Adam Hanlon v Wood Group PSN Australia Pty Ltd T/A Wood Group PSN [2019] FWC 146

1 Fair Work Act 2009 s.739—Dispute resolution Adam Hanlon v Wood Group PSN Australia Pty Ltd T/A Wood Group PSN (C2018/2818) DEPUTY PRESIDENT MASSON MELBOURNE, 31 JANUARY 2019 Alleged dispute about any matters arising under the enterprise agreement and the NES; [s186(6)]- whether an employee is entitled to reclassification – interpretation of agreement. Introduction [1] On 25 May 2018, Mr Adam Hanlon (the Applicant) applied to the Fair Work Commission (the Commission) to deal with a dispute pursuant to s 739 of the Fair Work Act 2009 (the Act) under the dispute resolution procedure at clause 30 of the Wood Group PSN and Metropolitan Water Industry – Mechanical and Field Services Enterprise Agreement 2014 (the Agreement).1 The Respondent in the matter is Wood PLC, formerly Wood Group PSN Australia Pty Ltd (Wood). [2] Wood is engaged in the provision of engineering, project and technical services to companies across the industrial, energy, process and utility sectors. Melbourne Water is one of Wood’s contracts. Mr Hanlon is employed by Wood on the Melbourne Water contract as an Asset Services Technician – Level 2 (Level 2), his duties including mechanical maintenance, breakdown repairs and modifications. [3] The dispute concerns the Applicant’s request for reclassification from his current classification of Level 2 to a higher classification, that of Asset Services Technician – Level 1 (Level 1). [4] An initial assessment by his supervisor, Mr Darren Rigg, resulted in no change to the Applicant’s classification but it was appealed by the Applicant, resulting in the subsequent conduct of an independent assessment by Mr Paul Baxter of the Australian Manufacturing Workers Union (AMWU). Mr Baxter who provides the Manufacturing Industry Skills Training and Apprenticeship Service (MISTAS) was satisfied on the basis of his assessment that the Applicant met the required competencies and recommended his reclassification to Level 1. Wood did not accept the reclassification recommendation following which the Applicant filed his dispute notification. [2019] FWC 146 DECISION -- 1 of 37 -- [2019] FWC 146 2 Jurisdiction [5] Section 739 of the Act empowers the Commission to deal with certain disputes under enterprise agreement dispute settlement terms. The Agreement contains such a term, which is clause 30 Dispute Prevention and Settlement. The relevant sub-clauses going to the jurisdiction of the Commission in the settlement of disputes are as follows: “30.0 DISPUTES SETTLEMENT PROCEDURE 30.1 Matters arising from this Agreement which may be resolved using the procedure in this clause are all matters which pertain to the relationship between the employer and the employees whose employment is covered by this agreement, and all matters which pertain to the relationship between the employer and union(s) covered by this agreement. For the avoidance of doubt, this includes but is not limited to the express terms of this agreement and any incorporated instrument, the “General Protections” provided in the Fair Work Act 2009 (“the Act”), and the National Employment Standards detailed in the Act, including any refusal of requests by the employer under s.65(5) and s.76(4). The following procedure for the avoidance or resolution of disputes shall apply. The mechanism and procedures for resolving industrial disputes shall be (a) The employee/s concerned will first meet and confer with their immediate supervisor. The employee/s may appoint another person to act on their behalf including an employee representative at any stage of this dispute settlement procedure. Subject to 30.2 and 30.3, where an employee representative is involved he or she shall be allowed the necessary time during working hours to interview the employee/s and the supervisor. (b) If the matter is not resolved at such a meeting further discussions involving more senior management and employee representative(s) will take place. The employee representative shall be allowed at a place designated by the employer, a reasonable period of time during working hours to interview external advisors requested by the employee representative, in the workplace. (c) The parties shall jointly or individually refer the matter to the FWC for conciliation and/or arbitration. ………………..” [6] It was not contested that the questions to be determined by the Commission were capable of constituting a dispute over the interpretation or application of the Agreement. Nor was it in dispute that the steps taken by the parties to resolve the dispute constituted -- 2 of 37 -- [2019] FWC 146 3 compliance with the dispute resolution provision of the Agreement. Having regard to the information in the Form F10 application and the views of the parties, I am satisfied that the Commission has jurisdiction to deal with the dispute, including by arbitration. [7] Conciliation before the Commission did not resolve the dispute and the matter is now to be determined by the Commission by arbitration. The hearing [8] The matter was listed for hearing on Tuesday, 30 October 2018, in advance of which the parties were required to file statements and material on which they intended to rely. [9] The Applicant was represented by Mr Joshua Gardner of the AMWU. Mr Gardner called evidence from the Applicant and Mr Paul Baxter of MISTAS. [10] Mr Tony Bradford of AMMA appeared on behalf of Wood and called evidence from: Mr Darren Rigg Mechanical Supervisor for Wood on the Melbourne Water Contract at Winneke Depot Mr Thomas Richardson Delivery Manager for Wood Mr David Healey Senior Industrial Relations Advisor for Wood Mr John Coburn Industry Consultant and Workplace Assessor, Australian Workforce Development and Assessment Issues for determination [11] The questions agreed to be determined by the Commission are as follows: (1) Is Wood obliged to accept the outcome of the assessment of the Applicant’s reclassification request, as conducted by Mr Paul Baxter of MISTAS? (2) If the answer to Question 1 is “No” – is the Applicant entitled on the basis of the evidence before the Commission to be reclassified to Level 1? (3) If the answer to either Question 1 or Question 2 is “Yes” – what is the operative date of reclassification for the purposes of back pay? [12] Determination of the above questions turn on the proper construction of provisions within the Agreement that deal with reclassification, those being clauses 15 and 48 and incorporated terms. -- 3 of 37 -- [2019] FWC 146 4 [13] Clause 15 - Skills Enhancement Training Programme of the Agreement relevantly provides as follows: “15.0 SKILLS ENHANCEMENT TRAINING PROGRAMME ……………………. 15.2 Training Programme Details A fundamental element of the Classification Structure is the skills enhancement Training Programme. The aim of this programme is to develop competencies which reflect the standards which shall ensure worker safety and water/waste water system integrity. The Company shall utilise the skills and experience of in-house personnel with the appropriate competencies and specialist training establishments to develop the Training Programme. Training and demonstrated competence, subject to accredited assessment criteria, shall provide the basis for career progression in accordance with the Classification and Wage Rates of this Agreement. Following implementation of this Agreement, the existing Skills Matrix will be reviewed against the National Metal and Engineering Industry Competency Standards and the classification structure will reflect the industry C Grade structure. As part of the review all employees will be assessed against the reviewed competencies by an independent assessor. …………………… 15.6 Demonstration and Use of Enhanced Skills Prior to employees advancing in the Classification Levels of this Agreement, employees shall be required to undergo an objective evaluation of their specific skills. Employees will be assessed on and paid for the skills required to be used by Wood Group PSN. As part of this evaluation, all employees shall be required to demonstrate competency in the skills previously held or those acquired as part of the Skills Enhancement Training Programme. Once employees have successfully demonstrated their skill competency to the appropriate classification level, they may be required to undertake work in the field commensurate with the skill level. …………………..” [14] Clause 48 – Reclassification and Competency Standards of the Agreement relevantly provides as follows: -- 4 of 37 -- [2019] FWC 146 5 “48.0 RECLASSIFICATION AND COMPETENCY STANDARDS Classifications and relativities shall be determined according to the provisions of the Metal and Engineering Industry Competency Standards Implementation Guide (“the Guide”) as published from time to time by manufacturing Skills Australia (formerly MERSITAB) or its successors. The Implementation Guide is incorporated into this Agreement. The Company must ensure, during the life of this Agreement, that there is a review of the classification of Employees covered by the agreement, according to the above Implementation Guide. Where available, Manufacturing Industry Skills training and Assessment Services (MISTAS) will be used to conduct this review. The agreed methodology for managing the Reclassification and Competency Standards is as described in the WGPSN Document “Request for Reclassification (Mechanical)”.” (emphasis added) [15] Clause 48 of the Agreement explicitly refers to Wood’s Request for Reclassification (Mechanical)2 document (Request Form) which describes the process to be applied where a request for reclassification is made and relevantly states as follows: “Under provisions of our Collective Agreement and our Award I hereby request a mechanical skills audit to be conducted to assess my classification. I believe I am “holding and using” additional skills that I am currently not being paid for. As agreed between the AMWU and WGPSN Management, the review process will be as follows. 1. This form will be submitted to my Supervisor for endorsement; 2. The Supervisor will then submit this form to WGPSN HR; 3. Form forwarded to an appropriately skilled WGPSN individual who will then conduct the assessment; 4. Should the resulting classification be disputed a request can be made for an independent assessment by MISTAS.” [16] By reason of clause 48 the Agreement the National Metal and Engineering Industry Competency Standards Implementation Guide (Implementation Guide) is incorporated into the Agreement and relevantly provides as follows: “…….. 5.4 Deciding on the assessment procedure This Implementation Guide concentrates on assessment processes inside your enterprise. We encourage the parties in your enterprise to co-operate in deciding on a procedure that meets your needs. -- 5 of 37 -- [2019] FWC 146 6 Accordingly, before you can begin the assessment, all the parties at your enterprise must formally agree on a procedure for assessment which is consistent with the procedure outlined in the Implementation Guide, including an appeals procedure. There are four issues to be addressed:  suitability  evidence of competency  who makes the decision on competency?  appeals process Suitability The assessment procedure must be suitable for your enterprise’s size, structure and needs. Evidence of competency You must all agree on what constitutes evidence of competency. One form of evidence is obviously the possession of a relevant recognised qualification as described in section 3.8 and Annexure 2. Another form is employees’ demonstration of their ability to meet the performance criteria specified in the competency units and to apply them in the workplace. The demonstration could be physical, verbal or in writing (such as a test of knowledge) or a combination of these. Other forms of evidence could include:  statements from peers that the skill is consistently applied in the workplace  statements from the employee’s supervisor, team leader or trainer  indirect evidence such as the production of a total service or product which meets your enterprise’s standard operating procedures or specifications  a combination of these You should endeavour to use objective evidence and procedures which are clear and defined. Who makes the decision on competency? There are several ways in which decisions can be made within your -- 6 of 37 -- [2019] FWC 146 7 enterprise, including:  An assessment panel or body established specifically to carry out assessment. This panel could be a subcommittee of the training committee or the consultative committee.  