on the training that can be provided and no requirement for agreement prior to training. There is a requirement for agreement on the training content which has occurred in an established Operator Training Committee. There is no basis for the content of a training course to be any different whether appointment is predicated for successful candidates or not. There may be a need to consider refresher training, but that matter does not arise here. 227 I make the determination sought in item (ii) subject to the addition that agreement must not be unreasonably withheld; and where agreement is not achieved the issue is subject to determination in accordance with the disputes settlement procedure. 228 In respect to the determination sought in item (iii) I note that working in a higher grade is not limited to acting in a vacant position; it is, however, subject to other commitments and obligations of the parties which include cl 3.8(c), Working Across Classifications, and item 5 of the negotiated outcomes associated with the Bayswater Operator Agreement. 229 I make the following specific determinations: 1. There is no basis for any limit on training. The extent of training is limited only by the resources management choose to allocate. 2. The use of employees as Operators who have acquired Operator skills who are not appointed to that classification meets the definition of "working across classifications" as that term is used in cl 3.8(c) of the 2008 Enterprise Agreement. 3. Working across classifications requires agreement between the parties. 4. Such agreement should not be unreasonably withheld. Any difficulty in reaching agreement is subject to the dispute settlement procedures of the Enterprise Agreement and the s 146A agreement between the parties providing for conciliation and arbitration on the relevant subject matter. 5. Clause 15, Higher Grade Work and Pay does not provide an unfettered right to the employer who, in exercising the terms of the agreement, must act in a reasonable manner. 230 The appointment system applied by Macquarie Generation creates the classification demarcation. The provision for working across classifications is a facilitative provision which removes this restriction by agreement. 231 The capacity for agreement (and that it not be unreasonably withheld) to working across classifications is a flexibility arising from application of structural efficiency considerations that extends the common law contract of employment. The requirement for agreement is not a step backward as argued by Macquarie Generation, but a continuation of the consultative and co-operative approach inherent in the Structural Efficiency Principle. 232 I decline to make the Order sought by the CFMEU in this matter. 233 I direct the parties to apply item 4 of Schedule A (Ex 1): 4. Prospective operators may be rostered to a rotating operating shift to cover secondments, long service leave, or long term sick leave. 234 I note for clarity that Operators engaged in long term training is regarded as a secondment. 235 The parties are directed to confer in respect to other circumstances which would reasonably justify the use of Operator trained personnel from other classifications, which would include but is not limited to clearing of additional annual leave, long service leave, and unplanned peaks in demand for Operator skills and excessive overtime. 236 It is not reasonable to use acting in higher grade to inhibit career path opportunities by reducing the available Operator positions by stealth. 237 The 2008 Enterprise Agreement has sufficient facilitative provisions to accommodate further structural efficiency considerations should a restructure of the organisation of work be required. This should be advanced on its own merits. 238 I encourage the parties to develop an agreement for working across classifications to Operator duties. The term "housing agreement" has been applied; a more appropriate descriptor would reflect the career path opportunities and flexible working arrangements. The "housing agreements" are an instrument of good faith between the parties which, while open ended to account for unforeseen circumstances by discussion and agreement, provide clarity and certainty for those concerned. 239 I form the view that there is insufficient evidence in respect to the application for appointment of those employees named in the Unions' claim to allow a determination. Those claims to appointment which, if not resolved by further discussion having regard to the findings in this matter, may be dealt with by consideration in separately constituted proceedings dealing with the specific subject matter, as may other circumstances where the parties are unable to come to agreement on the use of Operator qualified employees from non-Operator classifications. 240 I so determine. **** 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.