Australian Municipal, Administrative, Clerical and Services Union-New South Wales and Act (Services) Branch v IBM Australia Limited
[2010] FWA 3340
•7 MAY 2010
[2010] FWA 3340 |
|
DECISION |
Fair Work Act 2009
s.236 - Application for a majority support determination
Australian Municipal, Administrative, Clerical and Services Union-New South Wales and ACT (Services) Branch
v
IBM Australia Limited
(B2010/2685)
SENIOR DEPUTY PRESIDENT DRAKE | SYDNEY, 7 MAY 2010 |
Bargaining – majority support determination
[1] On 18 February 2010 the Australian Municipal, Administrative, Clerical and Services Union – New South Wales and ACT (Services) Branch (ASU) applied for a majority support order pursuant to s236 of the Fair Work Act 2009 (the Act). I heard the application on 15, 16 and 19 April 2010.
[2] On Friday, 23 April 2010 I issued an order which is set out below:
“Pursuant to s236 and s237 of the Fair Work Act 2009 (Cth) (“the Act”), Fair Work Australia determines as follows:
A majority of employees employed by IBM Australia Limited (IBM) as batch operators and infrastructure operators in the Systems Operations functional areas of the National Operations Centre, being employees who will be covered by a single-enterprise agreement, want to bargain with IBM being an employer who will be covered by the proposed agreement.
Pursuant to s.237(4) of the Act, this determination comes into operation on the day on which it is made.” 1
[3] I now publish my reasons.
[4] Sections 236 and 237 of the Act are set out below:
“236 Majority support determinations
(1) A bargaining representative of an employee who will be covered by a proposed single-enterprise agreement may apply to FWA for a determination (a majority support determination) that a majority of the employees who will be covered by the agreement want to bargain with the employer, or employers, that will be covered by the agreement.
(2) The application must specify:
(a) the employer, or employers, that will be covered by the agreement; and
(b) the employees who will be covered by the agreement.
237 When FWA must make a majority support determination
Majority support determination
(1) FWA must make a majority support determination in relation to a proposed single-enterprise agreement if:
(a) an application for the determination has been made; and
(b) FWA is satisfied of the matters set out in subsection (2) in relation to the agreement.
Matters of which FWA must be satisfied before making a majority support determination
(2) FWA must be satisfied that:
(a) a majority of the employees:
(i) who are employed by the employer or employers at a time determined by FWA; and
(ii) who will be covered by the agreement;
want to bargain; and
(b) the employer, or employers, that will be covered by the agreement have not yet agreed to bargain, or initiated bargaining, for the agreement; and
(c) that the group of employees who will be covered by the agreement was fairly chosen; and
(d) it is reasonable in all the circumstances to make the determination.
(3) For the purposes of paragraph (2)(a), FWA may work out whether a majority of employees want to bargain using any method FWA considers appropriate.
(3A) If the agreement will not cover all of the employees of the employer or employers covered by the agreement, FWA must, in deciding for the purposes of paragraph (2)(c) whether the group of employees who will be covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.
Operation of determination
(4) The determination comes into operation on the day on which it is made.”
[5] Mr Slevin of Counsel, instructed by Mr Pasfield of Slater & Gordon solicitors, appeared for the ASU. Mr McDonald of Senior Counsel and Mr Meehan of Counsel, instructed by Mr Blake of Maddocks solicitors, appeared for IBM Australia Limited (IBM).
[6] In this application the witnesses for the ASU were Ms McManus, Mr Griffiths and Mr Masonwells. A statement by Ms McManus was tendered by consent. Mr Griffiths and Mr Masonwells were called and cross-examined.
[7] The witnesses for IBM were Ms Cruz-Dimaano, Mr Benson and Mr Grassi. Statements by Ms Cruz-Dimaano and Mr Benson were tendered by consent. Mr Grassi was called and was cross-examined.
[8] At the commencement of the hearing of this application on Thursday, 15 April 2010 IBM made an application that the Tribunal conduct an inspection of the Baulkham Hills facility. The application was opposed by the ASU on the basis that it would delay the proceedings and that time was of the essence in relation to initiating bargaining for these employees. Mr McDonald pressed the application on the basis that the Tribunal would be assisted by seeing the work environment at close quarters. I allowed the application and attended the Baulkham Hills facility.
[9] Section 176(3) makes it clear that an organisation cannot be a bargaining representative of an employee unless it is:
“(3) … entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement.”
[10] Before considering whether or not to issue a majority support order I had to determine whether or not the ASU has coverage of the relevant employees who are batch operators and infrastructure operators (previously known as systems operators). These employees are employed in the Systems Operations functional areas of the National Operations Centre (NOC). This area is often referred to as the flight deck.
[11] This issue has been previously litigated by these same parties before Commissioner Thatcher in relation to infrastructure operators only. So far as the parties were aware the hearing before Commissioner Thatcher was the first, and to date the only time that Rule 5(a) of the Rules of the ASU has been the subject of review. I am not aware of any other decisions in relation to this issue. In his decision 2 Commissioner Thatcher identified the relevant factual contest as follows:
“[3] The factual contest between the parties focussed on whether the ASU was entitled to represent the industrial interests of at least one of its members amongst the relevant employees in relation to work that would be subject to a union collective agreement. IBM submitted that the rules of the ASU were such that none of the relevant employees are eligible to become ASU members. The ASU submitted that it had the necessary coverage.”
