C2004/2383, Transcript of Proceedings [2004] AIRCTrans 1327 (7 April 2004)

AUSCRIPT PTY LTD
ABN 76 082 664 220

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

TRANSCRIPT OF PROCEEDINGS


O/N 6576
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER BLAIR

C2004/2383

CONSTRUCTION, FORESTRY, MINING
AND ENERGY UNION

and

BURGESS FURNITURE PTY LIMITED

Notification pursuant to section 99 of the Act
of an industrial dispute re unfair redundancy

MELBOURNE

10.50 AM, MONDAY, 29 MARCH 2004

PN1

MR R.A. LOWE: I appear for the CFMEU in this matter. Appearing is the President of the union, MR J. PATTI. We also have from the company our shop steward, MR PETER JONES and member, MR GARRY O'HALLORAN, if the Commission pleases.

PN2

MS K. IRWIN: If the Commission pleases, I am from the Australian Industry Group, and I appear on behalf of Burgess Furniture. Appearing with me this morning is MR PETER BOYNE, Operations Manager with the company, and MR GRAHAM GLOURY, Financial Controller.

PN3

THE COMMISSIONER: Thank you. Yes, Mr Lowe.

PN4

MR LOWE: Thank you, Commissioner. This is a dispute over what constitutes trade work and the rate that should be paid to an employee performing such work, and in this instance our member Garry O'Halloran is the individual concerned. Our member's terms and conditions of employment are governed by the Furnishing Industry National Award 2003 and the Burgess Furniture Pty Ltd Enterprise Bargaining Agreement 2001.

PN5

It is our intention, Commissioner, to show the Commission that the work being performed by our member is defined as trade work under the terms of the award and that the rate that he should be paid is at least the rate for such work under the enterprise bargaining agreement, being the tradesperson's rate. I would like to take this opportunity, if I may, to hand up a bundle of documents which I will refer to in my submissions.

PN6

THE COMMISSIONER: Thank you.

PN7

MR LOWE: If I can just take the Commission just briefly through those documents, the first one is extracts from the National Furnishing Industry Award. Then there is a list of duties performed which is required of a wood machinist doing this type of work. There is a certificate issued by Holmesglen. In respect to the duties being performed there is a plan which our member would be required to perform his duties of, just to show an example of a simple plan. Then there is a report from our member in respect of the incidents that have occurred which led up to the dispute.

PN8

There is a statement of attainment from Holmesglen Institute of TAFE in respect of the certificate and relating to the operation of the router. There is a letter from Furnishing Training Victoria, from the Executive Officer, Mr Mark Kelly, and then there is the copy of the current enterprise agreement. The company was looking for a person to operate a router on the afternoon shift late in the year 2000. In December 2000 I understand that Garry answered the request by the company and indicated he would be prepared to go from day shift to afternoon shift and be trained to use the router, the CNC, and then he commenced such duties towards the end of January 2001.

PN9

I am instructed that there was a meeting involving most of the employees and looking initially for people to do this work, and there was some difficulty in initially getting people to work on the afternoon shift.

PN10

He commenced such duties towards the end of January 2001 and he was trained initially, I guess, on the day shift and that took a period of 2 or 3 months over the on-the-job training. At the end of April he went onto the afternoon shift where he worked a 4-day week, 10 hours a day, and that was the hours that were worked there. He raised the issue of pay with the company because he was indicated that when he undertook the job he would get a pay increase, that he would be paid the appropriate rate and at that stage he was being paid as a production employee level 2.

PN11

The proposed appropriate wage rate was never paid. He was told he would get a pay rise if he had a piece of paper, a certificate, to show his qualifications. It was indicated to him that if you have a piece of paper there will be no problems with any wage increase. Garry went of his own volition to Holmesglen Institute of TAFE and was involved in the first course ever conducted at that college on this particular complex piece of machinery in June 2003, and he achieved the certificate in September 2003.

