1 Fair Work Act 2009 s.739—Dispute resolution Lisa-Michelle Robinson v Surf Coast Shire Council (C2023/5907) COMMISSIONER PERICA MELBOURNE, 10 APRIL 2024 Alleged dispute about any matters arising under the enterprise agreement and the NES [1] On 4 October 2023, Ms. Lisa-Michelle Robinson (the Applicant) who was then a project manager employed by the Surf Coast Shire Council (the Respondent) filed an application under s 739 of the Fair Work Act to deal with a dispute over her classification (and other matters) through the dispute settlement procedure in clause 8 of the Surf Coast Shire Council Enterprise Agreement No 11 (the Agreement). [2] For the following reasons I have decided to resolve this dispute by: • Answering the question: “Should the Applicant have been classified as a Band 7 under the Agreement at the date of the application to the Commission?”, with the answer: “on the material before me, no”; and • Making a recommendation to the Respondent on the manner in which it deals with future internal classification disputes. Procedural history [3] The Commission attempted to conciliate the matter on 18 October 2023. Following the conciliation, the Commission issued Directions on 25 October 2023. [4] The matter was listed for mention on 21 December 2023 after receipt of submissions of fact and law and other material from each of the parties. At that mention it was agreed the matter would be decided on the papers. [5] By an e-mail dated Thursday 18 January 2024, the Respondent informed the Commission the Applicant had resigned from her employment with the Respondent effective on 29 January 2024. [6] I sought the views of the parties on how the resignation affects any decision I made in this matter. The Applicant wished the matter to proceed to a decision. The Respondent indicated that it had “no objection” to that course. [2024] FWC 927 [Note: a correction has been issued to this document and the changes have been incorporated in this version at [94] and at Annexure 1] DECISION [2024] FWC 927 2 BACKGROUND [7] On 13 September 2004, the Applicant was employed by the Respondent.1 [8] On 12 June 2018, the Applicant was appointed to the role of Project Manager – Capital and Operational Projects. In that role, she was initially classified as a Band 5 under the Agreement.2 [9] From 16 November 2018, the Applicant was paid higher duties at a rate of 50% in accordance with the Agreement until 29 August 2019 when she was required to take on some more complex project requirements which saw her paid at Band 6 Level A.3 [10] On 9 October 2019, the Applicant was advised that her amended Position Description (“PD”) was assessed as a Band 6. The reclassification was backdated with an effective date of 29 August 2019. The 2019 amended PD was the last agreed PD between the Applicant and the Respondent. [11] Since 2019, the Applicant has requested a review of her PD in order to be reclassified as a Band 7 employee under the Agreement. On each occasion the request was denied. [12] The continued refusal by the Respondent to reclassify the Applicant at a Band 7 lead to the Applicant making this application. THE QUESTION FOR DETERMINATION OF THIS DISPUTE [13] The parties did not have a common position on the question I should answer to resolve the dispute. [14] In her Form F10, the Applicant sought the following relief:4 • A recommendation the Respondent reclassify her position to a Band 7; • A binding determination she be reclassified as Band 7; • A determination the matter be referred to the relevant external classification Committee; • Relief consistent with the Agreement provision on Equal Pay for Equal Work; • Higher Duties to be paid; and • An “acknowledgement that senior Management’s lack of action or response” to her request for her PD to be reviewed. [15] The Applicant made further submissions on the relief she sought as follows: “My PD should be reviewed by as required by the Agreement. I consider the banding of my PD should be the same as my colleagues who are PMs. doing the same range of work as I do. The Commission could make a determination on the basis of the material 1 Digital Commission Book (from here referred to as “DCB”) at p. 45. 2 DCB at p. 126. 3 Ibid. 4 DCB at pp 17-18 [2024] FWC 927 3 presented to it, or I could have the banding of my PD reviewed as prescribed by the Agreement, by an independent group, in consultation with me.5” [16] The Respondent in its submissions proposed I exercise my powers of arbitration pursuant to clause 8.4.1.2 of the Agreement in respect of the following question: “What is the correct classification in the position performed by the Applicant, that being “Project Manager – Capital Operational Projects when considered against the classification definitions contained in Appendix A of Part B of the Enterprise Agreement”6 [17] The fact the Applicant has left the employment of the Respondent renders any order I might make in relation to a classification review impractical and lacking utility. [18] The more practical method of resolving this dispute is simply to answer the question: “Should the Applicant have been classified as a Band 7 under the Agreement at the date of the application to the Commission?” JURISDICTION [19] Clause 8 is the dispute settlement procedure in the Agreement. It confers a right of arbitration at clause 8.4.1.2. No provision of the Agreement is excluded from arbitration. [20] The Respondent did not take issue with the power of the Commission to resolve the dispute generally. It did question some of the relief sought by the Applicant in her Form F10 on the basis that it may be an exercise in judicial power. [21] The fact the Applicant resigned after the proceeding had been commenced does not affect the jurisdiction of the Commission. I adopt the reasoning of the Full Bench of Fair Work Australia in ING Administration v Jajoo7 (Jajoo). In that decision, the majority of the Full Bench said: “We accept that a single person dispute which arises for the first time after the termination of employment is not a dispute between an employer and an employee. However, many disputes will arise while employment exists and continue after the termination of employment. In such a case, when the dispute arises, it is a dispute between an employee and an employer…”8 [22] The majority of the Bench went on to observe: “In the circumstances of this matter, Mr. Jajoo sought to progress a dispute under the relevant dispute settlement procedure while still employed. It was unresolved when his employment was terminated. We do not believe that there is a sound basis for construing the terms of s 170LW in a way which would deprive him of the right to progress his 5 DCB at p. 53. 6 DCB at p. 114. 7 A decision of Watson VP, Acton SDP and Cargill C in ING Administration Pty Ltd v. Jajoo, Ramsin, PR974301. 8 Ibid at [38]. [2024] FWC 927 4 dispute to other levels of the procedure, including to the Commission, after the termination of his employment.”9 [23] Jajoo was decided under s170LW of the Workplace Relations Act 1996. Subsequent authority has held that the reasoning of the Full Bench in Jajoo continues to apply in relation to disputes brought under s 739 of the Act.10 [24] There is also a question whether making a determination on a classification dispute, in circumstances where the applicant is no longer an employee, is an exercise of judicial power in so far as it is a declaration of rights under the Agreement without any prospective element. [25] The question of judicial and arbitral power has a large and complicated jurisprudence which I will not rehearse here.11 It is clear some of the relief sought by the Applicant would have been a prohibited exercise of judicial power (e.g. “Higher duties to be paid” and “making a binding determination she be classified as a Band 7”). [26] In dealing with this dispute, the Commission is not undertaking an exercise of judicial power but is exercising a power of private arbitration. That power derives from the parties’ agreement to submit their differences for decision by a third party. The resultant determination is not binding of its own force. Its effect depends on the law which operates with respect to it.12 During an arbitration the Commission “may legitimately form and act upon opinions about legal rights and obligations as a step in the exercise of its own functions and powers”.13 [27] The heart of this dispute stems from the long-standing failure of the parties to agree on the Applicant’s classification. This includes a disagreement on whether appropriate reviews were conducted. Resolution of that dispute will ascertain and declare (but will not enforce) what ought to have been the respective rights of the parties in relation to each other, in my opinion as arbitrator. RELEVANT PROVISIONS OF THE AGREEMENT [28] Clauses 20 and 21 deal with position descriptions and annual classification reviews: 20. POSITION DESCRIPTION 20.1 Each employer will provide to each employee a position description which will clearly identify as a minimum: • the accountability and extent of authority of the position; • the level of judgement and decision making skills required; • specialist skills and knowledge required to undertake the duties of the position; • managerial skills; • interpersonal skills; • qualifications and experience required for the position. 