[12] The Commissioner found as follows:
“[47] After considering the proper construction of the ASU’s eligibility rule as set out in paragraph 15 in accordance with the principles referred to in paragraphs 10-14 and applying that construction to the circumstances of infrastructure operators and their employment, I am of opinion that there is at least one infrastructure operator employed at the National Operations Centre of IBM who is eligible to be a member of the ASU as, at the least,
(a) infrastructure operators are employed or usually employed wholly or partly in maintaining computer system viability by identifying problems and instigating or implementing procedures in relation thereto;
(b) infrastructure operators are employed or usually employed wholly or partly in servicing computer systems in that there are certain thresholds and parameters within which they can alter systems in real time; and
(c) The monitoring role performed by infrastructure operators is part of ‘servicing,’ meaning the service restoration to IBM clients’ computer systems (hardware and software)” 3
[13] IBM submits that I should not adopt Commissioner Thatcher’s findings because his decision is unsafe. Mr McDonald submitted that there were errors in the reasoning of Commissioner Thatcher and that there was insufficient material to support his factual findings. There was no appeal from Commissioner Thatcher’s decision. No Full Bench has ever considered his findings of facts or his conclusion. I do not intend to review them now.
[14] Mr Griffiths is employed as a batch operator and Mr Masonwells is employed as an infrastructure operator. The evidence of both of these witnesses included a log of activities compiled by them in relation to a single day of their employment. It was not their evidence that these were the only tasks they perform in their work but that the log was compiled as an indicative list of their activities. Evidence was given of other activities which had taken place on other days.
[15] I did not find the lists added to my understanding. Clarification was necessary. When I enquired of the bar table no-one appeared to be any better informed than I was. 4 I asked the witnesses to give a factual explanation of each of the activities outlined.
[16] Despite having had the statements of Mr Griffiths and Mr Masonwells since 7 April 2010, and despite his client being the employer of these witnesses and therefore being in a likely position to understand their work, Mr McDonald asked for an adjournment to obtain further instructions on the clarification provided by these two witnesses. The expressed purpose was to illuminate the evidence given by Mr Griffiths and Mr Masonwells concerning their work and allow IBM to properly respond. I was not persuaded the application had any particular merit but I considered, since this was technical evidence, that there was a general benefit to all parties from any increased clarity. I therefore adjourned the cross-examination of both witnesses concerning this aspect of their evidence to Monday, 19 April 2010.
[17] The evidence of the witnesses was completed by 1.00 pm on 19 April 2010. Mr McDonald then sought further time to obtain instructions. I offered him additional time in the afternoon to consider the evidence to date and to obtain further instructions, but I refused to allow an adjournment to a further day. Mr McDonald refused the offer of a delay and elected to proceed without any interruption to the proceedings. In light of the evidence elicited in cross-examination IBM decided not to call any witnesses in reply. 5
[18] Whilst IBM conceded that it was sufficient for the ASU to demonstrate that it has coverage of one employee, it also submitted that the Tribunal must determine that the work of Mr Griffiths and Mr Masonwells in particular, falls within the terms of the eligibility rule. 6
[19] There appears to be no dispute that the relevant industry is the business equipment industry. The relevant modern award is the Business Equipment Award 2010. The previous applicable award was the simplified Business Equipment Technical Services Award 1978.
[20] The relevant rule of the ASU is set out below.
“ 5 –INDUSTRY AND ELIGIBILITY
…
a. Description of industry
…
PART V
The industry in or in connection with which the Union is registered is the industry of servicing, repairing, maintaining, structurally altering and/or assembling business equipment excluding typewriters. Without limiting the generality of the foregoing, the term ‘business equipment’ shall be deemed to include, inter alia, cash registers, accounting machines, adding machines, calculators, computers and peripheral equipment.
…
b. Eligibility for Membership
…
PART V
(a) an unlimited number of persons who are employed or usually employed wholly or partly in the servicing, repairing, maintaining, structurally altering and/or assembling business equipment, excluding typewriters, excepting persons employed in or in connection with the manufacture of photographic supplies and materials and employees in photographic establishments and excepting persons who are members or are eligible for membership of the Association of Architects Engineers Surveyors and Draughtsmen of Australia, the Federated Clerks Union of Australia, the Transport Workers’ Union of Australia, and the Australian Railway Union, Organisations registered under the Conciliation and Arbitration Act 1904, as amended, as at the date of registration of the Guild. Provided that persons who are eligible for membership of the Amalgamated Engineering Union, the Australasian Society of Engineers and the Electrical Trades Union of Australia, Organisations registered under the Conciliation and Arbitration Act 1904, as amended, shall not be eligible for membership of the Union. Without limiting the generality of the foregoing, the term ‘business equipment’ shall be deemed to include, inter alia, cash registers, accounting machines, adding machines, calculators, computers and peripheral equipment.”
(My emphasis)
[21] It was Mr Slevin’s submission that the employment may involve the member performing only one of the functions described as part of their employment to satisfy eligibility. I accept that submission.
[22] Mr Slevin and Mr McDonald referred to the history of the relevant Rule which had been also considered by Commissioner Thatcher. I have set out below an extract from Commissioner Thatcher’s decision where he deals with a decision of Deputy President Moore (as he then was) concerning community of interest.
