"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Boeing Australia Component Repairs Pty Ltd [2017] FWC 2392

1 Fair Work Act 2009 s.739 - Application to deal with a dispute "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Boeing Australia Component Repairs Pty Ltd (C2016/5587) DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 6 JUNE 2017 Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]; whether employee entitled to be reclassified. [1] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and Boeing Australia Component Repairs Pty Ltd (BACR) are each covered by the Boeing Australia Component Repairs Pty Ltd Enterprise Agreement 2013 to 2016 (Agreement), the nominal expiry date of which has passed. The Agreement remains in operation by reason of ss.54 and 58 of the Fair Work Act 2009 (Act). BACR is a subsidiary of Boeing Defence Australia (BDA). It serves its customers (both defence and commercial) by repairing a range of military and commercial aircrafts, including the repairing, specific damage and undertaking regular maintenance activities. There are nineteen employees who at the time of hearing the application were covered by the Agreement. [2] By its application lodged on 16 September 2016, the AMWU applied to the Fair Work Commission (Commission) pursuant to s.739 of the Act for the Commission to deal with a dispute in accordance with the dispute settlement procedure in the Agreement. There is no dispute between the AWMU and BACR that the jurisdiction of the Commission has been properly invoked and that I am able to resolve the dispute by exercising arbitration power for which provision is made in clause 2.1 of the Agreement. [3] The dispute concerns whether on a proper construction of clause 5.2.2.1 and related provisions of the Agreement Mr Gede Wibawa, an employee of BACR and a member of the AMWU, having regard to his duties, skills and qualifications was entitled to be reclassified from an Aerospace Tradesperson 1 (103%) (AT1) to an Aerospace Tradesperson 2 (110%) (AT2). The issues which remain in dispute are threefold. First, the proper construction of the accountabilities and requirements of an AT2. Secondly, whether there was a business need for Mr Wibawa to be performing those accountabilities and requirements and thirdly, whether he achieved those standards. [2017] FWC 2392 DECISION -- 1 of 21 -- [2017] FWC 2392 2 [4] The AMWU contends that Mr Wibawa should have been recognised as performing work at the AT2 level from the time that he applied for the reclassification and further that BACR should make a back payment for the differential in wages as between the two classifications.1 [5] Mr Wibawa performs work as an Aerospace Tradesperson (AT) and is currently classified under the Agreement at AT1. Mr Wibawa has formally sought reclassification to AT2 since 14 July 2014.2 It is not dispute that Mr Wibawa complied with the reclassification application procedure. He was advised on 5 March 2015 that his application had not been successful.3 In or around 2016, BACR reconsidered its initial assessment of Mr Wibawa’s reclassification application, however in BACR’s view, based on the lack of progress in Mr Wibawa’s skills and competencies, it could not justify any change in his position at that time.4 [6] Mr Wibawa started his employment with Boeing Hawker de Havilland (Boeing HdH) in 2000 and was employed as a trade assistant in that which was then known as the “Repair Cell”.5 In or around 2003, Mr Wibawa was approached by his manager at the time, Mr Jason Braganza, to gauge whether Mr Wibawa would have liked to attend school in order to obtain trade qualifications.6 Mr Wibawa’s evidence is that he was told by Mr Braganza that if he were to finish his course and obtain the necessary qualification (MEA40802 Certificate IV in Aeroskills (Structures)), then he would be reclassified to an AT2 under the enterprise agreement in place at the time.7 Mr Adam Turnley, a former employee of BACR, gave evidence that while he was still working for BACR, Mr Wibawa was undertaking training for his trade qualifications.8 Mr Turnley also gave evidence that he recalls a conversation between Mr Wibawa and Mr Braganza whereby Mr Wibawa was told that upon completing his schooling, Mr Wibawa would be reclassified to 110%.9 Mr Braganza was not called by either party to give evidence. [7] Mr Wibawa commenced the course at Kangan-Batman TAFE in 2005. Boeing HdH paid for half of the course costs up until 2008. At that time there was a dispute about the on- going funding of the course with Boeing HdH which resulted in the company covering the full cost of Mr Wibawa’s on-going education.10 Mr Wibawa finished his course in 2009 and was awarded a MEA40802 Certificate. [8] In or around 2007, Boeing HdH was sold to BDA, a subsidiary of BACR. In 2007 and 2008, Boeing HdH moved from the Fishermen’s Bend facility to the site it currently occupies at Melbourne Airport. The business formerly known as Boeing HdH has been operated by BACR since 2008, when BACR was established as a subsidiary of BDA.11 1 Applicant’s Amended Outline of Submissions dated 23 February 2017 at [4]. 2 Applicant’s Amended Outline of Submissions dated 23 February 2017 at [3]. 3 Exhibit 2 at [75]. 4 Exhibit 12 at [90] – [91]. 5 Exhibit 2 at [20]. 6 Ibid at [22]. 7 Ibid at [23]. 8 Exhibit 8 at [5]. 9 Ibid at [6]. 10 Exhibit 2 at [25]. 11 Exhibit 13 at [6] – [7]. -- 2 of 21 -- [2017] FWC 2392 3 [9] After the move, Mr Wibawa’s evidence is that the work essentially remained the same, except that employees would now sometimes work on aircrafts in hangars at the Melbourne Airport.12 Mr Wibawa’s evidence is that employees were told that they would not lose anything and that essentially things would by and large be the same.13 It was around that time that Mr Wibawa asked Mr Braganza to be reclassified to an AT2. Mr Braganza refused Mr Wibawa’s request on the basis that they now worked for a different company.14 Other than as background information, nothing turns on this evidence. The Commission is not a court exercising equitable jurisdiction and the dispute is not litigation invoking notions of promissory estoppel or misrepresentation. The dispute is to be resolved by determining the factual and construction issues earlier identified. [10] The basic workflow for work carried out at BACR is as follows. When work comes in it is usually subject to an initial inspection by a team leader. Sometimes the team leader will involve an AT in the inspection process as some AT’s have specialised knowledge of certain issue or types of work. The team leader will then allocate the work to an engineer who will in turn create a ‘work order’ document. The engineer will return the work order to the team leader who will then assign the work to a tradesperson to complete the job and signs off or stamp the work order accordingly.15The time taken to complete jobs will vary having regard to the nature of the work, the number of the issues to be resolved and logistical factors such as availability of parts.16 [11] Mr Wibawa says that there is no apparent distinction between AT1 and AT2 employees when it comes to the assigning of work.17 This does not seem to be in dispute. Mr Wibawa says that essentially all ATs perform the same work.18 BACR’s position is that this simply reflects that the AT2s are not performing the additional accountabilities, as contemplated by the Agreement as there has been insufficient work to justify them doing so.19 [12] BACR employees may only sign off or stamp work if they possess a current authorisation certificate showing the relevant approval code for that work. Employees may perform work for which they do not hold an approval code, however the work order will need to be signed off or stamped by an employee who holds the relevant code.20 [13] Mr Wibawa says that he holds all of the necessary approval codes for the work required of ATs at BACR and that no one else at the AT2 level is required to stamp or sign off on his work.21 The six approval codes are GE1, CR1, CR2, CR3, MR1 and MR2. [14] Mr Wibawa’s evidence is that in or around July 2014, Boeing’s Quality Manager, “Rama”, approached Mr Wibawa and encouraged him to apply for a reclassification to AT2 and subsequently Mr Wibawa completed a formal application and lodged it with Mr Paul 12 Exhibit 2 at [29]. 13 Ibid at [30]. 14 Ibid at [31]. 15 Ibid at [32] where second appearing. 16 Ibid at [33] where second appearing. 17 Ibid at [35]. 18 Ibid at [34] where first appearing. 19 PN57. 20 Exhibit 2 at [38] where first appearing. 21 Ibid at [42]. -- 3 of 21 -- [2017] FWC 2392 4 Skehan, Senior Manager at BACR.22 On 5 March 2015, Mr Wibawa was informed that his application had been unsuccessful on the basis that BACR could not determine a business case to provide the opportunity to progress to the AT2 level.23 [15] Mr Edward Torcello, Operations Manager at BACR, along with the team leaders concluded that Mr Wibawa was not successful in his reclassification application. Mr Skehan says that he agreed with Mr Torcello’s decision based on the feedback he had received from the leadership team24 and the number of non-conformance reports (NCR) and non-compliance reports (CAR) Mr Wibawa had received. [16] Mr Wibawa received a number of NCRs and CARs prior to applying for the re- classification in July 2014.25 It is not in dispute that these reports are not disciplinary actions.26 BACR contends that Mr Wibawa has received more NCRs or CARs than any other AT. Mr Skehan’s evidence is that there were no AT2s who received any NCRs and CARs during the period between 2010 and 2015.27 [17] In or around March 2011, Mr Wibawa was issued a NCR and a CAR. It related to an incident where Mr Wibawa used expired film adhesive material for a job.28 Mr Wibawa maintains that the material was kept in the freezer, where only live materials are kept.29 Mr Wibawa says that it is the storeman’s responsibility to ensure that all materials kept in the freezer are not expired.30 Mr Wibawa’s evidence is that he reported the incident to the inspector as soon as he became aware of the issue.31 He says that after this incident occurred, he suggested that the live materials and their expiry date be kept on a board outside of the freezer to ensure that this issue does not reoccur.32 On cross-examination, Mr Wibawa accepted partial responsibility for the incident and accepted that it is his responsibility to check the material before it is used.33 The NCR does indicate that the issue was raised and adequately responded to by Mr Wibawa. However, Mr Skehan says that the requirement to check the material still exists and strongly stress that BACR relies on a number of safeguards to make sure nothing catastrophic happens.34 [18] On or around 10 August 2011, there is a record of a conversation whereby an inspector who had been assigning work to Mr Wibawa indicated that he had concerns with Mr Wibawa’s timeliness and completion of work. It was said that Mr Wibawa had overestimated the amount of time taken to complete a project. It also said that Mr Wibawa was not operating 22 Ibid at [73]. 23 Ibid at [75]. 24 PN1667 - PN1668. 25 Exhibit 12 at [79]. 26 PN1674. 27 PN1240. 28 Exhibit 12 at PS-4. 29 PN820. 30 PN821. 31 PN824. 32 PN831. 33 PN501 – PN504. 34 PN1639. -- 4 of 21 -- [2017] FWC 2392 5 at the level that was expected of him35and the inspector also raised concerns about Mr Wibawa’s overall attitude. Mr Wibawa disagreed with the inspector’s views about the job and the timeliness issue and refused to sign the record of conversation. A performance improvement plan was proposed by BACR but it was not implemented.36 [19] On or around 7 August 2012, Mr Wibawa received another CAR. It appears that Mr Wibawa failed to carry out the daily self tool check and also failed to place a tool tag in the tool shadow board after taking a tool from it.37 On cross-examination, Mr Wibawa agreed that this breach could be quiet serious.38 [20] Sometime in early 2013, a CASA audit was undertaken and Mr Wibawa was advised that his log book was incomplete as it failed to record some training data. Mr Wibawa was instructed to submit his missing data.39 [21] On or around 19 November 2015, Mr Wibawa received a NCR. This incident concerned Mr Wibawa trimming a piece of skin outside of the specifications contained in the work instructions. As a consequence, the work had to be scrapped, a new skin was ordered and the work was repeated by Mr Wibawa.40 [22] BACR says that these reports demonstrate that Mr Wibawa failed to comply with some of the essential skill requirements of the AT1 position. Specifically, Mr Skehan said it showed that Mr Wibawa did not demonstrate a sound knowledge of quality assurance procedures and aircraft structures maintenance procedures.41 [23] In August 2016, Mr Wibawa failed the QMS refresher training and assessment test and as a result Mr Wibawa lost his certification stamp for all six approval codes for a period of a week.42 Mr Wibawa says that he failed the exam because “I was - under the EBA negotiation I've got a lot on my mind, and I have a little bit of a family problem and I wasn't concentrating.”43 Mr Wibawa was asked to re-sit the exam and he passed the exam. Mr Skehan’s evidence is that an employee has an obligation to report stress related work or social issues. Mr Skehan says that this is particularly important given the nature of the work.44 [24] Mr Wibawa says that he has worked diligently and faithfully for Boeing HdH and BACR over the last 16 years.45 [25] BACR submits that Mr Wibawa’s evidence in respect of the above events should be treated with caution as concessions made by Mr Wibawa in cross-examination demonstrate that Mr Wibawa’s witness statements were misleading. It says that any suggestion that the 35 PN1241. 