Industrial Relations Commission New South Wales Medium Neutral Citation: Notification under section 130 by Construction, Forestry, Mining and Energy Union (New South Wales Branch) of a dispute with Department of Ageing, Disability and Home Care re incorrect classification of members [2012] NSWIRComm 98 Hearing dates: 30 July 2012, 31 July 2012, 1 August 2012, 2 August 2012 Decision date: 05 September 2012 Jurisdiction: Industrial Relations Commission Before: Harrison DP Decision: Qualifications and requirements do not meet Carpenter and Joiner Level 4. Application for recovery of underpayment of wages dismissed. Mixed functions provision of award has little or no application to the work as observed. Award to apply in appropriate circumstances. Catchwords: Application for reclassification from Carpenter and Joiner Level 3 to Level 4 - Question of skills applied, requirements of employer. Legislation Cited: Industrial Relations Act 1996 Category: Principal judgment Parties: The Construction, Forestry, Mining and Energy Union (NSW Branch) (CFMEU) (Applicant) The Family and Community Services Agency, Disability and Home Care Department (Respondent) Representation: Ms K Nomchong (Respondent) Ms R Raju (Applicant) File Number(s): IRC 875 of 2009 DECISION 1The Construction, Forestry, Mining and Energy Union (NSW Branch) (CFMEU) seeks an increase in classification from Tradesperson Level 3 to Tradesperson Level 4 on behalf of four members, Mr David Aubin, Mr Raymond Morrant, Mr Robert Towers and Mr Shane Obereker, employed by the Family and Community Services Agency, Disability and Home Care Department (the Department) at the Stockton Facility for Physically and Intellectually Handicapped. 2Each of the persons subject to this matter have been employed by the Department at the Stockton facility in a maintenance capacity for many years. Mr Aubin commenced in 1987, Mr Obereker in 1996 and Messrs Morrant and Towers in 1997. 3Employment has been in accordance with the relevant Crown Employees Award from the outset. 4It is sufficient for present purposes to consider the award coverage from 2001 to date. The relevant awards are: Skilled Trades Staff - Department of Ageing Disability and Home Care (State) Award 2001 (AIRC) 331 IG 820 (the 2001 Award) Skilled Trades Staff - Department of Ageing Disability and Home Care (State) Award 2004 (RIRC) 354 IG 538 (the 2004 Award) Skilled Trades Staff - Department of Ageing Disability and Home Care (State) Award 2004 (VIRC) 362 IG 211 (the 2007 Variation) Skilled Trades Staff - Department of Ageing Disability and Home Care (State) Award 2009 (AIRC) 369 IG 966 (the 2009 Award) Skilled Trades Staff - Department of Family and Community Services (State) Award 2011 (AIRC) 371 IG 1696 (the 2011 Award) 5The CFMEU put an argument that a review of the correct classification should commence with a consideration of the 2001 Award. 6This argument is not sustainable. The present issue had its genesis in a reclassification process commencing with the 2007 Award Variation which introduced changes to the classification structure. No issue was raised or pursued through the award disputes procedure prior. 7The correct approach is to determine whether the employees were correctly classified in accordance with the 2007 Award Variation, the relevant provisions of which are: VARIATION 1.Insert in clause 1 Arrangement, of the award published 21 October 2005 (354 I.G. 538) the following new clause number and subject matter, and renumber existing clauses 13, 14, and 15 to read as 14, 15 and 16. 13.Average Disability Allowance 2.Delete clause 5, Classification Structure and insert in lieu thereof the following: 5. Classification Structure (i)Context: Trades staff perform, both on a planned and emergency basis, a variety of manual and technical tasks related to preventative and corrective maintenance, the installation of plant and equipment and the renovation and construction of buildings. Trades staff also ordinarily undertake work which is peripheral and incidental to their base trade so as to complete the whole job or so as to assist other staff complete the whole job. This Classification structure is designed to reward trades staff who possess, and are required by the Region to regularly provide, skills/knowledge beyond their base trade obligations. It does not reward service alone nor additional skill/knowledge performed at less than a trades standard. (ii)Structure: The following classification structure is to be applied from the first full pay period to commence on or after 13 February 2007. Pay levels as a percentage of base pay rates are: Title Rate of Pay Level 1 Tradesperson Base rate for relevant Trade Level 2 Tradesperson 105% of Base Rate for relevant Trade Level 3 Tradesperson 110% of Base Rate for relevant Trade Level 4 Tradesperson 115% of Base Rate for relevant Trade (iii)Definitions of the Classification Levels are as follows: (a)Level 1 Tradesperson (Base Rate for relevant Trade). Level 1 is applicable to a tradesperson who has completed an apprenticeship, licence or equivalent and is proficient in the contemporary skills required of a tradesperson in the relevant trade. Tasks to be performed include those peripheral and incidental to completing the whole job and/or assisting other staff so as to complete the whole job. A tradesperson at this level may be required to supervise or train apprentices on the job. (b)Level 2 Tradesperson (105% of the Base Rate for the relevant Trade). Level 2 is applicable to a tradesperson who satisfies the requirements of Level 1 and who is required by the employer to regularly utilise skills/knowledge, additional to that skill/knowledge associated with the individual's base trade, which is gained from or deemed equivalent to that gained from completing 120 hours of learning within approved courses. (c)Level 3 Tradesperson (110% of the Base Rate for the relevant Trade). Level 3 is applicable to a tradesperson who