“[18] The Commission’s inquiries indicate that as from 1 July 1991 the Technical Service Guild of Australia (TSG) amalgamated with the Municipal Officers’ Association of Australia (MOA) and the Australian Transport Officer’s Federation (ATOF). This involved the TSG and the ATOF being deregistered and the MOA becoming the amalgamated body under the name of the Australian Municipal, Transport, Energy, Water, Ports, Community and Information Services Union (ASU). In his decision dated 20 February 1991, 7 Deputy President Moore, in finding that a community of interest existed between the three unions, referred to a submission from the ACTU that the TSG had approximately 2500 members involved in the assembly, repair and maintenance of business equipment in what was described as the Information Technology Industry. It was submitted that the equipment with which TSG members dealt ‘is often now computerised.’
[19] That decision also referred to a sworn declaration from Mr Edward Cowell (National Secretary of TSG) which included:
5. The TSG was registered in 1970. At that time computers were an emerging component of the business equipment industry.
6. Repair, maintenance and structural alteration has changed from being predominantly a hardware associated task in respect of computer systems to a task which combines both hardware and software requirements, including those of software design and maintenance.
7. This work is as much a task of assessing user needs and developing compatible software as it is a task of appropriate circuitry connection.
8. Similarly, maintenance of such equipment does not mean a regular grease and oil change, but rather involves assessment of software performance, failure and limitations. Maintenance in respect of computer systems involves the task of maintaining the operational level of the equipment including software, to a standard which meets the users needs.” 8
(my emphasis)
[23] I have considered all of the written and oral evidence of the witnesses. The evidence concerns technical matters and therefore I have extracted some of the transcript.
The evidence of Mr Grassi
[24] I gave particular consideration to the evidence of Mr Grassi. Mr Grassi is currently employed as the Emerging Technology Delivery Manager. He has previously performed work as an infrastructure operator. Mr Grassi’s evidence about what is expected of batch operators and infrastructure operators and what work they do differed in significant respects from that of Mr Griffiths and Mr Masonwells. Mr Grassi’s evidence reflected the job specifications outlined by IBM and the differences between those job specifications and the work of other teams within IBM. IBM has specialist teams who are not batch operators or infrastructure operators, whose specified tasks are to fix problems and to service, maintain, and repair hardware and software. This evidence was supported by the evidence of Mr Benson and Ms Cruz-Dimaano.
[25] According to Mr Grassi the modus operandi of batch operators and infrastructure operators is based on the anticipated proper operation of an exclusively exceptions based system. A fault is an exception. That fault is highlighted, noted by the batch operators and/or infrastructure operators depending on the work and, if action is required, an expert team member will attend to it. He said:
“… They respond to the alerts. The premise of operations is by exception management, which means that unless you’re presented with an alert, and that alert is controlled by, as I said before, the owner of either the hardware or the software, the operator doesn’t take an action. And that’s the overall design of systems operations across the board. It is more efficient for them to be only reacting to the alerts presented to them.” 9
(my emphasis)
The evidence of Mr Griffiths
[26] Mr Griffiths described some of the tasks he performs in his statement. 10 I have set out hereunder some of the matters outlined by Mr Griffiths.
“10 … I monitor and recover issues with batch processing. Batch processing is where the days work is collated, processed and applied permanently to the system. The issues with batch processing that need to be monitored and recovered include job failures, delays in processing, transmission failures, customer issues and user problems.
…
11. As a Batch Operator, we are relied upon to do the initial problem determination for any failures within the batch processing. Once the cause has been determined, we are authorised to correct the problem without contacting support if we are able to fix it. If support have to be contacted we are often able to initiate the recovery prior to escalating to customer support teams. This can significantly reduce the impact, especially overnight, when there is an inherent delay while the support person connects and logs into the system. The operators in the BART team have been recognised for our recovery work by IBM management and support teams.
…
12. As part of my duties as a Batch Operator in the BART team, I maintain, repair and service the Westpac ‘SOLVE’ alert delivery profile used by BART. SOLVE is a software product that automates regular tasks and delivers alerts to the Flight Deck staff for action. This involves:
12.1 creation and updates to rules in the SOLVE software system which determine the delivery of the alerts/messages to our screens,
12.2 creation and updates to rules in the SOLVE software system which trigger automation procedures outlined in 12.3 below,
12.3 developing, repairing, implementing and updating software code within SOLVE.
…
12.4 testing of these rules and automation procedures in a SOLVE software simulation environment to ensure they perform correctly prior to activating them.
13. On 10/3/2010 I printed a listing of Solve software code from our lodgment system that I have either developed and/or implemented. I estimate that I have developed about 150 of these software codes in my role as a Batch Operator.
…
14. On 10/3/2010 I printed a listing of Solve rules showing creations and modifications performed by Flight Deck staff.
…
15. On 10/3/2010 I printed a listing of Solve code which shows Flight Deck staff creating and updating Solve software code.
…
16. … I maintain in-house applications. An application is a suite of jobs that run various software programs in a sequenced fashion to perform activities within a batch stream. This involves the
16.1 Design of applications based on requests for work provided by users within the BART team and from external user requests.
16.2 Design and coding of jobs within these applications to run software programs to process input data using Job Control Language (JCL) code.