An internal ‘expert’ or nominee selected to carry out the assessment of specific skills relevant to their area of expertise.  This could be a supervisor, team leader, manager or other employee already competent in the units being assessed.  An external ‘expert’ or nominee selected for their specific skills in a particular area. It could be someone from another company or an enterprise similar to yours who has recognised skills in a relevant area, someone from a Registered Training Organisation, or a person nominated by the Manufacturing Engineering and Related Services Industry Training Advisory Body.  Peer assessment. This is similar to a panel assessment, but the panel is made up solely of peers — that is, other workers from your enterprise. You will need to agree on the skills required by the people on such a panel. The decision on who makes these decisions should be made through the consultative process. ……………………. 5.5 Recommended assessment procedure We recommend that you carry out the assessment in three separate steps. Select the competency units Use the structured process described in Chapter 4 to select the appropriate competency units relevant to the skill requirements of the positions in your enterprise. Determine assessment criteria For each selected competency unit where assessment is required, determine how you will assess the performance. Ensure that wherever possible assessment is done by directly observing an employee’s skill and comparing it with the Performance Criteria in a realistic work setting. Determine responsibility Determine who will be responsible for carrying out the assessment. Ideally, this should be a staged process. We recommend the following stages: -- 7 of 37 -- [2019] FWC 146 8  Internal assessment: Appoint individual assessors or an internal assessment panel made up of people who between them possess an understanding of the relevant skills and who the parties agree are competent to carry out the assessment.  Internal appeals process: Select appropriate internal or external experts who can be called upon if the outcome of the internal assessment is questioned by the employee or employer.  Board of Reference: If after the internal appeals process the outcome is still questioned by the employee or the employer, the Australian Industrial Relations Commission can be called upon to convene the Board of Reference. The section of the Award that sets out the structure and responsibilities of the Board of Reference is attached as Annexure 4. The assessment procedure should be agreed before the assessment takes place, so that everyone is aware of how the process will be carried out and what options are open to them if either the assessment procedure itself or its outcomes are called into question. …………..” Case for the Applicant Evidence of Applicant [17] The Applicant states that he commenced employment with Wood on 1 November 2012 when it took over the Melbourne Water contract. The Applicant also states that he worked for the two previous contractors that had held the Melbourne Water contract before Wood, those previous contractors being United KG and Transfield Services. He has been classified at Level 2 since he commenced his employment with Wood.3 [18] The Applicant detailed the following timeline of events which he states are relevant to the reclassification dispute: (i) On 28 November 2014, he sent an email to Ms Tina Sabec (Wood HR Manager) requesting an assessment for reclassification from Level 2 to Level 1.4 According to the Applicant no response was received from Ms Sabec.5 (ii) On 30 April 2015, the Applicant completed a Request Form6 that had been provided to him by another employee and gave it to his supervisor Mr Darren Rigg.7 (iii) On 17 March 2016, the Applicant sent an email to Ms Sabec raising concerns regarding the manner in which Mr Rigg had conducted his reclassification assessment. Concerns raised included the time delay and Mr Riggs’s repeated requests for documentary evidence which was according to the Applicant supplied.8 (iv) On 18 March 2016, the reclassification assessment was completed by Mr Rigg. Mr Rigg assessed that the Applicant had failed to demonstrate competencies in -- 8 of 37 -- [2019] FWC 146 9 two particular units that were necessary for the Applicant to secure the 12 points necessary to be reclassified to Level 1.9 (v) On 27 April 2016, the Applicant sent a further email to Ms Sabec and stated his concerns in relation to the reclassification assessment conducted by Mr Rigg. The Applicant raised his right of appeal and whether Ms Sabec could deal with that or whether the Applicant could go directly to MISTAS.10 According to the Applicant, no response was received from Ms Sabec or other Wood managers over the following 12 months in relation to his concerns and appeal of the disputed assessment.11 (vi) On 7 August 2017, the Applicant made a formal complaint to Wood regarding alleged bullying by his supervisor Mr Rigg and Ms Sabec’s inaction in relation to his concerns over the reclassification process.12 (vii) On 24 August 2017, the Applicant was asked by Mr Rigg to submit another reclassification request form. The Applicant declined to do so on the basis that he was still waiting on a response to his request for his original assessment to be reviewed.13 (viii) On 20 September 2017, Ms Sabec emailed the Applicant with an explanation as to why the Applicant was “not automatically put through the MISTAS process” and offered to “get the ball rolling” by contacting Mr Baxter of MISTAS. Ms Sabec stated in her email that “Escalation to MISTAS not an automatic process when an employee has not been successful in a reclassification request.”14 (ix) On 9 November 2017, Mr Baxter of MISTAS attended the Winneke depot to conduct the assessment and met with the Applicant, who was accompanied by Shop Steward, Mr John Debono, for approximately two to three hours. The Applicant states that at the conclusion of the meeting, Mr Baxter advised the Applicant that he had demonstrated the required competencies necessary to be reclassified to Level 1.15 The Applicant further states that following a subsequent meeting in which he did not participate involving Mr Baxter, Mr Rigg, Mr Richardson and Mr Debono, Mr Richardson shook his hand and congratulated him on his reclassification.16 (x) Several weeks after the above-referred meetings, the Applicant sought clarification as to what was happening with his reclassification and was advised by the AMWU Assistant State Secretary, Mr Craig Kelly, that Wood were waiting on a detailed report from MISTAS. (xi) On 1 February 2018, the Applicant wrote to Ms Sabec and Mr Healey seeking clarification on the delay in implementation of his reclassification to Level 1 and requested that it be rectified as quickly as possible.17 (xii) On or about 8 February 2018, the Applicant states that he saw Mr Healy at the Winneke depot and asked him what was happening with his reclassification. According to the Applicant, Mr Healy replied that the Applicant was going to -- 9 of 37 -- [2019] FWC 146 10 be re-assessed by independent assessor Mr John Coburn in a few days’ time. The Applicant declined to be re-assessed by Mr Coburn. [19] The Applicant states that in order to be reclassified from Level 2 to level 1 under the Agreement, he needed to obtain 12 points in certain identified units in accordance with the Implementation Guide.18 In the Applicant’s case, the relevant units that he was assessed against were as follows: (a) MEM12003B: Perform precision mechanical measurement (2 points). (b) MEM16011A: Communicate with individuals and small groups (2 points). (c) MEM16012A: Interpret technical specifications and manuals (4 points). (d) MEM16014A: Report technical information (2 points). (e) MEM18011C: Shutdown and isolate machines/equipment (2 points). (f) MEM18021B: Maintain hydraulic systems (4 points).19 [20] Mr Rigg’s assessment of the Applicant determined that he met the requirements of MEM12003B and MEM16012A, and as a consequence, achieved six points, falling short of the 12 points necessary to be reclassified to Level 1.20 The Applicant disagreed with Mr Rigg’s assessment that he failed to meet the competency requirements of MEM18011C and MEM18021B. [21] In the subsequent assessment of the Applicant conducted by Mr Baxter of MISTAS, it was determined that he had demonstrated the requirements of MEM18011C and MEM18021B in addition to MEM12003B and MEM16012A, thus achieving the 12 points necessary to justify reclassification to Level 1.21 [22] In relation to “MEM18011C: Shutdown and isolate machines/equipment”, the Applicant states that he was regularly required to perform such work on hydro-electric generators but that Mr Rigg had stated to him during his assessment that he needed to demonstrate he was performing shutdown and isolation on equipment other than hydro- electric generators.22 [23] The Applicant gave evidence that he was required to perform “dynamic isolations” which he described in the following terms: “A dynamic isolation is an isolation that a permanent recipient can perform, which is the tradesperson. It's used for - it's where Melbourne Water wouldn't isolate the apparatus for the equipment. They'll issue with a permit so then you're allowed to work and the conditions under that permit are that you are able to perform your own isolations for the purposes of testing, fault finding and proving that your work has been successful.”23 [24] The Applicant also furnished copies of High Risk Work Permits24 issued in 2013 under which he performed work including required dynamic isolations. -- 10 of 37 -- [2019] FWC 146 11 [25] Under cross examination, the Applicant agreed that High Risk Work Permits were generally issued by Melbourne Water operators and that Melbourne Water operators would do the isolations and hand over the equipment.25 He further concedes that in some instances Wood employees do not touch the relevant equipment until Melbourne Water operators have completed shut down and isolation of the equipment.26 However, the Applicant rejected the proposition put to him during cross examination that he and other Wood tradespeople were never required to perform isolations and referred to the High Risk Work Permits in his evidence which specifically state: “2. Recipient to perform own isolations as required to safely complete the task.”27 and; “1. Recipients to perform own isolations on this hypo-pump unit, to enable problem solving capability.”28 [26] The Applicant also gave evidence that isolations were performed both autonomously and as part of a team29 and resisted the proposition put to him that if he was required to perform isolations as part of an issued High Risk Work Permit, such isolations would be recorded in that section of the permit titled “The Recipient has performed the following additional isolations (if required):” He explained that that section of the form would only be completed if additional isolations were required beyond those subject to the issued permit.30 [27] As regards “MEM18021B: Maintain hydraulic systems” the Applicant gave the following evidence regarding his demonstration of that competency: (i) He had been performing such work since 1995 after completing the pneumatic portion of a 12 month fluid power course.31 (ii) He undertook maintenance on water and oil hydraulics systems, both powered and passive, such work including breakdown repairs, fault finding and overhauling of equipment. He referred to three years of diaries maintained by him during his time with Wood prior to making his application for reclassification.32 (iii) Prior to moving to the Winneke depot he had been the main technician in the Yarra Valley