AG2004/1615, Transcript of Proceedings [2004] AIRCTrans 808 (3 March 2004)

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TRANSCRIPT OF PROCEEDINGS


O/N 6169

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT LACY

AG2004/1615

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the
Act by Upstream Petroleum Pty Ltd for
certification of the Upstream Petroleum
Pty Ltd Iona Gas Plant Certified Agreement
2004

MELBOURNE

4.22 PM, WEDNESDAY, 18 FEBRUARY 2004

PN1

MR B. BARTON: I appear on behalf of Upstream Petroleum Proprietary Limited and appearing with me is MR I. MORAN.

PN2

MR B. LEWIS: I am from Upstream Petroleum and I am here to represent the employees of the Iona Gas facility.

PN3

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Yes, Mr Barton.

PN4

MR BARTON: Thank you. There are two matters that we would be seeking to have dealt with this afternoon. The first is an application pursuant to section 170XF(2) of the Workplace Relations Act to determine an appropriate award for the purpose of the no disadvantage test in certifying an agreement pursuant to section 170LK of the Act. That agreement is to be known as the Upstream Petroleum Proprietary Limited Iona Gas Plant Certified Agreement 2004 and that agreement is to cover employees of the company engaged in the operation and maintenance of the Iona Gas facility at Port Campbell.

PN5

The award that is sought to be designated this afternoon is the Hydrocarbons and Gas (Production and Processing Employees) Award 2002 part 1. I would note that in our application we incorrectly identified the award as the 1982 award and we would seek to have that error corrected this afternoon.

PN6

THE SENIOR DEPUTY PRESIDENT: Yes, all right.

PN7

MR BARTON: The award is thought to be appropriate because basically it is applicable to similar operations elsewhere in the country and it has also been used for the purpose of a designated for other certified agreements for Upstream Petroleum. One of those agreements was actually for the Patricia Baleen facility and that agreement was certified by the Commission, as it is currently constituted, in November last year, I believe it was. So, for those reasons, we would seek that the Commission grant the application. If the Commission pleases.

PN8

THE SENIOR DEPUTY PRESIDENT: Well, perhaps I will hear from Mr Lewis, first. What do you say about it, Mr Lewis?

PN9

MR LEWIS: Sorry, sir?

PN10

THE SENIOR DEPUTY PRESIDENT: What do you say about the - - -

PN11

MR LEWIS: We have no objections as the employee group.

PN12

THE SENIOR DEPUTY PRESIDENT: What do you say about the explanation of the agreement given to the workers?

PN13

MR LEWIS: The explanation given to the workers. As a group we were very happy with it.

PN14

THE SENIOR DEPUTY PRESIDENT: Well, what explanation was given?

PN15

MR LEWIS: As to the - - -

PN16

THE SENIOR DEPUTY PRESIDENT: About the agreement.

PN17

MR LEWIS: What explanation was given to us as the?

PN18

THE SENIOR DEPUTY PRESIDENT: Yes.

PN19

MR LEWIS: The explanation we were given was a full letter, actually given to us twice, and as per, I would say probably that you have that, was handed around all our employees.

PN20

THE SENIOR DEPUTY PRESIDENT: All right. Mr Barton, one of the difficulties I have, it is a rolled up rate of pay, as you appreciate, and I have no rosters to give me any indication at all of what the employees might earn under the agreement, as compared with what they might earn under the award. Do you have any material of that nature, at all?

PN21

MR BARTON: I have an example calculation sheet which was basically prepared for our interests and I am happy to provide a copy of that to the Commission and to walk the Commission through it, because it will take some explanation.

PN22

THE SENIOR DEPUTY PRESIDENT: Yes, all right. Can I just clarify. When you say an "example calculation", it is not based on an actual roster?

PN23

MR BARTON: It is based on their actual roster.

PN24

THE SENIOR DEPUTY PRESIDENT: All right. How were these people paid before the agreement or what was the arrangement before the agreement?

PN25

MR BARTON: It was basically the same roster that they are working now, which is 14 days on and 14 days off, day and night shift, seven day shifts followed by seven night shifts, paid on an annual basis and previously, I believe, there were AWAs in place to apply to the employees.

PN26

THE SENIOR DEPUTY PRESIDENT: How long has it been in operation, the plant?

PN27

MR MORAN: Approximately four years.

PN28

THE SENIOR DEPUTY PRESIDENT: All right.

PN29

MR BARTON: If I could just work through the calculation. Basically what it seeks to do is to compare the earnings under the award, working the current Upstream roster for the senior production operator classification in the award, so that is the top rate that we are looking at there, and compare that to the lowest rate under the certified agreement. Just to show that, basically, for the top rate in the award that you would be paid less working - being paid the award rates, working the current roster, than you would if you are on the lowest rate under the certified agreement. So what we have done is, basically, an equivalent ordinary hours calculation.