16.3 Creation and maintenance of this JCL code which determines the sequence of software programs that run within the job.
…
16.4 Develop, update, repair, test and implement system-wide software programs in various programming languages.
…
17. As a Batch Operator, I repair job failures within the batch processing.
…
17.1 Modification of JCL to correct issues that occur in the batch stream
…
17.2 Modification of applications to correct batch failure issues.
17.3 Scheduling of jobs to recover from batch failure issues.
…
18. The type of work carried out by Batch Operators and Infrastructure Operators is illustrated by the Delivery Catalogue … ”
[27] Mr Griffiths expanded on these tasks in his oral evidence. Arising from a discussion of job JB1XFRBA 11 he described what was involved in handling a job failure.12 In describing this work and fixing the failure Mr Griffiths gave evidence that he went into the Job Control Language (JCL), which he described as the code of the job, and altered it so that the job then used an older version of the file. He contacted the RBA with whose files there was a fault, and he modified the code. He said:
“… I modified the code. It controls the software that runs. Yes, I modified the code and I modified the input to the software, the software that would basically connect direct. They call it a card boomer. It’s hard to describe. It’s basically a set of parameters that are used by Connect Direct. So it tells you which file is being extracted from Westpac, what file it’s writing to at the RBA, what passwords are being used; that sort of detail. So I had to modify that to point to a different file on our side because that’s the one that had been missed and a subsequent one had been created. I used that card and put it into a central library which I then pointed to within the JCL.” 13
[28] Mr Griffiths’ evidence was that he codes JCL. 14 He creates codes.15 He creates software programs.16 He gave evidence that he created a particular software program that strips long runs out of the work he is doing. This causes less “shouts” to appear. These software programs makes the task that he carries out at work more efficient.17 Mr Meehan put to Mr Griffiths that he doesn’t re-write codes but Mr Griffiths’ evidence was that he does.18
[29] Mr Meehan asked Mr Griffiths to identify tasks which are more than a Run Book or a Standard Operating Procedure. 19 He identified a number of such matters.20
[30] His evidence concerning the difference between operating systems is set out below:
“--- an operating system is a piece of software that translates signals from hardware, such as a mainframe computer? --- That would be part of what it does, yes.
There is operating system software, is there not? --- There is.
Would you agree with this description: that operating system software comprises the rules or commands that make the computer accessible or useable so that the operating system can perform specific additional functions?---Yes.
Such as a batch run? --- When you speak of commands, I normally have those as headed commands by an operator. But, yes, a batch job can also issue commands when appropriate.
…
MR MEEHAN: Do you accept that there is also what can be described as application software?---Yes.
Do you accept there is a distinction between operating system software and application software?---Yes.
The application software is a tool for putting into effect functions into the environment upon which the system operates?---Could you repeat that? Sorry, it’s not how I’d see it. I’m just trying to - - -
Application software - - -?---Yes.
--- is software that enables particular functions to operate on an operating system?---Particular functions to be done, yes.
To be done?---Yes.” 21
(my emphasis)
[31] Mr Meehan asked Mr Griffiths about what constituted hardware. 22 He identified mainframe computers, distributed networks, desktops, ATM’s and tape drives. In the course of this evidence I asked Mr Griffiths to describe tape drives. Cartridges are placed into tape drives or what are now known as cartridge drives.23 I observed this equipment in the course of my inspection on the first day of hearing.
[32] Mr Griffiths’ description of his actions in relation to job VQINBOUT “job failure” 24, was instructive as to the initiative exercised by batch operators.25
“So you dealt with that in the same way. Is that right? You got an alert - - ?---I didn’t call them back for the second failure. I went – if you go down two – I dumped down the previous day’s run, to see how it had been fixed, because the support instruction was a little different to what was actually done. So once I’d seen the previous day’s output, I realised where the issue was and then fixed it.” 26
[33] At the conclusion of cross-examination Mr Meehan put a number of questions to Mr Griffiths which seem to narrow the tasks from those Mr Griffiths had said he performed.
“I want to suggest to you, Mr Griffiths, that none of those tasks that you have described in your evidence involve servicing, repairing, maintaining or altering any hardware. Do you accept that? --- I accept that.
And I suggest to you also that none of those tasks involves any alterations or maintenance of operating system software? --- That's right.
Or any repair of operating system software? --- That's right.
The focus is, am I right, on the responding to alerts in respect of batch jobs and the applications that run? --- That's the first part of the job, yes, responding to the alert.
Yes, and then ---? --- Fixing the job.
--- fixing them in accordance with the standard operating procedures and run sheets that apply? --- When you say "standard operating procedures" do you mean something like ---
The procedures that arise through your console prompt on the screens? --- Well, they're standard operating procedures that are followed by everyone, but it's not like we have it written down in point form or anything like that. Is that what you are asking?
There are run sheets, aren't there? --- There are run books, but they don't tell us how to fix failures. It tells us how to re-start jobs once the problem has been fixed.
And you were otherwise acting in accordance with authorities given to you, whether it be by a support team or another team that is the owner of the particular application? ---We don't go to support for every failure. We go to support if we can't fix it, so not every fix is run by application support.” 27
[34] In re-examination Mr Slevin, over the objection of Mr Meehan, asked a number of questions which clarified Mr Griffiths’ response:
“What do you mean by ‘fixing jobs’? --- There are various different problems that cause jobs to fail; depending on what has caused the failure determines how we go about fixing them – whether it be renaming files, creating more space, modifying JCL to correct what has caused the failure in the first place; correcting transmission problems; calling customers. Yes, it’s a multitude of things. There are some failures that happen more frequently than others.
