C2005/3995, Transcript of Proceedings [2005] AIRCTrans 1727 (19 August 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 12436-1

COMMISSIONER BLAIR

C2005/3995

QUALITY MAINTENANCE SERVICES PTY LTD
AND
THE AUSTRALIAN WORKERS' UNION
s.99 - Notification of an industrial dispute
(C2005/3995)

MELBOURNE

2.09PM, MONDAY, 08 AUGUST 2005

PN1

MR R SMITH: I appear for the company in this matter before you here today, Commissioner.

PN2

THE COMMISSIONER: Thank you, Mr Smith. Mr Smith, you're an advocate?

PN3

MR SMITH: Yes. By the way, Commissioner, I failed to inform you that on my left I have the contract manager for QMS, MR P MOGRIDGE and on my far left I have their human resources manager, MR M BORGHESI. I have provided your associate with both their cards with their email addresses.

PN4

THE COMMISSIONER: Right. And you're an advocate, Mr Smith? You're an agent?

PN5

MR SMITH: I seek leave to appear as an advocate and an agent for the company.

PN6

THE COMMISSIONER: Thank you.

PN7

MR T LEE: If the Commission pleases, I appear on behalf of the Australian Workers' Union and I have no objection to Mr Smith's application to appear.

PN8

THE COMMISSIONER: Thank you. Leave is granted, Mr Smith. Mr Smith.

PN9

MR SMITH: Thank you, Commissioner. The notification that was forwarded to the Commission sets out pretty clearly what the dispute with the union's about and it has it's genesis back with the EBA, for which you certified back on 15 November 2004. I'd like to hand a copy of that EBA up to you. Do you have a copy?

PN10

THE COMMISSIONER: Thank you.

PN11

MR SMITH: Can I have it marked?

EXHIBIT #QM1 DOCUMENT EBA

PN12

I'll come back to that EBA. At this stage, I'll just go into the history of what brought this about. QMS, the company I represent here today, is a contractor to Esso and they have employees working down at Barry Beach, which is where they do a lot of work, loading and unloading some hot supply vessels that go and work out in the Bass Straight area. The employees are currently doing dogging type work and servicing the pumps. I'd like to hand up and have marked as an exhibit a range of duties that Esso has provided the company for its employees to perform.

EXHIBIT #QM2 LIST OF RANGE OF DUTIES

PN13

You will note on the document QM2 there's a tick against the dogging function and a tick against service pipes. Along with loading and unloading the vessels, they are the two other duties that the employees are currently performing. You will see "pumping of bulk liquids", which is highlighted in yellow and "operate forklift", they are the two tasks that Esso want the employees of QMS to perform, for which the union has banned them performing that work. With the intention of Esso to broaden the duties of the employees down there, we must go back to the EBA, and the EBA that you have before you sets out not only dispute settlement process but it also refers to clause 36, relativities.

PN14

And the relativities clause deals with, and I'll read it here, Commissioner:

PN15

It is agreed between the parties that outstanding relativity claims will be progressed as per the Metal Engineering and Associated Industries Award 1998 classification system. Consistent with the principals established by Senior Deputy President Polites in matter C2001/5593.

PN16

Turning over the page, Commissioner, it then says:

PN17

MISTAS and AI Group Consultants will be used to process the matter. Should there be any disputes, then the process outlining claim 5.1.3(g) of the award will be used under the chairmanship of Commissioner Blair. Any outcome from the above process will be incorporated into the respective enterprise bargaining agreements operating from the date of certification of the agreements.

PN18

Now, what happened was this; that the company abided by that clause in the agreement as there are signatories to it and they have to, and Mr Terry Lee from the AWU obviously partook in that exercise. Because what happened was - and I'll hand up a copy of the file note - there was a meeting called on site on 23 February 2005. We'd have that marked, I'd appreciate it. You might like to just quickly read it.

EXHIBIT #QM3 FILE NOTE

PN19

THE COMMISSIONER: Thank you.

PN20

MR SMITH: What arose out of that inspection and attendance on site was based on those duties that were tied up in exhibit QM2, MISTAS produced a report. I'd like to hand that up and have it marked. Commissioner, that went through all those different tasks and reviewed them and just looking over page 2, I'll just quote a couple of excerpts. It just says here:

PN21

We then went to align the task with the metal engineering competency standards. After a site inspection in which we were accompanied by management at work of representatives.

