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Industrial Relations Commission Decision 
2665 
/1995 [1995] AIRC 2471; (13 December 1995)
Industrial Relations Commission Decision 2665 /1995;
G0322 Dec 2665 /95 P Print M7732
AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Industrial Relations Act 1988
s.99 notification of industrial dispute
Automotive, Food, Metals, Engineering, Printing and Kindred
Industries
Union
and the Australian Workers' Union
and
Saipem Australia
Pty Ltd
(C No. 60579 of 1995)
GOLDFIELDS GAS TRANSMISSION PIPELINE PROJECT AGREEMENT
(ODN C Nos. 3996 of 1980; 21578 of 1993)
(Print M3342)
various employees Building, metal
and civil construction
Allowance - site allowance - travelling allowance - various, building
metal and civil construction
- union sought compensation for excessive dust -
claimed camp to camp payment for travel with disability component of $22.80
per day - Commission recommended site allowance be increased to $2.60 per
day, excessive dust allowance of 80 cents - recommended
daily travel
allowance based on zones comprising distance travelled.
COMMISSIONER DIGHT PERTH, 13 DECEMBER
1995
REASONS FOR DECISION AND RECOMMENDATIONS
Saipem Australia Pty Ltd is constructing a 1400 kilometre pipeline
from
Yarralula, south of Karratha, to Kalgoorlie in Western Australia. Work
commenced in August 1995 and completion is due
in July 1996. Before
commencement the parties negotiated an agreement dealing with
remuneration and conditions for
on-site work on the project, but not
including ancillary facilities or lateral lines from the main line. The
agreement was
certified by the Commission on 30 June 1995.
On 15 November 1995 the AFMEPKIU and AWU notified the Commission of a
dispute
in relation to excessively dusty conditions on worksites,
extended travel time and a classification issue together
with a
number of other matters which have since been resolved. The
classification issue, is to be dealt with separately.
A further matter
(C No. 60526 of 1995) is the early completion scheme which the parties are
addressing under the terms of the
agreement. This decision deals with a
claim for an increased site allowance to compensate for dust conditions and
for substantially
different travel arrangements, to cater for actual
conditions said to be beyond what was contemplated when the agreement
was negotiated.
After a conference on 15 November 1995 the Commission issued directions
in relation to negotiations between
the parties; site inspections were held
on 30 November and the outstanding items were the subject of a hearing on 6
December
1995.
The certified agreement provides, as it is required to under
s.170MC(1)(c), for a procedure for the "settlement of
any dispute or claim
arising between an employer and his employees". (Clause 29. Grievance
Procedure). Sub-clause (d) of Clause
29 provides:
"If the matter cannot be settled by (a) - (c) above the
employer or an official of the Union
may apply to the
Industrial Relations Commission for the purposes of settling
the dispute".
In these proceedings
all parties made it clear that they expected the
Commission to arbitrate the dust and travel claims.
Excessive dust claim
Clause 10 of the agreement provides for a Site Disability Allowance of
$2.50 per hour worked. The allowance is expressed
to include compensation for:
"all disabilities and/or special rates associated with, or
likely to be associated
with any isolated living environment,
regular movement of work and camp sites and the climate and
terrain of the work
environment along each of the phases of
the route of the Pipeline, including industry allowances,
location, site
or similar allowance."
Mr Ward, on behalf of the AWU, submitted that the "exceptional and unusual
dust" experienced on the site
warranted a substantial increase, with
lesser additional amounts to those in workshops, for cooks, and people in
camps.
Mr Ward put a number of photographs into evidence (AWU 1)
designed to demonstrate the type of dust conditions associated
with various
work locations and jobs on the project.
Mr Saunders for the AFMEPKIU said that in the original negotiations
on the agreement, prior to commencement, in which he had taken part, the
amount of $2.50 per hour was agreed on the basis
that Saipem would be able
to reduce the dust levels. This hadn't been possible, due to difficulties
experienced with water
bores, and the distances between bores and work
sites. Mr Saunders submitted that the disabilities experienced on
the
project due to dust were far greater than anticipated, based on the
information then available, when the site disability
allowance was negotiated.