You were also asked just before you said that you fixed jobs whether the tasks that you went through with Mr Meehan involved servicing, maintaining or altering any hardware and you agreed that none of those tasks did that. What did you mean by agreeing to that?
---
--- If you were fixing things what did you mean by, you weren’t doing anything to service, maintain or alter things? …I wasn’t physically touching the hardware. I wasn’t unplugging or plugging in or replacing parts or anything like that.
You were also asked whether you were servicing, maintaining or altering software, and you have agreed with that proposition. What did you mean by agreeing to that proposition?
---
I understand that I didn’t describe the software as ‘operating system software’. What did you mean in your answer to that? --- I see the operating system software as the base software, not the JCL that runs in that environment, so I don’t modify operating system software.
So what is it that you modify? --- The software that runs above that; the software that’s – languages that are interpreted by that operating system that allow the task to be performed.
When it’s allowing tasks to be performed what is it that is performing the tasks. Do you understand that question? --- Yes. Well, yes, the operating system eventually performs the task.” 28
The evidence of Mr Masonwells
[35] Mr Masonwells described some of the tasks he performs in his statement. 29 I have set out hereunder some of the matters outlined by Mr Masonwells.
“7. My role as a National Operations Centre (NOC) Infrastructure Operator is to monitor and control software and hardware components of Westpac’s large computer network. Infrastructure Operators draw the main different areas of a computer network together – application, software and hardware – to ensure they are available to the end users, which in the case of Westpac are its staff and customers.
8. Data lines between the banks are always having problems due to hardware and software malfunction. … I need to fix the lines. I do this by manipulating and testing the lines, encryptors, modems or cables…….
9. … I regularly perform Initial Program Loads (‘IPLs’). The tasks involved include:
a. Pre-checking;
b. Winding down the system;
c. Stopping the system;
d. Re-loading the system;
e. Starting it back up again, including all software products;
f. Doing post IPL checks.
10. If a Hardware device such as a disc fails or needs to be put off-line for maintenance … Infrastructure Operators need to disable the hardware that provides access to the disc and re-route traffic through an alternate path to ensure the data is available. This can happen on a daily basis.
…
11. On occasion, Infrastructure Operators may need to physically close all ATMs in the Westpac network … this is performed remotely from the Flight Deck by Infrastructure Operators. This might happen once or twice a year.
12. … I perform problem solving as necessary to monitor, prevent and/or reduce re-current or one-off problems caused by software and/or hardware malfunction. One of the many tools used to assist me in this work is a piece of Software called Opsdata.
…
13. Event Director is a piece of software used to manage all the work on the Flight Deck and is used by Batch Operators and Infrastructure Operators. I use it on a daily basis. It was developed, coded and implemented by Richard McCain, a Batch Operator. … I have to log onto Event Director every day to manage workflow……
…
14. As part of Westpac Disaster Recovery, Infrastructure Operators have to perform Capacity Back-Ups (CBU) for the IBM mainframes. This alters the hardware to provide a more powerful capability for the up-coming test.
…
15. … Infrastructure Operators need to maintain the hardware for the Hardware Management Console (‘HMC’).
…
16. … we are often involved in large projects relating to Hardware and/or Software maintenance or upgrades. On 11/3/10 I received an email from Troy Robinson attaching the Shark Report 2007. The Shark Report was a project initiated by Mr Robinson, an Infrastructure Operator. Mr Robinson saw a fault pattern developing with the Shark DASD hardware. He tracked it over a period of one year and collected and collated this data in the Shark Report to show the extent of the faults with the hardware in question …”
[36] Mr Masonwells was asked about his work on hardware such as ATMs, network devices, tape drives, printers, hard discs and desktop computers. Mr Masonwells evidence was that he monitors printers. He monitors any printers that are connected to a mainframe computer. 30 He monitors tape drives on mainframe computers but not distributive computers.31 He monitors hard discs on mainframe computers but not distributive computers.32
[37] Mr McDonald put to Mr Masonwells that he would not ever repair or maintain any Westpac computer hardware. Mr Masonwells responded that he would perform that task at the Ryde computer centre. He may, on rare occasions, attend North Ryde or Chatswood to test the procedures on Westpac hardware to make sure all of the systems are working. The last time he attended North Ryde was 12 months ago. The last time he attended Chatswood was a year and a half ago. He attends these locations to either test the equipment or to check it if for some reason they cannot log on remotely. It is a matter of checking that everything is working correctly. 33 He also checks that the disaster recovery processes are working.
