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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 4, 60-70 Elizabeth St SYDNEY NSW 2000
DX1344 Sydney Tel:(02) 9238-6500 Fax:(02) 9238-6533
TRANSCRIPT OF PROCEEDINGS
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
SENIOR DEPUTY PRESIDENT DRAKE
C2001/5523
AUSTRALIAN NUCLEAR SCIENCE AND
TECHNOLOGY ORGANISATION
and
AUTOMOTIVE, FOOD, METALS, ENGINEERING,
PRINTING AND KINDRED INDUSTRIES UNION -
TECHNICAL AND SUPERVISORY DIVISION,
NEW SOUTH WALES REGION
Notification pursuant to section 99 of the Act
of a dispute re revised shift roster
SYDNEY
10.10 AM, THURSDAY, 8 NOVEMBER 2001
PN1
THE SENIOR DEPUTY PRESIDENT: Good morning. Can I have the appearances, please?
PN2
MR R. DAVIES: Your Honour, I appear for ANSTO in this matter. With me are MR J. DILLOCH and MR K. HARRIS. Thank you.
PN3
MR C. DRANE: If it pleases the Commission, I appear for the Australian Manufacturing Workers Union. Appearing with me are MR H. MATTHEWS from ANSTO, MR J. BROWN from ANSTO and MR S. GATT, also from ANSTO.
PN4
THE SENIOR DEPUTY PRESIDENT: Yes, Mr Davies?
PN5
MR DAVIES: Thank you, your Honour. This matter was listed as a dispute. I think what I would propose to do, your Honour, is run through the background to the matter - there are a number of elements involved - basically to appraise you of the situation; and then place a number of issues on the record.
PN6
It's fair to say, your Honour, that ANSTO views this matter seriously. As I have indicated in the notification, threats have been made by the AMWU as to the operation of our nuclear reactor and the potential to shut it down and I would note that there is a significant public interest element in running the reactor because it is used to provide pharmaceuticals for therapy and diagnosis for hospitals around Australia and South East Asia on a daily basis.
PN7
Your Honour, ANSTOs reactor runs on a 24 hour seven day a week basis and only - - -
PN8
THE SENIOR DEPUTY PRESIDENT: That's the present roster, is it, at present?
PN9
MR DAVIES: At present, yes. It has done since its inception, your Honour, a long time ago. It only shuts down about once every five weeks for periodic maintenance an d re-fuelling; and every four or five years it shuts down for a major diagnosis and maintenance program.
PN10
The reactor runs a 24 hour rotating shift cycle and currently the shift cycle consists of six teams of four operators. So typically, on a particular day, 24 hour period, you would have people on a day shift, then on an afternoon shift, then on a night. That would be three teams. One team would be rostered off and the other two remaining teams would be on what we call spares. Spares is day shift and spares is a time when people take leave or undergo training or do other activities.
PN11
The first issue is ANSTOs proposal to change the roster. Currently the utilisation of staff on that roster is somewhat limited to the extent that, I think, people work about 28 hours per week on shift and we see that a more effective roster would allow us to do a number of things; get better utilisation of staff. The other issues I'll go to in just a moment.
PN12
Needless to say, your Honour, we are proposing that the roster change to a five shift roster which would mean we would take one team out of the equation but we would use that team to - - -
PN13
THE SENIOR DEPUTY PRESIDENT: Is that a five team roster instead - - - ?
PN14
MR DAVIES: Instead of a six team roster, your Honour, yes. That team we would use to cover things like leave, etcetera, notwithstanding the proposed five shift roster that we seek to introduce also has capacity for people to take leave in that roster irrespective of whether those three people are there as floating relief staff or whatever.
PN15
THE SENIOR DEPUTY PRESIDENT: What three people?
PN16
MR DAVIES: Sorry. If we take a team out, your Honour - - -
PN17
THE SENIOR DEPUTY PRESIDENT: That's four people, isn't it?
PN18
MR DAVIES: Sorry, four people, but currently one of the teams is missing staff. It's not fully manner.
PN19
THE SENIOR DEPUTY PRESIDENT: Is that a permanent matter?
PN20
MR DAVIES: No, no, your Honour. There's a recruitment action in place.
PN21
THE SENIOR DEPUTY PRESIDENT: So as a permanent matter there would be four people in each team?
PN22
MR DAVIES: Yes, your Honour. The second issue - and suffice to say, your Honour, that when we opened discussions and in the process of discussions on the issue of a five shift roster, the AMWU in meetings that it has had with us has said to us, quite bluntly, if we seek to implement a five shift roster then they will shut the reactor down.