Members of the Union employed as welders and wrappers had to cease work due
to dusty conditions
from time to time. He argued that the disabilities on
this project are far greater than those experienced on other pipeline
projects such as the Dampier to Perth pipeline which was close to the
coast, because the amount of red dust increases
as you go inland.
Because the workforce is multiskilled and roles are
interchangeable the increase claimed should
apply to all members of the
Union.
Mr de Franck on behalf of Saipem submitted that the onus was on the unions
to show
how the disabilities were different from those taken into account
when the agreement was negotiated. He said that in those
negotiations the
company believed it was dealing with the usual disabilities associated with
major cross-country pipeline construction
in harsh and inhospitable country.
It was expected, he said, that the full gamut of disabilities would be
experienced.
However
Mr de Franck conceded that
there are matters that have arisen that were not foreseen
when the agreement was negotiated,
and
unfortunately the water bores have not produced the amount of
water anticipated, due to some bores collapsing and
others not
being productive.
The company is, he said, making significant attempts to address the dust
problem, with
the use of water trucks from the bores which are productive.
Whilst acknowledging the abovementioned factors, Mr de Franck
strongly
opposed any wholesale increase to the site disability allowance itself.
He argued it would be "ridiculous" for
all employees across the board to
be paid an increased site rate. Those not exposed to dust, such as people
working in the
camp or enclosed air-conditioned vehicle cabins, should be
excluded. Those who are exposed are, in the company's view, workers
engaged in
lowering-in, wrapping, sandblasting, welding, bending and pipe- stringing.
Mechanical fitters in workshops and on the
pipeline right of way repairing
vehicles are also exposed to dust.
In relation to quantum of a dust allowance, the company
referred to a
decision of Commissioner Merriman on the Karratha to Withnall Bay section of
the 1982/83 Dampier to Perth pipeline
project, wherein an additional
allowance of 55 cents per hour was awarded to compensate for extreme wind
conditions with
no watering available on a section of the coast (Print F
4044). Otherwise the site allowance on that project was $1.70 per hour
worked.
Mr de Franck tabled as exhibits a comparison of the components of the rate
of pay for a pipeline worker Grade 1
on 6 pipeline projects including
this one, since 1984 (S1) and a comparison of weekly earnings (S2). He
argued that the hourly rates on the present project were high and that the
potential earnings are very high.
Travel time
Clause 9, Travel Time Allowance, in the agreement provides:
Employees living in a camp established for the project or
in
other accommodation provided shall receive an allowance of
$22.80 per day as compensation for all time spent
in travel
from camp or other accommodation to the place of commencing
work on the spread and returning to camp or other
accommodation
on ceasing work at the place of work on the spread.
The unions' claim is for "camp to camp" payment for travel,
that is at
ordinary hourly rates for the time taken to travel between the camp and the
worksite and return, together with an
allowance for "discomfort" of $22.80 per
day.
Mr Saunders submitted that when the travel time allowance was negotiated
the unions were told by the company that the largest distance between camp
and worksite would be 65 kilometres, which would
then reduce. However the
actual distance was in some cases up to 90 kilometres each way, he said.
Mr de Franck argued that
the travel time claim is a reversal of the
agreement and is unacceptable to the company. However, he said travel was
identified
as a problem area from the beginning and the company attempted to
put in place an appropriate level of compensation. The "camp
to camp"
approach was abandoned on the Dampier to Perth pipeline project, and
was he submitted, problematic. Mr de
Franck tabled as an exhibit a document
setting out the basis for travel payment (S3), including the initial,
second and final offers made in the course of the negotiations.
The final negotiations, he said, were
based on a maximum distance of 35
kilometres each way, calculated at 60 kph and multiplied by the average hourly
rate. The rate
of $22.80 per day is travel allowance as applied on the
recent Moomba to Sydney ethane pipeline construction project.