and was responsible for: “performing work on pressure reducing valves, pressure sustaining valves, pressure relief valves, leading up to my time coming into Winneke. I was the main technician that worked up at the Yarra Valley, following the Upper Yarra Valley conduit which has PRVs right along it. I was the technician who performed all the maintenance and breakdown repairs on those.”33 (iv) He rejected the evidence of Mr Rigg that every other Wood employee with the hydraulics competency possessed a fluid power qualification and referred to a fellow employee, Mr Rod Kozac, who was classified at Level 1 but did not possess a fluid power qualification.34 -- 11 of 37 -- [2019] FWC 146 12 (v) States that he was never advised by Mr Rigg or any other person at Wood that Melbourne Water operators had requested that he be removed from working on pressure reducing valves (PRVs) because he did not have the necessary skills.35 Evidence of Mr Paul Baxter [28] Mr Baxter states that he has worked for the AMWU for 11 years providing the MISTAS service, which is a training and assessment service. MISTAS was previously a registered training organisation (ATO) but is no longer.36 [29] Mr Baxter states that classification reviews are conducted in accordance with the Implementation Guide and that to progress to a higher classification a worker must demonstrate a certain number of competency standards above their current classification level. Each competency standard is allocated a certain number of points and that for a worker to progress to the next level they would need to demonstrate the required number of points.37 [30] Mr Baxter confirmed that he was contacted by Ms Sabec in or around October 2017 and arrangements were made for him to attend the Wood site to conduct a classification assessment of the Applicant. According to Mr Baxter, he was not provided with an assessment tool as part of his brief by Wood prior to his attendance at site.38 Mr Baxter gave evidence that in conducting an assessment, different approaches may be taken. Sometimes he would conduct an assessment by meeting with both the relevant employee and supervisor together or separately. He also states that it is not unusual for an employee to be accompanied by a shop steward or support person.39 [31] Mr Baxter states that he attended the Wood site on 9 November 2017 and first met with the Applicant who was accompanied by his support person, Mr John Debono. During this meeting, which lasted a couple of hours, Mr Baxter states that he asked the Applicant to explain the work he performs and how he demonstrates each of the relevant competency standards in that work. Mr Baxter states that at the end of that first meeting he was satisfied that the Applicant had demonstrated the competencies in the following units: (a) MEM12003B: Perform precision mechanical measurement (2 points). (b) MEM16012A: Interpret technical specifications and manuals (4 points). (c) MEM18011C: Shutdown and isolate machines/equipment (2 points). (d) MEM18021B; Maintain hydraulic systems (4 points).40 [32] Mr Baxter states that following the meeting with the Applicant, he then met with Mr Richardson, Mr Rigg and Mr Debono during which he asked Mr Rigg and Mr Richardson to confirm whether the Applicant was performing the work which would meet the competencies. Mr Baxter states that “everyone agreed that Adam was demonstrating each of these competency standards. Therefore we would have 12 points which would mean he would be reclassified to C7.”41 [33] Mr Baxter further states that during the course of the meeting with Messrs Rigg, Richardson and Debono, he explained to Mr Rigg that the reasons Mr Rigg gave for rejecting -- 12 of 37 -- [2019] FWC 146 13 the Applicant’s reclassification were inconsistent with the principles of the Implementation Guide in two respects: (i) In relation to shut down and isolation of equipment, it was not necessary for the Applicant to be doing this work across all machines and equipment; and (ii) In relation to maintaining hydraulic systems, possession of a qualification was not essential; rather it was the performance of the work that demonstrates the competency that was essential.42 [34] Mr Baxter states that at the end of the second meeting, he and Mr Richardson then went and spoke with the Applicant and explained to him that he had demonstrated sufficient competencies necessary for reclassification to C7 (i.e. Level 1). He further states that Mr Richardson shook hands with the Applicant and congratulated him.43 [35] On 22 November 2017, Mr Baxter sent a report44 to Ms Sabec in which he outlined the competency standards demonstrated by the Applicant and recommended his reclassification to C7 (Level 1). Ms Sabec emailed Mr Baxter on 22 December 2017 requesting that he provide a “full report”, to which request Mr Baxter declined in his response on 9 January 2018 advising Ms Sabec that “the content and format of my report regarding Adam Hanlon is standard for all classification reviews I have conducted over the last 10 years.”45 [36] Mr Baxter also states that from the information he was given during his review of the Applicant on 9 November 2017, he believes that if the original assessment had been conducted in a manner consistent with the Implementation Guide, then the outcome would have been that the Applicant would have obtained the 12 points necessary for reclassification.46 [37] During cross examination, Mr Baxter was pressed in relation to his summary of the meeting involving himself, Mr Rigg, Mr Richardson and Mr Debono. He maintained that both Mr Rigg and Mr Richardson agreed to his assessment of the Applicant’s competency.47 The following exchange between Mr Bradford on behalf of Wood and Mr Baxter is relevant: “MR BRADFORD: Yes, the question is, Mr Baxter, is paragraph 14 a complete fabrication or is it a failure of recollection on your part?-----------I'm offended by that insular insinuation that it's a fabrication. That is my recollection of how the meeting proceeded. I do not understand when after the meeting we go and talk to Adam and we both congratulate him and shake his hand, as Thomas did too, and then for it to - why would we do that if the outcome was incorrect, if it was not to Adam's benefit. I do not understand this. If we were going to give you the benefit of the doubt, Mr Baxter, we would say it's a failure of recollection on your part?----------No. Because the evidence of those two people under oath in this Commission later today will be that what you've said in paragraph 14 is simply not correct?-------I totally refute that. Well, it continues on the same theme, Mr Baxter, at paragraph 16 of your statement?-- -----Sure. -- 13 of 37 -- [2019] FWC 146 14 Where you say Thomas and I then went to talk to Adam. We explained that he had demonstrated sufficient competencies and would be reclassified to C7. Thomas congratulated Adam and shook his hand. Do you stand by that statement?-------Yes. Because, Mr Richardson will give evidence that he shook hands with the applicant as a courtesy, but certainly did not agree that he had achieved C7. What do you say to that Mr Baxter?---------That is not the recollection of how I saw it.”48 [38] Mr Baxter gave further evidence under cross examination and re-examination that: (i) He had not used an assessment tool in conducting the reclassification assessment of the Applicant as it was not part of his brief from Wood;49 (ii) He did not generally use an assessment tool that specifies the details and competencies and that the report he provided is a standard format he has used for the past 11 years;50 (iii) The Implementation Guide does not specify or mandate the requirements for documenting evidence of competency in a report;51 (iv) That the process of verifying the Applicant’s competency was done verbally in the meeting with Messrs Rigg, Richardson and Debono, which is consistent with the Implementation Guide;52 (v) He denied that he reached agreement in his first meeting with the Applicant and Mr Debono that the Applicant should be reclassified; states that agreement was reached in the second meeting with Messrs Rigg, Richardson and Debono; and that he would not have left that meeting if no agreement had been reached;53 (vi) He acknowledged that Mr Rigg had raised concerns during the second meeting that the Applicant was not demonstrating some units of competency and that after Mr Baxter had explained how the units of competency should be applied on an industrial site, his recollection was that Mr Rigg had agreed with his opinion on those contested competencies;54 and (vii) There was no agreement with Wood prior to Mr Baxter’s assessment of the Applicant as to the nature of the report that was required.55 Applicant Submissions [39] The Applicant submits that the dispute relates to a request by the Applicant to have his classification reviewed and that the refusal of Wood to accept and apply the MISTAS re- classification assessment is a breach of the Agreement. [40] The Applicant submits that the Agreement provides for the review of an employee’s classification in two clauses, clause 15 and clause 48. The Applicant further submits that clause 15 describes the Skills Enhancement Training Programme and provides for the conduct of classification assessment following an employee’s participation in that program. According to the Applicant, the review of his classification was not undertaken pursuant to a review of -- 14 of 37 -- [2019] FWC 146 15 the existing skills matrix as required under clause 15.2. Rather, the reclassification request was initiated by his completing a Request Form, which is explicitly referred to in clause 48. The Applicant submits therefore that the reclassification request ought to be determined according to clause 48. [41] The Applicant contends that the process for conducting a review of his classification is derived from the requirements of clause 48 itself and any requirements of the Implementation Guide incorporated into the Agreement by clause 48. [42] As regards the incorporation of elements of the Implementation Guide, the Applicant submits that the Implementation Guide does not include a specific assessment procedure but rather outlines the requirements for an assessment procedure in Chapter 5 and stipulates that “Accordingly, before you begin the assessment, all parties at your enterprise must formally agree on a procedure for assessment which is consistent with the procedure outlined in the Implementation Guide, including an appeals procedure.”56 [43] The Applicant submits that consistent with the requirements of the Guide referred to above, the parties to the Agreement agreed to an assessment procedure which is that described in clause 48, i.e. “The agreed methodology for managing the Reclassification and Competency Standards is as described in the WGPSN Document “Request for Reclassification (Mechanical).” As the parties to the Agreement agreed to an assessment procedure, as required by the Guide and which is reflected in the Request Form, the recommended assessment procedure referred to in the Guide is only relevant to the extent that there is ambiguity in the methodology which needs to be resolved by reference to the Guide. [44] The Applicant submits that the agreed methodology allows for a two-step process: (i) An assessment by an “appropriately skilled WGPSN individual”; and (ii) In order to resolve a dispute about the outcome of the first assessment, an independent assessment by MISTAS can be requested. [45] It follows from the above that an assessment of an employee by an “appropriately skilled WGPSN individual” is final save for rights of appeal which under the agreed methodology involve referral of the disputed assessment to MISTAS. [46] According to the Applicant, neither the “agreed methodology” nor the terms of the Agreement provide for any further assessment. The Implementation Guide states that an “appeals process needs to be included as part of the overall assessment procedure”57 and that in the Applicant’s submission, the referral of a disputed assessment to MISTAS constitutes the required appeal step. Consequently, in