C2003/6388, Transcript of Proceedings [2003] AIRCTrans 5222 (27 November 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 6, 114-120 Castlereagh St SYDNEY NSW 2000
PO Box A2405 SYDNEY SOUTH NSW 1235
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER REDMOND

C2003/6388

MM KEMBLA PRODUCTS (A DIVISION
OF METAL MANUFACTURES LIMITED)
PORT KEMBLA

and

THE AUSTRALIAN WORKERS' UNION

Notification pursuant to Section 99 of the Act
of a dispute re selection of applicants for
Trades Assistant positions

SYDNEY

10.30 AM, MONDAY, 10 NOVEMBER 2003

PN1

THE COMMISSIONER: Appearances please.

PN2

MR E. SZCZEPANOWSKI: I appear for MM Kembla Products together with T. MOSS and W. NICHOLSON.

PN3

THE COMMISSIONER: Thank you, Mr Szczepanowski.

PN4

MR D. HANCOCK: I appear for the Australian Workers' Union, Port Kembla Southern Highlands branch, with MR P. MURPHY, chairman of delegates.

PN5

THE COMMISSIONER: Thank you, Mr Hancock. This matter today was originally listed before Senior Deputy President Cartwright who is unavailable and I have stepped in to try and resolve the matter, however the parties should note that if I fail today and the matter has to continue on it will revert back to him. Yes, Mr Szczepanowski?

PN6

MR SZCZEPANOWSKI: Mr Commissioner, the company is involved in a major reorganisation in its maintenance activities. Part of that reorganisation is an agreed reduction in TA numbers from 20 to 10. In the process, four TAs have accepted voluntary redundancies and it remained for the 16 to be selected into the 10 remaining positions. We are in dispute re the process for this selection. More particularly, despite different approaches by the union and the company there are two appointments we are in dispute over, one shift TAs position and one day work mechanical TAs position. We seek conciliation and a recommendation on this dispute.

PN7

The company indicated its intention to use its appointments and promotions procedure, a quality assured document, for this process at a meeting with the branch secretary regarding its restructure on 3 October. In attendance at this meeting were the branch secretary, organiser Dave Hancock, a TA representative, as well as the company's CEO and myself. I have a copy of a letter confirming the outcome of that meeting together with other documentation which I would like to refer to.

PN8

THE COMMISSIONER: Yes, hand it up. These documents I will mark as S1. Yes, Mr Szczepanowski?

EXHIBIT #S1 COPY LETTER CONFIRMING OUTCOME OF MEETING OF 3/10/2003 AND OTHER DOCUMENTATION

PN9

MR SZCZEPANOWSKI: The first document, the letter which I have just referred to, has in it, amongst other things, at point 4:

PN10

The appointments and promotions policy will be employed to select the most appropriate candidates for the positions.

PN11

We had previously signalled the same intent by way of a notice on 3 September 2003 re the dye polisher roles which are part of the 20 affected positions, which is the second document that I've just handed up, third page there. On the left hand column, second last paragraph, amongst other things it says:

PN12

Subject to the preferred future direction of the existing employees involved in dye polishing ...(reads)... remain as dye polishers.

PN13

We indicate we're reducing three positions to two amongst the overall 20. Interview criteria was then established and ratings given by the interview panel which consisted of the senior site delegate, the resource manager and the human resource manager. The dispute centres on the application of the assessment of work record in the appointments and promotions procedure at appendix A. The appointments and promotions procedure is the next document that I've tendered. It's a lengthy document and I would direct the Commissions' attention to appendix A towards the back of the document. Appendix A is an established assessment of work record used in the plant over the last three years where there are internal transfers and a number of applicants for vacancies.

PN14

The current dispute centres on the application of that work record to this particular circumstance. The company argues that in any assessment of the skills of individuals it should include an assessment of an individual's ability to work effectively with his or her colleagues, and his or her work record as established in the interview criteria.

PN15

THE COMMISSIONER: Is this document that you're referring to, does this form part of your EBA or is it a certified document with this Commission or is it just a document that the company has arrived at?

PN16

MR SZCZEPANOWSKI: It's not part of the EBA, it's a quality assured document from our safety system. The established interview criteria for the positions that we are in dispute over is the next document that I have tendered. The first page is headed the Criteria For Mechanical Maintenance Assistant, and in particular the criteria established that we're in dispute over is the fifth one down, have a satisfactory work record. If you read down four from the bottom:

PN17

Be prepared to work in a team environment and to assist trades personnel in all facets of their duties.

PN18

There was also an interview guide established for these interviews that were conducted which is the next document. In that interview guide we try to establish the evidence for selection against the criteria on the previous page that I've just referred to. In the event, it was the company's finding that satisfactory evidence had not been flushed out by that process and we then confirmed our intent and went back and used the assessment of work record which is part of the appointments and promotions procedure. It's probably better if I go into the detail of that following our submissions in private conference which is where I would suggest we would probably be today.

PN19

THE COMMISSIONER: Wouldn't everyone have a satisfactory work record?

PN20

MR SZCZEPANOWSKI: In this particular case we had one individual who certainly did not have a satisfactory work record, who had in fact received a final warning in recent times. There was no dispute between the parties that that is a fact. It's our contention that skill is generic and is not meant to be limited only to technical skills. For example, in the TAs matrix in core training there is a module entitled Team Skills, and I've tendered a copy of the TAs matrix which is the last document which I've handed up. You will see on the first page of that document entitled Career Path Structure Maintenance Assistant Mechanical under the heading Core Training at level 3 is a requirement for team skills.

PN21

In addition, a Level 2 Maintenance Assistant is required and I quote from the EBA:

PN22

To exercise good communication and inter-personal skills.