PN23
THE SENIOR DEPUTY PRESIDENT: Well, what is their opposition to it, or do you want to not tell me?
PN24
MR DAVIES: I think I will leave that to the AMWU.
PN25
THE SENIOR DEPUTY PRESIDENT: How many meetings have you had about it?
PN26
MR DAVIES: We have been meeting, your Honour, since 18 September.
PN27
THE SENIOR DEPUTY PRESIDENT: Does the new roster involve an increase in hours?
PN28
MR DAVIES: The new roster, your Honour, is a roster that we have accessed through the National Occupational, Health and Safety Council - - -
PN29
THE SENIOR DEPUTY PRESIDENT: That's not what I asked you.
PN30
MR DAVIES: - - - and the new roster does involve the people working more hours.
PN31
THE SENIOR DEPUTY PRESIDENT: Have there been any offers made in relation to increased remuneration for those increased hours?
PN32
MR DAVIES: Yes, your Honour. The staff who are on shift work on a pay averaging process which means that we work out what their penalty rates, their public holidays and all those other loadings are and obviously we have indicated to them that increased shifts would attract an increased shift loading. The average formula would change and they would be paid accordingly. So as a consequence of the introduction of the roster, your Honour, they would get more money.
PN33
THE SENIOR DEPUTY PRESIDENT: All right.
PN34
MR DAVIES: The second issue, and I will return to the roster in a moment, your Honour, relates to the allocation of staff within the roster. Each team is made up of a reactor shift superintendent and reactor operators. One reactor shift superintendent, then three reactor operators. From time to time when there is an absence on shift whether that is a forecast absence or a non-forecast absence we have suggested to the AMWU, as the operators, that we may have a spare shift superintendent who might be on training, or might be on spares, who could cover the position of a reactor operator. Once again we have been met with a refusal from the AMWU to the proposition that we use a supervisor to cover for an operator. Once again we have had threats made to us that if we propose to do that then the reactor may very well be shut down.
PN35
We say, your Honour, that in a number of these issues the AMWU is in breach of the instruments which cover their employment at ANSTO, namely the ANSTO Award and ANSTOs enterprise bargaining agreement.
PN36
THE SENIOR DEPUTY PRESIDENT: You say they are now or they would be if they went on strike?
PN37
MR DAVIES: Two issues, your Honour, we have not sought to make the issue because of the threat so at this stage, it is a threatened industrial action. However, both our award and our enterprise agreement, the award at clause 14.2 and the enterprise agreement at clause 17 contain a performance of duties clause. That performance of duties clause says:
PN38
The parties to this agreement are committed to increase the productivity efficiency ...(reads)... enhanced career opportunities for staff.
PN39
It goes on to say:
PN40
ANSTO may direct an employee to carry out such duties as are within the limits ...(reads)... responsibilities which they may perform or assume.
PN41
It goes on to say:
PN42
The parties to this agreement ...
PN43
And we are talking about the clause in the enterprise agreement, it's the same in the award, effectively:
PN44
... will not create barriers to the efficient flexible allocation and performance of work to the progression of persons in accordance with the provisions of this agreement or their access to training or work experience.
PN45
Your Honour, I would submit that in the case of the AMWU's attitude and position in respect of covering shifts with a higher level person, that they are in breach of the award and the agreement. I would tender those two excerpts from the award and the enterprise agreement, your Honour. The next issue, your Honour once again relates to the issue of allocation to people or non allocation of people to work and that relates to how many people are on a shift at any one time.
PN46
ANSTO runs the ship with four operators. The conditions, the licensing arrangements which are imposed on ANSTO by the regulatory bureau ARPNSA, the Australian Radiation Protection Nuclear Safety Authority are such that the reactor can be operated with less than four operators. From time to time when there is a light work load in the reactor, and an operator has rung in with little or no notice to say that they are ill, ANSTO has suggested that we operate the reactor with three operators rather than four. Once again, the AMWU has said if we try to do that, they will shut the reactor down.
PN47
I would simply say, your Honour, that the issue of whether or not ANSTO runs its reactor with four or three people, is a matter for ANSTO and then a matter for the regulatory authority. I would tender an excerpt from the operational limits and conditions of the reactor.
PN48
THE SENIOR DEPUTY PRESIDENT: The document that you handed to me before.
PN49
MR DAVIES: Yes.
PN50
THE SENIOR DEPUTY PRESIDENT: That shows clauses from 13.4 - - -
PN51
MR DAVIES: To 14.2.
PN52
THE SENIOR DEPUTY PRESIDENT: Which clause is it, you are referring me to?
PN53
MR DAVIES: And over the page, I am sorry, your Honour, 14.2 performance of duties is the performance of duties clause from ANSTO's award.