circumstances where MISTAS determine that an employee ought to be reclassified, Wood is obliged to reclassify the employee or else be in breach of the Agreement. [47] The Applicant acknowledges that the Implementation Guide describes the various forms of evidence of competency58 but the reference is to evidence on which an assessor may rely on in reaching a decision on an employee’s competence. The Applicant rejects Wood’s contention that the report provided by Mr Baxter was flawed because it failed to include evidence of the Applicant’s competency as in its submission the “agreed methodology” does not specify or require that MISTAS must document the evidence of competency to -- 15 of 37 -- [2019] FWC 146 16 substantiate its reclassification assessment decision. The Applicant further submits that a decision on competency based on verbal evidence given by the employee, peers and/or supervisors is consistent with the Implementation Guide.59 [48] The Applicant submits in summary in respect of Question 1 that: (i) The Applicant submitted his Request Form on 30 April 2015; (ii) The Applicant disputed the outcome of the assessment completed by Mr Rigg on 18 March 2016; (iii) MISTAS was engaged to resolve the disputed classification assessment; (iv) Mr Baxter of MISTAS conducted an assessment on 9 November 2017 and made a decision based on demonstrated competence by way of verbal evidence provided by the Applicant and as subsequently agreed to in discussions with Mr Rigg and Mr Richardson; (v) Mr Baxter subsequently provided a report in a standard format that he and other MISTAS staff normally provide; (vi) Mr Baxter’s decision was made consistent with the Agreement, the Implementation Guide and agreed methodology in the Request Form; (vii) The agreed methodology set out in the Request Form has been followed; (viii) The agreed methodology forms a term of the Agreement which Wood is bound to follow; and (ix) On the basis of the above, Wood is bound by the assessment decision of Mr Baxter and the Applicant is entitled to be reclassified to Level 1. [49] In the alternative to the above, the Applicant submits that he is entitled to be reclassified to Level 1 on the basis of the evidence in these proceedings of his demonstrated competence in the contested units of “MEM18011C: Shutdown and isolate machines/equipment” and “MEM18021B: Maintain hydraulic systems.” [50] In respect of “MEM18011C: Shutdown and isolate machines/equipment”, the Applicant referred to: (i) Evidence of his performance of dynamic isolations through the issuing of Work Permits to him by Melbourne Water; (ii) Evidence that he was regularly required to perform isolation work on hydro- electric generators; (iii) The competency standard requires the performance of isolations autonomously or as part of a group which the Applicant meets; -- 16 of 37 -- [2019] FWC 146 17 (iv) While Mr Rigg claims that employees are not required to perform isolations, he acknowledges that other employees may have demonstrated competence in MEM18011C; and (v) That the Applicant was actually assessed for his competence in MEM18011C demonstrates that it was possible he may be required to perform isolations. [51] In respect of “MEM18021B: Maintain hydraulic systems” the Applicant referred to: (i) Evidence of his performance of work on water and oil hydraulic systems which included work on PRVs when he was based in the Yarra Valley; (ii) Wood has not challenged the Applicant’s evidence save for its claim that he did not perform a particular type of hydraulics work, that of working on PRVs; and (iii) Mr Rigg’s evidence that Melbourne Water operators had requested that the Applicant be removed from working on PRVs was not credible. [52] In respect of the third question, that of the effective date of reclassification for the purpose of back pay, the Applicant submits that he ought to be reclassified from 30 April 2015, that being the date when he made his initial reclassification request. The Applicant specifically refers to the Request Form which makes clear that the date the request is received “forms the basis of any backdating of reclassification”.60 The Applicant further submits that since his initial request for reclassification, the reclassification request has remained open and could not be considered complete until the MISTAS independent assessment had been conducted in accordance with the agreed methodology. Case for Wood Evidence of Mr Darren Rigg [53] Mr Rigg states that he has been employed as the Mechanical Supervisor for Wood on the Melbourne Water contract based at the Winneke Depot since 1 November 2012. Prior to that he was employed in the same role by the former contractor Transfield Services from 2007.61 [54] According to Mr Rigg, he completed his assessment of the Applicant on 18 March 2016 and determined that the Applicant met the competency requirements in two of the six units on which he was assessed. Mr Rigg states that the Applicant consequently only obtained six points which fell short of the 12 points required to be reclassified from Level 2 to Level 1.62 [55] With respect to his assessment of the Applicant on “MEM18011C: Shutdown and isolate machines/equipment”, Mr Rigg states that the Applicant was a definite “No”. This was, according to Mr Rigg, because Wood staff do “not physically lay hands on a machine or equipment until the client has shut it down and isolated it and provided us with a permit to work”.63 He states that isolation work is performed by Melbourne Water operators in accordance with “Melbourne Water Isolation Standard and Lock Out Tag Out Procedure”64 and that no Wood staff perform work as described in the standard and procedure. -- 17 of 37 -- [2019] FWC 146 18 [56] Mr Rigg also states that the High Risk Work Permits tendered in evidence by the Applicant do not indicate that the Applicant had performed isolations. According to Mr Rigg, permits are issued by Melbourne Water operators to Wood staff who are then able to go and work on the particular equipment. If the Applicant had been required to perform any isolations that would be identified in that section of the form requiring information on “additional isolations”.65 [57] Mr Rigg was adamant in his evidence that Wood staff are not required to perform isolations66 but he was unable to reconcile why the Applicant was actually assessed against that unit of competency if he was not required or allowed to perform such work.67 Mr Rigg went on to concede that despite Wood staff not being required to perform isolations it would be “fair to assume” that other tradespeople had been assessed as competent in that unit of competency.68 He further states that Wood employees do not receive formal training in the Melbourne Water isolation standard but would gain the training through “on the job competency”.69 [58] With respect to his assessment of the Applicant on “MEM18021B: Maintain hydraulic systems”, Mr Rigg states that the Applicant was again a “No”. This was because he does not maintain hydraulic pressure systems and that Melbourne Water operators requested that he be removed from working on PRV systems because of a lack of skills. Mr Rigg also states that all other employees deemed competent in this unit hold fluid power qualifications which the Applicant does not hold.70 [59] Mr Rigg states that when the Applicant was based in the Yarra Valley Melbourne Water operators refused to issue permits to the Applicant because of concerns regarding his skill level, and as a consequence, Mr Rigg moved the Applicant to the Winneke Depot.71 Mr Rigg confirmed under cross-examination that he had not spoken to the Applicant regarding Melbourne Water operator concerns because it would have been a “difficult subject to broach”72 due to “previous conversations about some performance issues and Adam didn’t respond very well”.73 [60] Under cross-examination, Mr Rigg gave evidence that while Melbourne Water operator concerns were raised with him on “numerous occasions”, they were not documented and he was unable to say when he actually spoke with the operators.74 He also confirmed that the reason for the Applicant’s removal from working on PRVs and transfer to the Winneke depot was never discussed with the Applicant75 and conceded that in hindsight it would have been reasonable to offer the Applicant assistance or training if there were concerns regarding his skills.76 [61] Mr Rigg rejected the evidence of Mr Baxter that he had agreed during the meeting on 9 November 2017 that the Applicant met the requirements in respect of the two contested competencies.77 Evidence of Thomas Richardson [62] Mr Richardson states that as Delivery Manager he is responsible for the management of delivering maintenance services on behalf of Wood for the Melbourne Water contract.78 [63] Mr Richardson denies that at the conclusion of the Applicant’s re-classification assessment meeting with Mr Baxter on 9 November 2017 he congratulated the Applicant, -- 18 of 37 -- [2019] FWC 146 19 confirmed that he would be reclassified to Level 1 and shook his hand. Rather, he states that he only shook the Applicant’s hand as a courtesy. He further states that at the conclusion of the meeting, he was under the impression that the Applicant had not attained enough points to be reclassified79 and confirmed via text message to Mr Healey at 11.09 am that the outcome of the MISTAS assessment was no change to the Applicant’s classification. Mr Richardson also states that it was only following a subsequent discussion with Mr Rigg that it was highlighted to him that the MISTAS recommendation was that the Applicant be reclassified to Level 1.80 [64] Mr Richardson also states that during the 9 November 2017 meeting, he challenged some of Mr Baxter’s statements regarding the Applicant having achieved certain competencies and that when he queried the evidence, he was advised by Mr Baxter that it would be provided in the final report. Mr Richardson further states that it was his belief that if any of the evidence furnished in Mr Baxter’s report seemed insufficient it could be reviewed and challenged at a later date.81 [65] Under cross-examination, Mr Richardson confirmed that he had not at any time been told by the client, Melbourne Water, that they were unhappy with the Applicant’s work.82 Evidence of Mr John Coburn [66] Mr Coburn, who works as Industry Consultant and Workplace Assessor, Australian Workforce Development & Assessment based in Victoria states that he holds a current Cert IV in Workplace Training and Assessment, is registered as a workplace assessor with Manufacturing Skills Australia and has been conducting workplace assessments in a range of employment fields since 2008.83 [67] Mr Coburn gave evidence in relation to his approach to conducting and reporting on workplace assessments and states that his approach in providing reports is to include evidence statements against all assessed competencies, whether supported or not. He contrasted that approach with the MISTAS report provided in respect of the Applicant. He went on to explain that his reports assist readers identify how and where competencies were or are applied on the job.84 Mr Coburn provides in his evidence an example of a recent report prepared by him for Wood in respect of another Wood employee.85 [68] As regards the internal assessment of the Applicant completed by Mr Rigg, Mr Coburn refers to the Applicant’s Request Form and Mr Rigg’s notes and states that the notes appear incomplete, he was unclear of the content and context and was not in a position to make an informed decision on the Applicant’s competency or otherwise regarding the units on which he was assessed.86 [69] During cross-examination, Mr Coburn confirmed that the Implementation Guide does not detail the required format of reports87 but went on to highlight what he saw as shortcomings of the MISTAS report in that it failed to provide evidence of competency or give a description of the units of competence, which he contrasted with his approach.88 Mr Coburn concedes that his approach to report preparation was one he had developed for his own work and was not mandated