The company accepted that if there were unusual circumstances they would only
occur on a once-off basis, as an aberration.
This happened, for instance,
with the setting up of camp 2 when workers were accommodated at the Capricorn
Roadhouse, and starting
times were varied, Mr de Franck said. However the
company recognised that some workers, such as the advance clear and grade
crew and those who complete trenching are travelling over 100 kilometres
each way.
The company's proposal is to create
an additional two travel zones:
Zone Kilometres travelled each Daily
way between camp and
worksite allowance $
A 0 - 65 22.80
B 65 - 100
37.80
C over 100 52.80
The company argues that this proposal compares favourably
with AWU and Metals
award travel allowance arrangements.
On present estimates, the new planned "two spread" concept will require
11
camps as follows
Location KP Distance Crew App Spread Kms
1 65
No 1 130 kms
2 200 No 1 135 kms
3 315 (Paraburdoo) No 1
130 kms
4 464 No 2 134 kms
5 630 (Kumarina) No 2 136 kms
6 730 No 2 100 kms
7 845 No 1 115 kms
8
955 No 1 110 kms
9 1080 Main 125 kms
10 1220
Main 140 kms
11 1320 No 2 140 kms
(Information provided by Saipem to
the Commission and the Unions on 8
December 1995).
Inspections and oral evidence
On 30 November 1995 the Commission
inspected the following operations
on the pipeline right of way south of Newman, (Spread 2):
lowering, Aussie Padder
machine, trenching/cladding over,
wrapping, welding, sand- blasting, stringing, excavation.
Further, a meeting was held
at the Capricorn Roadhouse with employees of
a sub-contractor, who comprise the forward crew, who clear the right of way,
and include fencers and surveyors. The concerns of these employees centred
on the standard of their accommodation and
travel time. Mr M. Anderson,
the AWU job representative, said that these employees, who were
presently accommodated
at Kumarina Roadhouse, could be away for up to 14
hours a day, for which they were paid their $22.80 travel allowance
and ten hours pay. Currently they were working at a location only 5
kilometres from their accommodation, although it had
been as great as 120
kilometres, of which 40 - 50 were on the right of way.
At the hearing the following people were called
as witnesses on behalf of
the Union:
Mr D. Downie, a certified wrapper, who inspects and repairs coatings
said that
the photographs (AWU 1) showed site conditions he was familiar with.
Sometimes it is better, sometimes worse, he said. Sometimes
he had to stop
work if the dust affected his vision and he had to "get the mud out of
[his] eyes; dust in the nose causes
frequent nosebleeds". On a bad day
machinery had to stop every 10 minutes, but "dust has been an integral part of
the job".
Mr Downie said he had 10 years experience in pipeline
construction.
In cross-examination Mr Downie agreed with Mr de Franck
that the factors
causing dust were wind, vehicles on the right of way and the movement of
plant in the work area. To that list
Mr Downie added human movement. He
said: "The point on this particular job, after 10 years in that industry alone
I would think
that the dust I'm seeing up here, from time to time, is worse
than I've ever seen before .... our problem lies, of course,
in making a
right of way 30 metres wide through that country. There's certain
restrictions put on the company, I know
that. We're only allowed to remove
a certain portion of the - of the covering vegetation and that puts us right
in to the
top soil which is the stuff that makes the bulldust".
Mr T. Excell, who runs the water trucks on Spread 2, including the allocation
of water trucks to wrappers, stringers and welders, testified that on the
day of the Commission inspection two additional
trucks were available. It
takes 10 and a half hours to water 1 km of the right of way he said. Water is
carted 5 to 75 kilometres
depending on the location of waterholes,
although usually it is 35 kilometres.
Mr A. Basio, maintenance camp electrician,
who works namely in the camp, said
that 70% of the time dust blows in the camp. The following is an extract
of his evidence:
Mr Ward: "Do those vehicular movements [around the camp] create
any dust? --- Yes, of course. Yes.