36 PN2521 – PN2522. 37 Exhibit 12 at PS-4. 38 PN520 – PN525. 39 PN456 – PN457. 40 PN1249. 41 Exhibit 12 at [80]. 42 PN683 – PN684, PN845. 43 PN846. 44 PN1463. 45 Exhibit 3 at [40]. -- 5 of 21 -- [2017] FWC 2392 6 ways in which Mr Wibawa has failed to comply with regulations is not serious, should not be accepted.46 The AMWU says that it is not fair to draw this conclusion as Mr Wibawa was not trying to be elusive or difficult. The AMWU says that Mr Wibawa gave answers to questions directly and as honestly as he could.47 Ultimately, I am satisfied on the evidence that Mr Wibawa has on several occasions between early 2011 and November 2015 failed to carry out his duties in a manner that would demonstrate adherence to quality assurance and aircraft structures maintenance procedures and that in August of 2016, he failed but then passed a QMS refresher training and assessment test. Though, this is relevant not to BACR’s case that there was no business need for Mr Wibawa’s advancement to AT2, the evidence supports that part of its case alleging that Mr Wibawa has not met or achieved the requirements, skills or accountabilities of that classification. [26] Appendix 1 of the Agreement outlines the position description for an AT2 as follows: “POSITION: AEROSPACE TRADESPERSON 2 1. JOB SUMMARY The Aerospace Tradesperson 2 at BACR is responsible for the Maintenance, Modification, Inspection, Testing and Troubleshooting of the A/C structural components and associated equipment within the scope of their applicable training, competency and task authorisation. Completes assigned tasks by undertaking a variety of trade level activities, and works beyond the level of Aerospace Tradesperson 1. These activities require the application of relevant post trade qualifications and/or skills in the applicable trade category in accordance with the appropriate documentation. ACCOUNTABILITIES Aerospace Tradesperson 2 at BACR involves duties of Aerospace tradesperson 1 and the following:  Counter sign T1 tasks if required by clients or regulations  Assisting Team Leaders in carrying out assessments of work to be carried out by Tradesperson 1 employees  Assisting in the ongoing Internal Quality Auditing of BACR processes  Providing direction and instructions to assist in the development of operators  Assisting Team Leaders in prioritising operator work tasks and objectives  Undertaking basic estimating tasks – time and materials  Support/mentoring of tradespersons when required  Sign off documentation/certification of own task that have been performed AUTHORITY LEVELS As authorised by relevant manager (BACR Quality Safety Manager and/or relevant Airworthiness Authority Accountable manager). OTHER ESSENTIAL QUALIFICATIONS/SKILLS REQUIREMENTS Essential Criteria 46 PN3197. 47 PN3257. -- 6 of 21 -- [2017] FWC 2392 7  Certificate IV in Aeroskills (Structures) MEA41311, or higher with relevant aviation related experience of two years minimum and/or relevant qualifications acceptable to the Quality and Safety Manager.  Demonstrated sound knowledge of airworthiness regulations  Demonstrated ability with the use of Technical Manuals/Publications for the repair of Aeronautical product and systems  Demonstrated ability to successfully interact with co-workers, maintaining productive working relationships to meet team, business unit and organisational goals  High Professional Standards i.e. Attention to Detail, Self Motivated, Workplace behaviour [27] Mr Wibawa maintains that he performs the above accountabilities and possesses the essential qualifications/skills requirements of an AT2. He says that he frequently works at clients’ premises alone and without supervision.48 Mr Skehan says that “any of our base tradespeople could go over there and do that.”49 [28] BACR maintains that the job summary in Appendix 1 for an AT2 makes clear that an AT2 works beyond the level of an AT1 and that the accountabilities of an AT2 are additional to those accountabilities that an AT1 may perform. Counter sign T1 tasks if required by clients or regulations [29] Attachment 2 to Appendix 4 of the Agreement sets out the AT2 reclassification assessment tool and contains “common standards”. It provides as follows: 48 Exhibit 2 at [70]. 49 PN1694. -- 7 of 21 -- [2017] FWC 2392 8 [30] It is not in dispute that the reference to an “IV1 code stamp” in Attachment 2 is intended to be a reference to an “IN1 code stamp”. A person who has an IN1 code stamp is authorised to carry out process inspections of the work of others. It is also not in dispute that Mr Wibawa does not hold an INI code stamp or that it is not necessary to hold the IN1 -- 8 of 21 -- [2017] FWC 2392 9 authorisation at the time that an application for reclassification is made. An employee has a period of three months in which to obtain that authorisation and use it.50 [31] Mr Wibawa maintains that clients do not require employees to counter sign each other’s work and that it is a case of whether the regulations require work to be signed off.51 This was accepted by Mr Torcello and Mr Skehan.52 [32] As is clear from Attachment 2, a matter that is assessed is whether an employee applying for reclassification has successfully completed the required quality modules, awarded and uses the “IN1 code stamp” within 3 months of being reclassified. However, the position description for an AT2 in Appendix 1 of the Agreement does not in terms make reference to the IN1 code stamp. BACR maintains that the IN1 code stamp requirement is part of the counter signing of T1 tasks accountability in that Appendix. [33] The AMWU maintains that the meaning of the words “counter sign” is unclear but it is certain that it does not mean that an AT must hold an IN1 authority to satisfy that accountability. It is not in dispute that only one of the employees classified as an AT2, Mr Rob Evans holds an IN1 authority53 and that he only used that authority when acting in a team leader capacity and has not used his IN1 authority since becoming an AT2.54 [34] BACR submits that to “counter sign T1 tasks” is a reference to an AT2 performing an IN1 verification of AT1 tasks. That is, it is a second signature after the tradesperson, who has performed the work, has self-signed