by the Implementation Guide.89 -- 19 of 37 -- [2019] FWC 146 20 Evidence of Mr David Healey [70] Mr Healey states that he is a Senior IR Advisor at Wood and that on or about May 2018 became aware of the Applicant’s disputed classification assessment. He concedes that the time taken to act on the Applicant’s Request Form was “unusually prolonged” and that the date that the application request is received by the supervisor is the date taken for any backdating of pay which ensures an employee is not disadvantaged if the assessment outcome is delayed.90 [71] Mr Healey in his evidence variously states that: (i) The Implementation Guide is incorporated into the Agreement and he specifically refers to Clause 5.5 in the Implementation Guide which recommends an appeals process that includes the identification of an appropriate internal or external expert if an internal assessment outcome is challenged;91 (ii) He received a text message from Mr Richardson on 9 November 2017 stating that the Applicant’s reclassification assessment review undertaken by Mr Baxter had resulted in the Applicant remaining at Level 2;92 (iii) The Implementation Guide makes no provision for a worker undergoing an assessment to be accompanied by a support person;93 (iv) Clause 5.4 of the Implementation Guide details what constitutes evidence of competency in an assessment and he refutes Mr Baxter’s evidence that there is no need to provide evidence in circumstances where the employee’s manager or supervisor agrees that the employee is demonstrating the relevant competency;94 (v) Through discussion with Mr Richardson and Mr Baxter following the meeting on 9 November 2017, he formed a belief that they had not agreed with Mr Baxter that the Applicant met the required competencies in respect of the contested units.95 (vi) He believes that there is no requirement under the Agreement and/or the Implementation Guide to have MISTAS undertake classification assessments of mechanical employees and that while the Request Form calls for an assessment by MISTAS if there is a disputed internal assessment, the Request Form is not incorporated into the Agreement and/or the Implementation Guide.96 (vii) Under clause 48 of the Agreement, the engagement of MISTAS, where it is available, is for the purpose of undertaking an overall review of the skills matrix and classification of employees covered by the Agreement during the life of the Agreement,97 but nothing in the Agreement obliges Wood to exclusively engage MISTAS for re-classification assessments of Wood mechanical employees;98 -- 20 of 37 -- [2019] FWC 146 21 (viii) There is nothing in the Agreement or Implementation Guide that requires Wood to accept the outcome of the MISTAS report99 and that despite explicit reference to the Request Form in Clause 48, there is no obligation to follow the process outlined in the Request Form because it (the Request Form) is not incorporated into the Agreement;100 (ix) The process reflected in the Request Form and the Agreement provisions dealing with the “skills matrix etc” were inherited from Transfield Services when Wood took over the Melbourne Water contract and has since been applied by Wood without amendment;101 (x) Some Wood mechanical employees are required to do isolations on occasions;102 (xi) While he had expected the MISTAS report received from Mr Baxter to be more comprehensive, as he had become use to with such reports received from Mr Coburn, he concedes that the report requirements in terms of format and substance were not agreed prior to the conduct of the reclassification assessment by Mr Baxter.103 Wood Submissions [72] Wood submits that the matter is a dispute about the reclassification of the Applicant. Following an internal assessment conducted by Mr Rigg that was disputed by the Applicant, the disputed assessment was then referred to MISTAS by way of an internal appeals process, the outcome of which is now disputed by Wood. [73] Wood contends that the incorporation of the Implementation Guide into the Agreement is significant because it provides for an alternative dispute resolution process that deals exclusively with assessment of competency standards and requires a three step process. The Request Form refers only to steps one and two of the dispute resolution process referred to in the Implementation Guide and does not override the requirement of the Implementation Guide for the parties to reach agreement on step three. [74] Wood further submits that the third required step in the resolution of a classification dispute under the Implementation Guide is that of referral of the disputed classification assessment to a Board of Reference and that whilst that stage in the Implementation Guide refers to a superseded entity, the Australian Industrial Relations Commission, the process of dispute resolution requires that the parties must escalate the dispute beyond the internal appeals step reflected in the Request Form. [75] In the absence of the Applicant having sought an agreed process for resolving a disputed classification assessment in accordance with clause 5.5 of the Implementation Guide, Wood submit that the application should be dismissed on the grounds the Commission lacks jurisdiction. [76] In the alternative, Wood submit that if the Commission finds that it has jurisdiction to deal with the application it should dismiss the application on the grounds that the internal appeals process conducted by MISTAS was fundamentally flawed in two key respects: -- 21 of 37 -- [2019] FWC 146 22 (i) Mr Baxter failed to utilise the assessment tool designed for competency assessment within the enterprise and in doing so was unable to judge the agreed requirements for assessing the Applicant’s competency in most categories within the Wood Melbourne Water contract; and (ii) Mr Baxter believed incorrectly that during the meeting of 9 November 2017, he acquired the agreement of Mr Rigg and Mr Richardson that the Applicant met the competency requirements in respect of the two disputes units of competency. [77] Wood further submits that no evidence of competency was ever provided by Mr Baxter to support his conclusion regarding the Applicant, consequently the appeals process was never completed and the reclassification never agreed to by Wood management. [78] In conclusion Wood submit that: (i) On Question 1, Wood is not obliged to accept the MISTAS assessment as it was not conducted in accordance with the Implementation Guide; the assessment was formed on the basis of a mistaken belief on the part of Mr Baxter that agreement had been reached with Wood; the assessment was never concluded as there was a lack of evidence of competency; and as a consequence, the assessment effectively did not occur. (ii) On Question 2, the Applicant is not entitled to be reclassified to Level 1 in the absence of evidence produced through an assessment completed by a competent assessor. (iii) On Question 3, the operative date is not relevant given the answers to Questions 1 & 2. Consideration Is Wood obliged to accept the outcome of the MISTAS assessment of the Applicant’s reclassification request? [79] Determination of this dispute turns on the proper construction of relevant clauses within the Agreement and the Implementation Guide which is incorporated into the Agreement by reason of clause 15.2 of the agreement. [80] The Implementation Guide traverses a broad range of issues associated with the implementation of the National Metal and Engineering Industry Competency Standards including: (i) Competency standards framework (Chapter 2); (ii) Competency standards and industrial relations issues (Chapter 3); (iii) Implementing the competency standards (Chapter 4); and (iv) Assessment (Chapter 5). -- 22 of 37 -- [2019] FWC 146 23 [81] The present dispute is concerned with assessment of the Applicant’s competencies, hence it is necessary to focus on those elements of the Implementation Guide and Agreement that relevantly deal with the assessment process. Assessment is defined at clause 5.1 of the Implementation Guide as: “…the process of determining whether or not an individual employee (who does not hold an appropriate recognised qualification or is working at a higher level than that specified in the Award for the qualification held) is competent when their skills and background are compared to the performance criterion set out in the relevant competency unit.” [82] Clause 5.3 of the Implementation Guide identifies 4 circumstances in which an assessment may be required: (i) Through a structured process following the implementation of the competency standards; (ii) To determine the outcome of a competency based training program; (iii) On request by an employee; and (iv) On request by management. [83] As regards the reason for assessment, the Agreement supplements clause 5.3 of the Implementation Guide and relevantly provides as follows: (i) Clause 15.2 recognises that assessment may arise out of a structured process following the implementation of the competency standards; (ii) Clause 48 provides for a general review of classifications during the life of the Agreement; (iii) Clause 48 also provides for an individual employee request by reference to and incorporation of the Request Form into the Agreement. [84] I am satisfied that provisions of the Agreement reflect the intent of the Implementation Guide regarding the triggers for reclassification assessment. [85] Turning to the assessment procedure, clause 5.4 of the Implementation Guide requires that the parties “must formally agree on a procedure for assessment which is consistent with the procedure outlined in the Implementation Guide, including an appeals procedure” prior to beginning the assessment of employees. Four issues are to be addressed as elements of the assessment procedure: (i) The suitability of the procedure for the enterprise; (ii) What constitutes evidence of competency; (iii) Who makes the decision on competency; and -- 23 of 37 -- [2019] FWC 146 24 (iv) The appeals process. [86] Clauses 15 and 48 of the Agreement give effect to the agreement reached between the parties required by clause 5.4 of the Implementation Guide. The elements of such agreement variously include, training, demonstrated competence and assessment criteria shall provide the basis for career progression; assessment on and payment will be for skills required to be used; assessment will be based on demonstrated competency; and assessment will be variously conducted depending on the circumstances by an independent assessor, an internal assessor or by MISTAS. [87] While the suitability of the procedure for the enterprise is not explicitly referenced within the Agreement, it can be reasonably inferred that the parties, by agreeing to the terms of the Agreement, were satisfied that the terms dealing with skills training and assessment were appropriate for Wood’s Melbourne Water contract operations. [88] As regards what constitutes evidence of competency during the assessment process, clause 5.4 of the Implementation Guide states the parties must agree on what constitutes evidence of competency. The Implementation Guide identifies various forms of evidence that may be agreed and relied on for the purpose of the assessment process including: (i) Possession of a relevant qualification; (ii) Demonstration of an employee’s ability to meet the performance criteria specified in the competency unit; (iii) Peer statements that skill is consistently applied in the workplace; (iv) Statements from the employee’s supervisor or trainer; (v) Indirect evidence; and (vi) A combination of the above. [89] I am satisfied that consistent with the requirements of the Implementation Guide the parties have agreed on what constitutes evidence of competency. Clauses 15.2 and 15.6 of the Agreement explicitly states that employees will be assessed on the basis of “demonstrated competency”, which is one of the examples of evidence of competency cited in the Implementation Guide referred to above. [90] Wood contends that evidence of competency must be included in the final assessment report and that the failure of such evidence being