PN22

Now, that came from that file note there, Commissioner. And then going over to the following page, it then says:

PN23

As part of the review we were also asked the question, could QMS employees be asked to perform extra duties that are currently being performed by Esso employees?

PN24

And he then gave the next sentence, it says:

PN25

The short answer is yes.

PN26

And then it then quotes from the award:

PN27

An employer may direct an employee to carry out such duties as are within the limits of the employee's skill, competence and training consistent with a classification structure of the Award provided that such duties are not designed to promote de-skilling.

PN28

Well, that wasn't the case here. If we continue throughout the report and come to the last page where it says the summary, and the summary said basically that the duties that were required fitted within the competency standard of the C12 classification of the award. Now, when we pick up the agreement and look at the classification structure you will see that the classification structure that these employees are being paid at is trades assistant, and the trades assistant classification is related to the C12 classification of the award. That information is available to MISTAS and the AI who carried out that review.

PN29

Now, we say, where do we go to from here? What then happens is that the company required its' employees to carry out those two tasks I referred to, which is pump bulk liquids and operate the forklifts, which is within the Esso MSO1 classification. There obviously were discussions between Peter Mogridge and Terry Lee regarding this matter and Terry Lee from the union issued a letter to the company. I'd like to hand up that letter. And that was the company's response. If I could have both of those.

EXHIBIT #QM4 MANUFACTURING INDUSTRY SKILLS TRAINING AND ASSESSMENT SERVICES DOCUMENT
EXHIBIT #QM5 LETTER TO MR MOGRIDGE
EXHIBIT #QM6 LETTER TO MR LEE OF AWU

PN30

THE COMMISSIONER: Thank you.

PN31

MR SMITH: I'll just give you time to digest those letters.

PN32

THE COMMISSIONER: That's okay, thank you. You can keep going,
Mr Smith.

PN33

MR SMITH: Yes, good. You will see on the letter QM5, the one from Terry Lee, it basically says in the second paragraph, it proposes to allow the contractor employees to perform all the duties of the MSO2 classification. Now, that's important that he says that because the bands are on two duties in the MSO1 classification contained in the Esso of Barry Beach Marine Terminal Certified Agreement in clause 11. Currently, the Esso contract only allows for contractors to be engaged at the lowest level of their classification structure. Now, the lowest level of that classification structure there would be MSO1, for the sake of that argument.

PN34

However, what the union is saying in a nutshell is that they're saying we believe the correct rate of pay to pump bulk liquids and operator forklift, which the bands are on those two functions, would be the rate of advanced rigger scaffolder in the agreement. Now, that's sort of a bit of a long yard to push. You know, people pumping liquids and operating a forklift, they don't even have a scaffolder rigger ticket anyway because they pay them at that rate. The company could not agree to that position and that's why they wrote back to the union in their letter of 30 June saying if we took that argument it means we'll be putting people up on another 11 per cent pay increase to do work at the base level of the Esso workers which is MSO1 and MSO2. So that's where the bands are applying.

PN35

So, where do we go to from here, Commissioner? If you go and have a look at the agreement for which the union represented here today is the signatory and you look at clause 5 relationship to parent award, it clearly states that the relationship between this agreement goes back to the Metal Engineering and Associated Industries Award, which then takes you back to clause 5.1.3 under procedures for classifying employees. If you go to clause 10, you talk about the aims of the agreement and principals of the agreement. One of the most important parts and the aims of the agreement, which is spelt out quite clearly, is to maximise the efficiency and prosperity of the operation for better of its employees, clients and the employer.

PN36

I'm not going to go through all of that, but it's clauses in the agreement that the union here today and QMS are party to and signatories to and it's not put in there for just passing comment. It's put in there for a reason. If you look at the dispute settlement procedure, it's quite obvious that the union is not following the dispute settlement procedure because that, in main, if they felt that the MISTAS report and or the rates of pay weren't satisfactory to what the outcome was, rather than put bans on it why didn't they follow the dispute settlement procedures of the agreement who are signatories to it? And then last week, and take yourself back to it, the hub of this which is clause 6 relativities and, in fact, in trying to resolve these matters you, Commissioner Blair is named as a sort of defacto party in trying to resolve settlement in these matters.