satisfies the requirements of Level 1 and who is required by the employer to regularly utilise skills/knowledge, additional to that skill/knowledge associated with the individual's base trade, which is gained from or deemed equivalent to that gained from completing 240 hours of learning within approved courses. (d)Level 4 Tradesperson (115% of the Base Rate for the relevant Trade). Level 4 is applicable to a tradesperson who satisfies the requirements of Level 1 and who is required by the employer to regularly utilise skills/knowledge, additional to that skill/knowledge associated with the individual's base trade, which is gained from or deemed equivalent to that gained from completing 360 hours of learning within approved courses. (e)Charge Hand/Supervisor A Charge Hand/Supervisor is a person appointed to a Charge Hand/Supervisor position by the Department. Charge Hand/Supervisor positions will be created at the discretion of the Department. A Charge Hand/Supervisor will be allocated ongoing responsibility for the activities of one trade and/or the supervision of one or more trades and its associated staff (including contractors) within the Region and/or all the trades activities and trades staff (including contractors) at a nominated location. A Charge Hand/Supervisor can be required to perform the duties of their trade/s at any time. A Charge Hand/Supervisor may also be nominated as Project Leader on any project in addition to their other responsibilities. The Region is to maintain an up-to-date Position Description for each of its Charge Hand/Supervisor positions. (f)Project Leader A Project Leader is a person appointed to a Project Leader position by the Department. Project Leader positions will be created at the discretion of the Department. A Project Leader will be allocated responsibility for all aspects of a substantial refurbishment/construction project. The Project Leader will be able to supervise any staff/contractors working in connection with a project as necessary and will ensure compliance with all relevant specifications and requirements. A Project Leader can be required to perform the duties of their trade/s at any time. The duration of any Project Leader role will be limited to the life of the project. The Region is to provide the Project Leader with an up-to-date Position Description. (iv)Approved Courses: For the purpose of this Clause, 'Approved Courses' are TAFE courses and any others that the Department approves. However an Approved Course must relate to the acquisition of new skills/knowledge by the individual, additional to the base trade, and not simply the modernisation or updating of current work practices or methods. Approved Courses will not include personal OH&S related courses, updated inventory or programmed maintenance systems courses, new computer software etc. (v)Deemed Credited with Approved Course or part thereof: For Tradespersons who have not successfully completed an Approved Course; The Regional Director or nominee may deem the additional skills/knowledge required to be regularly utilised by a tradesperson to be equivalent to that acquired from successfully undertaking an Approved Course/s or from one or more identifiable modules of an Approved Course. Any such decision requires that the tradesperson in question be credited with hours equivalent to that of the relevant Approved Course/s or modules thereof for progression purposes. (vi)Regular: 'Regular' for the purposes of this Clause refers to duties/tasks occurring periodically, routinely or which are programmed. Project work and other work occurring randomly, sporadically or irregularly would not be 'regular'. Where tasks are required to be performed irregularly but would, if they were regular, attract a higher classification level, then 'Mixed Functions' allowance should be paid to the higher classification level in accordance with the award. That is, when a Tradesperson is required to perform the additional work irregularly and is qualified to do so, he/she should be paid any applicable higher rate for the period of time the additional skills/knowledge is required to be performed or for the whole shift in accordance with the Mixed Functions Clause of the Crown Employees Skilled Trades Award. (vii)Trades Standard: 'Trades Standard' for the purposes of this Clause means a quality of work/knowledge equivalent to that reasonably required of a qualified tradesperson in the relevant trade. (viii)No Double Counting: The performance of any function reasonably within the scope of employment classification, and/or additional skills performed at less than a trades standard and/or for which payment of an allowance or additional remuneration is already provided do not count for translation, appointment or progression purposes. (ix)The Department to Decide its Requirements: The Department is to decide which and how many trades staff will be regularly required to use the additional skills/knowledge attracting higher rates of pay. In reaching that decision the Department might consider; -what number of staff are needed to utilise the additional skill/knowledge. - whether a trades staff is already paid for numerous additional skills/knowledge, in which there may be limited opportunity to effectively utilise one more additional skill/knowledge. - whether the work should be contracted out. Before deciding the work should be contracted out, the Region is to consider the skills/knowledge possessed by trades staff in addition to their base trades. To this end, a list of such additional skills/knowledge is to be maintained by the Region in a state of reasonable currency, subject to employee cooperation and assistance in compiling and maintaining that list. (x)Maintaining Standards: Tradespersons at classification levels 2 ,3 and 4 are responsible for maintaining the additional skills/ knowledge to a standard equivalent to that of having successfully undertaken a current approved course/s (or in some cases, the modules thereof they were deemed credited with) in order to continue to be paid the higher classification level. (xi)Leading Hand Allowance: Leading Hand Allowance will be paid to Tradespersons in the classifications Levels 1 to 4 inclusive who are required to supervise the work of contractors and/or staff; provided that for this purpose, apprentices will not be counted, each contractor supervised will be counted but any contractor's staff will not. (xii)Translation: Within 3 months of the commencement of this Clause, the relevant Regional Director or nominee will determine where each tradesperson should translate into the new classification structure. This must be done firstly by determining which skills/knowledge, beyond classification level 1 skills/knowledge, are regularly required of the tradesperson and secondly, in relation to each of those, determining whether the relevant approved course has been successfully completed or, alternatively, determining whether the skills/knowledge possessed by the tradesperson is equivalent to skills/knowledge acquired from successfully undertaking the approved course or one or more modules thereof. The performance of any function reasonably within the scope of employment classification, and/or additional skills performed at less than a trades standard and/or for which payment of an allowance or additional remuneration is already provided is to be discounted. Where the tradesperson in question is translated to a higher classification in the new structure than his/her classification before the commencement of this Clause, the employee is to be paid the higher rate from the first full pay period to commence on or after the commencement of this Clause. Where the tradesperson in question is translated to an equivalent or lower classification in the new structure than his/her classification before the commencement of this Clause, the employee is to be maintained in their current classification. (xiii) Appointment and Progression: (a)Appointment: Once appointed to a particular Level in this Classification Structure, a tradesperson may not have his/her Level reduced because the Region no longer requires the additional skills/knowledge warranting the higher Level to be regularly utilised. Accordingly appointments of trades staff should initially be made to the Level 1 position, or at least be carefully considered having regard to the foreseeable medium to longer term requirements of the appointment. (b)Progression: Consideration of progression to Classification Levels 2, 3 and 4 must always be based on a Departmental requirement to utilise the additional skills/knowledge at that time and into the foreseeable future and may not count skills/knowledge no longer regularly required by the Department to be utilised. (xiv) Training: Trades staff are to meet the costs of training associated with the additional skills/knowledge referred to in this Clause and attend that training in their own time. Study Leave provisions apply. Where the Department directs the employee undertake training, any such training outside of paid work time will be paid for at the ordinary hourly base rate. (xv)Disputes: The Issue Resolution procedures should be utilised if any disputes arise concerning implementation of this clause. 8The 2007 Award Variation was consolidated in the making of the 2009 Award which resulted in the complete provision with effect from 13 February 2007. It is necessary to consider the 2009 Award provision in full; and it is convenient to restate it here: 5. Classification Structure (i)Context: Trades staff perform, both on a planned and emergency basis, a variety of manual and technical tasks related to preventative and corrective maintenance, the installation of plant and equipment and the renovation and construction of buildings. Trades staff also ordinarily undertake work which is peripheral and incidental to their base trade so as to complete the whole job or so as to assist other staff complete the whole job. This Classification structure is designed to reward trades staff who possess, and are required by the Region to regularly provide, skills/knowledge beyond their base trade obligations. It does not reward service alone nor additional skill/knowledge performed at less than a trades standard. (ii)Structure: The following classification structure is to be applied from the first full pay period to commence on or after 13 February 2007. Pay levels as a percentage of base pay rates are: Title Rate of Pay Level 1 Tradesperson Base rate for relevant Trade Level 2 Tradesperson 105% of Base Rate for relevant Trade Level 3 Tradesperson 110% of Base Rate for relevant Trade Level 4 Tradesperson 115% of Base Rate for relevant Trade (iii)Definitions of the Classification Levels are as follows: (a)Level 1 Tradesperson (Base Rate for relevant Trade). Level 1 is applicable to a tradesperson who has completed an apprenticeship, licence or equivalent and is proficient in the contemporary skills required of a tradesperson in the relevant trade. Tasks to be performed include those peripheral and incidental to completing the whole job and/or assisting other staff so as to complete the whole job. A tradesperson at this level may be required to supervise or train apprentices on the job. (b)Level 2 Tradesperson (105% of the Base Rate for the relevant Trade). Level 2 is applicable to a tradesperson who satisfies the requirements of Level 1 and who is required by the employer to regularly utilise skills/knowledge, additional to that skill/knowledge associated with the individual's base trade, which is gained from or deemed equivalent to that gained from completing 120 hours of learning within approved courses. (c)Level 3 Tradesperson (110% of the Base Rate for the relevant Trade). Level 3 is applicable to a tradesperson who satisfies the requirements of Level 1 and who is required by the employer to regularly utilise