9 Ibid at [41]. 10 Sue-Ellen Fairall v St George & Sutherland Community College Inc. [2012] FWA 8847 at paragraph [25]. 11 See the decision of Booth C in MUA v. Bechtel Constructions (Australia) Pty. Ltd [2013] FWC 2039. 12 CFMEU v. AIRC (2001) 203 CLR 645 [30]-{32] 13 SDA v. Big W Discount Department Stores PR924554 [23] [2024] FWC 927 5 20.2 The position description will be reviewed by the employer in consultation with the employee concerned at least annually. 21. ANNUAL REVIEW 21.1 Employees bands 1 to 8 only 21.1.1 An annual review will be undertaken by the employer for all full-time and part-time employees. Provided that any employee who has had an absence of paid leave in excess of 3 months in aggregate or any unpaid leave in the preceding 12 months, shall have his/her assessment delayed by the period of such absence. 21.1.2 The review will be confidential and comprise as a minimum the following: • a review of the level within a Band or classification level; and • the Band or classification level having regard to the classification definitions contained in Appendix A - Classification definitions of this award; • reference to the relevant award dispute settling procedures if necessary; • access by the employee concerned to any formal review documentation upon request. 21.1.3 Progression of an employee from one level to the next within a Band will not be automatic but subject to this clause will be dependent upon the achievement of all of the following: 21.1.3(a) the acquisition and satisfactory utilisation of new or enhanced skills if required by the employer and as is determined in accordance with any Staff Development Scheme; 21.1.3(b) the meeting of established performance objectives as determined in accordance with any Staff Development Scheme; 21.1.3(c) satisfactory service over the preceding twelve months. 21.1.4 … 21.1.5… [29] Clause 21.1 provides the following in relation to classification and minimum rates of pay: 22.1 Employees bands 1 to 8 [2024] FWC 927 6 22.1.1 The following minimum weekly rates of pay will be paid to employees as set out in Appendix 1. 22.1. Each employer will grade its employees in accordance with the classification definitions and gradings contained in Appendix A - Classification definitions of this award. 22.1. The employee or appropriate union will have the right to request a Classification Committee review his/her classification if it is considered to be incorrect. 22.1.3(a) Such committee will consider all relevant facts and may make a recommendation to the respondent employer. 22.1.3(b) A local Classification Committee may consider the matter and will consist of an equal number of employer representatives and union or nominated employee representatives. 22.1.3(c) Where no agreement can be reached, the Dispute and Grievance resolution processes Part A, Section 8) will be utilised. 22.1.3(d) ... [30] The beginning of Appendix A contains the following note: APPENDIX A – CLASSIFICATION DEFINITIONS NOTE (a) All aspects of the following definitions must be taken into consideration when classifying individual positions and typically individual positions will meet the criteria under each heading for classification into that Band. [31] The classifications definitions for the disputed classifications, Bands 6 and 7, are as follows: 6. EMPLOYEE BAND 6 A position in this Band has the following job characteristics: 6.1 Accountability and extent of authority 6.1.1 Positions in this Band may manage resources and/or provide advice to or regulate clients and/or provide input into the development of policy. 6.1.2 In positions where the prime responsibility is for resource management, the freedom to act is governed by clear objectives and/or budgets with a regular reporting mechanism to ensure adherence to goals and objectives. The effect of decisions and actions taken at this level is usually limited to the quality or cost of the programs and projects being managed. [2024] FWC 927 7 6.1.3 In positions where the prime responsibility is to provide specialist advice to clients or to regulate clients, the freedom to act is subject to regulations and policies and regular supervision. The effect of decisions and actions taken in this Band on individual clients may be significant but it is usually subject to appeal or review by more senior employees. 6.1.4 Few positions in this Band are primarily involved in policy development. Where they are, the work is usually of an investigative and analytical nature, with the freedom to act prescribed by a more senior position. The quality of the output of these positions can have a significant effect on the process of policy development. 6.1.5 Many positions in this Band would have a formal input into policy development within their area of expertise and/or management. 6.1.6 … 6.2 Judgement and decision making The nature of the work is usually specialised with methods, procedures and processes developed from theory or precedent. The work may involve improving and/or developing methods and techniques generally based on previous experience. Problem solving may involve the application of these techniques to new situations. Guidance and advice are usually available. 6.3 Specialist knowledge and skills 6.3.1 Typically, these positions require proficiency in the application of a theoretical or scientific discipline, including the underlying principles as distinct from the practices. 6.3.2 All positions require an understanding of the long term goals of the functional unit in which the position is placed and of the relevant policies of both the unit and the wider organisation. 6.3.3 Some positions in this Band, particularly those where the primary function is to manage resources, require a familiarity with relevant budgeting techniques. 6.4 Management skills 6.4.1 These positions require skills in managing time, setting priorities, planning and organising one’s own work and where appropriate that of other employees so as to achieve specific and set objectives in the most efficient way possible within the resources available and within a set timetable. 6.4.2 Where management of employees is part of the job, the position requires an understanding of and an ability to implement personnel practices including those related to equal employment opportunity, occupational health and safety and employees development. [2024] FWC 927 8 6.5 Inter-personal skills 6.5.1 These positions require the ability to gain co-operation and assistance from clients, members of the public and other employees in the administration of defined activities and in the supervision of other employees. 6.5.2 All employees in this Band must also be able to liaise with their counterparts in other organisations to discuss specialist matters and with other employees in other functions in their own organisation to resolve intra-organisational problems. 6.6 Qualifications and experience 6.6.1 The skills and knowledge needed for entry to this Band are beyond those normally acquired through tertiary education alone. 6.6.2 Typically, they would be gained through completion of a degree or diploma course with some relevant experience. They might also be acquired through lesser formal qualifications and substantial relevant experience, or through substantial relevant experience in the field of specialist expertise. 7. EMPLOYEE BAND 7 A position in this Band has the following job characteristics: 7.1 Accountability and extent of authority 7.1.1 Positions in this Band may manage resources and/or provide advice to or regulate clients and/or participate in the development of policy. 7.1.2 In positions where the prime responsibility is for resource management, the freedom to act is governed by policies, objectives and budgets with a regular reporting mechanism to ensure achievement of goals and objectives. Decisions and actions taken at this level may have a significant effect on the programs or projects being managed or on the public perception of the wider organisation. 7.1.3 In positions where the prime responsibility is to provide specialist advice to or regulate clients, the freedom to act is subject to professional and regulatory review. The impact of decisions made or advice given may have a substantial impact on individual clients or classes of clients. 