PN37

Now, what the company is seeking out of today's hearing before you is a direction under 111(1)(t) of the Act that all bans and limitations placed by the union organiser, Mr Terry Lee, in relation to the employees of QMS carrying out the duties, training and functions of the Esso classifications MSO1 and MSO2 be lifted forthwith. And in doing that, Commissioner, what the company would be asking you to do would to be attempting to have this matter settled without any bans or limitations or guns put at our head of the union in resolving this matter. now, I don't think it's going to be resolved through industrial action being taken, that effecting the relationship between the company and its client or its employees carrying out their full range of duties because there is an inconsistency, even in

PN38

the union's argument, between MSO1 and QM2 and those two duties that are banned and what they're seeking for MSO2 classification on the QM2 in their letter that you should be paid advance rigger and scaffolder rate. I notice in this agreement there's three classifications for a rigger scaffolder; a basic one, and intermediate one and an advanced one. Now, at the moment I've been advised that there's nobody on the advance rate being employed by the company at the moment. So if you're putting a non-trades employees pumping bulk liquids and operating a forklift on a higher rate of pay than a certified rigger or scaffolder.

PN39

Now, that's not a consistent argument within the workforce and we aim to have this matter resolved with your assistance, Commissioner, or we have to go down the road of seeking other alternative remedies, which I am not obliged to pursue at the moment, Commissioner. I'd be happy to answer any question relating to the submissions that I've put before you following Mr Lee's.

PN40

THE COMMISSIONER: Thank you. Mr Lee.

PN41

MR LEE: Yes, Commissioner. If I can just address clause 36 of the current agreement first in answer to Mr Smith's submissions. The Commission will recall that during the renegotiation, or the negotiation of this agreement, that the union raised an issue with respect to the QMS employees at Barry Beach in that we believe that they were currently wrongly classified at the trades assistants level and that they ought to be paid something higher. And the wash up of that was that we did agree and had inserted in the agreement that the duties that the current employees of the QMS down at Barry Beach be examined by MISTAS and that process did take place and unfortunately, in MISTAS' wisdom, our members didn't come up trumps under their system to warrant anything higher than the C12, or what is the C12 equivalent in the QMS agreement.

PN42

So that process has come and gone. What's happened since then, sir, is the company that is QMS' client are in some difficulty in terms of their own employees in being able to perform all of the work that needs to occur down at Barry Beach for the proper operation of that facility and the 15 or so off shore facilities. For various reasons, they've allowed natural attrition to wind back the workforce, the available labour that Esso has. So in an attempt to overcome that, what they want to do is have the contractor - in this case QMS, they're the current holders of the contract - perform more duties than they have done in the past than with other contractors prior to QMS, which is a different proposition to the one that you were faced with during the negotiation of the agreement, where people were employed to do a set of duties, that their employer and or their employer's client now want to increase, something that wasn't contemplated at the time of the agreement.

PN43

So, it's the view of our members, it's the view of the Esso employees and it's the view of the union that if we're going to do that then we want to be rewarded correctly for that. Pump bulk liquids and operate forklifts within the capacities - pumping bulk liquids are not within the capacities of the current employees. You're talking about a national marine part that not any Tom Dick or Harry can just go along and pump contaminants onto a supply vessel without the appropriate training. So the relevant authority won't allow it.

PN44

THE COMMISSIONER: Okay, but where does the advance rigger and scaffolder fit within that?

PN45

MR LEE: Well, I had to pick somewhere to make the claim.

PN46

THE COMMISSIONER: Yes, but it seems strange that that claim is consistent with the one that the union were pressing in the negotiations for the new agreement. It seems mighty strange.

PN47

MR LEE: Well, it's akin to it, sir, but even their own submissions, Esso's come along after the agreement and walk their employees to do something different to what they were engaged for initially.

PN48

THE COMMISSIONER: And pumping bulk liquids may go to a matter of training. It doesn't necessarily to go an issue of reclassification. It may go to an issue of training. And what about operate forklifts?

PN49

MR LEE: Well, again, sir, that would require the gaining of another skill and another ticket.

PN50

THE COMMISSIONER: You've got to have a ticket to drive a forklift. Why does that require it to be reclassified?