that work. An IN1 authority establishes an independent verification and inspection. BACR says that it is clear from the quality procedure manual at PS1 that it authorises the holder, amongst other things, to carry out process inspections of others' work. BACR maintains that it is a second level verification. In other words, BACR says that the holder must countersign the T1 tasks. In support of this construction, BACR relies on the common standards which, in the third row, clearly refer to an IN1 code stamp which the parties agree is the same as an IN1 verification. The common standards make explicit that there is an expectation that an AT2 uses an IN1 authority within three months. [35] There is some level of ambiguity as to that which is meant by “counter sign T1 tasks” when read in conjunction with the assessment tool in Attachment 2 to Appendix 4 of the Agreement. Mr Victor Jose, an organiser of the AMWU at the time that the Agreement was made, gave evidence about his involvement in bargaining for the Agreement and its predecessor.55 Mr Jose’s evidence about the development of the countersigning of T1 tasks accountability is, with respect, no more than evidence of the subjective intention of the AMWU and in any event his evidence about whether the countersigning requirement was directed to a second level verification of the kind specified by the IN1 qualification was that he was not sure and that “it was a verification of sorts. It was to countersign a tradesman – Aerospace tradesman 1’s work”.56 50 PN1555. 51 Ibid at [44]. 52 PN2431 – PN2434, PN1474 – 1480. 53 Exhibit 12 at [29]. 54 PN2676 - PN2681. 55 Exhibit 1. 56 PN167. -- 9 of 21 -- [2017] FWC 2392 10 [36] Much like the approach to construing a statute, the construction of an enterprise agreement begins with a consideration of the ordinary meaning of the words used, having regard to the context and evident purpose of the provision or expression being construed. Context may be found in the provisions of the agreement taken as a whole, or in their arrangement and place in the agreement being considered. The statutory framework under which the agreement is made may also provide context, as might an antecedent instrument or instruments from which particular provisions might have been derived. [37] Extrinsic material going to context or surrounding circumstances may be called into aid the resolution of an ambiguity. The admissibility of evidence of the surrounding circumstances is however limited to evidence tending to establish objective background facts which were known to both parties and the subject matter of the contract. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations. As Mason J observed in Codelfa Construction Pty Ltd v State Rail Authority (NSW)57: ‘… when the issue is which of two or more possible meanings is to be given to a contractual provision we look, not to the actual intentions, aspirations or expectations of the parties before or at the time of contract, except insofar as they are expressed in the contract, but to the objective framework of facts within which the contract came into existence, and to the parties’ presumed intention in this setting.’58 [38] As noted in Australian Meat Industry Employees Union v Golden Cockerel Pty Ltd59 evidence relevant to the objective framework of facts will include: (i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement; (ii) notorious facts of which knowledge is to be presumed; and (iii) evidence of matters in common contemplation and constituting a common assumption.60 [39] As to (i) above, evidence of prior negotiations will be admissible, but only for a defined purpose. As Mason J observed in Codelfa: ‘Generally speaking facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties, although, as we have seen, if the facts are notorious knowledge of them will be presumed. It is here that a difficulty arises with respect to the evidence of prior negotiations. Obviously the prior negotiations will tend to establish objective background facts which were known to both parties and the subject matter of the contract. To the extent to which they have this tendency they are admissible. But in so far as they consist of statements and actions of the parties which are reflective of their actual intentions and expectations they are not receivable. 57 (1982) 149 CLR 337. 58 Ibid at 352 59 [2014] FWCFB 7447. 60 Ibid at [41]. -- 10 of 21 -- [2017] FWC 2392 11 The point is that such statements and actions reveal the terms of the contract which the parties intended or hoped to make. They are superseded by, and merged in, the contract itself. The object of the parole evidence rule is to exclude them, the prior oral agreement of the parties being inadmissible in aid of construction, though admissible in an action for rectification.’61 [40] Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or re-write the provision in order to give effect to an externally derived conception of that which was the parties’ intention or purpose.62 [41] It is important also to understand that while the Agreement may have been negotiated by BACR and the AMWU, it is ‘made’ when a majority of the employees that will be covered by it cast a valid vote to approve the Agreement. This is clear from s.183(1) of the Act. The diversity of interests involved in the negotiation and making of enterprise agreements warrants the adoption of a cautious approach to the admission and reliance upon evidence of positions advanced during the negotiation process. In Australian International Air Pilots Association v Qantas Airways Limited,63 Rares J observed: ‘Substantially, the Act provided that the agreement was a tripartite document between a body of employees, a corporation with numerous officers and an industrial association. The involvement of so many individuals in the formation of the agreement re-emphasises the importance of approaching the construction of that document in accordance with the principle of objectivity. It is important, in doing so, to be cautious and bear firmly in mind the fact that the agreement was formed by a diversity of persons who had sought to protect their differing interests by various formulations of words in it. Those disparate intentions cannot be determinative of the proper construction to be given to the words chosen. In Health Services Union v Ballarat Health Services [2011] FCA 1256 at [79], Gray J said: In the days when an award might be negotiated between a union and an employer, and made by consent, the existence of a common understanding between the union and the employer as to the meaning of terms might have had some role to play in their construction. Whatever were the terms of such an agreement, and whatever was their meaning, those terms were imposed upon the employees who became bound by the award. In the current era, most industrial instruments are required to be put to a vote of the employees whose work will be covered by them, before they can be certified or approved so as to become enforceable by statute. The union and the employer who negotiated the terms might have had a common understanding of the meaning of them, but that understanding might not have been shared by all or some of the employees who voted for the operation of the agreement. They may have been entirely ignorant of the common understanding. In those circumstances, the occasions on which it can be said that a party to an agreement who entered into it on a common understanding should not be allowed to resile from that understanding will be rarer than they have been in the past.’64 61 (1982) 149 CLR 337 at 352. 