7.1.4 In positions where the prime responsibility is in policy formulation, the work may be of an investigative, analytical or creative nature, with the freedom to act generally prescribed by a more senior position. The quality of the work of these positions can have a significant effect on the policies which are developed. 7.1.5 All positions in this Band would have an input into policy development within their area of expertise and/or management. 7.1.6 … [2024] FWC 927 9 7.2 Judgement and decision making 7.2.1 These positions are essentially problem solving in nature. The nature of the work is specialised with methods, procedures and processes generally developed from theory or precedent. The problem solving process comes from the application of these established techniques to new situations and the need to recognise when these established techniques are not appropriate. Guidance is not always available within the organisation. 7.2.2 In positions where the prime responsibility is in policy formulation, the primary challenge will be intellectual and will typically require the identification and analysis of an unspecified range of options before a recommendation can be made. 7.3 Specialist knowledge and skills 7.3.1 These positions require proficiency in the application of a theoretical or scientific discipline in the search for solutions to new problems and opportunities. 7.3.2 Where the prime responsibility is in policy formulation, analytical and investigative skills are required to enable the formulation of policy options from within a broad organisation-wide framework. 7.3.3 An understanding is required of the long term goals of the wider organisation and of its values and aspirations and of the legal and political context in which it operates. 7.3.4 Knowledge of and familiarity with the principles and practices of budgeting and relevant accounting and financial procedures may be required. 7.4 Management skills 7.4.1 These positions require skills in managing time, setting priorities and planning and organising one’s own work and where appropriate that of other employees so as to achieve specific and set objectives in the most efficient way possible within the resources available and within a set timetable despite conflicting pressures. 7.4.2 In this Band, the position requires an understanding and an ability to implement personnel policies and practices including awards, equal opportunity and occupational health and safety policies, recruitment and selection procedures and techniques, PDs and employees development schemes. They would be also expected to contribute to the development and implementation of long term staffing strategies. 7.5 Inter-personal skills 7.5.1 These positions require the ability to gain co-operation and assistance from clients, members of the public and other employees in the administration of broadly defined activities and to motivate and develop employees. [2024] FWC 927 10 7.5.2 Employees in this Band must also be able to liaise with their counterparts in other organisations to discuss and resolve specialist problems and with other employees within their own organisation to resolve intra-organisational problems. 7.6 Qualifications and experience 7.6.1 The skills and knowledge needed for entry to this Band are beyond those normally acquired through tertiary education alone. 7.6.2 Typically, they would be gained through completion of a degree or diploma course with several years of subsequent relevant experience. They might also be acquired through higher formal qualifications either in the field of specialist expertise or in management, together with a shorter period of experience, or they might be acquired through lesser formal qualifications with extensive relevant experience. SUBMISSIONS OF THE APPLICANT [32] The Applicant asserts the “work she has been doing over the last 5 years is better described by Band 7 than by Band 6.14 In her view, “the work she performed was indistinguishable from the work done by all her Project Manager peers who she submits are all properly classified at Band 7.”15 She also submits that “she has been with [the Respondent] long enough to have a view of the nature of the work done by the various Project Managers that…there was no distinction between the PM role at Band 6 and the role of other PMs at Band 7.”16 Textual arguments based on the Descriptors for Band 6 and Band 7 [33] Part of her argument is based on a textual analysis of the descriptors in Clause 6 and 7 in Appendix A of the Agreement. On the basis of that analysis, she asserts that “Band 6 and 7 are largely in the same terms.”17 [34] The Applicant argues the distinctions between Band 6 and Band 7 criteria are largely “semantic” and “negligible”18 She provides indicative examples in support of this argument:19 • Clause 6.1.1 states that positions in Band 6 “…provide input into [sic] …” the development of policy”, while clause 7.1.1 states that positions in Band 7 “…participate in …” the development of policy; • Clause 6.1.3 provides Band 6 positions provide specialist advice “…to clients or to regulate clients” while clause 7.1.3 provides Band 7 positions provide specialist advice “…to or regulate clients”; • Clause 6.1.3 goes on to state that for Band 6 the “…effect of decisions and actions taken…on individual clients may be significant”, while clause 7.1.3 states that for Band 14 DCB at p. 15. 15 Ibid 16 DCB at p. 46. 17 DCB at p. 15. 18 DCB at p. 46. 19 DCB at pp. 46 and 47. [2024] FWC 927 11 7 the “…impact of decisions made or advice given may have a substantial impact on individual clients…”; • Clause 6.1.4 provides that for Band 6, “…the work is usually…” of an investigative nature while 7.1.4 provides that for Band 7, “…the work maybe…” of an investigative nature; • Clause 6.1.5 provides that for Band 6, “[m]any positions…would have a formal input …” into policy development while clause 7.1.5 provides that “[a]ll positions…would have an input …” into policy development, [35] She argues “there is nothing in the criteria applying either Band 6 or Band 7” that provides that “any of the nature, complexity, value, or risk profile of any projects has any bearing in distinguishing between Band 6 PDs and Band 7 PDs for program managers employed by the Respondent.20” The method of allocation of projects shows her work is indistinguishable from that performed by Band 7 Project Managers [36] The Applicant describes the process of project allocation to the Project Managers as follows: “Each year, the Manager Strategy and Program Delivery issues an email to all PMs requesting expressions of interest in each project scheduled for delivery in the following financial year. A program of projects is attached to the Manager’s email, with that program based on the projects listed in the [Respondent’s] draft budget for the particular year. All PMs respond to that email and indicate their interest.21 The program of projects does not indicate the complexity, risk profile or value of each project, and there is no restriction or limitation on a PM expressing an interest in delivering any project on the program.”22 [37] The Applicant provides an example of this process in an email distributed to PMs on 17 May 2023 seeking expressions of interest from the Manager Strategy and Project Delivery.23 This is followed by another requesting feedback on proposed project allocations for 2023/24.24 The Applicant also filed a spreadsheet which indicates the proposed allocations. The spread sheet has a column for each Project Manager (including the Applicant) and the projects which each had indicated they are “interested” in taking up in the 2023/4 year.25 [38] According to the Applicant, this allocation process establishes there is no differentiation between projects allocated to her and the Band 7 Project Managers. She submits:26 20 DCB at p. 47. 21 DCB at p. 48. 22 Ibid. 23 DCB at pp. 55 and 56. 24 DCB at pp. 57 and 58. 25 DCB at pp. 59 to 62. 