PN51

MR LEE: Well, sir, I'll liken it to your position now. If you're expected to take on the roles of a Senior Deputy President, then you would want to be - I would assume - rewarded accordingly and paid accordingly.

PN52

THE COMMISSIONER: Do you know there is no fundamental difference between the duties of a Commissioner and a Senior Deputy President and a Deputy President if one reads the Act, except there are some provisions with respect in the Act that only a presidential member can deal with and that might be, and I think the only one I can recall is the ordering of a secret ballot. Other than that, there is no fundamental different in terms of the duties but they get paid a lot more money than me, a humble Commissioner let me say.

PN53

MR LEE: I understand, sir.

PN54

THE COMMISSIONER: But where does the operating a forklift require a reclassification to advanced rigger scaffolder?

PN55

MR LEE: Well, where do any workers in organised shops under EBAs get asked to do extra duties over and above that for which they were employed for without being reclassified?

PN56

THE COMMISSIONER: If it is within their obligations as employees in that classification they can be called upon to do any one of those duties.

PN57

MR LEE: I would agree, sir, if that was the case here at Barry Beach. But it is not within their classification, it's not within their employment contract, I'd argue, to do these duties. When they were employed they weren't required to drive a forklift, they weren't required to operate the pumping of bulk liquids, whether they ..... (2.34.48) water or diesel fuel. This is something that the company wants to add to their bag of existing skills.

PN58

THE COMMISSIONER: Well, even if your argument might be right - I'm not saying it is - I can understand if there is a licence required in terms of pumping bulk liquids and I can understand that there needs to be a ticket in terms of forklifts, but if a person has a ticket in the forklift and if the person has a ticket in pumping bulk liquids, if you are in dispute then why is it that you don't follow the disputes procedure and why is it that you don't go back to MISTAS and ask them is this within the requirements of their current classification? Does it fit within it? Why do we need to have a ban?

PN59

MR LEE: Well, are they bans?

PN60

THE COMMISSIONER: I don't expect you to stand there and admit so.

PN61

MR LEE: I don't believe they are, sir. I mean, you're asking workers to go off and get training, something for which they did not have to do to get this job.

PN62

THE COMMISSIONER: So are they refusing to go and do training?

PN63

MR LEE: Yes.

PN64

MR SMITH: Could I interrupt here?

PN65

THE COMMISSIONER: Yes, Mr Smith.

PN66

MR SMITH: The human resources management company went down on site on Thursday to speak to the employees on site and discuss with them this particular matter of those duties and it's been relayed to me that the bans have been placed and they named the union organiser, Mr Terry Lee. They tended to - this is what's been relayed to me - give an opinion that those duties under the MSO1, which we are talking about that are banned, there didn't seem to be a dispute with the employees themselves in doing that work. The view came back to the company then back to me that the ban was, in fact, applied by the union organiser and not them. So I will dispute that on the record.

PN67

THE COMMISSIONER: But Mr Lee says that there is a licence required in terms of pumping bulk liquid. Is that right?

PN68

MR SMITH: I wouldn't know whether that's the case but I could ask
Mr Mogridge.

PN69

MR P MOGRIDGE: Commissioner, we have had several ..... Esso over this issue and Esso are preparing to provide training to take on the bulk liquid exercise. There is, I think, five days of full training with actual current Esso employees who pump liquids and the QMS employees will not be allowed to pump those liquids until they've actually had that training and gone through the assessment process to prove their competence. There are plans in place to do that.

PN70

THE COMMISSIONER: Okay. And in terms of operating forklift, it's a state government requirement that they be licensed anyway.

PN71

MR MOGRIDGE: The guys either have the tickets or, if not, they would be paid for by QMS to seek the tickets and once again get their licence.

PN72

THE COMMISSIONER: So why can't they undergo the training in terms of - and this is a question to Mr Lee - the pumping bulk liquids and getting their forklift ticket and at the same time we can have the reassessment, if you like, by Mr Verner and Mr Consilino and then they do a reassessment in terms of MSO1 to see whether or not pump bulk liquids and operating a forklift fall within that requirement? If they don't, if they come back and say no it's not, it's outside that, then where does it hurt your members if they are still undergoing the training? Does that not then give you an argument to say well, they might be reclassified and if Mr Verner and that come back and say it is within their requirements for MSO1, they also don't lose out, do they?