provided in the report renders the assessment invalid. With respect, that submission gains no support from the wording of the Implementation Guide summarised above. The evidence of competency detailed in clause 5.4 of the Implementation Guide is a list of those various forms of evidence that may be agreed and relied on for the purpose of assessment but says nothing on whether evidence of competency must be recorded in a final report. I accept without reservation the evidence of Mr Coburn that inclusion of such evidence in a final report aids the reader of the report but, as he himself concedes in his evidence, the Implementation Guide does not mandate the required format of assessment reports. -- 24 of 37 -- [2019] FWC 146 25 [91] I turn now to Clause 5.4 of the Implementation Guide which requires that determination of who conducts an assessment should be made through the consultative process and identifies several ways in which assessment decisions may be made including by: (i) An assessment body; (ii) An internal expert; (iii) An external expert; or by (iv) Peer assessment. [92] I am satisfied that consistent with recommendation of the Implementation Guide, the parties have agreed who should undertake assessments. Clauses 15 and 48 of the Agreement deal with who conducts the assessments. It appears that the particular circumstances of the classification assessment will affect who undertakes the assessment. [93] Clause 15.2 requires that following implementation of the Agreement, the existing skills matrix will be reviewed against the National Metal and Engineering Industry Competency Standards and that, as part of that review, all employees will be assessed against the reviewed competencies by an independent assessor. [94] Clause 15.2 does not limit or mandate who may undertake the assessment for the purpose of the specific review envisaged by clause 15.2, save for the requirement that the assessor is independent. Neither party contend that the review of the Applicant’s classification was undertaken in the context of such a review. I am satisfied that the reference to the use of an independent assessor in clause 15.2 is in relation to the particular review detailed in that clause and does not apply generally or to the present circumstances of the Applicants reclassification request. [95] The wording of clause 15.2 may be contrasted with the wording of clause 48 which explicitly states that MISTAS will be used “where available” to undertake the required review of employee classifications within the life of the Agreement. The wording of clause 48 leaves no doubt in my view that, subject to MISTAS’ availability, Wood is required to use MISTAS for what Mr Healy referred to in his evidence as the “overall review of the skills matrix and classification of employees” as described in clause 48. The Applicant’s reclassification assessment was not conducted as part of the general review referred to in clause 48. [96] Neither clause 15 nor clause 48 states that an employee may request a reclassification, however, clause 48 explicitly refers to and has the effect of incorporating the Request Form. The Request Form is clearly designed for the purpose of facilitating an employee initiated application for a reclassification assessment. This is evident from a plain reading of the introductory paragraph where it states: “Under provisions of our Collective Agreement and our Award I hereby request a mechanical skills audit to be conducted to assess my classification. I believe I am “holding and using” additional skills that I am currently not being paid for.” -- 25 of 37 -- [2019] FWC 146 26 [97] The Request Form details the specific process to be followed when a reclassification request is made by an employee and initially requires an assessment by an “appropriately qualified WGPSN individual.” In the event of that initial assessment being challenged, a request can then be made for an independent assessment by MISTAS. The wording is clear, in my view that, in circumstances where an employee requests a reclassification assessment and where the resultant internal assessment is disputed; it is the right of the aggrieved party to request an independent assessment by MISTAS. Furthermore, there is no scope within the Agreement or Request Form for Wood to resist an employee’s request for a MISTAS assessment and in the alternative require an independent assessment by a party other than MISTAS. Such a construction as advanced by Wood has no merit in my view. [98] It follows from my analysis above that Wood is not obliged to exclusively use MISTAS to conduct all classification assessments. However, it is required to use MISTAS for particular classification assessments, those being: (i) where pursuant to clause 48 of the Agreement, a review of all employees is undertaken during the term of the Agreement and where MISTAS is available; and (ii) where pursuant to the Request Form, an employee has sought a reclassification assessment, disputes the subsequent assessment and requests MISTAS to review the disputed assessment. [99] I turn now to consider clause 5.4 of the Implementation Guide which requires that an appeals process “needs to be included as part of an overall assessment procedure.” An appeal process is agreed and detailed in the Request Form and provides that a party aggrieved by an internal assessment can request an assessment by MISTAS. No party contended that referral of a disputed assessment did not constitute an appeal step. I am satisfied that this step meets the requirements of clause 5.4 of the Implementation Guide that there be an agreed appeal process. [100] Clause 5.5 of the Implementation Guide further states that in determining responsibility for carrying out the assessment, it is recommended that this be done by a staged process including an internal assessment; an internal appeals process; and if after the internal appeals process the assessment outcome is still questioned by either the employer or employee, it (the disputed assessment) can be referred to a Board of Reference convened by the Australian Industrial Relations Commission. [101] Wood contend that the procedure reflected in the Request Form does not include the third step of referral of a disputed assessment to a Board of Reference and that in the absence of agreement on that further appeal step, the assessment process is incomplete. This submission is misconceived, in my view, as it appears to rely on the belief that the Implementation Guide mandates the step of referral of a disputed internal appeal outcome to a Board of Reference. It does not, as is evident from a plain reading of the Implementation Guide which merely “recommends” but does not mandate that the parties must adopt a staged three-step process. While inclusion of a third step in the appeal process would be prudent, the fact that the parties have agreed to a two-step process is a matter for them and I accordingly reject Wood’s submission that the two-step process fails to comply with the Implementation Guide. -- 26 of 37 -- [2019] FWC 146 27 [102] I am satisfied that on a plain reading of the Request Form, the parties have agreed to a process that provides for the resolution of a disputed internal assessment by referral of that disputed assessment to MISTAS. There is no further agreed external appeal step. I am also satisfied that the assessment process outlined in the Request Form concludes at the point of the MISTAS assessment being rendered. [103] Clause 5.5 of the Implementation Guide also recommends that an assessment procedure includes a 3 step process including: (i) Selection of the competency units; (ii) Determination of the assessment criteria for each selected competency unit where assessment is required; and (iii) Determination of who will be responsible for carrying out the assessment. [104] While the parties have agreed on who is responsible for carrying out the assessment, the agreed assessment procedure does not include reference to either the selection of competency units or the assessment criteria for each of those selected competency units. Nor was any evidence adduced during the proceedings that indicated whether those two steps had been taken. In the present case, it was uncontroversial that the Applicant was required to be assessed against those units identified in the Applicant’s evidence at paragraph [19] to determine whether he was able to satisfy the competency requirements in a sufficient number of units to attain 12 points that would warrant his reclassification to Level 1. [105] While the agreed assessment procedure appears deficient having regard to the elements outlined in the Implementation Guide at clause 5.5 and summarised at paragraph [103], that does not render the assessment procedure invalid as those elements are recommended and not mandatory. [106] I am satisfied on reviewing the terms of the Implementation Guide that there are a number of mandatory elements of the assessment process and some elements that are recommended. The mandatory elements are: (i) Parties must formally agree on an assessment procedure prior to commencing the assessment of employees; (ii) The formal assessment procedure must address the four issues which are detailed at paragraph [85] above; (iii) The parties must as part of the assessment procedure agree on what constitutes evidence of competency; and (iv) The assessment procedure needs to include an appeals process. [107] I am further satisfied that consistent with the mandatory requirements of the Implementation Guide, the parties have, as evidenced by the inclusion of a range of provisions in the Agreement, agreed on an assessment procedure, have addressed the four issues required by clause 5.4 of the Implementation Guide; have agreed what constitutes -- 27 of 37 -- [2019] FWC 146 28 evidence of competency; and have included an appeals process as part of the assessment procedure. [108] Beyond the mandatory elements of the assessment procedure identified in the Implementation Guide, there is flexibility for the parties to agree on particular features of the enterprise assessment procedure. It follows that the parties are not compelled to agree and implement procedures that directly mirror particular recommendations in the Implementation Guide including; (i) The recommended process of assessment to include a staged process of internal assessment, internal appeal and external review by a Board of Reference; (ii) The particular forms of evidence of competency that may be agreed and relied on as part of the assessment procedure; and (iii) Selection of the competency units and determination of the assessment criteria for each selected competency unit where assessment is required. [109] With the respect to these recommended elements, the parties have not included a third step in the appeals process, that of referral of a disputed assessment to a Board of Reference. Nor does the assessment procedure include reference to selection of competency units or assessment criteria. While the absence of these elements leads, in my view, to a less robust procedure than would be desirable, which the parties would do well to consider, it does not invalidate the agreed assessment process. [110] Finally and importantly for the purposes of the present dispute, neither the Implementation Guide or Agreement mandate or recommend the particular form of report, in either style or substance, required to be provided in support of an employee classification assessment conducted by either an internal or external assessor. This is also an issue the parties might consider in developing a more robust and comprehensive assessment procedure. [111] Mr Healey’s evidence that the clauses in the Agreement were inherited from the previous contractor’s enterprise agreement and applied without amendment is no answer to the criticism Wood now makes in respect of the assessment procedure. Quite simply, inaction on the part of the parties to address now surfaced deficiencies in the assessment procedure does not mean the assessment procedure is invalid. [112] Further, Mr Healey states in his evidence that Wood is not required