C2001/2785, Transcript of Proceedings [2001] AIRCTrans 1189 (20 June 2001)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114J MELBOURNE Vic 3001)
DX 305 Melbourne Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N 7706
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER TOLLEY

C2001/2785

STORK ELECTRICAL PTY LIMITED

and

COMMUNICATIONS, ELECTRICAL, ELECTRONIC,
ENERGY, INFORMATION, POSTAL, PLUMBING
AND ALLIED SERVICES UNION OF AUSTRALIA

Notification pursuant to section 99 of the Act
of a dispute re classification of instrument
technicians

MELBOURNE

2.28 PM, MONDAY, 28 MAY 2001

PN1

MR J. O'DRISCOLL: I appear on behalf of Stork Electrical along with MR W. MAGUIRE.

PN2

MR P. COFFEY: I appear on behalf of the CEPU Electrical Division and with me is MR I. LEWIS, one of the tradesmen at Orica concerned in this matter.

PN3

THE COMMISSIONER: Thank you. Yes, Mr O'Driscoll.

PN4

MR O'DRISCOLL: Thank you, Commissioner. This matter revolved around a classification that is not included in our project agreement and I would request if we could perhaps spend five minutes in conference with you, just to explain the background to it.

PN5

THE COMMISSIONER: How about putting the background on the record, in case I drop dead tomorrow and you have got to do it again.

PN6

MR O'DRISCOLL: Okay. All right, this matter pertains to a claim by the instrument technicians on the project for a reclassification based on the work that they are doing. There is a level of understanding or agreement, if you like, in terms of the type of work these people are doing. From the company's point of view, there are two issues that we think is relevant and that is the operative date from which that particular type of work was taking place and the other issue is that that classification is not included in the project site agreement and that same project site agreement provides that where there is any inconsistency, the following order of precedence shall apply and it takes us through the agreement, this agreement, the contractors' relevant certified agreement and parent awards. Obviously the classifications are in the parent awards. Our concern obviously, though, is whether or not a reclassification represents an inconsistency and if it does, the appropriate manner by which it should be addressed. I would suggest that it is probably relevant for Mr Coffey to put forward his evidence on the matter and then we would be able to respond to that in a little bit more detail around the two points that I have raised, which is operative dates and the question of the relevance to the project site agreement classification structure.

PN7

THE COMMISSIONER: Yes, thank you. Mr Coffey.

PN8

MR COFFEY: If the Commission pleases. Commissioner, this problem was first brought to my attention probably a couple of months ago and after a couple of meetings probably about a fortnight ago with Mr O'Driscoll and it has probably been on the back burner for a couple of weeks because we had a couple of other issues down there, but the guts of it is that the site agreement only goes up to 115 per cent and obviously, as Mr O'Driscoll said, where there is an inconsistency, the following precedence shall apply to this agreement, obviously, the contractors' relevant certified agreement which basically only gives you rates of pay and the parent awards which takes care of reclassification. At the moment they are only on E5 which is the normal rate of pay for all the electricians there. They have been employed to do this job from day one. I think the first instrument technician started mid-January. Would that be right, Ian?

PN9

MR LEWIS: Of the present - - -

PN10

MR COFFEY: Yes, mid-January. Mr O'Driscoll's case is that they started this work in mid-March. We would argue that they were employed for this job from day one. I have got a copy. It might help you to have a look at this.

PN11

THE COMMISSIONER: What is this?

PN12

MR COFFEY: It is just a copy of the matrix, difference between the grades, an extract from the site agreement and just the relative rates of pay.

PN13

THE COMMISSIONER: R1.

EXHIBIT #R1 MATRIX DOCUMENT, EXTRACT FROM SITE AGREEMENT AND RATES OF PAY DOCUMENT

PN14

MR COFFEY: Commissioner, I suppose the basic thing here is the difference between E7 and E8 which, if you go down to the back of the skills matrix, one of the white pages, 8 is to co-ordinate the installation of instrumentation systems and 7 is install complex instrumentation equipment. Now, the first time systems is mentioned is in E8 and that is what we have down at Orica. The boys down there, there's seven instrument technicians that basically from day one we are saying they diagnose and repair faults in this system, they service the instrumentation systems, to co-ordinate all the installation of the systems, they work out - direct others about the locations of these, the methods they are going to be put in. They document and upkeep all the drawings, they document and report on all the progress of these things themselves and we think they should be paid E8 from the day they started. That is about it. Ian, would you like to say something in regards to the difference?

PN15

MR LEWIS: If the Commission pleases, it is a fairly involved document, the competency standard, which describes the general stream of work that is performed with the instrumentation, but to have a look at where an instrument tradesman comes in, we are looking at about a level 6, level 7. However, the first point of entry for an advanced tradesman as he is now known or as a technician as he has been known historically is at E8 level and when you examine the work that is done at E8 level, as Paul has quickly alluded to, we do satisfy all the requirements of that level in the degree of complexity of the work that we do. The National Training Board and the various parties that were party to bringing together these instrumentation stream standards, which is a competency document describing the work that we do are both in agreement, as with the Commission, that this had to be put together to describe the type of work we do and in looking at the National Training Board, recognition of where a technician sits within their structure level, they regard at level 5 - and if I may quote from a National Training Board standards framework document, at level 5 that:

PN16

A person who is capable of working at level 5 is a person who has an established work orientation and the knowledge, skills and demonstrated capacity for self directed application -

PN17

it goes on. Getting to the guts of it:

PN18

The level corresponds to a competent administrator, specialist technician or para-professional.

