C2004/1236, Transcript of Proceedings [2004] AIRCTrans 333 (23 January 2004)

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TRANSCRIPT OF PROCEEDINGS


O/N F5871
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT IVES

C2004/1236

GRAINCORP OPERATION LIMITED

and

NATIONAL UNION OF WORKERS -
VICTORIAN BRANCH

Notification pursuant to section 99 of the Act
of a dispute re supply of labour for continuous
operation

MELBOURNE

10.00 AM, THURSDAY, 15 JANUARY 2004

PN1

MR P. McCONAGHY: I appear on behalf of GrainCorp Operations Limited together with MR T. HALLETT.

PN2

MR E. CURNOW: I appear for the National Union of Workers together with MR G. HEATH and MR T. SMITH.

PN3

THE DEPUTY PRESIDENT: Yes, Mr McConaghy.

PN4

MR McCONAGHY: It is good to be back in Victoria. It brings back days of my youth because the disputes down here are sort of 1960 style disputes. What we would like to request from your Honour, after Mr Curnow and myself have said a few formal words, if we could go into private conference. We think that would be the best way to resolve the matter and the manager has put some information that we would like for our part to go over but it is best done in conference.

PN5

But I would like just to put on the record what we see the dispute as being essentially about and it is really a staffing level issue and just the bare essentials. At the moment - - -

PN6

THE DEPUTY PRESIDENT: It is like deja vu, isn't it, Mr McConaghy?

PN7

MR McCONAGHY: Well it is, in fact I was thinking about that only while I was waiting here, but this is about Portland Terminal rather than Geelong, and I must say that Portland is in all respects an excellent place and the terminal runs very efficiently at Portland. This is just really a minor hiccup but it is something that we can't let pass, totally different from the situation, as we understand it, at Geelong. When we are operating the shipping function at the Portland Terminal on day work, we assign three staff members to carry out the function.

PN8

For historical reasons when we do the same function on over time, there are four people assigned. We don't think that the fourth person is necessary and whilst I suppose we could have just changed it and had a dispute, we have given notification that in the next round of enterprise bargaining, we are going to bring up that matter because we have already had some preliminary talks about enterprise bargain. So we are happy to leave, for the time being, until the enterprise bargaining negotiations, the over time arrangement.

PN9

What is happening next week after having had very little grain, we have had a fairly decent harvest in Victoria and from the 19th, next Monday, instead of working day work, we are going to go on to shift work and will be working a day shift and an afternoon shift. The day shift starts at 7.30 in the morning and goes until 4, and the afternoon shift goes from 4 until midnight although the actual shipping function because of stevedoring and other operational factors, stops at 9.30 in the evening.

PN10

But in order to get up the eight hours, you have to work through until midnight. We don't have any flexibility in hours, how we roster ordinary hours. We say that the proper staffing for two reasons on both the day shift and the afternoon shift, is three, which is the same as day work now. We say that, I suppose, in some sort of technical sense because you are using ordinary hours on both shifts when you are working shift work, and much more significantly there is only sufficient work for three people on the function and in fact when you get to the end of the evening shift - the afternoon shift rather, you have got from 9.30 - let us say 10 o'clock because it takes people time to get from one place to another and do various things.

PN11

You have got three people with two hours each at a minimum where they can do other things as well. One of the major reasons that it is said that the fourth person is required is because of the need to take away dust but in fact there is ample time for that to be done and that hasn't caused a problem. In order to settle this though, the manager has said he is happy to give an undertaking in writing that if it can be established on a needs basis on any one occasion - on any occasions that we need more than three, if we need four or five or whatever it is, then he will make such numbers available.

PN12

It is simply a matter of people going and establishing that there is work to be done for them. The day work that we have been doing now for a long time, three is sufficient on about 90-odd per cent of the occasions, probably a bit higher. If a fourth is needed, well then a fourth is assigned to it. But we can't accept as the starting number four, when our calculations show there is just no work for them. And as I say, your Honour, we are happy to go through those calculations in private conference but I just wanted to put on record what we see as the essential nature of it.

PN13

There are a lot of other side historical issues and no doubt they will come out but it is essentially how we see the problem.