PN12

At some stage his wages increased to that of a production employee level 4 but the union had raised the issue through our President that the work that he was undertaking was trade work and that he should be paid the trade rate in the enterprise agreement, and that issue hasn't been able to be resolved. I would like to just take the Commission, if I can in the first instance, to the extracts of the Furnishing Industry Award. On page 27, which is the second page in, it deals with Part 5 - Wages and Related Matters, towards the bottom of the page, and 21.1 has the heading of Definitions of Employee Classifications.

PN13

We go over the page, Commissioner, to 21.1.3: tradesperson means the following - and then it has a subheading Machinist A-grade means: a tradesperson who is capable of and may be called upon to grind cutters and/or set up and operate machines such as Lindeman or similar jointer, moulder, router or who works freehand shaper - etcetera, and it goes on. The work that has been done by our member is that of the operation of the router. We go down to clause 21.1.8 that provides the work which is done by a non-tradesperson, meaning a machinist B-grade, and that means a non-tradesperson, and then it says: engaged in setting up or operating and working freehand machines such as band and jigsaw belt sander on veneers - etcetera, and it goes on.

PN14

The Commission will note that the router isn't included there or the shaper. We go over the page to 21.1.8(a)(2): that relates to people who operate machines which are more complex but they are not required to set them up, and again the Commission would see that the job which has been done by our member is not included in that definition. We take the Commission now to page 38 initially and clause 21.3, comparative schedule of old classifications and new broad-banded wage levels. That starts the list off under 21.3.1, and over the page, at page 39, at the top of the page we see the machinist A-grade as defined which I've just referred the Commission to: furnishing industry tradesperson, level 1.

PN15

So the definition of the machinist A-grade and the operation of the router and setting up of that machine comes into the tradesperson's tasks. The list of duties which has been provided which has the heading of Operation of the NC Router has been prepared by Joe Patti, who is the President of the union and is a wood machinist by trade. He is quite familiar with the work that is required, and so there is quite an extensive list of duties that would be required by this employee to do.

PN16

As an example the next document that we showed the Commission is from Burgess shop floor paperwork and is a plan from which the employee would be required to work in setting up and then operating the router. Just for your information and for completeness, we've included a statement from the employee which we may refer to just a bit later. The next is a statement of attainment which our member has achieved in the certificate 3 in furniture making, wood machining, and that is dated 2 September 2003, and the Commission would note that certificate 3 in the AFC system is that of a trade level. So that is a trade level module, and we are of the view that that is towards the higher end of the skills that are required by a wood machinist.

PN17

If we can take the Commission to the letter that I've received from Mr Kelly, under Furnishing Training Victoria. Mr Kelly is a tradesman in the furnishing industry and is the Executive Officer of the Furnishing Industry Training Board in Victoria. The letter provides me with information regarding the unit of competency that our member has received to set up and operate and maintain CNC machining and processing centres. I think that there's some important things that I would like to draw the Commission's attention to and just quote for the record.

PN18

First of all he states that he has confirmed his views with a Mr Byron Stanley, the Chairperson of Furnishing Teachers Advisory Group, FURNTAG, and a furnishing teacher at RMIT, so this is a different institution to the one that issued the certificate. It goes on to say that:

PN19

This unit is considered to be an advanced unit in certificate 3 trade training ...(reads)... machines not only skilled in new technology but also highly sought after.

PN20

I guess that that statement can be verified by our President, who is a wood machinist by trade, and if he wanted to be able to operate the router would have to undergo the same form of training that has been undertaken by a member on the job and in gaining the certificate. Over the page I would like to refer the Commission to paragraphs 2 and 3 which reads:

PN21

You will notice that in five of the seven categories the participant must be able to operate at level 2 ...(reads)...high level of skill and knowledge required by an individual with these skills.

PN22

Then underneath there is a chart which has the key competency levels, and in that there is level 2 where management or facilitation of conditions or process is exercised. Then there is the various competencies listed which are required, and if the Commission would turn to the second page of that list we will see there, under LMFFM3030: Set up and Operate CNC Sizing Machines. They are required to have two level 1 competencies and five level 2 competencies as the prerequisites for being able to undertake the training to gain the certificate. Then there is, in addition to this, detail on the actual competency itself which I won't bore the Commission with.