PN54
THE SENIOR DEPUTY PRESIDENT: And the name of the award is?
PN55
MR DAVIES: The Australian Nuclear Science and Technology Organisation General Award, 1990 and it was simplified as part of the item 51 process and the order was made by his Honour, Deputy President Duncan on 20 July 2000.
PN56
THE SENIOR DEPUTY PRESIDENT: The other is?
PN57
MR DAVIES: The ANSTO enterprise agreement.
PN58
THE SENIOR DEPUTY PRESIDENT: What is the name of that?
PN59
MR DAVIES: It's the Australian Nuclear Science and Technology Organisation Enterprise Agreement, 2000, which was certified by Commissioner Wilks on 15 January 2001 and is currently in operation, your Honour.
PN60
THE SENIOR DEPUTY PRESIDENT: All right and this document is an extract from what?
PN61
MR DAVIES: Is the extract from the enterprise agreement.
PN62
THE SENIOR DEPUTY PRESIDENT: No, the third document you have just handed me.
PN63
MR DAVIES: The third document, your Honour, is an extract from the operational limits and conditions. It is part of the reactor operating licence and it goes to issues of minimum manning expressed by the regulator.
PN64
PN65
MR DAVIES: While we are on the topic of rosters, I would seek to submit two further documents. First document, is an excerpt from the current enterprise agreement. The relevant section is clause 22.14 where the document says:
PN66
Management shall consult with the relevant staff, union and employee representatives ...(reads)... and finishing times ...
PN67
It goes on to say:
PN68
The times of commencing and finishing of shifts ...(reads)... proposed changes to the union.
PN69
That is an excerpt from the enterprise agreement, your Honour.
PN70
PN71
MR DAVIES: I hand up another document which is an excerpt from the ANSTO award. Once again, this relates to shift work and is clause 18. The preamble says:
PN72
Subject to this award, management may require employees including part time employees to work shift work.
PN73
It goes on to say, in respect of shift rosters, at clause 18.13:
PN74
Management will consult with the relevant affected employees ...(reads)... discussions regarding the arrangements.
PN75
And so on. Clearly, both instruments give rise to management's ability and authority to put in place shift work, to rearrange the shifts in accordance with the business and to consult with the employees in the union. Your Honour, in respect of the four persons on a shift team and a three persons on a shift team, we are submitting to the Commission that that is a matter for ANSTO to determine and it is consistent with decisions which I will refer to in a moment.
PN76
More importantly, it is fair to say, the staff in the reactor do work overtime from time to time and indeed with some people, the working of overtime is an issue. It is difficult then, your Honour to reconcile the situation where ANSTO is seeking to actually allow people to go home rather than to work, particularly from midnight to dawn. Yet the union is saying, no, we don't want that. Your Honour, in respect of rosters and the arrangement of work, I propose to hand up four authorities.
PN77
THE SENIOR DEPUTY PRESIDENT: I don't think it's necessary to proceed to handing up authorities at the moment. This hasn't yet been a full hearing and I am not sure what the issues are yet. I think I will hear at the moment from the union. Thank you.
PN78
MR DAVIES: Thank you.
PN79
THE SENIOR DEPUTY PRESIDENT: Mr Drane?
PN80
MR DRANE: Thank you, your Honour. Your Honour, our members working in HIFAR they currently work a 36 and three-quarter hour week. They have worked a 36 and three-quarter hour week since 1982. What ANSTO is proposing to introduce here, your Honour is a new system which will require our members to work considerably longer hours each week. We estimate it to be in the vicinity of about 42 hours a week, your Honour. The figure that was quoted by ANSTO of a 28 hour week is an average figure which takes into account time off for training and time off for leave.
PN81
The actual working week is 36 and three-quarter. We dispute the assertion put forward by ANSTO that they have actively engaged in consultation over this issue. What is happening here, your Honour is that ANSTO was seeking to change the implied contract of employment of our members. ANSTO has pointed out correctly that there are two industrial instruments in place. One is the ANSTO enterprise agreement 2000 and the other one being the ANSTO general award 2000.
PN82
They have asserted that these instruments give them some right to vary the terms and conditions of employment of our members without going through a consultative process.
PN83
THE SENIOR DEPUTY PRESIDENT: What do you think they have been doing since September.
PN84
MR DRANE: Okay, I will just read and then I will hand up a minute paper. But there was a minute paper signed by Mr Kevin Harris and I quote - this was dated 18 October:
PN85
You are advised that the date of the finalisation of the roster to be ...(reads)... will be made at that time.
