C2006/3868, Transcript of Proceedings [2006] AIRCTrans 1287 (11 December 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 16215-1

COMMISSIONER BLAIR

C2006/3868

AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
AND
ETRS PTY LTD
s.170LW -prereform Act - Appl’n for settlement of dispute (certified agreement)
(C2006/3868)

MELBOURNE

9.38AM, WEDNESDAY, 29 NOVEMBER 2006

PN1

MR G WARREN: If the Commission pleases, I appear on behalf of the Australian Manufacturing Workers Union. With me I have MR L MUSCAT.

PN2

MS T RIGOLI: Good morning, sir, I appear for ETRS and with me I have MR G KIDD, manager of ETRS.

PN3

THE COMMISSIONER: Yes, Mr Warren?

PN4

MR WARREN: Commissioner, perhaps I’ll just outline a little bit of detail of where we are in relation to the dispute. ETRS have an agreement with the AMWU which was certified in this Commission on 21 April 2006. ETRS have over 100 employees. Laurie has worked for ETRS for 33 years and with an unblemished record. Laurie is the only welder inspector that can do the hydro and nada inspections within ETRS, and also able to sign off on nada. The AMWU don’t believe that ETRS has fully mitigated as per clause - I’ll hand you up a copy if you like.

PN5

THE COMMISSIONER: I have one, thanks.

PN6

MR WARREN: As per clause 10.1.2 of the agreement where it says:

PN7

Significant effects include termination of employment.

PN8

We don’t believe that the job has been fully mitigated in that there’s been no alteration of hours offered. There was no offer of retraining, no offer of employees to do other work and also, in relation to clause 10.2, after the A1 which I think is a typo but it says:

PN9

Effects the changes are likely to have the employees ...(reads)... to matters raised by the employees and their duly affected representatives in relation to the changes.

PN10

What we say to that is that we understand that there is excessive annual leave and RDO accruals throughout the company which we say could be utilised to help mitigate the job. And Laurie - ETRS were saying he is going to be redundant. We also don’t believe that the job is going to be redundant on the basis that under clause 12, redundancy clause, where the company has made a position - the company no longer wishes that job that the employee has been doing done by anyone else. We don’t believe that ETRS are fully - that job is fully redundant in that Laurie is the only one, as I said earlier, that can sign off on hydro and nada inspection.

PN11

Also, 12.1.2 says:

PN12

For any reason for the proposed termination measure to avoid or minimise termination ...(reads)... termination of employee.

PN13

We put the - this company notified the union a couple of weeks ago by way of phone call by branch manager - Eric Krutzer gave our national office a ring and said there are proposed two redundancies, one EBA and one non-EBA person. I went out to the site, went through the issues with the membership, put the company in dispute in line with clause 19, dispute settlement procedure. The AMWU has followed the dispute settlement procedure all the way down to what we say, to 19.4, which says:

PN14

The matter is still not satisfactorily resolved and may be referred by the parties to the AIRC for settlement by conciliation and if agreed between the parties by arbitration.

PN15

And also, in 19.5 what we have said is that:

PN16

Whilst the above procedure is being followed the pre-dispute status quo shall be maintained and work shall continue.

PN17

Which we believe that that’s the case on the AMWU’s part anyway.

PN18

We also know that early in the new year that there is work coming up at another site down at Esso at Longford for exactly the job that Laurie does and in fact after some phone calls we understand that he’ll be offered that job to take, so what we’re saying basically is through the company, through annual leave, RDOs and other options, we could link through and save the job till that one comes up, if the Commission pleases.

PN19

THE COMMISSIONER: Thank you. Yes, Ms Rigoli.

PN20

MS RIGOLI: Thank you, Commissioner. Basically Mr Muscat has been employed with the company since 1974, that is correct. Between 2000 and March of 2006, he was temporarily transferred to our Longford branch at the Esso plant. This followed an explosion at the Esso plant and there was some ongoing work for him at that point in time. So for the majority of that particular period he was off and on at the Esso plant. March of 2006 that work then, on an ongoing basis, ceased and he returned to the Albion branch.

PN21

Since that time, so since April of 2006, basically there has been an increase in annual leave and RDOs taken by Mr Muscat and through informal discussions with the branch that has been as a result of the work ebb and flow so that - you know, peaks and troughs. So we’ve been able to accommodate that annual leave and RDOs during the quiet times. In May of 2006 the branch manager, Mr Kidd, and Mr Muscat did actually look at canvassing clients that we had previously serviced within the welding inspection type work and we did actually approach some of those clients and that did result in some work, welding and inspection work. However, again it was more sporadic. It wasn’t ongoing long-term work that was able to be sustained.