PN23

So we are of the view, Commissioner, that we have established that this is trade work and then it comes to the issue of what our member should be paid. We say that it is at least the trade rate for a tradesperson under the enterprise bargaining agreement. In saying that we recognise that our member hasn't undertaken a formal apprenticeship and doesn't have a trades rights certificate, but the work that he is doing is that of a tradesperson. We would draw the Commission back to the extracts from the awards, if I may, to the final page of that document, Commissioner and clause 24: Mixed Functions. That states, Commissioner:

PN24

An employee engaged for more than 2 hours during any 1 day, or shift, on duties carrying a higher rate ...(reads)... one day, or shift they shall be paid the higher rate for the time so worked.

PN25

Now, since our member, Commissioner, went on to these duties at Burgess Furniture he has been doing that work for the full period of his employment. So there is no argument about whether he has been doing it for a short period of time, or lengthy period of time. That has been the total work that he has been undertaking. We are also aware, Commissioner, that other employees at Burgess doing the same work are paid at tradespersons level 1 or 2. Some of them are not - while may be tradesmen, not wood machinist by trade, but cabinet makers.

PN26

We are also aware, Commissioner, that there have been other people, in fact the shop steward that is with us today, and will be able to verify this. That he was in a situation for a period of 3 to 3-1/2 years where he was required in his duties to set up and operate the moulder and if I could just take the Commission back to the extracts of the classifications in the award under the Machinist A Grade definition and just remind the Commission a tradesperson who is capable of and maybe called upon to grind cutters and/or set up and operate machines such as Lindeman, or similar joint at moulder router and in this instance when Mr Jones was doing that work he was paid the basic tradesman's rate.

PN27

Commissioner, we are quite clearly of the view that the clause which provides for the mixed functions gives us the criteria to claim that our member should be paid the trade's rate and that that rate should be as prescribed by appendix A of the enterprise agreement which is on page 13. There has been a number of wage increases since the time our member commenced doing this work in 2001. Now, at some stage after the employers have given their view we are happy to go in to conciliation if that would be useful to try and resolve this dispute. If the Commission pleases.

PN28

THE COMMISSIONER: Thank you, Mr Lowe. Yes, Ms Irwin?

PN29

MS IRWIN: Commissioner, I've been instructed that Mr O'Halloran had been at level 2 production employee rate. He sought an increase in 2003 and was informed by the previous factory manager to look at considering some form of formal training or qualifications. Mr O'Halloran then went out and completed one unit of the certificate three in furniture making, wood machining being, as you have seen, the set up and operate computer numerically controlled machining and processing centres.

PN30

In December 2003 Mr Boyne was informed by Mr O'Halloran that he had completed that unit and so increased his level to level 4 production employee and provided that that was back dated to the time that Mr O'Halloran had completed the unit in question. Commissioner, I've been instructed that Mr O'Halloran is able to set up and operate a CNC point to point processing centre, but has limited knowledge of other woodworking equipment. As to whether or not Mr O'Halloran should receive the tradesperson rate, Commissioner, we would submit that the definition of tradesperson in the award must be read in conjunction with the actual classification definitions themselves and, in particular, Commissioner, if I could draw your attention to clause 21.2.5 which defines a furnishing industry tradesperson level 1 where it quite clearly states that:

PN31

An employee at that level will competently undertake the full range of trade functions under limited supervision...

PN32

And so on. It also discusses at 21.2.5(c): Qualification:

PN33

An employee at this level will hold a relevant trade certificate, or tradesperson's right certificate.

PN34

Mr O'Halloran holds neither of those qualifications and is, I've been instructed, unable to competently undertake the full range of trade functions. Also, Commissioner, Mr Lowe indicated that the function, or the operation of the CNC is a trades function. Commissioner, if I can take your attention to clause 21.2.4: Definition of employee level 4. At 21.2.4(a)(ii) it discusses that:

PN35

In addition, this level will include an employee engaged primarily to input a selected program and/or set up and operate computerised numerically controlled equipment.