26 DCB at p. 48. [2024] FWC 927 12 “The complexity, risk profile and value of projects are not dominant allocation criteria and are not relevant to whether one expresses interest or not. Complexity, risk profile and value are not mentioned in the 19 June 2023 email from the Manager Strategy and Program Delivery referred to above, let alone as being the primary criteria on which projects are assigned to a Band 6 or a Band 7 PM.” …, the complexity of most projects is not known until the project is underway, after the project has been allocated to a PM and with the involvement of the project owner, the project sponsor, other staff who have an interest and, on occasion, the involvement of community representatives if they have been included in the PCG). Thus, community involvement is an element which may affect the complexity of a project, irrespective of the value or the risk profile. Complexity may also change over time, with increased community involvement, latent site conditions, new technology arising, etc. Conversely, the value of a specific project (whenever it may become apparent) is no true indicator of its complexity or risk profile, either. A high value project may be relatively simple, as it is straightforward, widely desired by the SCSC and the community, and/or has been done many times before.” [39] The Applicant also filed a rolling program status report (PSR) which lists all projects being delivered by all staff across undertaken by the Respondent. Each project manager is required to provide a monthly update against each project they are responsible for delivering. The complexity and risk profile of each project is not quantified or recorded in the PSR. The PSR is provided each month to the Executive Management Team and Councillors for their information. The Applicant submits the PSR shows the range of projects allocated to each project manager and confirms there is no complexity or risk rating against any project.27 [40] Another reason the Applicant says her work as a Band 6 is not differentiated from a Band 7 is that final allocation of projects can be based on experience, past projects and the skill set of a particular project manager. She gives the example of the Road Safety Program and the Solar and Energy Efficiency program she has delivered for the past five years. She also submits she has frequently been allocated projects with a high level of community input, and that community involvement “may significantly increase a project’s complexity”.28 “Taking over” work from Band 7 employees [41] The Applicant also provides an example from August 2023 where she took over “some of the projects of Mr. Leigh Irvine, a Band 7 PM, who had resigned, and Ms. Karen Rice, another Band 7 PM who in the first half of 2023 went on extended leave”. She submits: “In both those instances, there was no question about my ability to take over those projects and I have been taking over the delivery of projects from departing or on leave Band 7 PMs consistently over the five years I have held position as a Band 6 PM.”29 Costing of Band 6 and Band 7 work 27 DCB at p. 48 28 DCB at p. 49. 29 Ibid. [2024] FWC 927 13 [42] She submits that all project managers, regardless of banding, are responsible for delivery of a range of projects and programs which range in value, complexity, risk profile and level of community/stakeholder interest. Further, all PMs are costed to each project at $125 per hour. She submits that “because all project managers are costed at the same rate also infers the work of each PM is of equal value” therefore supporting her argument that the distinction between Band 6 and Band 7 “cannot be substantiated in the current circumstances.”30 Projects undertaken by the Applicant [43] The Applicant also gives examples of projects she has delivered or was delivering at the time she referred the dispute to the Commission.31 These include projects which are new technology to the Respondent, such as: (a) the installation of solar panels over four years; (b) the installation of electric vehicle chargers (grant funded and community funded); and (c) road projects funded by ‘Roads to Recovery’. [44] She also relies on a road and drainage project in Sparrow Avenue, Anglesea which is being funded by a ‘Special Rate/Charge Scheme’ which is by its nature complex. A ‘Special Rate/Charge Scheme’ is the mechanism under the Local Government Act 1989 (Vic) which allows the Respondent to levy a special rate or special charge on property to defray expenses or to recover the costs of loans the Respondent may raise to carry out infrastructure or improvement works that will benefit the property charged. Projects may be roads, footpaths, drainage, or other improvements benefiting the charged property.32 [45] The preparation of a ‘Special Rate/Charge Scheme’ for the provision of works or services involves the Respondent advising potential beneficiaries and the public of the proposed scheme and its probable cost distribution on, as well as complying with the detailed regime prescribed in Part 8 of the Local Government Act 1989 (Vic). The Applicant notes she “is one of only a few staff members at the Respondent who has ‘Special Rate/Charge Scheme’ experience”, and that “no other PM at SCSC has ‘Special Rate/Charge Scheme’ experience”.33 Failure of the Respondent to follow process requirements for classification and PD reviews [46] The Applicant submits her failure to be reclassified through the various review obligations of the Respondent is an argument for her position to be reclassified. She submits “that if her PD had been reviewed as required by clause 20 of Part B of the Agreement she would have been reclassified as a Band 7 long before now.”34 She also stated: “there has not been compliance with the PD review process since I held my position in 2018.”35 30 Ibid. 31 DCB at p. 48. 32 DCB at p. 30. 33 Ibid. 34 DCB at p. 51 35 Ibid [2024] FWC 927 14 [47] The Applicant acknowledges her PD changed from a Band 5 to a Band 6 back in 2019. She notes: “But neither then, nor since, has my PD been the subject of a review of the independent type contemplated (indeed required) by the Agreement. I have not been consulted in connection with a review, as required by Clause 20.1.” The Applicant submits she was only notified of “outcomes. My PD has not been the subject of a genuine review, let alone annually, as required by the Agreement.36” [48] She submits her requests for a PD review in line with the Agreement have been met with responses by the Manager Strategy and Program Delivery. The Applicant submits the sort of independent review she asserts is contemplated by the Agreement “should not be conducted by the person who drafted essentially the duplicated criteria to be applied”.37 [49] The Applicant also claims the January 2021 review of her PD relied on by the Respondent which was “performed by a staff member of the lawyers for the Respondent lacks independence”. She goes on: “it certainly is not a PD review by an independent Classification Committee as contemplated by clause 22.1.3”.38 [50] She has a further argument that she had not been required to utilise new or enhanced skills under 21.3.3(a), to participate in a Staff Development Scheme, nor has she been provided with “established performance objectives”, which she argues “indicates that I must already possess the necessary skills and attributes and be performing to an adequate under Band 7.”39 SUBMISSIONS OF THE RESPONDENT The Applicant’s role at the Respondent and its context [51] The Respondent provided the following context of the operation of its Project Management Office (PMO) which delivers projects related to services delivered by the organisation. The projects vary in that they may be of a capital works nature, systems implementation or they may be community engagement related.40 [52] The Respondent has established the PMO. Within the PMO, the Respondent maintains:41 • three Project Manager Capital and Operational Projects (Band 6) (the Band 6 role); • four Project Manager Capital and Operational Projects (Band 7) (the Band 7 role); • one Senior Project Manager Program Performance Reporting (Band 7); • one Project Manager Major Projects (Band 8); and • one Coordinator Project Management (Band 8). [53] There are also a number of ‘Unit’ Project Managers (Band 6) based in their department across the organisation. They deliver a range of projects, only in their area of subject matter expertise and of a familiar and repeatable nature, usually as a minor fraction of their primarily 36 Ibid 37 Ibid 38 DCB at p. 77 39 DCB at p. 51 40 DCB at p. 119. 