skills/knowledge, additional to that skill/knowledge associated with the individual's base trade, which is gained from or deemed equivalent to that gained from completing 240 hours of learning within approved courses. (d)Level 4 Tradesperson (115% of the Base Rate for the relevant Trade). Level 4 is applicable to a tradesperson who satisfies the requirements of Level 1 and who is required by the employer to regularly utilise skills/knowledge, additional to that skill/knowledge associated with the individual's base trade, which is gained from or deemed equivalent to that gained from completing 360 hours of learning within approved courses. (e)Charge Hand/Supervisor A Charge Hand/Supervisor is a person appointed to a Charge Hand/Supervisor position by the Department. Charge Hand/Supervisor positions will be created at the discretion of the Department. A Charge Hand/Supervisor will be allocated ongoing responsibility for the activities of one trade and/or the supervision of one or more trades and its associated staff (including contractors) within the Region and/or all the trades activities and trades staff (including contractors) at a nominated location. A Charge Hand/Supervisor can be required to perform the duties of their trade/s at any time. A Charge Hand/Supervisor may also be nominated as Project Leader on any project in addition to their other responsibilities. The Region is to maintain an up-to-date Position Description for each of its Charge Hand/Supervisor positions. (f)Project Leader A Project Leader is a person appointed to a Project Leader position by the Department. Project Leader positions will be created at the discretion of the Department. A Project Leader will be allocated responsibility for all aspects of a substantial refurbishment/construction project. The Project Leader will be able to supervise any staff/contractors working in connection with a project as necessary and will ensure compliance with all relevant specifications and requirements. A Project Leader can be required to perform the duties of their trade/s at any time. The duration of any Project Leader role will be limited to the life of the project. The Region is to provide the Project Leader with an up-to-date Position Description. (iv)Approved Courses: For the purpose of this Clause, 'Approved Courses' are TAFE courses and any others that the Department approves. However an Approved Course must relate to the acquisition of new skills/knowledge by the individual, additional to the base trade, and not simply the modernisation or updating of current work practices or methods. Approved Courses will not include personal OH&S related courses, updated inventory or programmed maintenance systems courses, new computer software etc. (v)Deemed Credited with Approved Course or part thereof: For Tradespersons who have not successfully completed an Approved Course; The Regional Director or nominee may deem the additional skills/knowledge required to be regularly utilised by a tradesperson to be equivalent to that acquired from successfully undertaking an Approved Course/s or from one or more identifiable modules of an Approved Course. Any such decision requires that the tradesperson in question be credited with hours equivalent to that of the relevant Approved Course/s or modules thereof for progression purposes. (vi)Regular: 'Regular' for the purposes of this Clause refers to duties/tasks occurring periodically, routinely or which are programmed. Project work and other work occurring randomly, sporadically or irregularly would not be 'regular'. Where tasks are required to be performed irregularly but would, if they were regular, attract a higher classification level, then 'Mixed Functions' allowance should be paid to the higher classification level in accordance with the award. That is, when a Tradesperson is required to perform the additional work irregularly and is qualified to do so, he/she should be paid any applicable higher rate for the period of time the additional skills/knowledge is required to be performed or for the whole shift in accordance with the Mixed Functions Clause of the Crown Employees Skilled Trades Award. (vii)Trades Standard: 'Trades Standard' for the purposes of this Clause means a quality of work/knowledge equivalent to that reasonably required of a qualified tradesperson in the relevant trade. (viii) No Double Counting: The performance of any function reasonably within the scope of employment classification, and/or additional skills performed at less than a trades standard and/or for which payment of an allowance or additional remuneration is already provided do not count for translation, appointment or progression purposes. The Department is to decide which and how many trades staff will be regularly required to use the additional skills/knowledge attracting higher rates of pay. In reaching that decision the Department might consider; - what number of staff are needed to utilise the additional skill/knowledge. - whether a trades staff is already paid for numerous additional skills/knowledge, in which there may be limited opportunity to effectively utilise one more additional skill/knowledge. - whether the work should be contracted out. Before deciding the work should be contracted out, the Region is to consider the skills/knowledge possessed by trades staff in addition to their base trades. To this end, a list of such additional skills/knowledge is to be maintained by the Region in a state of reasonable currency, subject to employee cooperation and assistance in compiling and maintaining that list. (x)Maintaining Standards: Tradespersons at classification levels 2 ,3 and 4 are responsible for maintaining the additional skills/ knowledge to a standard equivalent to that of having successfully undertaken a current approved course/s (or in some cases, the modules thereof they were deemed credited with) in order to continue to be paid the higher classification level. (xi)Leading Hand