PN19

Now, if we were to make a comparison between the National Training Board guideline and how that sits with the competency standards which is what we have been referring to here, level 5 actually doesn't begin until E9 and E10. Now, we are not asking the Commission in any way, shape or form to support that level of payment, but what we would like you to do is to consider the fact that when the Training Board and the competency standards are put together, the Training Board actually states that level 5 is the level that we should be coming in at. Getting back to the work that we do on site, we meet all the criteria.

PN20

I think it is only a matter of understanding, when you sit down and wade through a lot of reading, that when you are actually administering the installation of the equipment and that is what we have effectively done since the day we started, that means we are satisfying the requirements of one of the parts of level 8 and that is what we have done from day one, so I can understand Mr O'Driscoll's understanding of the way he has perceived it, but if I point out to him for his understanding that we have actually been involved in the co-ordination of instrumentation systems and the instrument record from the day that we started, then that may make you aware of the fact that we are meeting that.

PN21

THE COMMISSIONER: Who is checking the faults in the electronic instrumentation equipment?

PN22

MR LEWIS: We are presently doing that.

PN23

THE COMMISSIONER: Who is servicing the instrument systems?

PN24

MR LEWIS: We are as part of a commissioning, pre-commissioning phase that we are doing.

PN25

THE COMMISSIONER: Yes, thank you. Do you need to hear any more, Mr O'Driscoll?

PN26

MR O'DRISCOLL: No, Commissioner.

PN27

THE COMMISSIONER: We will adjourn into conference.

SHORT ADJOURNMENT [2.33pm]

RESUMED [2.42pm]

PN28

THE COMMISSIONER: The question has been asked as to whether after investigation a higher classification which is not contained in the certified agreement for the operation and if a higher classification were paid, whether it would be in breach of the agreement. At first blush the Commission would say no. However, it is a matter that is easily fixed. A simple request on the record of the Commission, followed by a written application and the Commission would agree, if the parties all agreed, to amend the agreement. It is as simple as that. That is the best way to deal with that, if there is agreement. In respect to the operative date, somewhere there must be some records that show when this work started.

PN29

MR O'DRISCOLL: Yes, there are and there was two effective operatives dates and the first operative date, if you like, is the day on which each of the technicians commenced on site and their claim is for any agreement to be back dated to that point. Our position on that is that we don't believe the full ambit of the definitions was being fulfilled prior to 9 March which is when we commenced loop testing and diagnosing those instrument systems.

PN30

THE COMMISSIONER: Well, on your estimation, what percentage of the classification requirements were being used?

PN31

MR O'DRISCOLL: Well, our management's assessment of that was that they believed that the work carried out prior to 9 March this year better fits the description of level 7 or E7 with a focus on the calibration of instrumentation as opposed to the diagnosis carried out through loop testing.

PN32

THE COMMISSIONER: And on what classification are they being paid at?

PN33

MR O'DRISCOLL: Well, currently they are being paid under the project agreement at 105 per cent level C, the same as the base mechanical tradesman and base electrician and the instrument tradesperson, which is a different classification again, which is an instrument fitter.

PN34

THE COMMISSIONER: And where does that fit in the skills matrix?

PN35

MR LEWIS: E6.

PN36

MR O'DRISCOLL: E6.

PN37

THE COMMISSIONER: So what you are saying in effect is that they were performing the work of E7?

PN38

MR O'DRISCOLL: Yes.

PN39

THE COMMISSIONER: And there is no argument about that?

PN40

MR O'DRISCOLL: No.

PN41

THE COMMISSIONER: Okay, and you are saying that from 9 March they then started to perform more than half of the duties of E8?

PN42

MR O'DRISCOLL: Yes.

PN43

THE COMMISSIONER: Well, it would appear, unless you have got some pretty substantive arguments against it, if they were performing E7 up until 9 March and the delegate is here, he can tell you and then after that date they started to perform duties that brought them into performing more than half of the duties of E8, that is when the E8 classification should be paid from.

PN44

MR LEWIS: I would argue, sir, and only for the case of understanding, that as I said, we were employed from the day that we commenced as instrument technicians. An instrument technician enters the skills matrix at a minimum E8, so how can we be less than a technician for some period prior to a particular date, if we were employed as technicians from the day that we commenced? And in meeting the criteria of what a technician does, by simply meeting the criteria for 8.1 under the competency standard which is co-ordination of the installation of instrumentation systems, we are meeting the - - -

PN45

THE COMMISSIONER: I understand what you are saying. Mr O'Driscoll, if you employ people as a certain classification, whether they perform none of that classification or part of that classification or perform anything but that classification, they are entitled to be paid at the classification they are employed at, unless somewhere in the agreement it says you must perform the duties of this classification to receive the payment for it.