Now, when you say "of course", the dust that is created,
is it a nuisance dust or is it
just a bit of
dust in the air?--- Well, there's a speed
limit around the camp of 10 kilometres per hour and if
the guys
abide to that it's not a problem and if the
actual site is being watered, but like Trevor was saying
we
don't get enough water on the camp at all. I haven't
seen a truck there for the last 3 days, you know. I
think we got one load of water early in the morning and
that was it, and in the afternoon when the wind comes up
it's just dust all day, you're eating dust all day."
Mr T. Bourke, a maintenance fitter on Spread 1, testified that
he had 9 years
experience working in the Pilbara and he was concerned about the dust as he
coughed up sputum with dust in it.
For the company, Mr de Franck called two witnesses. Firstly Mr K. Brown, a
consultant since the late 1980's and formerly an
AWU union official with
experience and/or knowledge of pipeline projects such as Moomba to Stoney
Point, Dampier to
Perth and Moomba to Sydney. Mr Brown outlined some of
the history of site disability allowances on these projects.
Mr Brown
said the company did not expect to experience a shortage of water or
the erratic wind conditions of November and December. Also
the level of dust
at the front end was not anticipated. In cross-examination he acknowledged
that he had not undertaken
inspection of the pipeline route prior
to the agreement negotiations. He also agreed he had no knowledge
of
site conditions and agreements in Western Australia since 1983,
although he was involved in the Queensland Roma to
Gladstone project in
1989. When referred to them by Mr Saunders, he said that site allowances on
the Hammersley Iron and
Marandoo projects were irrelevant.
Mr de Franck also called Mr C. Saunders, AMFEPKIU official, to give
evidence. Mr Saunders
said that in December 1994, on the Karratha to
Hedland pipeline project there was a $3.00 site allowance, plus $40.00
per week severance; Marandoo had a site disability allowance of $2.21
plus a project payment, plus severance of $50.00
per week. In October
1995 a project at Paraburdoo had a $2.36 site allowance, an $80.00 per week
project payment, plus $50.00
severance.
Consideration, Decision and Recommendations
I consider it is open to the Commission to conclude from the evidence
and
the submission of the parties that the excessive dust and extended travel
requirements were not contemplated by the parties
when the agreement was
negotiated prior to commencement of the project. Therefore it may be that the
existance of clause 32 which
contains a "no further claims commitment, is to
be seen as having application to the then known circumstances. It follows
from that conclusion that I consider the claims to have some merit, at
least in principle.
These claims are seen by the
parties as coming to the Commission via the
Grievance Procedure; my view is that in effect they seek variations to the
agreement.
However, the Commission's powers in dealing with the claims are
governed by Section 170MK (1) of the Industrial Relations Act which
provides, relevantly: "While a certified agreement is in force:
(a) ......... the terms of the agreement prevail
over the
terms of an award or order of the Commission; and
(c) a term of the agreement can be set aside
or varied by
the parties, but only as provided in subsection 113(2C)
or section 170ML or 170MM; and
(g) except as provided by this Division, the Commission is
not
to exercise arbitration to vary the agreement."
Neither of the agreement clauses dealing with site disabilities and travel
allowances provide for their terms to be varied by a later agreement such
as would trigger the operation of Section 170ML.
Consequently the Commission as constituted has no power to vary the
agreement as sought (in effect) in the present application.
The parties, or
any person bound by the agreement, may apply for a review or variation by a
Full Bench, pursuant to Section 170MM.
The above conclusion is my decision on these claims. However in all the
circumstances I am prepared to make recommendations
on the merits.
By its nature cross-country pipeline construction work in harsh, sparsely
vegetated terrain requires particular
access and travel arrangements and is
inherently dusty in Australian conditions. It is clear that the parties knew
that these
aspects of the agreement would be difficult ones, and now the
unions' claim, and the company has acknowledged, that additional
arrangements are necessary to compensate workers for the conditions
actually experienced on this particular project.