PN73

MR LEE: Well, with respect, sir, it's my intention not to let MISTAS anywhere near this issue. This is not their area of expertise. It wasn't in the beginning. I made the mistake of agreeing- - -

PN74

THE COMMISSIONER: Well, who's is it?

PN75

MR LEE: Well, I don't think you will find an industry training body or an industry skills assessing body for a marine operation. There's only two marine operations in Australia that I know of. One is Barry beach Marine Terminal and the other one is at Point Sampson up in Western Australia which is for the north shore.

PN76

THE COMMISSIONER: But I don't think you have a choice.

PN77

MR LEE: With respect, sir, why don't I have a choice?

PN78

THE COMMISSIONER: Because you agreed it's part of the enterprise agreement.

PN79

MR LEE: I agreed sir, with respect, I agreed to examine the current skills and that was following a recommendation of yours. I wasn't happy with it, but I agreed for the current set of circumstances.

PN80

THE COMMISSIONER: So what expertise do you have to say that they should be classified as an advanced rigger scaffolder? Why should we take your word?

PN81

MR LEE: I'm not saying you should take your word. That is the union's claim. If people are going to do that work- - -

PN82

THE COMMISSIONER: But you must base that claim on something. You must say that it fits within that classification, not the MSO1 classification.

PN83

MR LEE: Well, in terms of a work value I say it fits within the dollar range of the advance rigger scaffolder. You see, sir, this agreement was never - the bulk of the employees covered under this agreement work in the mechanical maintenance field at either Longford, the gas plant in Garretts Road, Longford or the Long Island Point fractionation plant down at Hastings. That's an area that MISTAS knows. This is a marine terminal and the agreements, they're just people have been employed under. What we probably should have done when we were negotiating the agreement is have a Barry Beach appendix to the agreement because the skills down there aren't traditional metal engineering contracting, maintenance contracting type skills. In fact, they're nothing like them.

PN84

THE COMMISSIONER: So where would the parties be able to assess what is a requirement in a comparable environment?

PN85

MR LEE: Well, sir, you've really only got Esso's employees to measure against. I'm not as familiar with the North West shelf supply base, as they call it. I don't know that they - well, I do know that rather than wood side employing the labour direct, they use, I think the current contractor is Brambles. Now, I'm not sure on their agreements and their classification structures.

PN86

THE COMMISSIONER: All right. We'll go off transcript for a bit.

OFF THE RECORD

PN87

THE COMMISSIONER: Well, what the Commission will do, it's drawn in its view the union's attention to A, it's members not being disadvantaged in terms of undergoing training for pumping bulk liquids and also operating forklifts and given the information that has been provided in conference, it would appear that those two functions were part of the consideration by MISTAS on whether or not those functions fell within the MSO1 level. Secondly though, that even if the union were - and the Commission will keep the file open - if the union were to identify a comparable work site with comparable functions that the parties could assess using the Commission under clause 36 - and I don't know why my name got in there but thanks very much - then the employees still are not in a disadvantage in terms of undertaking the training for the pumping bulk liquids and operating forklifts.

PN88

Because if a comparable site can be identified that, for instance, gave weight to the AWU assertion that there should be a higher classification, then again the employees are not disadvantaged. So the Commission would direct that the employees be provided and undertake training in terms of pumping bulk liquids and operating the forklift and that the Commission will keep the file open and allow the AWU to provide an opportunity if it can identify, as it says, a comparable work site with comparable functions that the parties may need to look at in terms of seeing whether or not your argument is justified, Mr Lee. That there are to be no bans, the employees are to carry out the training. They are not disadvantaged either way in carrying out that training. That's the Commission's direction and will issue it in due course. Commission will stand adjourned.

<ADJOURNED INDEFINITELY [2.52PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #QM1 DOCUMENT EBA PN11
EXHIBIT #QM2 LIST OF RANGE OF DUTIES PN12
EXHIBIT #QM3 FILE NOTE PN18
EXHIBIT #QM4 MANUFACTURING INDUSTRY SKILLS TRAINING AND ASSESSMENT SERVICES DOCUMENT PN29
EXHIBIT #QM5 LETTER TO MR MOGRIDGE PN29
EXHIBIT #QM6 LETTER TO MR LEE OF AWU PN29