C2006/7, Transcript of Proceedings [2006] AIRCTrans 189 (16 February 2006)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 14111-1

COMMISSIONER CARGILL

C2006/7

THE AUSTRALIAN WORKERS’ UNION
AND
METAL MANUFACTURERS LIMITED T/AS MM KEMBLA PRODUCTS
s.99 - Notification of an industrial dispute
(C2006/7)

SYDNEY

2.00PM, WEDNESDAY, 01 FEBRUARY 2006

PN1

MR D ANDERSON: I appear for the Australian Workers Union. With me I have MR P MURPHY.

PN2

MR E SZCZEPENOWSKI: I appear for Metal Manufacturers, and with me I have MR T MOSS.

PN3

THE COMMISSIONER: Thank you. Yes Mr Anderson?

PN4

MR ANDERSON: The union's notification, Commissioner, concerns three ancillary workers at the site at MM Metals, Mr Kisela, Mr Doren and Mr Projevski. Mr Kinsela has been on the job for 25 years, Mr Doren and Mr Projevski have been around ten to 15 years each. They have been moved away from their normal position as ancillaries to number two warehouse. We say that is against the spirit of the enterprise agreement and in some of the terms of the enterprise agreement - I am sorry the certified agreement of 2005/2007 in that yourself had only radified a couple of weeks ago, Commissioner. Does the Commission have a copy of the agreement?

PN5

THE COMMISSIONER: Yes, thank you Mr Anderson.

PN6

MR ANDERSON: Can I take the Commission to page 5 and clause 6 which are the objectives and measures to increase the productive performance of the enterprise and one states:

PN7

An employer may direct an employee to carry out such duties as are within the limits of the employees skill, competence and training consistent with their classification structure, provided that such duties are not designed to promote deskilling.

PN8

Page 7 clause 9 with consultation:

PN9

All employees commit to the need for ongoing change throughout the life of the agreement, during the life of the agreement the employees, company and the unions commit to ongoing joint consultation to exhaust all avenues to reach agreement via this consultation.

PN10

We say there was no consultation to the union or these employees in this case. Page 14 Commissioner, agreed items 9, 10 and 11, which talks about labour flexibility and the concept 10 talks about the concept of equality and of opportunity and the relevant part we say is:

PN11

All other things being equal, seniority will then apply.

PN12

We say these people should not have been moved because they were senior people in the area, plus they have a working matrix in their logical work area and I will get to some other things in a minute which might reinforce our argument. There is at MM also, which is covered at page 29, the idea of the team concept that everyone works as a team, every employee there has a logical work area and a training and a career path to follow and these employees we say have been moved out of their normal career path and as such have been let down, in our opinion by the company by moving them from their career path. And what the company has actually done is they have put on fixed term employees, they have told the permanent employees there was no work on this particular job anymore, they have moved them to another job and they have put on then fixed term employees and taken their jobs which these three employees have worked on for a long, long time.

PN13

On page 18 there is clause 35, a list of agreements held by consultative committees and if the Commission looks down the page to item 13 you will see that the intention of those agreements held by the consultative Committee was for awarded jobs in the finishing and dispatch department, for many years as they existed. They have been awarded jobs, people held those jobs for many years. Now we say Commissioner that the company will argue they have got a large overtime bill and they are trying to find ways of covering that by putting in fixed term employees to cover people. Well I can understand the reasons why they have done that, but it is the way they have gone about it that we object to. We say if the company want to put on fixed term employees to fill gaps, fill gaps with them when people are on holidays, train them up to cover the site, there's different areas of the site which people could be trained up in and keep these people there permanently.

PN14

It would make common sense couple of extras to fill the gaps where people take long service leave, holidays, sick leave whatever it is. That makes a lot of sense to us. As a matter of fact, during the EBA discussions the union played some part in talking about this as a way of solving the problems for the company and then we have it done in this manner, that is what we are offended by. The manner that the company have done it and the way they have treated long term employees by just pushing them out of the way telling them there is no job for them and then putting a fixed term employee in their place. It also affects those fixed term employees' career path, Commissioner, and it also affects them when there is over time in their normal department. Thank you Commissioner.

PN15

MR SZCZEPENOWSKI: Your Honour, we have two related matters listed for conference before SDP Marsh tomorrow at 2.15. I would like to put some commentary on the record based on what Mr Anderson has put and I would suggest at the end of that that under our disputes procedure the proper course of action is to go into conference. As background the company believes it is acting in accordance with its obligation and in so doing seeks to utilise the labour flexibility built into the enterprise bargaining agreement.

PN16

This and related issues have been discussed at length with affected employees directly during November/December of last year. Tim Moss and I have both been involved. Employees are engaged by metal manufacturers and their classification is metal manufacturers operator, they are therefore required to work flexibly as required across the site of metal manufacturers.

PN17

There was a matrix in each logical work area or logical factory base that defines the career path for the employees for that area but this does not then become their classification and provide a restriction from working in other areas. This allows for the achievement, the career path of higher levels of pay in return for greater flexibility and the use of the higher skills by the work groups. Obviously the business needs to be able to utilise this flexibility effectively to achieve the return on the investment. Labour flexibility underpinned the original restructuring agreement in 1991 and remains as a necessary and increasingly important requirement to this day. I would like to hand up a copy of the original restructuring agreement if I can, for Your Honour.