62 Kucks v CSR Limited (1996) 66 IR 182 at [184]. 63 [2017] FCA 346. 64 Ibid at [29]. -- 11 of 21 -- [2017] FWC 2392 12 [42] There was no evidence led in the proceedings from which it might properly be inferred that during the negotiations for the Agreement those bargaining for the Agreement had a common assumption or understanding as to the constituent components of that which was required by the phrase “counter sign T1 tasks”. Nor is there evidence from which objective facts might be identified to establish that constituent components of that which is required by that phrase. [43] Moreover, even if there had been such evidence, that evidence would also need to be approached with a degree of caution. As should be apparent from the discussion above, while the Agreement was the subject of bargaining between BACR and the AMWU, it was ultimately a ‘tripartite document between a body of employees, a corporation with numerous officers and an industrial association’. In these circumstances evidence as to what, if anything, the employees covered by the Agreement (and who voted to approve it) were told about that provision (either during the course of the negotiations or during the pre-approval stages of the agreement making process as required by s.180(5) of the Act) may be of more assistance than evidence of the bargaining positions taken by an employer, its bargaining representative or an employee bargaining representative during bargaining for an agreement. [44] One then needs to focus on the provisions at issue read in the context of the Agreement as a whole. The position description of an AT2 begins with a “job summary” which provides, inter alia, that an AT2 “works beyond the level of Aerospace Tradesperson 1”. This lends support to the proposition that the “accountabilities” or duties contained in the job description are accountabilities or duties which an AT1 does not discharge. So much is also clear from the introductory words under the heading “Accountabilities” which provide that an “Aerospace Tradesperson 2 at BACR involves duties of Aerospace tradesperson 1 and the following”. [45] It therefore seems clear that the accountability or duty that an AT2 “counter sign T1 tasks . . .” is not a duty that is to be carried out by an AT1 employee. These accountabilities or duties are therefore additional to those carried out by an AT1 employee. [46] There is no suggestion that the word “countersign” carries some technical meaning and should not be construed according to its ordinary meaning. Grammatically, the reference to “counter sign” in the AT2 job description is used as a verb. Relevantly, the ordinary meaning of the verb “countersign” is “to sign (a document) in addition to another signature, especially in confirmation or authentication.”65 [47] The ordinary meaning of “countersign” therefore does not comfortably fit with the suggestion in the evidence of Mr Wibawa that this accountability was merely a reference to him using an approval code for which he held authority but which another AT1 did not have. [48] The accountability seems clearly to contemplate an AT2 confirming or authenticating by countersigning work which has been signed off by an AT1. To that extent, I agree with BACR’s contention that this accountability involves a second level of verification. This is consistent with the ordinary meaning of “counter sign” read in the context in which it is used in the job description. 65 Macquarie Australia's National Dictionary - Concise Dictionary Fifth Edition. -- 12 of 21 -- [2017] FWC 2392 13 [49] As a general principle, all words in the Agreement should prima facie be given some meaning and effect. As earlier noted, the assessment tool for advancement to the AT2 classification is contained in Attachment 2 to Appendix 4 of the Agreement and sets out a requirement as to an “IN1 code stamp”. The IN1 code stamp is not a product of bargaining as such but rather it is a product of BACR’s quality procedures which include procedures for the certification of authorised personnel. That document describes, inter alia, the IN1 code by reference to the prerequisite authorisation levels, the assessment criteria, the tasks authorised and the mandatory training modules that are required for certification of authorised personnel to use the IN1 stamp code66 as follows: [50] The IN1 stamp is therefore a verification and inspection qualification tool, which relevantly under the Agreement, is within the province of the duties to be undertaken by an AT2. If it were otherwise, there seems little point is including reference to it in the assessment tool. [51] I agree with the construction advanced by BACR. The IN1 code is a verification and inspection qualification. It is part of the assessment for reclassification to an AT2. Counter- sign means a second signature to signify confirmation or authentication. Counter signing AT1 tasks is an AT2 function or responsibility. The application of an IN1 code stamp by an AT2 when required seems therefore to fall within the counter signing accountability. [52] As stated above, a matter that is assessed is whether an employee applying for reclassification has successfully completed the required quality modules, awarded and uses the “IN1 code stamp” within 3 months of being reclassified. It is not in dispute that Mr Wibawa does not hold an IN1 code stamp. On the face of the materials, Mr Wibawa has not made any attempt or taken any step to complete all of the prerequisite modules in order to gain an IN1 code stamp authorisation. Mr Wibawa’s application was made in July 2014 and a response was provided to him on 5 March 2015. Within that period, Mr Wibawa had ample time to complete the necessary modules and obtain the IN1 code stamp authorisation. There is no evidence that, since 5 March 2015, Mr Wibawa has taken any step to complete prerequisite training modules. The AMWU submits that BACR has been “actively trying to prevent”67 Mr Wibawa being reclassified and in essence have held him back from completing the modules.68 I reject this submission as no probative evidence was led by the AMWU to support it and the proposition was not put to any of BACR’s witnesses. [53] Furthermore, that other AT2 classified employees may not have an AT2 stamp code qualification, or the suggestion that employees have in the past been permitted to be reclassified, even though these employees may not have completed the requisite training modules for a D stamp or an IN1 stamp, does not result in a right vested in Mr Wibawa under 66 Exhibit 12, in Annexure PS – 1 at p.12 67 PN2859. 