Allowance: Leading Hand Allowance will be paid to Tradespersons in the classifications Levels 1 to 4 inclusive who are required to supervise the work of contractors and/or staff; provided that for this purpose, apprentices will not be counted, each contractor supervised will be counted but any contractor's staff will not. (xii)Translation: As of 30 June 2008 all tradespersons employed by the Department have undergone the translation process. In the translation process there was no tradesperson reclassified to a lower grade. The employment level for all new tradespersons employed will be determined as per the provisions of Clause 5 of this Award. (xiii) Appointment and Progression: (a)Appointment: Once appointed to a particular Level in this Classification Structure, a tradesperson may not have his/her Level reduced because the Region no longer requires the additional skills/knowledge warranting the higher Level to be regularly utilised. Accordingly appointments of trades staff should initially be made to the Level 1 position, or at least be carefully considered having regard to the foreseeable medium to longer term requirements of the appointment. (b)Progression: Consideration of progression to Classification Levels 2, 3 and 4 must always be based on a Departmental requirement to utilise the additional skills/knowledge at that time and into the foreseeable future and may not count skills/knowledge no longer regularly required by the Department to be utilised. (xiv) Training: Trades staff are to meet the costs of training associated with the additional skills/knowledge referred to in this Clause and attend that training in their own time. Study Leave provisions apply. Where the Department directs the employee undertake training, any such training outside of paid work time will be paid for at the ordinary hourly base rate. (xv)Disputes: The Issue Resolution procedures should be utilised if any disputes arise concerning implementation of this clause. 9The 2007 Award Variation further prescribed at Part B Rate of Wage and Allowances for a range of specific occupational classifications, those relevant to these proceedings being: Bricklayer Levels 1-2 Carpenter and/or Joiner Levels 1-2 PainterLevels 1-3 PlumberLevels 1-3 10The annual rates of remuneration for a bricklayer, carpenter and/or joiner, and painter are the same. Plumbers and electrical tradespersons are put at a slightly higher rate. 11The CFMEU argues that the correct occupational classification applicable to Messrs Aubin, Towers, Morrant and Obereker is that of Carpenter. 12Ms Nomchong contends that Messrs Aubin, Towers and Obereker are in the occupational classification of Carpenter and Joiner as prescribed by the award; however, having regard to the substantial aspect of Mr Morrant's duties being that of locksmith, he is not caught by this award at all. 13The relevant occupational classification found in the Award is Carpenter and/or Joiner. 14When regard is had to the work done and skills and experience of the employees, the contract of employment is, as discussed later, that of a Carpenter and Joiner undertaking maintenance work. This includes Mr Morrant who is employed in the capacity of Carpenter and Joiner and, whilst over time he has shown an ability and interest in security issues, he is not a tradesman locksmith. 15I determine that all four are employed in the occupational classification of Carpenter and Joiner within the Tradesperson classification as prescribed by the award. The Work 16An inspection of the maintenance workshop, accommodation unit 2, and some minor works on the grounds of the Stockton facility took place on Monday, 30 July 2012. 17The workshop is fitted with a number of items of machinery which are used variously as required. The items of machinery are identified as: Aluminium saw Power saw, Folder/Binder Edge Binder Lock Smithing/Key Cutting and Grinding Belt Sander Spindle Moulder Chisel Mortiser Thickener Joiner Rip Saw Radial Arm Saw Band Saw Wood Lathe Sander 18As well as aluminium and timber stocks the workshop also holds a store of plastering equipment and supplies and a tile store. The Evidence 19Evidence was provided by statement and cross examination for the CFMEU from Mr Brian Parker, Public Sector CFMEU Organiser; Mr Towers; Mr Aubin; Mr Morrant; and Mr Obereker. 20Evidence was provided by statement and cross examination for the Department from Mr Ian Taylor, Senior Employee Relations Officer; Mr Garry Leahy, Manager Human Resources at the Stockton Centre; Mr Matthew Targett, Assistant Engineer, currently Acting Manager Engineering with responsibility for the work of the tradespersons and others at the Stockton Centre and elsewhere. 21The CFMEU also brought evidence by subpoena from Mr Scott Grahame, Teacher of Wood Machinery, NSW TAFE; Mr Neville Chalmers, Band 2 Head Teacher at the Maitland Campus of NSW TAFE; and Mr Ian Wykes, an Associate Faculty Director of Industry and Natural Resources, Hunter TAFE who has oversight of all building, construction and furnishing trades among others. 22Much of the evidence dealt with attempts to have TAFE assess the extent to which work of the four employees should be accredited, hours for additional course work, or recognition of prior learning/skills attained. 23There are different views put as to why this process was inconclusive, which are not material to the current proceedings. 24It is appropriate to consider each of the employees separately, however, it is clear from the evidence that each was employed for the purpose of undertaking maintenance work at the Stockton Facility and at other locations operated by the Department. The employees are based at the Stockton Facility and work elsewhere as required on a sporadic and intermittent basis. 25Each of the employees brings a different range of skills and experience to the role. It is plain that it is the skills acquired from their apprenticeships and subsequent experience which resulted in their success at interview and thus an offer of employment. 