PN86
What ANSTO has failed to tell the Commission here this morning is what has brought about the problem. Yes, they are down a couple of staff, your Honour. Three to be exact, I may stand corrected, that's why I have these gentlemen here with me to provide me with that exact information. But I understand they are down three staff and that our members warned them as early as February this year that there would be a problem with staffing levels in the reactor but no steps were taken by the organisation to address that.
PN87
Your Honour, this proposed new roster is an imposition on our members and their leisure time. Our members have lifestyles. They have built those lifestyles and they have maintained those lifestyles on the basis of their working relationship. Now they are being asked to change that and they don't want to change that, your Honour. They have instructed me that they don't wish to change their lifestyle patterns. Shortly I will hand over to Mr Howard Matthews to provide some more information on that.
PN88
THE SENIOR DEPUTY PRESIDENT: I don't want to hear the whole case at the moment. I just want to know what you say is wrong with the proposal, so I understand what the issues are. You say, literally, that there is currently a 36 and three-quarter hour roster and that the new roster involves an increase to 42 hours a week.
PN89
MR DRANE: That's correct.
PN90
THE SENIOR DEPUTY PRESIDENT: And your members have a commitment to a lifestyle based on the old roster, what are the other issues?
PN91
MR DRANE: If I may allow Mr Matthews to continue.
PN92
THE SENIOR DEPUTY PRESIDENT: Yes.
PN93
MR MATTHEWS: Your Honour, the matter is relatively simple. The current reactor is to be deconditioned in approximately four years, 3½ to four years from now. Obviously, there is a great deal of people aren't going to be transferring to the new reactor.
PN94
THE SENIOR DEPUTY PRESIDENT: Why not?
PN95
MR MATTHEWS: For a variety of reasons, one is that the work will be different and the skill requirement will be different and a number of people who are there currently are getting to the age where they are retiring to collect their superannuation. There has been for a number of years now, a reduction in the number of people who are working on the reactor. Namely, that they have had to bring in the training people, there is one shift operator on a casual basis. It has been the view of the people at ANSTO, the AMWU members at ANSTO that they understand that ANSTO needs to reduce the number of people in the latter part of the operation of the reactor because they can't train people up and bring them into ANSTO and then say, see you later.
PN96
What we have offered them is the following and to us it's a big change. We are prepared to go and have a six shift roster for the next two years with four people on it. Then in the latter part of the operations of the reactor, reduce to a five shift roster, as people retire. We are saying to ANSTO that this is more efficient. It means that they can recruit early and that we know of three people who are going to retire in the next few years and as they go out we will come up to arrangements where we don't have to recruit to replace them.
PN97
We have consistently implied that we prefer to go down this track so in the first two years that we have full shift roster as it is now and then in the latter half we will have a revised shift roster. The problem the members have with going to a five shift roster now, is that all the rosters that they have put up mean we are going to have to work compulsory overtime to bring it up to 41 and a half hours a week.
PN98
Some of the shifts require you to work afternoons for three and then nights for the next two. It is disjointed. The shift was designed for people working a 40 hour - the five shift roster was designed for people working a 40 hour or 41 and a half hour shift and it doesn't suit our requirements. Management has also said that we have refused to run the reactor if we don't have full shifts. We have said to management, we are prepared to allow people to go home if there is no work. All we are insisting on is that we start the shift with four people. If no work is available and the senior reactor operator agrees, management agrees, then the person will run the rest of the shift with one less person. What we are not prepared to do is to give them the opportunity to say, we can now run shifts with only three people. So we are saying it is work dependent. At the first instance we are covered if the person is not there for may be an hour or two hours. Then if there is no work the person goes home.
PN99
THE SENIOR DEPUTY PRESIDENT: But gets paid?
PN100
MR MATTHEWS: I beg your pardon?
PN101
THE SENIOR DEPUTY PRESIDENT: But gets paid for the full shift whether there is no work or not - whether they work or not?
PN102
MR MATTHEWS: No, my understanding of that is they get the two hours pay or the hours pay.
PN103
THE SENIOR DEPUTY PRESIDENT: I just want to understand what your proposition was.
PN104
MR MATTHEWS: Then they would go home and would obviously be off pay when they went home. The other problem we have with ANSTO and what has brought this on is that as I said for a number of years they haven't been replacing staff and what has happened is that we have had people working excessive overtime. More importantly we have been having people collect excessive leave. Now their idea of saying, well, we will change that, that we will have all these spares is in a number of ways a furphy and we have the program here if you wanted to go through the technical reasons. But it is our view it just wouldn't work.