PN36

On that basis, Commissioner, we would submit that Mr O'Halloran has been appropriately classified at the production employee level 4. He quite clearly does not hold trades qualifications or, we would submit, is unable to perform the full range of trade duties as required by the award. Unfortunately, I haven't been able to receive instructions on the issue, although Mr Jones who the union is submitting was paid at a trades qualification. I have no instructions on that matter.

PN37

In respect to Mr O'Halloran it is our submission, that he is appropriately classified at production employee level 4. As Mr Lowe indicated, if the Commission so requires, we would be prepared to break in to conference to further discuss the matter.

PN38

THE COMMISSIONER: Thank you. Yes, Mr Lowe?

PN39

MR LOWE: Commissioner, just in respect of a furnishing industry tradesperson level 1 which has been referred to under clause 21.2.5. It starts off by saying:

PN40

A furnishing industry tradesperson level 1 is an employee who has successfully completed a trade certificate, or holds a tradesperson's right certificate and is required to exercise the skill and knowledge of that classification.

PN41

Clearly, Commissioner, we haven't tried to say that our member is a tradesperson. What we are saying is that the work that he is undertaking is that of trade work and while he is being classified at a higher duty and performing duties of a higher classification then he is entitled to be paid the rate of that classification. In respect of the comment that was made that he would have limited knowledge of other woodworking work, or machines, certainly from the information that we have provided the Commission from the Industry Training Board and I would refer the Commission back to the letter forwarded to me by Mr Mark Kelly.

PN42

On the page where the competency numbers and competency names are indicated to set up, operate and maintain CNC sizing machines there would have to be five units of competency which equate to AFC level 2 as a prerequisite for being able to do this particular course. So for the obviously to satisfy the Holmesglen TAFE he had to be able to show them that he had a reasonable knowledge of work within the furniture making industry.

PN43

The issue in respect of production employee level 4, Commissioner, at clause 21.2.4(a)(i) indicative of the tasks of which an employee level may perform indicates computer operation. It does not go on to expand on that any further. So we are quite clearly of the view that the work that has been done, if we go back to the definition in the award: a machinist A grade, which has the classification under the comparative schedule of a tradesperson level 1 carries out the work of operating the router, which our member does and that is not contained in any other definition within the classification structure.

PN44

You will note that, for instance, in clause 21.1.8(a)(ii) there are a number of machines which are referred to who operates machines such as a double ended tenner, multi-headed boring machine with three or more bits, etcetera, and you will find some of those - the difference between A grade and B grade is the person is able to set them up. There is no mention of the router whatsoever. Certainly, Mr Patti, who is a tradesman would be able to clearly advise the Commission that the work in operating the router has always been classified as trades work and has always been paid as such.

PN45

The issue in respect of the company indicated that he only sought to be paid in 2003. I'm instructed, Commissioner, that our member was advised that once he was trained there would be a wage increase for him, that he would be paid the appropriate rate. We would seek payment from the time that his on-the-job training finished and he was operating the machine, setting up and operating the machine on night shift on his own, Commissioner. If the Commission pleases.

PN46

THE COMMISSIONER: Who is alleged to have told him about the pay rise, Mr Lowe?

PN47

MR LOWE: A gentleman by the name of Brent McGregor, who was the factory manager, or operations manager at the time, Commissioner.

PN48

THE COMMISSIONER: Is he still around?

PN49

MR JONES: No, he has left.

PN50

THE COMMISSIONER: Ms Irwin, do you wish to say anything else?

PN51

MS IRWIN: Commissioner, I have been instructed that the router in question under the definition of machinist A grade, is not in fact, a router, not a CNC program router and, in fact, is quite two different concepts. Again, we would also just refer the Commission back to the provision under the definition of production employee level 4 which clearly states at 21.2.4(a)(ii) that, in addition, it covers the operation of CNC.

PN52

THE COMMISSIONER: All right. The parties wish to go in to conference?

PN53

MR LOWE: I'm happy to go in to conference, Commissioner.

PN54

MS IRWIN: Yes, Commissioner, if you believe it would be useful.

PN55

THE COMMISSIONER: Thank you. The Commission will go in to conference.

NO FURTHER PROCEEDINGS RECORDED