PN14

THE DEPUTY PRESIDENT: When did you envisage the shifts commencing, Mr McConaghy?

PN15

MR McCONAGHY: We envisage them commencing on the 19th. I must say that we have had quite a number of talks. Over the last four weeks or so the manager has met with the local delegates five times and two of those Mr Curnow was present. One was a telephone hook up last week and I actually happened to be in Portland so I was physically in Portland. Another was a meeting at Geelong on Tuesday this week and in fact I had another meeting with the delegates the day before we had the phone hook up so we have had any number of meetings but then you get to a point where it seems that people say this is how we have always done it, and we are saying that things have changed, but in any case shift work is not over time.

PN16

Shift work is the utilisation of ordinary hours. It is very difficult to find a way around it. So it is not for the want of having discussions with people. We haven't been able to resolve it, we just are both focussed on something I think and I think we need something to help us sharpen our vision.

PN17

THE DEPUTY PRESIDENT: Yes, right, thanks, Mr McConaghy. Mr Curnow, back at the pointy end, Mr Curnow.

PN18

MR CURNOW: I don't know whether I have started the year on a good note or a bad note but when GrainCorp appears on your fax, I am sure you have the same thoughts about it as I do.

PN19

THE DEPUTY PRESIDENT: It hasn't been there for a long time, Mr Curnow.

PN20

MR CURNOW: Your Honour, there are a number of issues which we feel are absolutely critical to this matter being resolved. The first and not the least of those is that when the current agreement was made which was only in April 2003, it was agreed to in good faith and voted on by the employees of Portland based on a very clear position. And that clear position was that they had 15 employees to carry on the work at that site. That constituted 13 NUW members and two FEDFA.

PN21

The two FEDFA members have traditionally run the ship loader and have done so for I suppose 30, 40, 50 years, I don't know, but the FEDFA, which I think is now the CFMEU, have always performed that task. Over the years I understand there has been greater numbers of FEDFA people on site and they have gradually diminished. About the middle of last year, the company in their wisdom or otherwise dispensed with the services of the last two FEDFA members.

PN22

That in itself markedly altered how the work was performed. Now the members that we have got at Portland are not militant members, they are not trouble makers, they are very good quiet country people that go about the job and do the work. They picked up the ship loader duties which they previously hadn't, to any great extent, performed before. I believe they had on relief and things like that, but they didn't argue demarcation, there was no great hoo-ha about it, they agreed that, yes, they would take that work.

PN23

All of the time that the current functions have been performed and under the EBAs of recent years, there has always been four people on shift and four people perform work of a similar nature if shipping needs to continue into the afternoon or evening shift, four people did it on afternoon shift. Part of the recent - - -

PN24

THE DEPUTY PRESIDENT: Sorry, Mr Curnow, you say there has always been four people on shift - - -

PN25

MR CURNOW: Always been four - - -

PN26

THE DEPUTY PRESIDENT: - - - you mean four people on day shift as well, that is on any shift?

PN27

MR CURNOW: Yes, that is right.

PN28

THE DEPUTY PRESIDENT: So you are saying something contrary to what Mr McConaghy says?

PN29

MR CURNOW: Yes, I am.

PN30

THE DEPUTY PRESIDENT: Yes.

PN31

MR CURNOW: It is only in the last year because of last season's almost disastrous harvest where there was almost no grain and that meant that the Portland site was very quiet which I think may have been the catalyst for the company deciding to dispense with the last two FEDFA members. And during that time, because our members had been flexible, because work hasn't been at a premium, they have on occasions run the terminal with three.

PN32

But it was only during the last 12 months or so and it is only because things were very, very quiet. All of a sudden we are back to where, as Mr McConaghy said we have got a very good grain harvest, shipping is from this weekend really going to crank up. In fact I understand there is something like four ships in a row all of a sudden going to come in, in the next few weeks. We believe the only safe way to run the terminal is to continue with the manning that we have traditionally had, continue with the manning that was what we believed applicable as a result of this agreement.

PN33

We are happy to do it on shift work, the afternoon won't become an overtime shift any longer, it will become simply a normal afternoon shift. We have tried to find compromises to part way meet what the company wants, and all of our compromises have been rejected. The company's position is black and white and I don't think they hide from that, quite frankly. They want three on a shift and that is it. The problem with the guarantees that Mr McConaghy talked about in terms of, you know, things are such that we need four people or five people, we will bring them in.