41 Ibid. [2024] FWC 927 15 service-based role. The exception is for asset renewal, which has two full-time project manager roles (Band 6).42 Submissions on classification history of the Applicant43 [54] The Respondent made the following submissions on the classification history of the Applicant from 2021. [55] There was an “independent review” of the January 2021 version of the PD by Ms. Elisa Kelly of Meerkin & Apel of the Respondent’s solicitors which determined that the Applicant was appropriately classified as a Band 6. The January 2021 version of the PD was not agreed to by the Applicant. [56] The 2019 version of the PD remained the agreed version of the PD on her HR file. According to the Respondent, there are no differences between the 2019 and 2022 versions of the PD. [57] In or about September 2022, the Applicant was advised that no PDs within the Respondent were currently being reviewed as a result of the negotiations for the Agreement. As part of the negotiations, the Respondent committed to review identified positions at Band 6 or above. [58] It is the Respondent’s position that the October 2019 version of the PD is an accurate reflection of the requirements of the role. The Applicant was correctly classified at Band 6 [59] The Respondent asserts the Applicant was, at all times, correctly classified as a Band 6. She was engaged to perform the role of Project Manager Capital and Operational Projects, which is a Band 6 role. It asserts it has always responded to the Applicant’s requests to be reclassified but its position was and is she was correctly classified as a Band 6. [60] The Respondent concedes that “many of the skills required may be common in the Band 6 and 7 PDs”, but notes “there is considerable difference in the complexity of the projects managed and the risks associated with them.” The Respondent submits the highest value project managed by the Band 6 role is $331,590 in the financial year 2023. For a Band 7 position, it is $3,800,000. Most projects managed by the Band 6 position are over $1,000,000 in value with the role never having responsibility for a project worth more than $400,000 in F23. The Band 7 positions manage projects in excess of $1,000,000.44 [61] The Respondent provides a list of projects that are assigned to Band 7 project managers exclusively and not to Band 6 project managers.45 This, it argues, rebuts the Applicant’s 42 Ibid. 43 DCB at pp. 126 and 127. 44 DCB at p. 125. 45 Ibid. [2024] FWC 927 16 argument that the work of the Applicant in her position was indistinguishable from Band 7 workers. [62] The Respondent refutes the assertions of the Applicant that she has been managing projects otherwise undertaken by employees engaged to perform the Band 7 role. In instances where that has occurred, the Respondent has authorised higher duties arrangements under the Agreement.46 [63] The Respondent also submits the argument of the Applicant that the funding source (Special Charge Scheme) of a particular project has an influence on the classification of a PD is “misguided”.47 Submissions on the process of project allocation within the PMO [64] The Applicant argues the process of project allocation shows there is little difference in the roles of Band 6 and 7 Project Managers. In answer to this argument, the Respondent says that “although there is an initial expression of interest process in relation to project allocation, the final allocation is determined by the Respondent, to ensure that complex, high risk projects are not allocated to the Applicant”. It argues the primary reason for creating the Applicant’s role is a reflection of the spread of projects and the reality that there is always a small amount of less complicated, lower risk projects that require project management support. The Respondent also contests the Applicant’s assertion that the Respondent is unable to assess the complexity and risk of a particular project before it is allocated.48 Method of classification to be applied under the Agreement [65] According to the Respondent, the task of classifying an employee under the Agreement is entirely determined by an examination of their PD. [66] The argument is the process of classification “entails the comparison of the duties and responsibilities listed under the six mandatory descriptors, contained in the PD, with the classification definitions contained in Appendix A of Part B of the Enterprise Agreement, in order to identify the classification that is most aligned with the requirements contained in the PD”.49 [67] According to the Respondent, the process of classifying a PD does not contemplate the skills, competencies, capabilities, qualifications and experience of the incumbent in the particular role.50 The six mandatory characteristics are: • Accountability and extent of authority; • Judgement and decision making; • Specialist skills and knowledge; • Management skills; • Interpersonal skills; 46 DCB at p. 122. 47 Ibid. 48 Ibid. 49 DCB at p. 120. 50 Ibid. [2024] FWC 927 17 • Qualifications and experience. [68] In support of its argument that the Applicant was appropriately classified as a Band 6, it provides an analysis performed by the Respondent. The analysis is of the Applicant’s PD, alongside analysis of the Project Manager Capital and Operational Projects (Band 7) PD. The analysis reflects the differing duties and responsibilities contained in the two roles.51 This analysis is said to confirm the Applicant was appropriately classified. [69] The Respondent also relies on the April 2021 “independent analysis” of the Applicant’s 2021 PD provided by Ms. Kelly of the Meerkin & Apel.52 That analysis concludes that the Applicant was appropriately classified as a Band 6.53 The text of descriptors in Band 6 and Band 7 show discernable differences [70] The Respondent refutes the Applicant’s arguments the classification definitions for Bands 6 and 7 are “largely the same” or “largely semantic”. The Respondent argues there are clearly distinguishable requirements at each classification. It gives an example of input into policy development that is deemed to be a lesser responsibility (Band 6) compared to the higher- level expectation that a Band 7 role “may be primarily required to formulate policy”. The Respondent argues that are “clearly identifiable increments in the level of duties and responsibilities across all of the classifications.”54 [71] The Respondent argues the duties and responsibilities in the classification definitions are more generic than to have specific reference to project management roles, there are relevant definitions that consider level of responsibility, level of autonomy, level of risk, level of qualifications and experience necessary to adequately perform the role.55 [72] According to the Respondent, “there is no underlying intent (in the terms of the Agreement) for employees to progress through the banded structure on an ever upward trajectory”. The Respondent submits: “The classification definitions are not associated with the career development pathway of the incumbent. Rather the classification definitions relate to the duties and responsibilities that the CEO determines to be required in a particular role.”56 Submissions on the obligation to review the PD in Clause 20.257 [73] The Respondent refutes the Applicant’s interpretation of clause 20 of Part B of the Enterprise Agreement. Clause 20 sets out that there is a requirement to review a PD with the employee concerned at least annually. This review is not related to classification, rather it is to 51 DCB at p. 120. 52 The 2021 PD was not agreed to by the Applicant. The Respondent submitted that PD was in the same terms as the 2019 PD. This submission of fact was not contested. 53 DCB at pp. 140 and 141. 54 DCB at p. 121. 55 Ibid. 56 DCB at p. 121 and 122. 57 The submissions relevant to this topic appear at DCB at p. 121. [2024] FWC 927 18 determine whether there have been any changes to the duties and responsibilities required of the role over the preceding twelve months. [74] The Respondent submits: “it is entirely common that many roles in Local Government do remain static, in relation to the duties and responsibilities …There are also instances where roles do change, whether it be due to technology or structural changes within the organisation. Suffice to say that if the employee and supervisor concur that a role has not changed over the course of the proceeding twelve months, that would be the extent of the review required under clause 20 of Part B of the Enterprise Agreement.” [75] The Respondent argues the consultative obligation in clause 20.2 is a protection to ensure that PDs are not unilaterally amended, without there first being a discussion with the incumbent. PRINCIPLES OF INTERPRETATION OF THE AGREEMENT [76] The principles of interpretation relevant to the construction of an enterprise agreement are well known. In WorkPac Pty Ltd v Skene,58 they were expressed as follows: “The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context: City of Wanneroo v Holmes (1989) 30 IR 362 (Holmes) at 378 (French J). The interpretation “…turns on the language of the particular agreement, understood in the light of its industrial context and purpose”: Amcor Ltd v Construction, Forestry, Mining and Energy Union(2005) 222 CLR 241 (Amcor) at [2] (Gleeson CJ and McHugh J). The words are not to be interpreted in a vacuum divorced from industrial realities (Holmes at 378); rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament (Holmes at 378-379, citing George A Bond & Company Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503 (Street J)). To similar effect, it has been said that the framers of such documents were likely of a “practical bent of mind” and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced: see Kucks v CSR Ltd(1996) 66 IR 182 at 184 (Madgwick J); Shop, Distributive and Allied Employees' Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16] (Marshall, Tracey and Flick JJ); Amcor at [96] (Kirby J).” [77] I adopt and apply these principles to the construction of the Agreement. THE CLASSIFICATION REGIME UNDER THE AGREEMENT Position Descriptions under Clause 20 [78] This provision obliges the Respondent to provide an employee with a PD that, as a minimum, identifies six job characteristics:59 58 [2018] FCAFC 131 at [197]. 