In relation to dust, I accept that the company is endeavouring and will
continue to deal with the problem as best it can within
the limits of the
water resources available to it along the right of way. Equally it is
apparent that workers are well aware
of the need to keep vehicular traffic
speed on the right of way to a minimum. But plant and equipment operations
associated
with the construction of the pipeline and erratic wind conditions
including frequent "whirlies" or willy willies are factors
which will
continually create and raise dust.
Meteorological wind data for Newman and Paraburdoo for September to 7
December
1995 indicates winds of between 0 and 24 knots. At least one witness
commented that on days of little or no wind, the dust, once
risen due to
vehicular movement or the operation of plant, hangs in the air for a
considerable time.
No data was provided
for the more southerly portion of the pipeline
route, however, the Commission is aware that hot easterly winds are common
in
January, February and March in the Goldfields region.
In considering how workers should be compensated for excessive dust
and in
what measure, I have had regard to the existing site disability allowance,
relevant award provisions, allowances paid
on other pipeline construction
projects, and the submissions and evidence in this matter together with my own
observations during
the on-site inspection.
I recommend as follows in relation to all workers covered by the scope of the
agreement:
1. That
the site disability allowance be increased for all workers to
$2.60 per hour worked.
2. That an excessive dust allowance
of 80 cents per hour worked be paid to
all workers located on the right of way and in workshops, other than
while working
in enclosed air- conditioned vehicular cabins provided that
the allowance will be payable for work performed by such
workers when
the air-conditioning system is not operating.
3. A excessive dust allowance of 80 cents per hour worked will
also be paid
to mechanical fitters in workshops.
Insofar as daily travel is concerned I do not consider that the
circumstances
justify a wholesale departure from the current daily allowance
arrangement to a camp to camp system including $22.80 for "discomfort".
Mr Saunders commented that during the negotiations the parties spent a
day and a half on this issue alone. Whilst
the camp arrangements and right
of way conditions may justify some adjustment in the allowance, I do not
consider that those
factors are so unusual as to warrant abandonment of the
original concept. Moreover, having regard to the above decision regarding
excessive dust allowance, to the extent that at least part of the
"discomfort" factor claimed by Mr Ward to justify continued
payment of the
$22.80 comprehends disabilities relating to dust, an element of double
counting would be involved.
I have taken
into account the following factors:
Eleven camps are scheduled over the 1400 kilometre length of
the pipeline. The
Commission understood that some camps may be
adjacent to the right of way; others may receive different access
arrangements,
depending on terrain, geography and access to
existing public roads.
Other than perhaps the advance crew,
it appears that the
maximum daily travel will be up to approximately 83 kilometres
each way between camp location
and worksite.
In response to a question from the Commission, Mr de Franck
said that the original travel agreement
did not specifically cater
for the requirement to slow vehicles down in an attempt to reduce
dust and enhance safety
of travel on the right of way.
Having considered the submissions and material before the Commission I
consider that
the company's proposal for 2 additional zones has some merit.
However, in all the circumstances, I recommend that the daily
rates within
the scope of the agreement should be as follows:
Zone Kilometres travelled each Daily
way between camp and allowance
worksite
A 0 - 65
$25.00
B 65 - 100 $40.00
C over 100 $55.00
Operative dates
The increased site allowance and new excessive dust allowance should
operate from the first pay period
to commence on or after 15 November 1995.
The new travel allowances should operate from the first pay period to commence
on
or after the date of this decision, However, in the case of the advance
crew undertaking right of way clearing and any other
worker who has regularly
been travelling in excess of 130 kilometres each day (in total) the
Commission further recommends
that the company takes steps to ensure such
workers are adequately compensated.
BY THE COMMISSION:
COMMISSIONER
Appearances:
Mr R. Ward and Mr T. Paterson for the the Australian Workers' Union
Mr C. Saunders for the Automotive, Food, Metals,
Engineering, Printing and
Kindred Industries Union
Mr R. de Franck and Mr K. Brown for Saipem Australia Pty Ltd
Hearing Details:
1995
Perth
November 15
December 6
Newman vicinity
November 30
** end of text **
*** End of Text ***
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