PN46

MR O'DRISCOLL: Well, I was going to raise two issues there and I think the first one is relevant to put some of the things to bed on that. In the definitions, it talks about being qualified to actually do the work and I think that is relevant if, in fact, I was working in an organisation for the next 20 years, that I may not do that work all the time, but if I have been qualified and employed to do that work, then I should be paid at that rate. We are talking about here a transient industry, the construction industry, where people move from job to job and do different jobs on different projects.

PN47

This project agreement, rightly or wrongly, was negotiated some years ago and at classification D, 105 per cent, it is nominated above tradesperson, electrician as defined and required to work as such, instrument tradesperson (technician), so my view is that for all intents and purposes, without really examining exactly what work was taking place, the application of this agreement was thought to be correct. The situation, however, once it was raised, required proper examination and I believe that we would agree that people were working above that level. However, we also believe that if we - how do I explain this? The industry we are working in is one which says if we want an engineer, we bring in an engineer, we don't bring in a fitter and turner and expect him to work up to that standard.

PN48

THE COMMISSIONER: Are you telling me that never happens? I could debate that with you.

PN49

MR O'DRISCOLL: I am trying to use a non-electrical trade example.

PN50

THE COMMISSIONER: How about a labourer and a bricklayer?

PN51

MR O'DRISCOLL: If we want a fitter and turner and we happen to employ somebody who also holds a qualification of engineer, that doesn't necessarily justify him being paid as an engineer.

PN52

THE COMMISSIONER: Yes, I agree with you, but if he is employed as an engineer, he is paid as an engineer.

PN53

MR O'DRISCOLL: I think I am losing here, so I think I will stop talking.

PN54

MR LEWIS: Once again, if I may just refer to a copy of the award?

PN55

THE COMMISSIONER: Yes.

PN56

MR LEWIS: And it refers to the general - the section that I mentioned, that we detailed in the letter, that we placed with the company, under classification, reclassification it says that:

PN57

In order to assist in the classification or reclassification of employees -

PN58

and we are not asking for reclassification; we are asking for correct classification.

PN59

THE COMMISSIONER: I understand that. You don't have to belabour that point.

PN60

MR O'DRISCOLL: Commissioner - - -

PN61

THE COMMISSIONER: Hang on, it is not Rafferty's rules. We are still on the record.

PN62

MR LEWIS:

PN63

Where the employee has the relevant qualifications recognised as a minimum training requirement with a level at which the employee seeks to be classified -

PN64

and this is the important part -

PN65

the employee is exercising or will be required to exercise the skills and knowledge gained from the qualifications necessary for that level of work, the employee shall be classified appropriately.

PN66

And this is a ratified agreement.

PN67

MR O'DRISCOLL: Commissioner, are we still on the record, or are we off the record, I should say?

PN68

THE COMMISSIONER: No, we are on the record. We have been on the record for some time.

PN69

MR O'DRISCOLL: Could I request that we go off for half a minute?

PN70

THE COMMISSIONER: Yes.

OFF THE RECORD

PN71

THE COMMISSIONER: Mr O'Driscoll, have you got a copy of the site agreement? Thank you. I have heard the submissions from both sides and had some discussion off the record in conference with the parties and it would appear to me that the correct classification from January, when people started on what I will call install instrumentation work, should have been on the skills matrix level E7. There is no doubt about that. There is some disagreement between the parties and it is not hard disagreement from the Commissioner's point of view, compared to some disagreements that come to this place, as to whether the work at level E8 in fact began shortly after the beginning of January or more towards March, as in Mr O'Driscoll's point of view. I think the Commission needs to be fair to both sides in this matter and it would be the Commission's strong recommendation that level E8 be paid from the beginning of the second pay period in March 2001. The Commission would also vary, because the parties have already indicated their agreement to varying the Stork Electrical Pty Limited Orica Australia Pty Limited Laverton Chlor-Alkali Facility Construction Project Certified Agreement 1999-2000 which is being continued at the request of the parties by the Commission, to provide that those employment classifications have effect in the agreement because there were no classifications of that level in the previous agreement. Do you have anything to add, Mr O'Driscoll?

PN72

MR O'DRISCOLL: No, Commissioner.

PN73

THE COMMISSIONER: Mr Coffey?

PN74

MR COFFEY: If the Commission pleases. Commissioner, just to quickly say - just to make sure that I understand what you said properly - - -

PN75

THE COMMISSIONER: You will get a copy of the transcript.

PN76

MR COFFEY: The second pay period in March, E8, and from start date E7.

PN77

THE COMMISSIONER: Yes.

PN78

MR COFFEY: Thank you.

PN79

THE COMMISSIONER: I would request that transcript be provided as quickly as possible. My Associate will complete all the appropriate forms, as will the parties at the bar table. Good afternoon. The Commission is adjourned.

ADJOURNED INDEFINITELY [2.57pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #R1 MATRIX DOCUMENT, EXTRACT FROM SITE AGREEMENT AND RATES OF PAY DOCUMENT PN14