PN22

In August of this year, Mr Muscat was actually offered an opportunity to attend training in Queensland to do a magnetic particle testing training course. This particular course was chosen because Mr Muscat does have some knowledge of the particular area and we thought it would be the easiest for him to complete to start with. For personal reasons five days before the course he did decline to actually attend that course. That course was actually just run - their next course was actually just run this week in Brisbane. So between August and now that’s been the only particular time that course has been run.

PN23

In September ’06 the mechanical testing officer at the Albion branch resigned and the branch manager again approached Mr Muscat and offered him the opportunity to take up that particular type role to again increase the type of - well, increase the work that he had, being able to do the welding inspection type work and other type work and Mr Muscat did actually say that he was not interested in that particular type of work.

PN24

Now, during this time as well there had been informal discussions between Mr Kidd and Mr Muscat about the lack of ongoing work that there was in the welding inspection type area. In late October ’06 Mr Kidd, our general manager, Eric Krutzer, and CFO Josie Parnay, got together to review the budgets and they looked at the budget for the branch and they had to reassess what it is that we were actually doing within the branch, how we could sustain and grow the branch even more, because we have reassessed our tiers of clients.

PN25

The tier 2 and tier 3 type clients which were previously serviced by the branch are no longer serviced. They’re not our core type business and we’re looking at other areas, so we’re looking at other areas to increase what we call the tier 1 clients. It was following that that we really assessed that the ongoing welding inspection work on a full-time basis was not there. So it was following that that on 15 November we had a meeting with all of the Albion employees in conjunction with the redundancy clause of the EBA to let them know what was going on.

PN26

We then followed that up with a letter to reiterate what was discussed in that meeting. At the conclusion of that meeting the branch manager, Mr Kidd, did leave the room and allowed the employees to discuss any concerns or any queries they had amongst themselves with their employee rep. Unfortunately, he was actually seconded up to Townsville but he was on conference, so they were able to discuss amongst themselves.

PN27

The general manager also did notify the AMWU of what the possibilities were, what possibilities of redundancy were occurring. Then basically, during the October period and during the period we have been investigating what are the opportunities for welding inspection type work within the organisation. In Victoria we certainly don’t doubt that there are opportunities ongoing in the future. However, full-time they are not. They are more on an as-needs basis. Now, previous to April of this year, as the work has been purely Esso - well, the majority Esso based, we haven’t really been able to assess what the needs would be ongoing.

PN28

However, between April and November of this year what we have been able to assess is that there would be approximately 500 to 800 hours per year of work for the welding inspection type work. We then looked at our other areas, our other branches within New South Wales where there was no requirement for the welding inspection type work full-time. We then actually looked at our Queensland branches and there were opportunities up there for a welding inspector full-time.

PN29

So, following that meeting, the AMWU did have a meeting with the employees to discuss those issues in which the union requested that we promise there would be no redundancies at which - of course, we said we could not promise that. Then we also did have a meeting on the 20th with Mr Muscat to advise him formally that, yes, his position would be made redundant - or his full-time position would be made redundant. There were opportunities within our Queensland branches if he was interested in transferring. The company could assist in that and we did actually discuss ongoing casual type work.

PN30

We were actually given a sick leave certificate on 21 November and a meeting was held with Mr Muscat, with Mr Warren, and Mr Kidd and myself and one of our directors on the telephone in which we discussed opportunities. The union had requested that we basically look at investigating and canvassing customers again. We said that we were happy to do that within the notice period and if there were actual long-term opportunities we were happy to actually look at that and investigate that. However, we did not believe there were ongoing full-time opportunities. However, we would be happy to offer Mr Muscat casual opportunities going forward because, yes, we do have that type of work but not to sustain a 40 hour week.

PN31

Mr Muscat actually did discuss with Mr Kidd the opportunity of part-time work and again Mr Kidd said to him, “Look, we can’t guarantee a core amount of hours per week or per fortnight but we’re happy to look at casual type work moving forward”, and that basically sort of - once we had discussed it, different opportunities for the AMWU, they weren’t happy with what we brought forward. They’ve brought this dispute now. Then on the Friday Mr Kidd actually did contact Mr Muscat and said to him, “Look, you know, we’ve given you the formal notification, do you want to work out the notice period or not?” So we’ve given him that option to choose what he would like to do.