59 Clause 20.1 of the Agreement at 65 of 156. [2024] FWC 927 19 • The accountability and extent of authority of the position; • The level of judgement and decision making skills required; • Specialist skills and knowledge required to undertake the duties of the position; • Management skills; • Interpersonal skills; • Qualifications and experience required for the position. [79] Those job characteristics mirror those in each of the Bands of the Classification Definitions in Appendix A of the Agreement.60 [80] Clause 20.2 imposes an obligation on the employer to “review” the PD “in consultation with the employee at least annually.”61 The word “consultation” has a venerable history in Australian industrial jurisprudence. It is trite that it requires something more than a discussion. I adopt the reasoning of Smith C in CEPU v. Vodaphone Network Pty Ltd:62 “Consultation is not perfunctory advice on what is about to happen. This is a common misconception. Consultation is providing the individual, or other relevant persons, with a bona fide opportunity to influence the decision maker.” Annual Review of classifications in Clause 21 [81] A confidential review is to is to be undertaken of the Band or classification level of each full and part time employee “having regard to the classification definitions contained in Appendix A – Classification definitions of this Agreement”.63 [82] There is an argument that, because the PD clause in clause 20 and the annual review clause in clause 21 are contiguous, it implies the basis of the annual review will be the PD provided by the employer and annually reviewed under Clause 20. [83] There is nothing in the text of clause 21 which compels the review of the classification to be limited to an assessment solely based on a PD. It was open to the drafters to limit the terms of the review to “the level within a Band or Classification level as expressed in their current PD”. There is no such limitation expressed in the plain words of the text of clause 21. [84] The relevant metric against which the classification is measured in the review is “ having regard to the classification definitions contained in Appendix A…”.64 It is open for the reviewer to take into account both the PD provided under 20 and the work actually performed by an employee at the time the review takes place. [85] Progression is not automatic through the review.65 It is dependent on achievement of acquisition and satisfactory utilisation of skill utilisation of new or enhanced skill if required 60 From p. 119 of 156 in the Agreement. 61 Clause 20.3 at p. 65 of 156. 62 PR911257 at [25]. 63 Clause 21.1.1 and 22.1.2 at p. 65 of 156 of the Agreement. 64 Ibid. 65 Clause 31.1.3. [2024] FWC 927 20 by the employer, meeting of established performance objectives and satisfactory service for the proceeding twelve months.66 Classifications and minimum rates of pay in clause 22 [86] There is a positive obligation on the employer to grade its employees in accordance with the classification levels and gradings in Appendix A – classification definitions of this Agreement.67 [87] This clause also provides a regime and a positive right to request a classification committee review of the classification if it is considered to be incorrect. The committee is prescribed to be comprised of an equal number of employer, union, or nominated employee representatives. Such a committee will “consider all relevant facts and may make a recommendation to the employer.68 Appendix A – classification definitions [88] There is a “note” at the commencement of the classification definitions that they “must be taken into consideration when classifying individual positions and typically individual positions will meet the criteria under each heading for classification into a Band.69 [89] Each band within Appendix A commences with a chapeau in the following terms: “A position within this Band has the following job characteristics”.70 [90] There is no express reference to a PD as the sole determinant of classification within a Band. The word “position” could refer to either the PD as it is described in Clause 20 or the position the employee holds in fact, based on an assessment of elements of the work performed by an employee against the job characteristics and various descriptors in the classification definition in each Band in Appendix A. PRINCIPLES RELEVANT TO THE DETERMINATION OF A CLASSIFICATION [91] The Respondent in its submissions relied on a decision of Bissett C in ASU v. City of Greater Bendigo71 (Bendigo), which contains the following principles for determining a classification dispute:72 “The determination of the correct classification of a position is not a line-by-line exercise, nor is it a matter of searching for those descriptors that support the case put forward and ignoring all of the rest. Having said this, however, there are some general principles that should be applied. 66 Clause 22.1.2. 67 Ibid. 68 Clause 22.2.3. 69 At p. 119 of 156 of the Agreement. 70 For example for Band 6, p. 129 of 156 of the Agreement. 71 [2017] FWC 1036. 72 Ibid at paragraphs [6] to [10]. [2024] FWC 927 21 Firstly, the classification of a position must be decided on the basis of the requirements of the position as specified in the finalised PD. Second, that the occupant of a position may perform some functions at a higher or lower level is not determinative of the appropriate classification. It is neither true that all aspects of a position must fall within a single band nor that only one aspect of the job being at a higher level means the position should be classified at that higher level. Each of these approaches could lead to absurd outcomes and the artificial construction of tasks and responsibilities to force a position into a higher or lower classification. A position must be considered holistically. That is, a PD does not need to meet all of the criteria under each heading for the classification to fall within that Band. Third, the true classification of a position should be based on the highest functions of the position which are performed on a regular basis and which constitute a reasonable component of the work of the position. A change in classification cannot be based on the increase in the occupant’s knowledge – this a matter best recognised through incremental movements, not through reclassification of the position. Last, it is not correct to accept the lowest level at which a function is required to be performed nor the highest level and claim that as evidence of the correct band. The assessment must be of the overall requirements of the position” [92] I adopt these principles with the caveat that I do not consider the text of the classification regime in the Agreement requires the determination of a classification to be undertaken on the basis of the PD alone. An analysis of the work undertaken against the job characteristics and the various descriptors in the relevant Band can inform a classification decision. THE DIFFERENCES BETWEEN BAND 6 AND BAND 7 [93] I agree with the submission of the Respondent. There are clearly distinguishable elements within the text of the job characteristics and descriptors in Band 6 and 7. [94] I attach a table as Annexure 1 which counterpoints the differences between the job characteristics required of a Band 6 employee compared to a Band 7. The elements that clearly denote more advanced job characteristics are highlighted in bold. [95] It follows from this analysis the differences between the job characteristics and descriptors of Band 6 and 7, as expressed in Appendix A of this the Agreement, are not merely semantic or negligible. The differences between the job characteristics in each Band provide a sound metric against which a position held by an employee of the Respondent may be measured. APPLICATION OF THE PRINCIPLES TO THE CLASSIFICATIONS HERE [96] The gravamen of the principles articulated by Bisset C in Bendigo in this case is that the position held by the Applicant must be measured against the Band 7 job characteristics and each of the descriptors in a holistic manner taking into account the differences between the classification at Band 6 and Band 7. [2024] FWC 927 22 