PN34

We can't get from them what triggers that mechanism. They can't tell us what triggers four or five people. So we can't ever say if they get their way with three, no matter what the work load, that we will ever have what we consider safe manning levels again. We are still prepared to compromise. We may even be able to compromise slightly further than some of the offers we have put on the table, but we are adamant, your Honour, that there has to be at least for part of the two shifts, and I emphasise that word part of the two shifts, a fourth person.

PN35

THE DEPUTY PRESIDENT: Why do you say it is unsafe with just three, Mr Curnow?

PN36

MR CURNOW: The biggest problem that they have on any terminal such as this is dust. Huge amounts of dust are generated by grain. If everything runs absolutely perfectly, the dust extraction runs without a hitch, one would say yes, probably you could work with three and get away with it. But you have only got to have one hiccup with the dust and the whole terminal just about clogs up and you need more than one person then to start cleaning it out, getting rid of it, and bearing in mind if the dust really goes hay wire, and that is the real big problem, these people that are doing the other jobs, the ship loader, the gantry and those functions, don't get relieved until the dust is cleaned up.

PN37

The prime function is to get the ship loaded and cleared and away overseas. We believe for no other reason than the proper relief of the employees that we need four people. Are they supposed to work eight hours without a break of any sort? I think the company sees that that is what they should do at the moment if the dust becomes a problem and the third operator is simply engaged in cleaning up the dust for a long period and it can be a long period if it gets really clogged, and we could then use the fourth operator to make sure that people had their proper breaks.

PN38

But they are - look I have got a list of duties that people need carried out, your Honour. I don't want to read them on to a record. If you want to read them in conference, that is fine, but we think there is only one option for running the terminal and that is at least on a number of the hours of the day to have a fourth person there.

PN39

THE DEPUTY PRESIDENT: There is a question I was going to ask Mr McConaghy and I forget, does the agreement allow for manning levels, Mr Curnow?

PN40

MR CURNOW: It doesn't mention specific numbers. It does contain, your Honour, a special section called Conditions Applicable at Portland in appendix C of the agreement and those conditions go to, at point 8, a number of flexibilities. Now that is the point that I was trying to make earlier. I suppose I should have made it a bit clearer. We agreed to these flexibilities based on 15 people, not 13. We have agreed to these flexibilities based on what we were then doing and that was four people a shift, not three. One of the flexibilities is what the company are hanging their hat on, flexibility of 24 hour shipping and working through:

PN41

All terminals shall operate on a continuous basis from start to finish. This shall be achieved through staggering morning tea, lunch and afternoon tea breaks where appropriate.

PN42

The company when it starts a shift wants to finish a shift. It is natural, all terminals do, but we did this. We agreed to these things, 15 employees and four people a shift. Okay, we are prepared to work with 13. We are prepared to leave the two FEDFA out of the equation. We have picked up the work, but we are not going to do it with less than four. Now, one of the compromises that we have put on the table is, if they put four people on day shift, on afternoon shift one of the day shift people can simply work overtime from 4.30 until 9.30 and that is the hours that Mr McConaghy mentioned was when the ship finish, and the person then finish - the fourth person then finish in the afternoon at that time.

PN43

So the only overtime they would incur would be for one person for five hours, rather than for a whole shift or rather than putting a person on for the whole of the afternoon shift. Now, I mean we have tried to be reasonable about it and as I have said the people are not militant or dogmatic about demarcations or anything of that nature. We are dealing with people who, I suppose in their own words have said to me "Enough is enough. We have compromised, we have picked up work, we have done everything the company has asked for us and now they want to go to the next quantum leap". We can't do it. Thank you, your Honour.

PN44

THE DEPUTY PRESIDENT: Thanks, Mr Curnow. Mr McConaghy, is there anything further you wanted to put on the record before we go into conference.

PN45

MR McCONAGHY: It might be more productive if I leave it until after the conference, your Honour.

PN46

THE DEPUTY PRESIDENT: Yes, thank you. I will go off the record then.

NO FURTHER PROCEEDINGS RECORDED