[38] It was put to Mr Masonwells that he had no discretion to shut down Westpac equipment and he agreed. 34
[39] Mr Masonwells’ evidence was that he exercises initiative in that he performs tasks within his own knowledge of them. If he has done something in the past he will do it again. 35 He does not always follow standard operating procedures. He said that these procedures are a guideline.36
[40] Although he does not perform encryption, his role is to co-ordinate with the encryptors to enable them to do their work. 37 In this work he diverts data which would otherwise be flowing through that particular hardware to allow the encryptors to perform their work.38
[41] Mr Masonwells was asked about the disabling of the hardware devices which he said was the job of an infrastructure operator. 39
“At paragraph 10 you state that, ‘If a hardware device such as the disk fails or needs to be put offline for maintenance, thereby removing access to data, infrastructure operators need to disable the hardware that provides access to the disk and reroute traffic through an alternative path to ensure the data is available.’ Now, can I put this to you, Mr Masonwells, the disabling of hardware devices is the responsibility of IBM’s IT engineers, not infrastructure operators?---Disabling the device itself is the responsibility of operation staff.
I’m sorry, do you mean - - -?---Infrastructure operators.
Do you mean by that the turning it on and off, turning the device off?---Turning the device off to users, to turning the device off to the system. We have to take the device off in order for the engineers to work on those devices.
To reroute traffic through an alternative path, is it the case that you issue a command by keyboard entry and the operating system automatically reroutes the traffic?---Yes.
So is that like simply Ctrl+Shift?---No, it’s a little bit more than that. There can be multiple parts to the device and it can take some time to do so.
So there’s a set procedure or - - -?---There’s a standard operating procedure for it.
All right?---We have to isolate the device.
How long would it take an experienced operator like yourself?---Depending on the piece of hardware needing to be isolated, it can take 30 seconds or it could take 15 minutes.
When do you say was the last occasion you shut down all ATMs in the Westpac network?---I haven’t done it myself but it would have been done last year for the tandem (indistinct) load.” 40
[42] Mr Masonwells was asked about his evidence concerning problem solving. 41
“---You have to interrogate the information you get back from the system and try and pinpoint the exact problem. So, yes, you issue commands and then, from the responses, you try to solve the problem that has been raised by the exception.
If you can’t resolve the problem, you’ve got to escalate the problem to - - -?---To someone who - - -
---IBM’s maintenance and technical support division?---Correct.” 42
[43] Mr Masonwells was asked about his evidence concerning capacity backups, allowing the hardware to provide more powerful capacity for upcoming tests. 43
“---I put it to you that on that basis, you’re not altering the hardware at all. You’re releasing capacity which is already built in to the system?---Modifying the software to be able to use that hardware.” 44
[44] Mr Masonwells said that he maintained the console for Event Director. Mr McDonald questioned him in cross-examination as follows:
“Can you explain to her Honour how you made that statement in paragraph 15? It seems to be entirely incorrect?---If you refer to the annexure document, it shows you exactly how we maintain it, by running backups on the weekend to ensure that the hard disk on the device is working fine, and to backup any information on those hard disks (sic).
That’s running a software program, isn’t it?---Correct.
So you say that running a software program as set out in CM6 constitutes the maintenance of the hardware?---Yes.” 45
---
“Just let me finish. Just explain to her Honour how you say the running of this program constitutes maintenance of the PC and screen that we’ve seen at your workstation, which is the hardware for the hardware management console. How do you say that?---It’s similar to what we went through earlier with the mainframe interbank log files on the mainframe. It’s a similar thing with HMC; if you don’t backup the data on the hard drives, if you don’t release space on the hard drives, then eventually it will fail. It will take up too much space and have errors.
So you say the backing up of data is the maintenance of the hardware?---It’s removing space so that there is more space there later for more information.
It’s drawing a very long bow, isn’t it, Mr Masonwells?
---
Correct me if I’m mistaken but your point is that if you don’t do the backup, you will run out of capacity and that it will stop working?---Correct.” 46
[45] Mr Masonwells’ evidence concerning the difference between operating systems software and applications software is set out below:
“---Mr Masonwells, do you agree that operating system software is rules and commands that make a computer accessible and useable to perform specific additional functions, such as a batch run?---Yes, that would be part of it.
THE SENIOR DEPUTY PRESIDENT:---I’m sorry, I didn’t hear you?---I said, yes, that would be part of it.
MR McDONALD:---Thank you. I guess a common example would be Windows?---For a PC, yes.
For a PC, Windows, and then an application would be Word?---Correct, yes.
And application software is a tool for putting into effect functions into the environment in which the system operates?
THE SENIOR DEPUTY PRESIDENT:---Could you say that again?
---A tool for putting into effect functions into the environment in which the system operates, such as the example of Word, a word processing function, in the Windows environment?---I guess so, yes. There’s many ways to describe function.
Let’s be specific in terms of your work. You’ve given evidence that event director is effectively a job allocation software. That’s an application software, isn’t it?---Correct, yes.
You’ve also given evidence about OpsData. That’s an application software, isn’t it?---Yes.” 47
[46] Mr Masonwells gave evidence that he co-ordinates testing by network operations staff from IBM, Telstra, NAB and sometimes Westpac. He arranges access to the lines, so that the lines can be tested. He closes the line and reroutes the material on that line to another line.
[47] The OS39O group, IBM software specialists, maintain and service IBM operating systems. At 20:29 on Mr Masonwells’ log that particular group was noted as seeking assistance from Mr Masonwells as to how SOLVE works. 48 Mr Masonwells’ evidence was that in certain areas he assists specialist IBM staff to fix problems.49 This is particularly so in relation to Westpac work.