The arguments of the Applicant for reclassification [97] The Applicant had the practical onus of proving that her work conformed with the classification definition, job characteristics and descriptors for Band 7 set out in Appendix A. Her arguments for a reclassification to Band 7 include: • the position definitions in Band 6 and Band 7 are “indistinguishable in any practical sense”; • the method of allocation of projects makes no distinction between Band 6 and Band 7 project Managers; • the descriptors in the Band 6 and 7 PDs do not take into account for the nature, complexity or risk profile of projects; • the work she did was indistinguishable from Band 7 Project Managers; • the Applicant had filled in for Band 7 employees who had resigned or were on leave; and • the failure of the Respondent to follow the classification and review processes in the Agreement support an argument for reclassification. [98] The submissions of the Applicant suggest she may have been performing work that conforms with the job definition and descriptors for Band 7. Her submissions of fact generally describe the work she was performing, and the projects on which she was working, but those descriptions are not at the level of particularity required to make a classification assessment against the job characteristics and descriptors for Band 7 in Appendix A of the Agreement. [99] Without particularity in the description of the elements of the position she held, it is difficult for the Commission to find she should have been classified at the higher level. The argument that “I was doing the same work as the Band 7 Project Managers” is an understandable fairness and equity argument but it does not facilitate an assessment against terms of the Agreement. [100] The Applicant argues that the “banding of PM positions was inequitable and arbitrary given the absence of any meaningful distinctions between the criteria against which each PD’s banding was measured.”73 The argument there was little practical difference between the descriptors in Band 6 and Band 7 is a double-edged sword for the Applicant. Differences between the job characteristics and descriptors for each Band are the measure against which a reclassification is required to be made. In order to make out her case the Applicant needed to clearly articulate that she met the more advanced (and therefore different) job characteristics of Band 7 in the Agreement. The argument of the Respondent against reclassification The Applicant’s PD was correctly classified at Band 6 [101] The Respondent’s case against reclassification is based on the terms of her PD. It argues the task of classification entails a “comparison of the duties and responsibilities with the classification definitions in Appendix A of the Agreement to identify the classification that is “most aligned with the requirements of her PD”. 73 DCB at p. 49. [2024] FWC 927 23 [102] The Respondent argues the process of classifying a PD does not contemplate the competencies, qualifications and experience of the incumbent in the role. [103] The Respondent provides a side-by-side analysis it has prepared of the Applicant’s PD compared to a Band 7 PD for the Project Manager Capital Works position within the PMO which it has also prepared.74 [104] The entry against the heading “Specialist Skills and Knowledge” in the document provides an example of the level of analysis of the Band 6 and 7 PDs against the relevant descriptor from the job characteristics in the relevant Band in the Agreement: “BAND 6 PD Taking into account the budget management responsibilities (“familiarity with budgeting techniques and procedures) identified along with the requirements to possess project management skills, the descriptor is in line with Band 6. Descriptor 6.3.3 in Band 6 within the Agreement reads “Some positions in this Band, particularly those where the primary function is to manage resources require a familiarity with relevant budgeting techniques. BAND 7 PD The PD Calls for conceptual and analytical skills in addition to proficiency in project management. Experience in managing and reporting on project budgets is also required. This assessed at Band 7. Descriptor 7.3.4 Knowledge of and familiarity with the principles and practices of budgeting and relevant accounting and financial procedures may be required.” [105] I have expressed the view that there is nothing in the text of Clause 22 or Appendix A that prescribes that a classification exercise must be limited to the PD. An analysis of the “position” could also include an analysis of the duties currently performed by an employee against the job characteristics and the individual descriptors in the classification definition of a particular Band. [106] That question aside, the Respondent has provided some analysis that the last agreed PD was more consistent with Band 6 than Band 7. [107] The Respondent also provides an “independent analysis” performed by Ms. Elisa Kelly, who is an employee of the Respondent’s representative.75 The document is a two-page e-mail dated 23 April 2021.76 The task Ms. Kelly performed was: “I have compared the requirements of the Project Manager – Capital and Operational Projects PD with the EA classification definitions”. An example of the level of analysis in that document is the following in relation to “Specialist Skill and Knowledge”: 74 DCB at p. 154 and 155. 75 R2 at pp 140 and 141. 76 DCB pp. 140 and 141. [2024] FWC 927 24 “Taking into account the budget managerial responsibilities (“familiarity with budgeting techniques and procedures”) identified along with the requirement to possess project management skills is in line with Band 6”. [108] From the text, this appears to be a desktop review of the 2021 PD. This process has the deficiency that the analysis does not take into account the views of the Applicant on the currency or completeness of the PD. By analogy with the requirement to consult in Clause 20.2 the process of this analysis would have been improved had the reviewer provided the Applicant “with a bona fide opportunity to influence” the review. [109] That deficiency aside, the external review does provide some evidence that the Applicant’s 2021 PD was more consistent with Band 6 rather than Band 7. The structure the Respondent had established required a Band 6 employee [110] The Respondent also argues that the Chief Executive Officer of the Respondent has a legal obligation and discretion to establish an employee structure to best deliver the services to the Community. [111] It argues the Applicant was employed in the role of Project Manager Capital and Operational Projects. The role the Respondent required was at a Band 6 level: “Just because an employee has a greater degree of skill, experience, or qualification does not mean they are entitled to a reclassification to a higher band.”77 [112] In support of this proposition, the Respondent relied on a passage from the decision of Bissett C in Bendigo:78 “In reaching my conclusions I acknowledge that Mr. Canfield, the current occupant of the position, is a very experienced and competent worker. It is a fact however that a classification decision is based on the requirements of the position and not on the experience of the person occupying the position. Further, the classification must be based on management’s requirements of the position. It is true that many employees who have occupied a position for many years will do work that is beyond the classification of the position – they enjoy the challenge, but this cannot be the basis for my decision.” [113] I accept that the relevant position to be classified is the position which the employer requires. It could be the requirements of management of the Respondent within the Project Management Office of the actual position of the Applicant (rather than her PD) were more consistent with a Band 7 than a Band 6 position. The submissions before me are insufficient for me to make a definitive judgement on that issue. INTERNAL CLASSIFICATION REVIEWS IN THIS DISPUTE [114] The Applicant asserts her repeated requests for her PD to be reviewed where “dismissed and denied consistently, with little or no explanation, other than the stated preference of the 77 DCB at p. 84. 