PN32

Initially he did say he wanted to leave immediately which we were happy to accommodate or happy to accommodate working through the next five weeks looking at and exploring other opportunities and of course give him those casual hours moving forward from there. Thank you.

PN33

THE COMMISSIONER: Mr Warren, what do you say should happen? Is there any guarantee that Mr Muscat is going to be offered this position in the new year at Longford?

PN34

MR WARREN: Yes.

PN35

THE COMMISSIONER: And that’s not with ETRS, that’s with somebody else?

PN36

MR WARREN: No, with ETRS.

PN37

THE COMMISSIONER: With ETRS?

PN38

MR WARREN: Yes.

PN39

THE COMMISSIONER: So what period in the new year, do we know?

PN40

MR WARREN: Well, it’s a bit sketchy but it was in the first quarter.

PN41

THE COMMISSIONER: And how much leave has Mr Muscat got?

PN42

MR WARREN: Five weeks annual leave. RDOs accrued?

PN43

MR MUSCAT: No RDOs and I’ve got long service leave. I think I’ve got about 69 days long service leave.

PN44

THE COMMISSIONER: So in that case about three months leave - - -

PN45

MR WARREN: It’s about three months that we sort of limp through. There are other projects that as - sitting at the other end of the table was that there are other projects that Laurie has done in the past and has been successful in doing and after having a meeting with the members, the members are prepared to assist Laurie because there is excessive leave throughout the company at that base and Laurie could - you see, the difficulty I see where the hole is, if ETRS let Laurie go, they then don’t have anyone to do the sign off on nada inspections for that part of the business, so it will just die although it has other people do it but - - -

PN46

THE COMMISSIONER: What has been the company’s response? How do they intend to overcome that?

PN47

MR WARREN: What they have said to us was that Laurie could jump on the phones and start - you know, re-foster that part of the business in the next few weeks and we would know after the next few weeks whether that’s a goer or not. What they have said to that, well, we’re happy to work with that on the basis that his notice period is also gone along with and we thought, you know, that’s a bit harsh. He’s working with the company trying to build up - he actually did it once before and built it up, built that part of the company up and then he was moved to Longford and there was no one to backfill that job so it just dropped off again. So since Laurie’s been there he’s rebuilt it back up basically. I said that there would be no point Laurie building up that part of the job if again he just gets moved to Longford and this goes - you know, obviously the customers and clients are going to get pretty cheesed off with that.

PN48

So, as I said, there’s plenty of annual leave. Laurie can also backup or go back to back with the radiologists. The radiologists exist - the current practice, as I understand it, is that there’s two radiologists on the job and they go out together, where there’s no need for that. They only need the one radiologist and Laurie could TA, if you like, rather than having the two radiologists go out together. That part of the business, we understand, is pretty healthy.

PN49

I just don’t believe that it’s fully been mitigated, particularly the annual leave and the RDO issues that are on site which would be a breach of the agreement, particularly the RDOs. There are some members, I understand, that have probably got weeks and weeks of RDO accrued in their bank.

PN50

THE COMMISSIONER: So, what you say is that they’re prepared to take and use those provided that Mr Muscat backfill that.

PN51

MR WARREN: Yes.

PN52

THE COMMISSIONER: What about the two positions: one was - there was some training offered and I forget the term, what it was for, but there was some training offered - - -

PN53

MR WARREN: Mag particles.

PN54

THE COMMISSIONER: - - - in Queensland. I understood that there appeared to be some acceptance to do that then about five or six days before it was due to occur Mr Muscat pulled out of that. Then there was the second issue of - to do a course on - sorry, mechanical inspection.

PN55

MR WARREN: I have to take advice on that, Commissioner.

PN56

THE COMMISSIONER: All right.

PN57

MR WARREN: Laurie is saying basically that there was, at that time - and he was prepared to do the course, it’s just that at that time when the course came up there were some personal issues at home and he said that he would be available to do it next time through.

PN58

THE COMMISSIONER: What about the mechanical inspection?

PN59

MR WARREN: There’s some history with that part of the job. There was an employee who worked for ETRS for 42 years. I understood they had an absolute bucket leave of annual leave owed to him and all the rest of it and finally when he got to have annual leave he then had gone on annual leave and the company called him back in to do some more work and he’d just had enough so he - - -

PN60

THE COMMISSIONER: What’s that got to do with Mr Muscat?