to accept the outcome of an assessment undertaken by MISTAS because the Request Form is not incorporated into the Agreement. I reject that proposition. If Mr Healey’s position was accepted then it would be the case that there is effectively no assessment procedure in place, and consequently, no basis for any employee to request a reclassification assessment. That is contrary to a mandatory requirement of Implementation Guide and contrary to the clear intent of the parties in explicitly referring to the Request Form in clause 48 of the Agreement. I am satisfied that on any sensible reading the Request Form is incorporated into the Agreement. [113] It follows from my consideration above that I am satisfied that the assessment procedure, as reflected in the terms of the Agreement and Request Form, while possessing some significant weaknesses that I have highlighted, apply the mandatory elements and adopt -- 28 of 37 -- [2019] FWC 146 29 some of the recommended elements of the Implementation Guide. Consequently, I am satisfied that, subject to an assessment being conducted in accordance with the assessment procedure, Wood is obliged to accept the outcome of an assessment so conducted. [114] I turn now to consider whether assessment of the Applicant’s reclassification request was conducted in accordance with the assessment procedure. [115] I am satisfied on the evidence that the Applicant lodged his Request Form for reclassification assessment from Level 2 to Level 1 on 30 April 2015. The Request Form was passed to Mr Rigg who, as an “appropriately skilled WGPSN individual”, was tasked to undertake the assessment. For reasons not adequately explained by Wood or Mr Rigg, the assessment was not completed until 18 March 2016. The Applicant was assessed by Mr Rigg as not meeting the competency requirements necessary to be reclassified from Level 2 to Level 1. At particular issue was Mr Rigg’s conclusion in his assessment that the Applicant failed to meet the competency requirements of “MEM18011C: Shutdown and isolate machines/equipment” and “MEM18021B: Maintain hydraulic systems.” The Applicant as a consequence of Mr Rigg’s assessment achieved only 6 points whereas 12 points was required to justify reclassification from Level 2 to Level 1. [116] Following completion of the assessment by Mr Rigg, the Applicant disputed the outcome via an email to Ms Sabec on 27 April 2016 and raised his right of appeal. No evidence was adduced by Wood to rebut the evidence of the Applicant, which I accept, that he did not receive a response to his email from either Ms Sabec or Wood management over the following 12 months. It was only in the wake of a formal complaint raised by the Applicant with Wood on 28 August 2017 regarding Mr Rigg and Ms Sabec’s handling of the matter that he was then invited by Mr Rigg to complete a further request for reclassification. The Applicant declined to submit a further reclassification request on the basis that he had disputed Mr Rigg’s initial assessment and that dispute had not been resolved. I am satisfied that the position adopted by the Applicant was reasonable in the circumstances and consistent with the assessment procedure. [117] On 20 September 2017, Ms Sabec belatedly responded to the Applicant’s request for MISTAS to review the disputed assessment and sought to justify the delay, in part, on the basis that escalation of a disputed assessment to MISTAS was not automatic. I have previously found that under the terms of the Agreement and Request Form, Wood is not entitled to resist an aggrieved employee’s request for a MISTAS review of a disputed assessment. To suggest as Ms Sabec did in her email to the Applicant that escalation to MISTAS is not automatic is not supported by the wording of the Request Form or the context in which the appeal step operates. In my view, Wood was obliged to respond to the request of the Applicant for a MISTAS review in a timely manner and it has not adequately explained why it failed to do so. [118] I am further satisfied that Ms Sabec subsequently contacted Mr Baxter of MISTAS in October 2017 to arrange for him to come to the site to undertake an assessment of the Applicant to determine whether he met Level 1 requirements. Mr Baxter gave evidence, that was not rebutted by Wood, that he was not provided with an assessment tool as part of his brief nor was he advised what form of report was required arising from his assessment. Save for Mr Baxter’s knowledge that he was required to assess the Applicant for Level 1 competency based on Ms Sabec’s contact in October 2017, it is not apparent that any other material was provided to him by Wood. In these circumstances, I am satisfied that the -- 29 of 37 -- [2019] FWC 146 30 engagement of MISTAS by Wood lacked a proper brief or any guidance as to process or Wood’s report requirements. This is a failing of Wood, not that of Mr Baxter or the Applicant. [119] Mr Baxter attended the Winneke depot site on 9 November 2017 and, in the absence of a brief from Wood, proceeded to conduct his assessment according to a process he states that he routinely undertook. He initially met with the Applicant who was accompanied by the shop steward Mr Debono. No great issue appears to have been taken on the day as to Mr Debono’s participation as the Applicant’s support person, although Wood through the course of these proceedings took issue with the role Mr Debono played. No evidence was adduced that called into question the conduct of Mr Debono, nor was I taken to any part of the Implementation Guide or assessment procedure that would prevent his involvement as a support person. On the basis of the evidence before me, I do not regard Mr Debono’s participation as an issue of substance that undermines the assessment process undertaken by Mr Baxter. [120] Following his meeting with the Applicant during which he went through each of the relevant competencies, Mr Baxter then met with Mr Richardson, Mr Rigg and Mr Debono. Mr Baxter provides an entirely different version of that meeting to that provided by Mr Richardson and Mr Rigg. Mr Baxter states that all present at that meeting agreed that the Applicant was demonstrating the required competencies necessary to justify reclassification to Level 1, whereas Mr Richardson and Mr Rigg state that they did not agree during the meeting that the Applicant met the required competencies. [121] I found the evidence that Mr Richardson and Mr Rigg gave in relation to the meeting with Mr Baxter and its aftermath to be unpersuasive. [122] Mr Richardson refers to his text message to Mr Healey at 11.09 am immediately following the meeting with Mr Baxter as evidence of his belief that the Applicant had not secured sufficient points to be reclassified. He later corrected this advice to Mr Healey in a text message at 1.20 pm that same day following a discussion with Mr Rigg. This creates a significant tension with Mr Richardson’s other evidence that during the course of the meeting he challenged Mr Baxter’s assessment that the Applicant met the Level 1 requirements and was expecting to receive evidence of the Applicant’s competency assessment in a report to be furnished by Mr Baxter. It is telling that Mr Rigg gave no evidence in support of Mr Richardson’s statement that Mr Baxter had been requested by Mr Richardson to provide evidence of his competency assessment of the Applicant in his report. [123] Mr Richardson’s evidence that coming out of the meeting with Mr Baxter, he was expecting evidence of competency supporting reclassification of the Applicant to Level 1 to be provided in Mr Baxter’s report is not easily reconciled with his 11.09 am text message to Mr Healey on that day stating there was no change to the Applicant’s classification. Nor is it easily reconciled with his follow-up message at 1.20 pm that same day confirming that the Applicant had been “stepped up one level”. The content of the text messages appear to conflict with Mr Richardson’s evidence that Mr Baxter had recommended reclassification in the meeting and that Mr Richardson had requested evidence to be furnished in support of that recommendation in a report. A kind interpretation of the text messages is that Mr Richardson may have been confused as to the outcome of the meeting, such confusion being subsequently resolved by Mr Rigg’s confirmation to him that the MISTAS recommendation was that the Applicant be stepped up to Level 1. -- 30 of 37 -- [2019] FWC 146 31 [124] The confusing nature of Mr Richardson’s evidence is brought into further focus by the Applicant and Mr Baxter’s evidence that Mr Richardson shook hands with the Applicant and congratulated him on his reclassification following the meeting involving Mr Baxter and Messrs Rigg, Richardson and Debono. Mr Richardson states that in shaking the Applicant’s hand he was merely doing so as a matter of courtesy and did not offer congratulations. This version of events was at odds with the evidence of the Applicant and Mr Baxter. Given Mr Richardson’s apparent uncertainty as to the assessment outcome immediately following the meeting based on his text messages to Mr Healey, it is curious that he would then have shaken hands with and congratulated the Applicant for being reclassified to Level 1. [125] For his part, Mr Rigg gave no evidence that Mr Baxter had been requested during the meeting to provide evidence of the Applicant’s competency in his final report. Nor was any evidence adduced from Mr Rigg regarding the conversation alleged to have occurred between himself and Mr Richardson following the assessment meeting, during which it is stated that he confirmed to Mr Richardson that the MISTAS recommendation was that the Applicant be stepped up a level. [126] By contrast with Mr Richardson and Mr Rigg’s evidence, Mr Baxter was consistent in his recounting of the meeting with Mr Rigg and Mr Richardson and its outcome. He acknowledged that Mr Rigg questioned some of Mr Baxter’s assessments of the Applicant during the meeting in respect of the two particular contested competencies. Mr Baxter further states that following clarification being provided by him in respect of those competencies, both Mr Rigg and Mr Richardson accepted the position that the Applicant met those required competencies. This version of events was, he states, supported by the subsequent discussion he and Mr Richardson had with the Applicant during which they congratulated and advised the Applicant of his reclassification. The Applicant’s evidence supports Mr Baxter’s version of events in respect of the congratulations offered by Mr Richardson. [127] Following the meetings conducted on 9 November 2017, Mr Baxter furnished a report on 21 November 2017 which can best be described as a summary of the outcome of his assessment of the Applicant. While I accept Mr Baxter’s evidence that the report is in a format that he has used over many years, it is not in a format that Wood were expecting or used to, having received reports prepared by Mr Coburn of a far more comprehensive nature. Subsequent requests by Wood to Mr Baxter to provide a more detailed report were declined by Mr Baxter. [128] In resolving the particular conflict in evidence between Mr Baxter, Mr Richardson and Mr Rigg in respect of the assessment meeting on 9 November 2017, I have had regard to the confusing and, in my view, contradictory evidence of Mr Richardson and Mr Rigg. As a consequence, where there is a conflict in the evidence I have preferred the evidence of Mr Baxter who I found to be forthright and consistent in his evidence. [129] I am satisfied that following his initial meeting with the Applicant, Mr Baxter then met with Mr Rigg and Mr Richardson. I accept that Mr Rigg challenged Mr Baxter’s assessment of the Applicant in respect of the two contested competencies, that of “MEM18021B: Maintain hydraulic systems” and “MEM18011C: Shutdown and isolate machines/equipment”. That challenge is unsurprising given Mr Rigg’s previous assessment of the Applicant as having failed to meet those two particular competencies. I am further satisfied that Mr Baxter clarified the application of those competencies in