PN18

Commissioner can I refer you to page 1 of the document and under the heading of "Agreement on award restructuring at MM Metals", I would like to direct you particularly to the first three points. The principal element of this agreement is the ongoing implementation of the commitment to the future of MM Metals at Port Kembla, agreement at 1989. Point 2:

PN19

To assist in achieving the principal element of this agreement the parties agree that the completion of the award restructuring process is essential.

PN20

Point 3:

PN21

The most significant outcomes of the award restructuring process is the implementation of the following ...(reads)... the ongoing introduction of changed work practices including those of an incidental and peripheral nature.

PN22

This requirement has never been more important than at the present. With the tube and fittings business under severe pressure in the marketplace, with the inadequate financial returns and the escalating threat of Asian imports. Tube and fittings accounts for 80 per cent of the labour at Port Kembla. We have implemented a site labour relief team as discussed at length during the most recent EBA negotiations. Senior employee representatives and union officials have, as Mr Anderson has said, previously suggested this initiative to be used to replace absent employees or for covering seasonal demand and as an alternative to the option of overtime. Fifty per cent of the site production overtime bill is generated by the absence of permanent operators. Although less than previous years 2004's overtime bill - and that is the financial year to June '05 - remains stubbornly high at some 30 per cent of the ordinary payroll or 23 per cent of the total payroll.

PN23

This is clearly not sustainable. The site relief team has been trained in the simpler tasks of a number of work areas, so that as an area's resources are impacted by unplanned absences, seasonal and monthly changes in the scope of work, the remaining areas' resources can utilise their experience on other more challenging tasks and use the site relief team and other under utilised employees to backfill the simpler tasks.

PN24

This emphasis on the need for workplace flexibility is ever increasing as we face a business outlook of less demand for our product, less employees and the absolute necessity to reduce overtime costs. That is to remain competitive demands new approaches and increased flexibility. Commissioner, Mr Anderson quoted selectively from the EBA and in particular selectively from clause 6 of the EBA on page 5. If you have a look at clause 6 in total (ii) says:

PN25

An employer may direct an employee to carry out such duties and use such tools and equipment as may be required provided that the employee has been properly trained in the use of such tools and/or equipment.

PN26

The fundamental principal of the original restructuring agreements. Operators at MM are trained, are hired as MM Operators and trained in particular work areas. As a practical example though it makes sense to use the analogy of a forklift operator. Such an operator may need to be utilised across more than one area provided he or she is familiar with the area and the work.

PN27

The union spoke also of the consultative agreements at clause 35 on page 18 and refer to the awarded jobs finishing and dispatch item in particular at 13 there. I have a copy of that particular document, I do not intend to hand it up however if need be I can. That particular document is written carefully and says:

PN28

Employees must agree to utilise the skills that they have been accredited for on a needs basis.

PN29

On that basis there is some certainty on a day to day basis about which role a particular employee may be on, however they can be moved on a business basis utilising their skills. Awarded jobs are designated jobs subject to business needs. Simply put employees must move about work tasks utilising acquired skills as needed by the needs of the business. All this naturally is against the backdrop that is consistent with the company's responsibility to provide a safe and healthy working environment.

PN30

The fixed term employees have not taken the jobs of the ancillary operators, the company has chosen to not cover the ancillary tasks on a permanent basis. The ancillary operators have been given jobs within their existing career path, within the same logical work area. The ancillary work has been done by other underutilised employees including the new fixed term employees on an as required basis only. In summary Commissioner, that is the background, I would suggest under our disputes procedure that we go into conference.

PN31

MR ANDERSON: If I can respond to some of the things that Mr Szczepenowski has said.

PN32

THE COMMISSIONER: Yes.

PN33

MR ANDERSON: First, the union says that the intent of flexibility - and I can take you to the white book which Mr Szczepenowski handed to you, and it is paragraph 10, third paragraph of clause 10:

PN34

In order to maximise the opportunities for skill development all employees are assigned where practicable to carry out the complete range of work within their respective work areas.

PN35

I was a long time employee of this site, I actually worked there for 20 years, I was involved in restructuring, I was involved in setting up the team concept, I was the head delegate there for a number of years, Commissioner, and I know what the intent of the agreements are. The intent of the agreement was to have people's flexibility within their workgroup and within their workgroup only, it was not for them to carry across the site to other areas of the site. It was only within their workgroup, that is where the flexibility existed and that is where we have set up matrixes for their logical work areas and career paths. Now this is completely destroying the concept and the intent of what we did at those times. Thank you Commissioner.

PN36

THE COMMISSIONER: Mr Anderson, can I just ask, you don't have any problem with the suggestion we go into conference?

PN37

MR ANDERSON: No.

PN38

THE COMMISSIONER: In that case we will go off the record and into conference thanks.

<NO FURTHER PROCEEDINGS RECORDED