78 At paragraph [44] with emphasis added. [2024] FWC 927 25 Manager, Strategy and Program Delivery for the structure of the team to have a Band 6 project manager.”79 [115] The Respondent details the history of the PD reviews of the Applicant’s position which included reclassification up to 2019.80 The Respondent refers to the 2021 external review by Ms. Kelly. This was communicated by e-mail to the Applicant by the Human Resources Advisor, Mr. Adam Deveraux, who also “provided the Applicant with a copy of the “independent assessment”. No review took place in 2022.81 [116] In a decision on the papers, it is not possible to reach a definitive conclusion on contested facts on the various PD reviews. The submissions of the Respondent, however, seem to suggest a discussion with an employee is sufficient to satisfy the requirement to consult in Clause 20.2. In its submissions it says (with emphasis added): “This consultative obligation is a protection to ensure the PDs are not unilateral amended, without first a discussion with the incumbent.”82 [117] To give the Respondent the benefit of the doubt, a discussion could include “providing the individual, or other relevant persons, with a bona fide opportunity to influence the decision maker”. What is required in Clause 20.2 is something more than a perfunctory conversation. Consultation involves providing an opportunity for an employee to influence a decision on the content of her PD. [118] The Respondent submits the “Applicant had annual reviews conducted regularly throughout her employment with the Respondent”. It submits that the “most recent review was completed in 2022”.83 It attaches a 2022 Annual Performance Appraisal Form which contains entries from the Applicant. In that document the Applicant writes: “I do not feel supported in opportunities to progress my career here at Surf Coast Shire. I have had numerous conversations with Rowena, and on two occasions with Adam about reviewing my banding from 6 to 7 be in line with other PMs in the Department.” [119] The Applicant worked in a small team. It was, to some degree, inevitable that a dispute as to her classification would arise. The fact that a dispute over her classification persisted for a number of years cannot be regarded as a human resource management success. [120] There was a circuit breaker available in the Agreement which was not availed of by either party which could have prevented the persistence of this dispute. A review by a local classification committee under clause 22.1.3. [121] The Respondent is bound by the Agreement to provide a right to request a review of a classification dispute by a classification committee composed of an equal number of employer, 79 DCB at p. 49. 80 DCB at p. 126. 81 Ibid. 82 DCB at p. 121. 83 DCB at p. 127. [2024] FWC 927 26 union or nominated employee representatives. The committee considers all relevant facts and makes a recommendation to the employer. [122] The April 2021 desktop review of the Applicant’s 2021 PD by Ms. Kelly of Meerkin & Apel is of an entirely different character to a bipartite review contemplated by the Agreement. That body is not limited to a consideration of the PD without more; it can take into account “all relevant facts”. [123] There are no submissions before me to suggest either party contemplated utilising the classification committee prior to the commencement of this proceeding. It could be that, despite entering into an Agreement containing clause 21.1.3, no such committee has been established by the Respondent. If the committee was established, it could provide a further avenue to ensure lengthy classification disputes are avoided. CONCLUSION [124] From the material before me, it is clear the Applicant was a highly competent and professional project manager for the Respondent. I have no doubt the lengthy period she has disputed her classification is one of the reasons for her decision to resign from her employment as a project manager. [125] The Applicant’s decision to resign has limited the options I have to resolve this dispute. There is no utility in directing or recommending an independent review of a classification in a position she no longer holds. Decision [126] The question I am left to decide is whether the Applicant should have been classified as a Band 7 employee at the time of the dispute. [127] The Applicant has made submissions of fact that suggest she may have been, at least some of the time, performing Band 7 work. The Applicant did not however, provide evidence of the elements of her position sufficient to enable an analysis against the job characteristics and descriptors for Band 7 in Appendix A. She has therefore not met her onus of establishing she should have been classified as a Band 7. [128] Therefore, I answer the question “Should the Applicant have been classified as a Band 7 under the Agreement at the date of the application?” by deciding: “on the material before me that answer is no”. Recommendation [129] The fact the Applicant had contested her classification for a period of years suggests the Respondent should utilise all the tools available to it in the Agreement to bring future classification disputes to a more expeditious resolution. I therefore recommend: • Should the Respondent have not already done so, it should establish, after consultation with its employees and their unions, the bipartite local classification committee referred to in clause 22.1.3 of the Agreement. [2024] FWC 927 27 • In future classification disputes the Respondent should inform its employees of their right to request a classification committee review under clause 22.1.3 of the Agreement. A failure to provide a right to request such a review may be a breach of the Agreement. [130] The dispute is therefore resolved by the answering of that question and the making of that recommendation. COMMISSIONER Printed by authority of the Commonwealth Government Printer <PR773365> [2024] FWC 927 28 Annexure 1 Job Characteristic Grade 6 descriptor Grade 7 descriptor Accountability and extent of authority 6.1.2 …effect of decisions are limited to quality and cost of programs and projects managed. 7.1.2 …decisions have a significant effect on the programs or projects being managed. 6.1.3 …effect of decisions may be significant but usually subject to appeal or review by senior employees. 7.1.3 ...impact of decisions made may have a substantial impact on individual clients or classes of clients. Judgement and decision making 6.2 The work may involve improving and/or developing methods and techniques generally based on previous experience. Problem solving may involve the application of these techniques to new situations. Guidance and advice are usually available. 7.2 These positions are essentially problem solving in nature…The problem-solving process comes from the application of these established techniques to new situations and the need to recognise when these established techniques are not appropriate. Guidance is not always available within the organisation. Specialist knowledge and skills 6.3.2 All positions require an understanding of the long-term goals of the functional unit in which the position is placed and of the relevant policies of both the unit and the wider organisation. 7.3.3 An understanding is required of the long term goals of the wider organisation and of its values and aspirations and of the legal and political context in which it operates. 6.3.3 Some positions in this Band, particularly those where the primary function is to manage resources, require a familiarity with relevant budgeting techniques. 7.3.4 Knowledge of and familiarity with the principles and practices of budgeting and relevant accounting and financial procedures may be required. Management Skills 6.4.2 Where management of employees is part of the job, the position requires an understanding of and an ability to implement personnel practices… 7.4.2 The position requires an understanding and an ability to implement personnel policies and practices. They would be also expected to contribute to the development and implementation of long term staffing strategies. Interpersonal skills 6.5.1 These positions require the ability to gain co-operation and assistance from clients, members of the public and other employees in the administration of defined activities and in the supervision of other employees. 7.5.1 These positions require the ability to gain co-operation and assistance from clients, members of the public and other employees in the administration of broadly defined activities and to motivate and develop employees. Qualifications and Experience 6.6.2 Typically, they would be gained through completion of a degree or diploma course with some relevant experience. They might also be acquired through lesser formal qualifications and substantial relevant experience, or through substantial relevant experience in the field of specialist expertise. 7.6.2 Typically, they would be gained through completion of a degree or diploma course with several years of subsequent relevant experience. They might also be acquired through higher formal qualifications either in the field of specialist expertise or in management, together with a shorter period of experience, or they might be acquired through lesser formal qualifications with extensive relevant experience.