response to Mr Rigg’s challenge, following which, Mr Rigg and Mr Richardson accepted that the Applicant -- 31 of 37 -- [2019] FWC 146 32 met the required competencies. At the conclusion of the meeting, Mr Baxter and Mr Richardson met with the Applicant and confirmed that the Applicant met the requirements necessary to be reclassified to Level 1. [130] I am not persuaded by Mr Richardson’s evidence that he specifically requested that Mr Baxter provide evidence of the Applicant’s competency on which the reclassification recommendation was made. That the report subsequently provided by Mr Baxter failed to meet Wood’s expectation is understandable having regard to the quality of report routinely furnished by Mr Coburn to Wood by comparison. The format and substance of reports prepared by Mr Coburn leave no doubt as to the evidence and basis of assessment outcome, which in my view, may be contrasted with the reports prepared by both Mr Rigg and Mr Baxter. Nonetheless, Mr Baxter was not provided with a detailed brief as to the conduct of the assessment nor the required content and format of an assessment report. In these circumstances Mr Baxter provided what he states is his normal practice of report format and content, which is essentially a summary of the assessment outcome. [131] Having regard to the above, I am satisfied that the assessment procedure agreed between the parties has been followed. That Wood is dissatisfied with the outcome appears to be a product of weaknesses in the assessment procedure; its failure to provide MISTAS with a clear brief; and that the third step of an external appeals process recommended in the Implementation Guide is not provided for in the assessment procedure. The assessment procedure agreed between the parties may be flawed but that is no basis for Wood to now reject the outcome, particularly in circumstances where the Applicant has patiently participated in and followed the agreed process. [132] It follows from the above that I am satisfied that the agreed assessment procedure, notwithstanding its weaknesses, complies with the mandatory requirements of the Implementation Guide and has been followed in the case of the Applicant’s reclassification request. Consequently, Wood is obliged to accept the outcome of the MISTAS assessment. Is the Applicant entitled on the basis of the evidence before the Commission to be reclassified to Level 1? [133] Having answered Question 1 in the affirmative, it is unnecessary for me to answer this question; however, I do wish to say some things in respect of certain matters raised by the parties in their evidence. [134] Mr Rigg in his evidence variously states that no Wood employees are required to perform isolations for Melbourne Water and as a consequence his assessment of the Applicant in relation to the competency “MEM18011C: Shutdown and isolate machines/equipment” was a definite “No”. [135] Even aside from Mr Healey’s evidence that contradicts Mr Rigg on the requirement of Wood employees to perform some isolations, I found Mr Rigg’s evidence on this point to lack credibility. As evident from cross-examination on this point, he was unable to reconcile, if Wood employees were not required to perform such work, why the Applicant was actually assessed on the competency by both himself and Mr Baxter. Furthermore, he was unable to explain why other employees were assessed as competent in this unit if they too were not required to use those skills.104 -- 32 of 37 -- [2019] FWC 146 33 [136] Clause 15.6 of the Agreement deals with the demonstration and use of enhanced skills and relevantly states that an employee will be “assessed on and paid for the skills required to be used by Wood Group.” I am satisfied that a plain reading of that phrase means that it is only those skills that Wood may require an employee to use that will be assessed and paid for if an employee is assessed as competent. It would, as a matter of common logic, make no sense for employees to be assessed on skills that were ultimately not required to be used. [137] Having regard to the evidence of both Mr Healey and the Applicant, I am satisfied that Wood employees are required to perform some isolations and I reject Mr Rigg’s evidence on this point. As regards whether the Applicant meets the competency requirements of “MEM18011C: Shutdown and isolate machines/equipment”, it is unnecessary for me to reach any conclusions having regard to the MISTAS assessment outcome. [138] In relation to the second contested competency, that of “MEM18021B: Maintain hydraulic systems”, Mr Rigg also found the Applicant to be a definite “No” in his assessment. Part of Mr Rigg’s justification for his conclusion was that Melbourne Water operators had requested that the Applicant be removed from working on PRV’s. Mr Rigg states that the Applicant’s subsequent transfer from the Yarra Valley to Winneke depot was driven by his concern over the Applicant’s competency. [139] The problem with Mr Rigg’s evidence is that, apart from a lack of any corroborating evidence to support his claims, at no stage did he actually discuss these concerns with the Applicant either prior to the Applicant’s transfer to the Winneke depot or at the time he conducted his reclassification assessment of the Applicant. I am consequently led to a conclusion that either Mr Rigg’s evidence on this point is not to be believed or he has failed to confront the Applicant at any point with performance concerns he held. [140] I do not accept Mr Rigg’s evidence as to alleged reports from Melbourne Water operators as to the Applicant’s competence to perform work on PRV systems. I also note that Mr Rigg did not rebut the Applicant’s evidence in relation to other work performed by the Applicant on hydraulic and pneumatic systems. As regards whether the Applicant meets the competency requirements of “MEM18021B: Maintain hydraulic systems”, it is unnecessary for me to reach any conclusions having regard to the MISTAS assessment outcome. What is the operative date of reclassification for the purposes of back pay? [141] Having found that Wood is obliged to accept the MISTAS assessment, I now turn to consider from what date the Applicant is entitled to be reclassified. [142] Mr Healey states in his evidence that the date an employee’s supervisor signs as having received a Request Form is taken to be the date for any backdating of pay in the event of reclassification. Mr Healey properly concedes that the provision ensures that an employee is not disadvantaged by reason of the delay in finalising the reclassification request. [143] In the present case, the Applicant’s Request Form was signed by the Applicant’s supervisor Mr Rigg on 30 April 2015. The prolonged delays in finalising the initial assessment and then responding to the Applicant’s request for a review of the disputed assessment by MISTAS were, in my view, almost entirely within the control of Wood. In these circumstances, I am not persuaded that the date for backdating of the increased rate of -- 33 of 37 -- [2019] FWC 146 34 pay should be varied from that stated on the Request Form. The Applicant should not be disadvantaged by reason of Wood’s delays in finalising the reclassification request. [144] It follows from the above that the Applicant is entitled to be reclassified to Level 1 from 30 April 2015. Conclusion [145] For the foregoing reasons the questions to be determined are answered as follows: (1) Is Wood obliged to accept the outcome of the assessment of the Applicant’s reclassification request, as conducted by Mr Paul Baxter of MISTAS? The answer is “Yes”. (2) If the answer to Question 1 is “No”, is the Applicant entitled on the basis of the evidence before the Commission to be reclassified to Level 1? Having answered “Yes” to Question 1 the Commission is not required to answer this question. (3) If the answer to either Question 1 or Question 2 is “Yes”, what is the operative date of reclassification for the purposes of back pay? 30 April 2015. [146] The dispute is determined accordingly. DEPUTY PRESIDENT Appearances: J Gardner on behalf of the Applicant. T Bradford on behalf of the Respondent. Hearing details: 2018. Melbourne. 30 October. -- 34 of 37 -- [2019] FWC 146 35 Printed by authority of the Commonwealth Government Printer <PR703749> 1 AG2018/9189. 2 Exhibit A2, Witness Statement of Applicant, dated 31 August 2018, Annexure AH-1, Request for Reclassification (Mechanical). 3 Ibid at paragraphs [3]-[5]. 4 Ibid, Annexure AH-4, Email titled “Request for reclassification”. 5 Ibid at paragraph [7]. 6 Ibid, Annexure AH2 – Request for Reclassification (Mechanical). 7 Ibid at paragraph [9]. 8 Ibid, Annexure AH-4, Email dated 17 March 2018 titled “Urgent Attention required Prior to end of business today”. 9 Ibid at paragraph [17]-[18]. 10 Ibid, Annexure AH-4. Untitled email, dated 27 April 2018v 11 Ibid at paragraph [20]. 12 Ibid at paragraph [21]. 13 Ibid at paragraph [22]. 14 Ibid, Annexure AH-5, Email, dated 20 September 2018, titled “Re: Reply from SARAH Request for skill level and a Fair assessment”. 15 Ibid at paragraph [24]. 16 Ibid at paragraph [25]. 17 Ibid, Annexure AH-6, Email, dated 1 February 2018, titled “Pay rate”. 18 Ibid, Annexure AH-3. National Metal and Engineering Industry Competence Standards Implementation Guide. 19 Ibid at paragraph [14]. 20 Ibid at paragraph [15]. 21 Ibid at paragraph [24]. 22 Ibid at paragraph [16]. 23 Transcript at PN183. 24 Exhibit A3 – High Risk Work Permit No. 09589 and Exhibit A4 – High Risk Work Permit No. 09913. 25 Transcript at PN 201-PN207. 26 Ibid at PN302-PN303. 27 Exhibit A3. 28 Exhibit A4. 29 Transcript at PN360. 30 Ibid at PN214. 31 Exhibit A2 at paragraph 17. 32 Transcript at PN186. 33 Ibid at PN345. 34 Ibid. 35 Ibid at PN346, PN361-PN362. 36 Exhibit A1, Witness Statement of Mr. Paul Baxter, dated 30 August 2018, at paragraph [1]-[2]. 37 Ibid at paragraph [6]-[7]. 38 Transcript at PN107. 39 Ibid at paragraph [12]. 40 Ibid at paragraph [13]. 41 Ibid at paragraph [14]. -- 35 of 37 -- [2019] FWC 146 36 42 Ibid at paragraph [15]. 43 Ibid at paragraph [16]. 44 Exhibit A1, Annexure PB-1, Classification Review for Mechanical Fitter Adam Hanlon. 45 Ibid, Annexure PB-2, Re: Adam Hanlon Classification Report. 46 Ibid at paragraph [24]. 47 Transcript at PN86 and PN92. 48 Ibid at PN96-PN101. 49 Ibid at PN106-PN107. 50 Ibid at PN110-PN111. 51 Ibid at PN120. 52 Ibid at PN132. 53 Ibid at PN137. 54 Ibid at PN159. 55 Ibid at PN165. 56 Exhibit A2, Annexure AH-3 at page 75. 57 Ibid at page 78. 58 Ibid at page 75. 59 Ibid. 60 Exhibit A2, Annexure AH-1. 61 Exhibit R1, Witness Statement of Mr. Darren Rigg, dated 20 September 2018, at paragraph [1]. 62 Ibid at paragraph [4]. 63 Ibid at paragraph [9]. 64 Ibid, Annexure DR-3. 65 Transcript at PN391-PN393. 66 Ibid at PN439. 67 Ibid at PN442-PN446, PN449-PN450, PN452-PN458 and PN461. 68 Ibid at PN451 and PN462. 69 Ibid at PN468-PN470. 70 Ibid at paragraph [10]. 71 Ibid at paragraph [13]. 72 Transcript at PN406-PN407. 73 Ibid at PN475. 74 Ibid at PN408. 75 Ibid at PN414. 76 Ibid at PN416. 77 Exhibit R1 at paragraph [16] and Transcript at PN398-PN399. 78 Exhibit R2, Witness Statement of Mr. Thomas Richardson, dated 20 September 2018, at paragraph [1]. 79 Transcript at PN503. 80 Exhibit R2 at paragraph [3] and Annexure TR-1. 81 Ibid at paragraph [5] and Transcript at PN520. 82 Transcript at PN522-PN524. 83 Exhibit R3, Witness Statement of Mr John Coburn, dated 20 September 2018, at paragraphs [1]-[3]. 84 Ibid at paragraphs [6] - [7]. 85 Exhibit R3, Annexure JC-1. 86 Ibid at paragraph [14]. 87 Transcript at PN 561. 88 Ibid at PN563. -- 36 of 37 -- [2019] FWC 146 37 89 Ibid. 90 Exhibit R4, Witness Statement of Mr. David Healey, dated 21 September 2018, paragraph [5]. 91 Ibid at paragraph [9]. 92 Ibid at paragraph [10]. 93 Ibid at paragraph [14]. 94 Ibid at paragraph [17]. 95 Ibid at paragraph [18]. 96 Ibid at paragraphs [23]-[24], Transcript at PN618 and PN621-PN622. 97 Ibid at PN636. 98 Ibid at paragraph [26]. 99 Transcript at PN625. 100 Ibid at PN632. 101 Ibid at PN634. 102 Ibid at PN650-PN651. 103 Ibid at PN653. 104 Transcript at PN439-PN461. -- 37 of 37 --