26All of the employees express enthusiasm for their work and take a genuine satisfaction from their contribution to the facility's clients. This has diminished in recent years for Mr Obereker who has expressed a dissatisfaction with the quality of work offered. His views in this regard are unfortunate for him but have no bearing on the assessment of duties required by the employer against the award criteria in order to determine the appropriate trades levels. Mr Towers 27Mr Towers was "Apprentice of the Year" in 1979, completing his apprenticeship in Carpentry and Joinery in 1980. In 1981 he attained a Craftsman's Trade Certificate in Carpentry and Joinery. 28Mr Towers also has a Heavy Rigid Truck Licence; a Certificate in Computing Applications for the Office obtained at TAFE in 1996; a Statement of Attainment in Building Contracting Management, also obtained in 1996; a Statement of Attainment in Business Services, obtained in 1997; and a Statement in Woodturning achieved in 2004. 29Mr Towers deposed that he has been employed as a Carpenter and Joiner from 1982 and has experience in shop fitting (glass and aluminium and internal fit outs), construction and internal fitting of large luxury motor yachts, and the construction and installation of kitchens. 30Mr Towers commenced his current employment in 1997 as a Level 1 Tradesperson, moving to Level 2 in mid 2003. 31In February 2004 Mr Towers applied for appointment to Level 3 which was refused. A further application for Level 3 was made in early 2008 and granted on 4 September 2008. 32Mr Towers then disputed the findings, asserting that he had more than 1500 hours of skills and knowledge above that of a base carpenter and should be classified at Level 4. Mr Obereker 33Mr Obereker commenced employment with the Department as a Level One Carpenter in September 1996. 34Prior to his current employment Mr Obereker worked as a sole contractor for various companies performing a range of functions including plastering, wood machining, water proofing, tiling, carpet repair, glazing, fence installation, construction underpinning, roller door repair and upholstery repair. 35Mr Obereker has an Advanced Certificate in Building Supervision and has gained further experience in the renovation of his own home. 36Mr Obereker listed the following qualifications in attachment A of his first affidavit (Ex 7): Nov 2011Course in Bonded Asbestos Removal Feb 2011Statement of attainment - Work safely at heights Feb 2009Statement of attainment - Work in confined spaces Aug 2007 - Feb 2008Certificate IV in Business (Frontline Management) Sept 2007VETAB - Attainment for Work In Confined Spaces July 2006DADHC - Manual Handling Program May 2006Work Cover NSW - Course in OHS Consultation Nov 2004WEA - Certificate in Introduction to Computers Using XP April 1999Work Cover NSW - Course in OHS Safety Induction Training for Construction Work Feb 1996NSW Office of Fair Trading - Contractor Licence Feb 1994 -Dec 1996TAFE NSW, Hunter Institute of Technology - Course in Advanced Certificate in Building Supervision - credit level March 1992Dept of Industrial Relations NSW - Certificate of Competency for; Explosive Power Tool Operator, Carpenters Falsework & Framework, Rigger & Dogman and Scaffolder Feb 1988 - Feb 1992TAFE NSW Hunter Institute of Technology - Certificate of Proficiency for Completion of Apprenticeship in Carpentry & Joinery Feb 1988 - CurrentNSW Drivers Licence - Class C, R -(Motor Cycle) Jan 1984 - Dec 1987Wallsend High School - Completed School Certificate 37Mr Obereker deposed that the type of work he has performed for the Department with Messrs Aubin, Towers and Morrant, has been the same. 38The evidence of Mr Obereker describes in detail the work and skills used, all of which is within the scope of duties described by Mr Towers and Mr Morrant. 39Mr Obereker was critical of the earlier assessment processes, asserting that a large number of the hours worked on various jobs, particularly those on minor works, were not considered. 40Mr Obereker's evidence is that he and the other applicants in this matter perform skills/knowlege beyond their base trade for around 45% of their time, putting that: However, if TAFE were to take into consideration the trades in the work requests that were not credited as being outside the trade of Carpentry then we would be in excess of 60% needed to be regarded as a level 4 Carpenter. 41Mr Obereker's evidence is that he has suffered severe anxiety and stress from this ongoing matter and has taken paid and unpaid leave. 42Mr Obereker has sought conclusion of his employment with the Department by voluntary redundancy, the reasons for which, he put, are personal. Mr Aubin 43Mr Aubin commenced employment with the Department in March 1987, he is a carpenter and joiner by trade and also a commercial floor and ship joiner. 44Mr Aubin has worked for the Department for about 25 years and from 2011 has been the Acting Charge Hand. 45In attachment A to his first affidavit (Ex 10) Mr Aubin details his qualifications and experience: Trade Certificate Carpentry/Joinery Certificate IV in Frontline Management Department of Fair Trading Contractor Licence - Carpentry/Joinery Statement of Attainment - Work in Confined Spaces Workcover NSW - OH&S Induction Workcover NSW - Induction Training for Construction Work (General Course) Workcover NSW - OHS Consultation Certificate of Competency - Falsework & Formwork Senior First Aid Certificate National Safety Council of Australia Ltd - Occupational Health & Safety for Managers Working in Residential & AIC Environments Induction to Practical Project Management Craftsman Certification - Surell Solid Surfacing Craftsman Certification - Ultima Solid Surfacing Mr Morrant 46Mr Morrant is a carpenter by trade, he also holds an excavator licence, semi trailer licence and locksmiths qualification. Mr Morrant's