[48] There was some discussion about whether SOLVE is application software or not. The difference between Mr Masonwells’ actual performance of his job, IBM’s expectation of how the job is performed and how the exception system operates is highlighted by this extract from the transcipts concerning IMS software.
“---IMS is another example of application software, isn’t it?---Yes. Well, it’s actually more a system software which applications use.
To be clear on this, Mr Masonwells - - -?---It’s very hard for me - - -
---I’m putting to you it’s no part of your job to repair or maintain that software. IBM has specialist software staff, and that’s their job?---It’s my job to make sure that piece of software is running to its optimum when I’m looking after it.
No. With respect, it’s your job – and they might be one and the same. Can I put to you that it’s your job to monitor any alerts in relation to that software. It’s an exception based system, isn’t it?---It’s both. I have to interrogate the system quite often to ensure that it’s running well. We use tools to interrogate it to make sure transaction flow is at its optimum.
Mr Masonwells, it’s no part of your job, can I put to you, to assess the performance of software. You’re not in a position to do so. What you do is, you see an alert and, when you get an alert, you respond to that alert. That is so, is it not?---We respond to alerts, certainly.
Yes?---But that’s not the only part of your job.
I’m sorry – perhaps my memory is failing me – but I don’t think you answered. My specific question was: I put it to you that it is no part of your job to repair and maintain the IMS database management system. That is the job of the IBM specialist software staff. Do you accept that?---No. If I see a problem with it and I can fix it, I will fix it. If I cannot fix the problem, I will call the next level that should be able to fix it.
Other than rebooting, so to speak – you’ve given evidence that on occasions you are---
THE SENIOR DEPUTY PRESIDENT:---‘Interrogate’. Was that the word he used?
---Other than stopping the system and then starting it again – you’ve given evidence of taking those steps – what steps do you – give a practical example with IMS. When is the last time you repaired or maintained the IMS database management system, other than by taking that step of stopping the system and starting it again?---On a daily basis---
No, when was the last time you did it?---On this night in question.
No, any night. In the last three months, the last six months, the last 12 months?
---I’ll tell you. On this night in question, on 30 March, I stopped and started a couple of IMS regions which work underneath the main software product of IMS. It was all to solve this problem. I took action. We saw there was a problem. I took action to try and fix it. I could not fix the problem. We then passed it on to the next level of support.
You stopped and started the application of the software - - -?---I stopped and started components of the software.
And that didn’t fix the problem - - -?---No, it did not.
---so you escalated it?---Correct.” 50
(my emphasis)
[49] Mr Masonwells gave evidence that he interrogated the system even when there were no faults. I asked him what that meant. He said that he issued random commands to check that the system was running properly. He gave an example of where that interrogation had located a fault hours earlier than when it would have been otherwise identified when a transmission occurred. He identified it early and was able to fix it. 51
[50] Mr Masonwells’ evidence was that it was part of his job to maintain IMS, an application software, to make sure that piece of software is running to its optimum when he is looking after it. 52
[51] Mr Masonwells conceded that he does not proactively identify and fix problems with computer hardware, operating systems software or maintaining system hardware and infrastructure performance at contractually agreed levels, 53 but in re-examination he said:
“---Just before you have that document open, you were asked whether on the night in question you proactively identified and fixed problems and potential problems before they adversely impact users on hardware. You didn’t do it on the night in question but do you do it on other nights, or on other shifts, I should say?---Yes. Hardware problems with tape drives and disks (sic) we often have to investigate and escalate problems, if we can’t fix them ourselves.
And the other dot point that you were referred to, that you didn’t on that night maintain system hardware and infrastructure performance at contractually agreed levels, you may not have done it on that night, but do you do it on other shifts?---Yes, we do. Our responsibility is to all hardware and software. If we notice problems, we attempt to fix them. If we change control activity scheduled we facilitate those change control activities.
Change control activities; what’s involved in that?---Changes with hardware or software, which usually occur Saturday nights, for instance, with adding or removing hardware, adding or removing software. It’s all done at a time when it will have least effect to the customer.” 54
Conclusion
[52] Neither Mr Griffiths nor Mr Masonwells denied the applicability of a general exceptions based system to their work. However, both witnesses described the tasks they perform as extending beyond this concept. They both gave evidence that they perform work beyond the systemic limitations described by Mr Grassi.
[53] I am satisfied that Mr Grassi’s evidence concerning the expectations of IBM regarding the job specifications method of operation of batch operators and infrastructure operators reflects his honestly held perception of how this work is performed.
[54] I am also satisfied that Mr Griffiths and Mr Masonwells are witnesses of credit. I accept their evidence as to the manner in which they perform their work. I accept the evidence they gave of the tasks they perform at work, the description they provided of the investigations they conduct and their evidence as to the initiatives they undertook as all being encompassed in their ordinary duties.
[55] In relation to Mr Masonwells’ evidence Mr McDonald submitted that he had exaggerated the breadth of his duties to support the application. I was not persuaded that that was the case. I found Mr Masonwells to be a straightforward though nervous witness who did not exaggerate his evidence in any respect. I accept without reservation his evidence regarding his duties as an infrastructure operator at IBM.
[56] I accept that Mr Benson’s teams are responsible for installing, maintaining and repairing operating systems. I also accept the evidence of Ms Cruz-Dimaano regarding her teams work in restoring, testing, repairing and maintaining IT hardware in accordance with IBM’s clients’ maintenance contracts.