68 PN2854 – PN2858. -- 13 of 21 -- [2017] FWC 2392 14 the Agreement to be reclassified. It speaks only to the possibility of an inconsistent application of an antecedent agreement, not to a right to be reclassified under the current Agreement. [54] The AMWU tendered a photograph of the tradespeople taken in December 2004.69 A great deal of time was spent during the hearing eliciting evidence about the classifications occupied by people in the photograph. The AMWU says that the photograph indicates that historically the path from a 103% classification to a 110% classification has been relatively easy for employees to obtain. It further says that contrary to the Respondent’s case, historically there has been a large number of AT2s in proportion to AT1s and that in the past it was easier to be reclassified to an AT2. [55] I doubt that these propositions can be properly inferred from the photograph or the evidence relating to it. But even if these inferences could be drawn, they are of little assistance in ascertaining whether Mr Wibawa was and is meeting the accountabilities of an AT2. Ultimately, that it may previously have been easier to be reclassified and that there had previously been a larger proportion of people classified as AT2s, does not result in a right vested in Mr Wibawa under the Agreement to be reclassified. As I have earlier indicated, such evidence may speak to an inconsistent application of an earlier agreement but provides no assistance in resolving this dispute. [56] It follows that Mr Wibawa does not presently (and cannot) carry out the first accountability inherent in the AT2 classification as set out in the job description. Assisting Team Leaders in carrying out assessments of work to be carried out by Tradesperson 1 employees [57] It does not appear to be in dispute that currently there is no real distinction between the work required of the differing AT levels at BACR and so there is no distinction between work assigned to an AT2 as compared to an AT1.70 Mr Wibawa’s evidence is that he sometimes assists the team leader at the initial inspection stage where he has specialised knowledge71 and further that he assists the team leader in handing over work to other employees as and when required, for example when he is going on leave.72 [58] BACR says that Mr Wibawa does not perform any of the accountabilities over and above the level of all other AT1s.73 Mr Wibawa acknowledged this during cross- examination.74 [59] BACR relies on the common standards outlined at Attachment 2 to Appendix 4 of the Agreement which provides “Assist Team Leads to organise work plans and resources”, and says this requires for example, being able to prioritise and make suggestions to utilise resources to achieve maximum efficiency. BACR submits that on Mr Wibawa’s evidence, he only undertakes basic estimating and that he does not demonstrate any assistance in 69 PN1011. 70 Exhibit 2 at [45], PN1577, PN2463. 71 Exhibit 2 at [46]. 72 Ibid at [47]. 73 PN3175. 74 PN369 – PN370. -- 14 of 21 -- [2017] FWC 2392 15 organising work plans.75 I agree with BACR’s submission. There was a paucity of evidence lead by the AMWU directed to this accountability and I am not satisfied on the evidence that Mr Wibawa has been or is meeting the accountability. Assisting in the ongoing Internal Quality Auditing of BACR processes [60] Mr Wibawa’s evidence is that he is involved in ongoing quality auditing in the following ways76: a) Inspection of other AT’s toolboxes; b) Involvement in safety and quality “walk arounds” which include the inspection of the building and facilities c) When subject to an external investigation or audit assisting by explaining my jobs and relevant processes including applicable quality systems; d) Attending on going quality training for example training for Repair Station Quality Procedures; e) Identification [sic] any quality issues and reporting them back to the team leader; f) Reporting of out of date equipment etc [61] On cross-examination, Mr Wibawa conceded that the above are expected of all tradespersons.77 The AMWU says that Mr Wibawa has taken part in the quality training and concedes that Mr Wibawa does not have a lot of activity that specifically falls into this category78 but it says that every position description has holes and that an individual may not necessarily perform one to two of the duties in their position description.79 [62] BACR relies on Mr Skehan’s statement at [42] to [44] wherein he explains that BACR has an auditing team that conducts audits in accordance with an audit plan.80 He says that an AT2 might assist with that formal auditing process by, for example, administering an audit questionnaire as part of that audit plan. Mr Skehan’s evidence is that currently, none of the AT1s or AT2s assists BACR with auditing. BACR also relies on the evidence of Mr Wibawa on cross-examination where he confirms that the above listed tasks are tasks expected of all tradespersons.81 [63] It seems to me that this accountability is directed at an AT2 providing identified assistance to “ongoing Internal Quality Auditing of BACR processes”. It is not directed to other forms of quality auditing. The matters identified by Mr Wibawa do not speak to this accountability and consequently on the evidence I am not satisfied that Mr Wibawa has been or is meeting the accountability. 75 PN3191. 76 Exhibit 2 at [48]. 77 PN377. 78 PN3004. 79 Ibid. 80 PN3176. 