qualifications and experience are detailed in attachment A to his first affidavit (Ex 13). Qualifications Carpenter/Joiner Class one Formwork and Falsework (TAFE Course) Locksmith (12 month TAFE course) Explosive Power Tools WorkCover Licence Electronic Security Installation (6 month TAFE course) Holder of a NSW Security Industry Licence Class C, D, E (NSW Law states all persons working on mechanical and/or electronic security equipment must be licensed. This is in accordance with the Security (Protection) Industry Act 1985) Class 5A and 1B Drivers Licence Forklift, Front-end Loader, Backhoe, Skidsteer Loader (Bobcat), Excavator WorkCover tickets Traffic Controller ticket TAFE Basic Computer Course - 'A' pass Occupational Health & Safety Induction Course Confined Space Course Other Skills Quality Assurance Training, Abseiling Course, Welding, Plastering, Painting, Tiling, Concrete Finishing, Window Tinting, Glass Cutting & Glazing 47Mr Morrant described the unsuccessful process of pursuing level 4 qualification succinctly in his first affidavit (Ex 13) in the following terms: 7. After years of trying to get reclassified as a level 4 Carpenter, I was happy when in December 2009; a meeting was conducted at the Stockton Centre, to discuss the 7 point assessment process involving TAFE. Present at that meeting were the carpenters, Matt Targett and Ian Taylor. 8. It was agreed that the first assessment performed by TAFE was inaccurate as there was insufficient information for TAFE to determine what skills were outside that of a base carpenter. It was then agreed that the CFMEU Delegate who at that time was Dave Aubin would produce a job description in conjunction with Matt Targett. This was then going to be provided to TAFE so they could re-evaluate the report. 9. Richard Towers and I got together and went through all the work orders. We both worked on the majority of the jobs listed in the work orders. Dave Aubin did not perform the work on the work orders because he is a leading hand and their primary responsibility is to supervise. Shane Obereker was on leave for most of that time therefore he was not involved in the construction of the document. Richard Towers and I were the only ones with knowledge of the jobs. 10. I went through all the work orders and noted down the TAFE modules required to do the work with. I obtained the TAFE modules which outline what trades to with what job performed. The process of writing down all the TAFE modules required to do the specific trade took us one week to complete. 48The document produced by Messrs Morrant and Towers ("the Morrant/Towers document) is attachment A to exhibit 5, the first affidavit of Mr Towers. 49All four of the employees continue to rely on this document as an appropriate exposition of the skills they are required to utilise. 50By reference to the Morrant/Towers document, all four seek recognition for: The set up and operation of sawing machines; Assembly of cabinets, showcases, wall units, counters and work stations; Removing and laying of resilient floor coverings including the use of floor sector hand and power tools; Set up, operate and maintain planning and finishing machines; Fitting of upholstery components; Wall and floor tiling including repairs; Application of sheet laminates by hand; Installation and finishing of plasterboard and fibre cement sheeting to flat walls and ceilings; Installation of cast plaster and paper faced cornice; Use of wall and ceiling lining tools and equipment and application of set coats; Preparation of surfaces for tiling application and fitting wall tiles; Use of concreting tools and equipment. 51The Morrant/Towers document acknowledges some handyman functions, being removal and replanting of shade sails and structures; air conditioning installation; removal and replacement of internal and external blinds and awnings; removal and replanting of roller doors; and the erection of metal fencing. 52Ms Nomchong provided schedules detailing analysis of the work undertaken on a regular and sporadic basis, both within trade and extant to it: Mr Aubin (exhibit 37) - 189 total equivalent hours Mr Towers (exhibit 38) - 74 total equivalent hours Mr Obereker (exhibit 39) - 74 total equivalent hours 53Ms Nomchong relied upon this analysis to support a submission that the employees were over classified at Level 3, noting that clause (xiii) Appointment and Progression preserved their classification at Level 3. 54A schedule is not provided for Mr Morrant. 55Mr Morrant has a Locksmith qualification and spends the majority of his time attending to locksmith duties. He is afforded Level 3 on the basis of his Locksmith qualification; other duties performed by him when not attending to locksmith duties are considered either within his Carpenter and Joiner trade, incidental and peripheral to it, or performed on an irregular basis. Consideration 56The application is unfortunately founded upon a narrow and incomplete reading of the Award which overlooks cl 5(i) Context, which states: (i)Context: Trades staff perform, both on a planned and emergency basis, a variety of manual and technical tasks related to preventative and corrective maintenance, the installation of plant and equipment and the renovation and construction of buildings. Trades staff also ordinarily undertake work which is peripheral and incidental to their base trade so as to complete the whole job or so as to assist other staff complete the whole job. This Classification structure is designed to reward trades staff who possess, and are required by the Region to regularly provide, skills/knowledge beyond their base trade obligations. It does not reward service alone nor additional skill/knowledge performed at less than a trades standard. 