PN30

If I just run you down - the first column indicates the components that were taken into consideration in the calculation, the second column, entitled "Upstream Petroleum Proprietary Limited Iona Gas Plant Certified Agreement" we have taken an operator, grade 3, I believe. The second line, roster cycle indicates that there is a four week cycle, two weeks on, two weeks off, seven days, seven nights, alternating, 12 hours per shift. There are 13.04 rosters - cycles in the year and that is simply, basically, 365 divided by four - sorry 52 divided by four.

PN31

Having gone through and calculated the ordinary hours, the overtime rates, weekend penalties, Saturday rates for working shift work on a Saturday, the public - basically we get to an equivalent ordinary hour calculation of 31 - sorry, 3106.9 paid hours per year. We have multiplied that by the hourly rate from the award, which we used, which was $13.76. We have added to that amount the shift allowance for, basically, the number of night shifts that the employees would work working that roster over the year which, according to the award, totals $843.43.

PN32

There are 10 public holidays specified in the award. We have assumed that five of those, on average, would be worked and five wouldn't, and included a component in the calculation to account for that. So that takes us to - for the public holiday component, a total of an extra - sorry, $1527.36; and if we add up the public holiday component, the shift allowance and the payment for working the equivalent ordinary hours for the roster, over the year, that brings us to a total of $44,489.77.

PN33

Now, so what we say is, if you were paid per the highest classification in the award, according to the current Upstream roster, on award rates, that is what you would get, compared to the next figure down, is the figure which is the lowest figure, for an employee, under the certified agreement which is $47,320, and basically that is an all inclusive annual rate.

PN34

THE SENIOR DEPUTY PRESIDENT: But I can't see, in that document, what overtime hours they would actually be paid for under the award. Where would I see that?

PN35

MR BARTON: Okay. That probably hasn't been spelled out as clearly as what has, as it could have been. Basically, the calculation was done on the basis of 7.6 ordinary hours for shifts worked Monday to Friday, plus two hours at time and a half and 2.4 hours at double time. The time and a half and double time, they are the specifications under the award, time and a half for the first two hours and double time thereafter.

PN36

Weekends - for Saturdays it was basically 7.6 hours at time and a half, the award specifies a Saturday rate for shift workers of time and half, plus 4.4 hours at double time, which is basically the overtime component there, and Sundays were calculated at 12 hours at double time. So if you work through the number of shifts that would be worked in a cycle and then a year and apply the ordinary time and the penalty rates, that gives us the 3106.9 equivalent ordinary hours per year, working that roster.

PN37

THE SENIOR DEPUTY PRESIDENT: Now I think what I will do, Mr Barton, is, I will make a determination about the award as the appropriate award. What I would ask you to do then is to provide me with a copy of the roster that you based that on, all right, over the cycle - what did you say, two on?

PN38

MR BARTON: Two weeks on, two weeks off.

PN39

THE SENIOR DEPUTY PRESIDENT: Two off.

PN40

MR MORAN: Yes, each shift, 12 hours.

PN41

THE SENIOR DEPUTY PRESIDENT: Yes. Yes. Well, if you could show me a roster for the way that works, that would be - how long would it take you to send that in?

PN42

MR BARTON: If not this afternoon, tomorrow morning.

PN43

THE SENIOR DEPUTY PRESIDENT: All right. Yes, well if I can get that today or tomorrow I should be able to have a look at that by the end of the week. In the meantime, in relation to the XF application, a letter dated 3 February 2004, Mr B. Barton, on behalf of Upstream Petroleum Proprietary Limited, sought, for the purposes of part VIE of the Workplace Relations Act 1996, a determination of the appropriate award to be used for the purpose of deciding whether the agreement, for which certification is sought, passes the no disadvantage test.

PN44

Upon hearing Mr Barton, of the Australian Mines and Metals Association for the company, I determine, pursuant to 170XF of the Act, the Hydrocarbons and Gas (Production and Processing Employees) Award 2002 is the most appropriate award. As I say, at this stage, subject to me confirming that the rosters work out as per the calculation provided to me today, then I will certify the agreement, probably be with effect Friday's date. Anything else?

PN45

MR BARTON: No, that is all, thank you.

PN46

THE SENIOR DEPUTY PRESIDENT: Did you want to say anything else, Mr Lewis?

PN47

MR LEWIS: No thank you.

PN48

THE SENIOR DEPUTY PRESIDENT: Thank you. The matter is adjourned.

ADJOURNED INDEFINITELY [4.40pm]