PN23

That quote comes from the definition of a Maintenance Assistant at attachment 4 page 17 of the EBA. If the Commission were to take the view that the appointments and promotions procedure was not appropriate, there is guidance in the EBA in attachment 3 at page 2 item 20 which says:

PN24

The parties strongly support the concept of equality of opportunity in employment ...(reads)... all things being equal, seniority will then apply.

PN25

The company argues that in any assessment of skills, team work and work record should be assessed and it is fair and proper to base selections on these results. The union have taken a very narrow view of skills and argue that this should be technical skills in a narrow sense and even if basic skills are not held, provided they are obtained, then selections should be based on seniority.

PN26

The appointments and promotions procedure has been used for over three years where internal vacancies are created and employees apply to transfer to these as a means of determining successful applicants. Clearly this is a re-structure and as such, the company must have the ability to place the most suitably skilled employees in positions. We believe that the assessment of work record is an appropriate and fair way of doing this.

PN27

THE COMMISSIONER: Has the company come to the conclusion of who the people should be that should go on your list?

PN28

MR SZCZEPANOWSKI: I should add to start with, Commissioner, that no one will leave Kembla.

PN29

THE COMMISSIONER: I see, they'll just be transferred to other positions.

PN30

MR SZCZEPANOWSKI: Transferred to other positions and yes, out of the process the parties understand exactly - we understand exactly who wants what to go where.

PN31

THE COMMISSIONER: Yes, thank you.

PN32

Yes, Mr Hancock?

PN33

MR HANCOCK: Thank you, Commissioner, as Mr Szczepanowski has said, there is an agreement in the EBA, that's page 2 which he had read out which is the appropriate skilled person for the job, all other things being equal seniority will apply. I have a table, the metrics and the skill base for the TAs on Level 1 to Level 4. I believe all the TAs are Level 4 operators who have the skills.

PN34

THE COMMISSIONER: Thank you, I will mark this document H1.

EXHIBIT #H1 TABLE OF METRICS AND THE SKILL BASE FOR TAs ON LEVEL 1 TO LEVEL 4

PN35

MR HANCOCK: Thank you, Commissioner. They all have the skills are they are all competent in what their skill base metrics are. This was settled last week with the TAs being put into positions based on skills and seniority. Now, we have the company deciding to go against this agreement and the company wants them to go by the promotions selection procedure. The promotions selection procedure was put in place for people to transfer from one logical work area to another logical area where they have to learn new skills.

PN36

Part of that procedure eliminates employees who have excess absenteeism and/or on probation. This is not about transferring from one logical work area to another, this is two maintenance areas combining into one maintenance area where they must use the same skills that they have already. This is a demeaning exercise with no skills required outside the metrics that they have at the moment.

PN37

The person that the company is referring to, there is no real evidence on the accusation that he was accused of and the final warning that was put on him. I also have references about this person.

PN38

THE COMMISSIONER: I don't want to see them. So you are talking about one person, are you? Is that what it has come down to?

PN39

MR HANCOCK: I believe so, Commissioner.

PN40

THE COMMISSIONER: Let's get the meat off the bone, one person?

PN41

MR HANCOCK: Yes, Commissioner. He is on probation at the moment from an accusation that was put to him, he's seeing a consultant psychiatrist whom I have references from. He has all the skills, he's been there for 33 years and the company want to use this promotion procedure where we don't believe they are going from o ne logical work area to another, that is just demeaning the TAs and by the EBA, he's got the appropriate skills, he's got the seniority, so we believe he should have that position. Thank you, Commissioner.

PN42

THE COMMISSIONER: Yes, thank you, Mr Hancock. All right, I have heard what the parties have had to say. You don't want to say any more, do you, Mr Szczepanowski?

PN43

MR SZCZEPANOWSKI: Commissioner, except that there are two positions that we are in dispute over, not one. As I said in the submission, the day work TAs position and the shift TAs position.

PN44

THE COMMISSIONER: All right, the union is waving its hands at me, they mightn't be sure about the second one, so they've told me one. I think that the proper way to handle this matter is to go into private conference and talk to the parties. If there is a need to go back ont he record I will. The Commission stands adjourned.

OFF THE RECORD

RESUMES [11.38am]

PN45

THE COMMISSIONER: Following the adjournment of these proceedings, I entered into conciliation with the parties. It has been decided and agreed to by the parties that the best way to proceed with this matter is if I form a board of reference to deal with this matter at plant level. I will form the board of reference as soon as practicable and the parties will be notified of the sitting times of that board of reference.

PN46

The parties have also indicated to me in conciliation that whatever the recommendation of that board of reference, they will accept. Is that your understanding, Mr Szczepanowski?

PN47

MR SZCZEPANOWSKI: Commissioner, it didn't come easily for us to commit to the board of reference process but we do so in order to expeditiously deal with the matter and on the understanding that both the company and the union and its members agree to abide by the recommendations.

PN48

THE COMMISSIONER: Yes.

PN49

Mr Hancock, do you agree, as the company has, to abide by the decision of the board of reference?

PN50

MR HANCOCK: I agree with the recommendation and the board of reference, of recommending that to the delegates tomorrow.

PN51

THE COMMISSIONER: Yes, thank you. I will not adjourn these proceedings and form the board of reference however, Mr Hancock, if your delegates say tomorrow that they won't abide by the board of reference, then I won't form it and the matter will come back before Senior Deputy President Cartwright. Th e Commission stands adjourned.

ADJOURNED INDEFINITELY [11.40am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #S1 COPY LETTER CONFIRMING OUTCOME OF MEETING OF 3/10/2003 AND OTHER DOCUMENTATION PN9
EXHIBIT #H1 TABLE OF METRICS AND THE SKILL BASE FOR TAs ON LEVEL 1 TO LEVEL 4 PN35