PN105
So just to recap. We have agreed to a number of things. We have agreed to five shift rosters after the latter part of the operation of the reactor. We have agreed to, not necessarily cover shifts as long as it starts with four people and I have agreed, as the local delegate, to go to the members and say to the senior operators, "Would you be agreeable to work as a sub ..... on a shift at a lower grade". The answer is that most of the people have agreed to it, but they want to see the conditions.
PN106
THE SENIOR DEPUTY PRESIDENT: What is it you propose that should happen in relation to the notification, Mr Davies? Don't respond to the merit issues at the moment, I just want to know what you propose should happen in relation to your notification before me.
PN107
MR DAVIES: In relation to the notification, your Honour, I was seeking a confirmation from the Commission that in (1) in respect of the manning of a shift when there is no need for four people that it's management's prerogative to determine whether it should be four or three. The union is saying to us, notwithstanding Mr Matthews comments, "If you do that we'll shut you down".
PN108
THE SENIOR DEPUTY PRESIDENT: So these are permanent employees. Do they have a set number of hours, and occasionally you will say there is no work for you and stand them down?
PN109
MR DAVIES: No, sorry. Let us just imagine the scenario, your Honour. It is midnight, a shift of four people has just finished the afternoon shift from 3.30 till 11.30 and the new shift is coming on. We are expecting four people to turn up and at some late stage in the afternoon shift a person rings up and says, "Sorry, I'm sick, I can't come in". What we are saying is there is no need to fill the place of that fourth person on the night shift. That person is off sick, that's fine, right. They get paid sick leave for that and the reactor operates for three people for the duration of that shift.
PN110
THE SENIOR DEPUTY PRESIDENT: Would there be occasions when there would be work for four people?
PN111
MR DAVIES: Yes, and in that case we are saying it is a case by case basis, your Honour. In many cases there is quite a bit of work to do on the reactor. I have a minute to that effect which says to the AMWU that we deal with this issue on case by case basis. It is not an issue of standing anyone down, it is simply if someone is off sick a judgment is made, looking at the work load on the shift, whether we need to make someone work a double shift. In other words make them work 16 hours which is not necessarily our desire or to call someone in, to get out of bed, to come in and cover the shift.
PN112
Now at the current situation, your Honour, one of the things we do in the reactor is we irradiate ingots of silicon which are used by computer companies, electronic companies to put into computers, video cameras, etcetera. That is a fairly big workload but because of stockpiling and the economic downturn we are no longer doing that business for a period. So that for some shifts there is none of that work which is quite a bit of the work that they do on the reactor is available. What we are saying is there is a judgment made on a case by case basis, whether indeed if someone is off sick we have to fill their position on that shift or we run the reactor with three rather than four.
PN113
As I say it is notwithstanding what Mr Matthews says, we think that's just a normal right of management to determine that and the AWU is saying, "You do it we'll shut you down".
PN114
THE SENIOR DEPUTY PRESIDENT: I understand and what is it you propose I should do with this matter today?
PN115
MR DAVIES: Well, I was seeking a confirmation or - - -
PN116
THE SENIOR DEPUTY PRESIDENT: You are seeking some sort of declaration as to what is the appropriate conduct in this matter?
PN117
MR DAVIES: Yes, a direction, your Honour.
PN118
THE SENIOR DEPUTY PRESIDENT: All right. Could I have a copy of the enterprise agreement please, if you have a full copy there?
PN119
MR DAVIES: You can have my copy, your Honour. I didn't bring extra copies, but anyway.
PN120
THE SENIOR DEPUTY PRESIDENT: So in relation to this shift change is part of your proposal that hours over 36 and three-quarter would be paid at overtime?
PN121
MR DAVIES: It is, your Honour.
PN122
THE SENIOR DEPUTY PRESIDENT: So that you would make it a standard condition of work that there would be about five hours overtime?
PN123
MR DAVIES: Yes, and indeed, your Honour, we have a number of areas on site where we work shifts, we would come to agreement with the AMWU about those and they have regular rostered overtime components in them and they are built into the factor and into the annualised salary. As I had stated earlier, your Honour, obviously the remuneration of these people would go up as a consequence. There is absolutely no suggestion that we are asking them to work additional shifts without the corresponding change in remuneration.
PN124
THE SENIOR DEPUTY PRESIDENT: The overtime, if you change the shift pattern would not be an option, it would be compulsory.
PN125
MR DAVIES: That's correct, your Honour.
PN126
THE SENIOR DEPUTY PRESIDENT: So that is in fact, to some extent at least, a change in the conditions as to those set out in the agreement.
PN127
MR DAVIES: Yes, your Honour.
PN128
THE SENIOR DEPUTY PRESIDENT: We will have a conference, thank you. We will go off the record.
NO FURTHER PROCEEDINGS RECORDED
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