81 PN377. -- 15 of 21 -- [2017] FWC 2392 16 Providing direction and instructions to assist in the development of operators & Support/mentoring of tradespersons when required [64] Mr Wibawa says that in the course of his work he has regularly been called upon to assist in the development and mentoring of employees. He was asked to show a new employee “the ropes” and bring the new employee up to speed with BACR’s processes and protocols.82 Mr Wibawa’s evidence is that the training of employees can take place over a period of a few months.83 In Mr Gamini Chandrasekara’s witness statement (a current employee of BACR) he says that “Mr Wibawa showed me how to perform much of the necessary work and helped me in a variety of different ways. Essentially Mr Wibawa acted as my mentor.”84 [65] Mr Nimal Vidyaratne, a current employee at BACR says that he has witnessed Mr Wibawa assisting and mentoring other employees at BACR, particularly new employees or employees who are unfamiliar with the particular types of work.85 The AMWU also relies on the evidence contained in Mr Wy Bong Chung’s witness statement, he too is a current employee at BACR. His evidence is that he has also witnessed Mr Wibawa guiding and mentoring other employees in their work from time to time and assisting in their development.86 He goes on to say that this is particularly so if the employee is new or inexperienced in the work being performed.87 However, Mr Chung says that his observations are not unique to Mr Wibawa and that all AT’s work in this manner.88 It also relies on the evidence contained in Mr Warren Thyer’s witness statement. His evidence is that Mr Wibawa “helped me in carrying out the work I was required to perform”89 and “supervised some of my work” because Mr Thyer did not hold the necessary level of BACR’s internal approval codes.90 The majority of the above evidence is unchallenged. [66] Mr Wibawa conceded that both AT1s and AT2s may be told to assist with new employees.91 [67] Lastly, the AMWU relies on Mr Torcello’s evidence on cross-examination. The relevant extract of the transcript is reproduced here: “Does Mr Wibawa supervise other employees?---What level of supervision are we referring to? What level of supervision are we talking about? I will withdraw that. You would agree with me that he supports and mentors other aerospace tradespeople?---I have no objective evidence of that sort, no, no. You don't agree with that?---No. 82 Exhibit 2 at [53]. 83 PN808 – PN810. 84 Exhibit 6 at [5]. 85 Exhibit 4 at [11] – [13]. 86 Exhibit 5 at [13]. 87 Ibid. 88 Ibid at [15]. 89 Exhibit 7 at [9]. 90 Ibid at [10]. 91 PN381 – PN383. -- 16 of 21 -- [2017] FWC 2392 17 Have you read the other witness statements that were filed with the AMW's material?---No, I only have mine. Your attention wasn't drawn to the witness statements of Mr Chong?---No. You never saw that witness statement. All right, then. Just a minute?---Sure. Mr Chung in his witness statement, and I'm happy for you to refer to it if you need to - I'm not sure, it should be in that folder of witness statements I gave you. I'm not sure which tab it is?---Three. Tab 3. Have you got that there?---Yes, tab 3. He says at paragraph 13: I can confirm that I have witnessed Gede – Mr Wibawa: Guiding and mentoring other employees in their work from time to time and assisting in their development. This is particularly so if the employee is new or inexperienced in the work being performed. Do you dispute that?---I wouldn't dispute it. You wouldn't dispute that?---No, no. The other witnesses, if I might summarise, essentially say the same thing. MS FIRKIN: There were I think two other witnesses. MR VROLAND: We will go through them MS FIRKIN: You don't have to, not all of them. MR VROLAND: But just to be clear, you agree in respect of what Mr Chung says? It's all right. I withdraw that question. You have already answered the question. Mr Vidyaratne, I think if you go back one statement?---A different tab? Yes, I am not sure what the tabs are. There is a contents page at the front?---Tab 2. He says it at paragraph 13 of his statement as well: I have also witnessed Gede assisting and mentoring other employees at BACR, particularly new employees or employees who are unfamiliar with particular types of work. If those employees do not hold the relevant approval code, Gede will sometimes sign off on their work. You would agree with all of that?---Yes, I would agree with that, yes. [68] BACR relies on the common standards outlined at Attachment 2 to Appendix 4 of the Agreement which provides to “train others” as says this requires for example, structured on the job training and/or (classroom) by using a training checklist or shop aids. It is not in -- 17 of 21 -- [2017] FWC 2392 18 dispute that Mr Wibawa has not provided structured on the job training or classroom training by using checklists or shop aids.92 Although this accountability might include formal instruction of the kind contemplated by BACR. I do not consider it is confined only to that kind of instruction. Instruction training and mentoring of the type described by Mr Wibawa is in my view, capable of falling within the accountability, and so on the evidence, I am satisfied that he has been and meets aspects of this accountability. Undertaking basic estimating tasks – time and materials [69] Mr Wibawa says that as part of the workflow process discussed at [10], the team leader will often ask Mr Wibawa to estimate a time for a particular job. Mr Wibawa says that this happens on a regular basis.93 It is not in dispute that Mr Wibawa estimates the time for his own portion of work.94 The AWMU relies on the evidence of Mr Skehan on cross- examination. The relevant extract of the transcript is reproduced here: “We were talking before about the type of activities Mr Wibawa might undertake when he receives work onto the shop floor. You don't dispute that he would undertake some basic estimating tasks in respect of those things. That's true, isn't it?---Not basic estimating tasks in relation to the whole job. We ask for his buy-in for the elements of the job that he's directly responsible for, to ensure that we don't put unnecessary stresses on him. Yes, but he does have to estimate the time and materials that are required?---He estimates the time for his own portion of the work. He might be required to estimate the materials that he's required to use to complete the job. That's true, isn't it?---The provision of materials is a job of the team leads. So, you're saying it is not the role of AT1 employee, it's not the role of an AT1 employee, someone such as Mr Wibawa, to estimate the materials that are required for work at BACR?