PN61

MR WARREN: He’s just saying they know - he’d be put in the same situation. The job hasn’t been addressed, hasn’t been - you know, that part of it hasn’t been fixed. Again, we could probably explore that as a - I don’t think that’s been offered to - - -

PN62

THE COMMISSIONER: Well, as an alternative, as an interim. I mean, I’ll get some comment from Ms Rigoli in terms of this position at Longford that you say ETRS have said Mr Muscat can have.

PN63

MR WARREN: Yes.

PN64

THE COMMISSIONER: But if you’re looking to cover something in the interim and the mechanical inspection is there, it just makes sense to me that if it’s there and it’s offered why not take it, if it’s only in the interim.

PN65

MR WARREN: It hasn’t been offered to us, of the recent discussions that I’m aware of. This is the first time I have heard it.

PN66

THE COMMISSIONER: According to Ms Rigoli it was offered in September.

PN67

MR WARREN: Not to - the discussions we have had in the recent - - -

PN68

THE COMMISSIONER: Yes, but it was offered to Mr Muscat and he’s declined it.

PN69

MR WARREN: Well, it’s the first I have heard of it today, Commissioner.

PN70

THE COMMISSIONER: Ms Rigoli?

PN71

MS RIGOLI: Commissioner, that position was actually offered to Mr Muscat in September. He did decline that position. Unfortunately it has now been filled externally. With regard to Mr Muscat assisting in other areas of the business, Mr Muscat is a welding inspector and we are - he has been able to assist in some areas within our other areas. We predominantly do non-destructive testing.

PN72

THE COMMISSIONER: Yes. I’m aware of what ETRS does.

PN73

MS RIGOLI: Now, Mr Muscat is actually not qualified in those particular areas to be able to fulfil the work himself, nor is he qualified to be able to do the radiography work himself. He can assist and has assisted in the past but that again is a very limited area because of the lack of qualifications. With regard to the work at Longford, yes, there are possibilities - I mean there was actually - now, the work that will occur at Longford, as we said, that is an opportunity that we can give Mr Muscat on a casual basis as the work arises. That particular type work, unless it is an actual shutdown, many of the times we don’t actually know it’s going to happen. We can’t plan it, and it will be a matter of the manager at Esso actually ringing us and saying, “Okay, I need someone tomorrow or the next day”, so it’s basically just on that, “Hey, need it for two days”, off we go, that sort of thing.

PN74

With regard to the nada signoff, moving forward, if Mr Muscat chooses not to look at the casual opportunities that we can have - we can provide him moving forward, the company will then consider whether we need to actually - the welding inspection type work is something that we will be doing at all, whether we do it on a casual basis or whether we outsource that work to another organisation.

PN75

What we have also done is we understand that obviously we don’t want to just sort of end the relationship, okay, that’s it, nothing else, no assistance. What the branch manager Mr Kidd has actually done is contacted some other organisations who do welding inspection type work and canvass with them if there were opportunities for welding inspectors within their organisation. They are happy to actually consider that should the need - should we basically move forward from here.

PN76

THE COMMISSIONER: Thanks. So the position at Longford, is that on an ongoing casual basis?

PN77

MS RIGOLI: Correct.

PN78

THE COMMISSIONER: But you can’t give regular - you can’t identify what might be regular hours on a casual basis or not, it’s on an as required basis.

PN79

MS RIGOLI: That’s right. And that’s why we have said it would be a casual basis which at the end of the year it may equate to what a part-time position may have been. However, it will be on a - it may be in peaks and troughs. It may be 40 hours in one week and then nothing for three or four weeks.

PN80

THE COMMISSIONER: Yes.

PN81

MS RIGOLI: Which is why we have said we can’t put the part-time position there because we can’t give you a minimum core hours per week.

PN82

THE COMMISSIONER: Right. Okay.

PN83

MR WARREN: Well, if it’s the same circumstance as last time there was 18 months of work solid on the welding inspection work at Longford. I think the company just said it, they have not decided that the job is not going to be done by anyone else. If the job - he is the only one that can do this job, they haven’t made that decision that it’s going to be completely made redundant. What they have said is that they just want to wait and see and offer Laurie casual work back when they feel like it. This is a pre-reform EBA. They do have over 100 employees and our view is 33 years, unblemished record, they ought to be doing more than what they say and then just offer the work down at Longford on a casual basis is - our information is that it’s more than just on a casual scenario.