57The Award further provides: (ii) Structure: The following classification structure is to be applied from the first full pay period to commence-on or after 13 February 2007. Pay levels as a percentage of base pay rates are: Classification Rate of Pa Level 1 Tradesperson Base Rate for relevant Trade Level 2 Tradesperson 105% of Base Rate for relevant Trade Level 3 Tradesperson 110% of Base Rate for relevant Trade Level 4 Tradesperson 115% of Base Rate for relevant Trade (iii)Definitions of the Classification Levels are as follows: (a)Level 1 Tradesperson (Base Rate for relevant Trade). Level 1 is applicable to a tradesperson who has completed an apprenticeship, licence or equivalent and is proficient in the contemporary skills required of a tradesperson in the relevant trade. Tasks to be performed include those peripheral and incidental to completing the whole job and/or assisting other staff so as to complete the whale job. A tradesperson at this level may be required to supervise or train apprentices on the job. [Emphasis added] (b)Level 2 Tradesperson (105% of the Base Rate for the relevant Trade). Level 2 is applicable to a tradesperson who satisfies the requirements of Level 1 and who is required by the employer to regularly utilise skills/knowledge, additional to that skill/knowledge associated with the individual's base trade, which is gained from or deemed equivalent to that gained from completing 120 hours of learning within approved courses. (c)Level 3 Tradesperson (110% of the Base Rate for the relevant Trade). Level 3 is applicable to a tradesperson who satisfies the requirements of Level 1 and who is required by the employer to regularly utilise skills/knowledge, additional to that skill/knowledge associated with the individual's base trade, which is gained from or deemed equivalent to that gained from completing 240 hours of learning within approved courses. [Emphasis added] (d)Level 4 Tradesperson (115% of the Base Rate for the relevant Trade). Level 4 is applicable to a tradesperson who satisfies the requirements of Level 1 and who is required by the employer to regularly utilise skills/knowledge, additional to that skill/knowledge associated with the individual's base trade, which is gained from or deemed equivalent to that gained from completing 360 hours of learning within approved courses. [Emphasis added] 58Much of the work relied upon to seek credit is work which is properly regarded as peripheral and incidental to the base trade so as to complete the whole job. 59The CFMEU put significant weight upon the maintenance and use of machinery in the workshop to claim accreditation of equivalent hours of learning for the trades of Wood Machinist, Woodturning. 60The Department in its analysis pursuant to clause 5(v) has deemed some credit for use and maintenance of machinery to classify the employees at Level 3. 61I find those credits adequate and consistent with the Award. 62It cannot be held that a person who uses a particular machine or machines has become a wood machinist to the trade standard. Nor can it be held that by replacing upholstery on the seat of a chair in the process of repair that a carpenter has become an upholsterer to the trade standard, as defined in cl 5 (vii) of the Award. 63Mr Morrant, to his credit, has developed a keyless safety latch for specific use within the facility and the other employees have demonstrated particular skill and diligence in acquiring skills in the manufacture and repair of aluminium security doors and windows for which they have received adequate recognition. 64On the evidence before me the Department has exercised its right to decide its requirements pursuant to cl 5(ix) of the Award in a fair and proper manner. 65Unfortunately, this application is founded upon a narrow and incomplete reading of the Award and appears further misdirected on a perception that the quantity of work undertaken in a particular skill is determinative, rather than the qualifications required by the employer. 66There is no basis for intervention to alter the classification of any of the employees subject to these proceedings from Tradesperson Level 3. Mixed Functions 67The CFMEU made further application that in the event it was unsuccessful in the reclassification, that an order be made that the mixed function provision of the Award apply. 68The relevant provision is found at cl 5(vi) Regular, in particular: Where tasks are required to be performed irregularly but would, if they were regular, attract a higher classification level, then `Mixed Functions' allowance should be paid to the higher classification level in accordance with the award. That is, when a Tradesperson is required to perform the additional work irregularly and is qualified to do so, he/she should be paid any applicable higher rate for the period of time the additional skills/knowledge is required to be performed or for the whole shift in accordance with the Mixed Functions Clause of the Crown Employees Skilled Trades Award. 69The difficulty with this provision is the requirement that entitlement only arises where the tradesperson is "required" and is "qualified". 70It is trite to say that the Award should be applied correctly; whether an entitlement to payment occurs will be a matter for the factual circumstances of any occasion. 71There is nothing in the circumstances of the work observed or presented by way of evidence in this matter which would give rise to application of the mixed function provisions. This is not to say that the provision will never apply. Small Claim 72The CFMEU put an application for recovery of underpayment of wages pursuant to s.379 of the Act. 73The application seeks a payment of $20,000 (the limit of the jurisdiction) to Mr Towers, Mr Morrant, Mr Aubin and Mr Obereker, on the basis that they each should have been paid as Tradesperson Level 4. 74I have found that each of the claimants is properly classified at Tradesperson Level 3 and accordingly dismiss the Small Claim. 75I so decide. 76Matter No IRC 875 of 2009 is concluded. ********** 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. Decision last updated: 05 September 2012