---No.”95 [70] BACR says that Mr Wibawa is not responsible for putting together a work planner for an entire job and relies on Mr Wibawa’s evidence on cross-examination during which he conceded that both AT1s and AT2s have input in to estimating.96 BACR relies on Mr Skehan’s evidence which is that “I wouldn't say he plans his tasks very well. I'd say he participates in estimating that his own elements of the work, and he's given a plan that he is to work to, then the work instructions that he flows through. So, to a large degree, it's not open to interpretation. He's got the work instructions that break out how he's got to do, what he's got to do and he's got the work planner that identifies where he needs to be at, at certain stages.”97 [71] I consider that this accountability requires more than simply estimating one’s own time and material costs for that portion of work forming part of the whole. That is something 92 PN384 – PN393. 93 Exhibit 2 at [50] – [52]. 94 PN1390. 95 PN1389 – PN1392. 96 PN401 – PN407. 97 PN1449. -- 18 of 21 -- [2017] FWC 2392 19 which seems uniformly to be undertaken.98 As earlier indicated, the accountabilities listed in the job specification are additional to AT1 duties. That which Mr Wibawa describes is no more than that undertaken by all tradespeople. It follows that on the available evidence, he does not meet this accountability. Sign off documentation/certification of own task that have been performed [72] Mr Wibawa says that this occurs daily and he is required as part of his work to sign off or stamp every job according to the approval codes.99 BACR says that this is a common accountability for both AT1s and AT2s and it submits that it relates to Mr Wibawa authorising work that he has performed or that another employee has performed with the Repair Station stamp (RS stamp).100 [73] It is clear that the accountability appears in both the position description of an AT1 and that of an AT2. No clear explanation has been given about the distinction, but there must be one, otherwise the specific reference to the accountability in the AT2 position description would be otiose, since it would already be covered by the introductory words that an AT2 “involves duties of Aerospace tradesperson1”. There is insufficient material before me to conclude that Mr Wibawa meets this accountability, in part because the requirements of the accountability are not clear. It is not suggested that Mr Wibawa does not sign off or certify his own AT1 tasks. The issue raised by the accountability seems to me to be whether he signs off or certifies tasks that are specific to an AT2. Presumably, the verification tasks performed by an AT2 employee would be one such task. [74] As should be apparent from the foregoing, I am not persuaded on the evidence that Mr Wibawa has been nor is meeting the AT2 accountabilities as set out in the position description. Was there a business need? [75] BACR maintains that clause 5.2.2.1 in its application to progression applies only when an employee is performing a role of a higher classification because of a business need, and not merely because an employee holds competencies which the employee is not required to utilise in the regular course of that employee’s work.101 It submits that there has been insufficient work at BACR to justify the existing AT2s to perform their additional accountabilities in this role.102 [76] BACR relies on the unchallenged evidence of Mr Murray Brabrook, General Manager of the Integrated Services and Support Division in Brisbane of BDA. His evidence deals with primarily the problems with the performance of the business at around the time the Agreement was entered into, the fact that the business was not earning a profit103 and its highest costs were associated with labour.104 His evidence is that the BACR business has 98 PN404 – PN407. 99 Exhibit 2 at [56]. 100 PN3192. 101 PN45. 102 PN3155. 103 Exhibit 11 at [23] – [24]. 104 Ibid at [33]. -- 19 of 21 -- [2017] FWC 2392 20 recently undertaken initiatives to retain current work for longer periods in an attempt to make the business more sustainable.105 He also says that if BACR is unable to continue to increase its profitability, it is possible that Boeing Company will decide to close the business.106 However, he says that if new opportunities prove successful, management at BACR would be looking to recruit approximately 4-6 new AT1s in the next 2 to 4 years. He says that this should create a need for more supervisory and management level jobs (AT2s and Team Lead positions).107 [77] BACR also relies on the evidence of Mr Torcello at [31] which too was not challenged. He says: “Since BACR’s employees, the AMWU and BACR management agreed to the revision of the AT1 and AT2 position descriptions in 2013, BACR has not been busy enough to require all of the existing AT2 employees to perform the additional duties, which are associated with their positions. As a consequence, AT2 employees have been performing the same duties as AT1 employees in large part.” [78] The AMWU submits that the relevant classification provisions do not require an applicant to demonstrate a business case as part of the reclassification application.108 It says that although BACR may have legitimate reasons for cutting costs and improving productivity and efficiency, it does not waive compliance with the Agreement and in particular, the reclassification provisions.109 The AMWU says that Mr Wibawa has been employed with BACR for 16 years and has received a number of merit awards for performance.110 It says that he has received his studying qualifications and was singled out and told by his manager at the time that he would be reclassified to an AT2.111 Ultimately, the AMWU says that if Mr Wibawa is found to be performing the work at an AT2 level, then a business case exists and if Mr Wibawa is not found to be performing the work, then a business case does not exist and he would not be classified.112 [79] Whilst, it is strictly unnecessary for me to resolve this controversy, the AMWU’s submission as framed must fail since I am not persuaded for the reasons already given, that Mr Wibawa is performing work at an AT2 level. 105 Ibid at [27]. 106 Ibid at [28]. 107 Ibid at [38]. 108 PN3103. 109 PN3106. 110 PN3124. 111 PN3108. 112 PN3106. -- 20 of 21 -- [2017] FWC 2392 21 Conclusion [80] For the reasons given, Mr Wibawa was not and has not been performing the accountabilities required of an AT2. It follows that he was not entitled to be reclassified and his reclassification application was properly refused. [81] The dispute is determined accordingly and no orders are necessary. DEPUTY PRESIDENT Appearances: Mr D Vroland, for the AMWU. Ms J Firkin, Counsel for Boeing Australia Component Repairs Pty Ltd. Hearing details: 2017. Melbourne. February 27 & 28. March 1. Final written submissions: AMWU Transcript References Submissions dated 10 March 2017. BACR Transcript References Submissions dated 8 March 2017. Printed by authority of the Commonwealth Government Printer <Price code C, PR592558> -- 21 of 21 --