PN84

MS RIGOLI: Commissioner, with regard to us saying we haven’t made our decision, that’s incorrect. What we’ve said is if Mr Muscat chooses not to continue the casual relationship with us then we will need to reassess whether it’s something that we do at all. It is not a core part of our business. However, we were happy to continue it on a casual basis with Mr Muscat. If he chooses not to do that then that’s when we would reassess whether it is or not that we are going to do it at all, and if we do do it on a casual basis then we would need to source somebody to do it that way, or are we going to do it.

PN85

We do recognise that Mr Muscat has been with us for some time which is why we have explored other options since March of this year, which is why we have also approached other organisations who do welding inspection type work to see if there would be opportunities for him as well. So we don’t want to sever that relationship completely. We don’t want it to be very cut and dried and we believe that we have actually offered alternatives within the casual work and we can’t offer alternatives within our organisation, are there opportunities in other organisations.

PN86

THE COMMISSIONER: All right. A couple of things: one is there have been some discussions but I have to say to you that the Commission is not satisfied that given the length of service of Mr Muscat, some 32 or 33 years, that ETRS and the work that they do are not - I find it difficult to understand why they’re not able to accommodate on a full-time basis Mr Muscat in some work.

PN87

But I have to say to you I think Mr Muscat needs to broaden his horizons a bit. He’s lost the opportunity in terms of mechanical inspection. I don’t accept his reasoning for not taking that up. He’s lost that opportunity so he needs to focus a bit more. It’s all right for Mr Muscat to ask his union to come here to defend him, to keep ongoing employment, but then limit the options that might be available in terms of ongoing employment. I understand he may not want to go to Queensland, which is fair enough, but if there is work available at Longford or around that area then he’s got to lift his game a bit in terms of being prepared to look at that.

PN88

What I would like to do is for the parties to have some further detailed discussions, Mr Muscat to take a broader approach, the company obviously to take a much broader approach to see whether or not they can accommodate him. It may not be in his current classification, it might be something else, but 33 years does go a long way, in my view, to being looked after. So I’ll have a report back and if necessary a conference with the parties at 9.45 next Thursday, the 7th, and hopefully by then the parties would have reached an agreement regarding some ongoing employment for Mr Muscat.

PN89

How old is Mr Muscat, by the way?

PN90

MR WARREN: 58.

PN91

THE COMMISSIONER: A young man.

PN92

MR WARREN: Still young.

PN93

MS RIGOLI: Commissioner, the only thing is next Thursday I may not actually be available. I’m actually located in our Perth branch.

PN94

THE COMMISSIONER: Perth?

PN95

MS RIGOLI: Yes. It just happened to be that I was on holidays at the moment.

PN96

THE COMMISSIONER: In Melbourne?

PN97

MS RIGOLI: And happened to be in Melbourne.

PN98

THE COMMISSIONER: All right. Why would you leave sunny Perth to come all the way to Melbourne?

PN99

MS RIGOLI: Especially on a day like today.

PN100

THE COMMISSIONER: That’s right. If it’s of any assistance we can have a video hook-up if that’s of any help to you?

PN101

MS RIGOLI: Yes. Not a problem. We could organise something.

PN102

THE COMMISSIONER: When do you start your daylight saving?

PN103

MS RIGOLI: 3 December. Two hours.

PN104

THE COMMISSIONER: So is 10.45 better for you?

PN105

MS RIGOLI: Yes, that would be fine.

PN106

THE COMMISSIONER: Okay. We’ll make it 10.45 then rather than 9.45. That way, being a customer focused organisation we’re happy to accommodate you.

PN107

MS RIGOLI: Thank you, Commissioner.

PN108

THE COMMISSIONER: All right. Mr Warren?

PN109

MR WARREN: Can I just clarify - so would we still be in a dispute settlement procedure under clause 19.5 where the dispute status quo - - -

PN110

THE COMMISSIONER: Well, you have made an application under section 170LW, pre-reform Act. We’ll operate that and that’s the application of the agreement and so whatever procedures apply in that agreement are the ones that will follow.

PN111

MR WARREN: Thanks, Commissioner.

PN112

THE COMMISSIONER: All right. We’ll stand adjourned until 10.45 on Thursday, the 7th.

<ADJOURNED UNTIL THURSDAY 7 DECEMBER 2006 [10.08AM]