[57] Despite my acceptance of the evidence of Mr Benson and Ms Cruz-Dimaano concerning the work of their teams, I have concluded that the divisions between work, as described by IBM, are not adhered to at the workplace. Mr Griffiths and Mr Masonwells do occasionally maintain hardware in the form of cartridge drives and printers and do perform maintenance of software. They do checks and correct errors allowing systems to proceed without interruption. Contrary to Mr Grassi’s evidence the operator does take action when an alert appears.
[58] Mr McDonald identified a number of functions that Mr Griffiths and Mr Masonwells do not perform but I have concluded that the tasks that they do perform, in relation to both hardware and software, are sufficient to bring them within the eligibility rule.
[59] I am not persuaded by the submission that isolating particular lines, so that maintenance can be carried out, is not an integral part of maintenance. The man with the sign at the side of the road directing traffic elsewhere whilst repairs are being performed is still a part of the maintenance and repair team, although probably at the bottom of the team in terms of skill.
[60] Before hearing this application I would never have imagined that any batch operator or infrastructure operator engaged by IBM to work on tasks affecting the operation of their clients’ systems to be button pressing process workers. Many of the propositions put to Mr Griffiths and Mr Masonwells by Counsel for IBM attempted to characterise their work in this manner. Both witnesses resisted such attempts and described the way in which they exercised initiative and independent processes. The evidence and attitude of both of these witnesses confirmed my expectations and was consistent with the job descriptions contained in the IBM documents relating to these positions.
[61] I am not persuaded that the Eligibility Rule of the ASU applies only to work involving hardware. However, if I am mistaken as to this conclusion, I am satisfied that there are limited occasions when both batch operators and infrastructure operators employed by IBM perform work partly in the service, repair and/or maintenance of computers and peripheral equipment involving hardware. I am satisfied that Mr Griffiths and Mr Masonwells perform this work.
[62] I am not persuaded that the Eligibility Rule of the ASU applies only to operating systems software. However, if I am mistaken, I am satisfied that there are occasions when both batch operators and infrastructure operators employed by IBM perform work partly in the service, repair and/or maintenance of computers and peripheral equipment involving operating systems software. I am satisfied that Mr Griffiths and Mr Masonwells perform this work.
[63] I am satisfied that the batch operators, the subject of this application, and the infrastructure operators, the subject of this application, fall within the ordinary meaning of the words in the Information Technology Rule of the ASU’s Rules.
[64] I am satisfied that there is at least one employee of IBM in both categories whose employment will be subject to any agreement whom the ASU is entitled to represent.
[65] When I issued my order of 23 April 2010 I was satisfied that;
- pursuant to s237(2)(a) a majority of the employees, the subject of this application, wanted to bargain;
- pursuant to s237(2)(b) IBM had refused to bargain;
- pursuant to s237(2)(c) the group of employees who will be covered by any agreement were fairly chosen; and,
- pursuant to s237(2)(d) it was reasonable in all the circumstances to make the determination and issue the relevant order.
[66] The ASU relied on a second submission that the relevant employees were also covered by the Clerical Rule. That was a matter dealt with by Commissioner Thatcher in his decision.
[67] I do not think it is necessary for me to deal with that matter. I am satisfied that the relevant employees are covered by the Information Technology Rule.
SENIOR DEPUTY PRESIDENT
1 PR996498
2 PR982740
3 PR982740
4 Transcript 16-04-2010 PN49 - 50
5 Transcript 19-4-2010 - PN525
6 Transcript 15-4-2010 - PN39
7 J6753 - 20 February 1991.
8 PR982740 para 18 and 19
9 Transcript 15-4-2010 - PN184
10 Exhibit ASU3
11 Exhibit ASU3 para 19
12 Transcript 16-4-2010 PN33 - 34
13 Transcript 16-4-2010 – PN44
14 Transcript 16-4-2010 - PN276
15 Transcript 16-4-2010 – PN278
16 Transcript 16-4-2010 – PN282 - PN287
17 Transcript 16-4-2010 – PN291
18 Transcript 16-4-2010 – PN303 - PN302
19 Transcript 16-4-2010 – PN308
20 Transcript 16-4-2010 – From PN309
21 Transcript 19-4-2010 – PN49 – PN60
22 Transcript 19-4-2010 – PN64 – PN67
23 Transcript 19-4-2010 – PN80 – PN90
24 Transcript 19-4-2010 – PN238
25 Transcript 19-4-2010 – PN238 – PN248
26 Transcript 19-4-2010 – PN247
27 Transcript 19-4-2010 – PN285 – PN293
28 Transcript 19-4-2010 – PN297 – PN308
29 Exhibit ASU4
30 Transcript 16-4-2010 – PN390 - 395
31 Transcript 16-4-2010 – PN396
32 Transcript 16-4-2010 – PN397
33 Transcript 16-4-2010 – PN402 – PN412
34 Transcript 16-4-2010 – PN415
35 Transcript 16-4-2010 – PN414
36 Transcript 16-4-2010 – PN430 onwards
37 Transcript 16-4-2010 – PN446
38 Transcript 16-4-2010 – PN454
39 Exhibit ASU4 para 10
40 Transcript 16-4-2010 – PN464 – PN472
41 Exhibit ASU4 para 12
42 Transcript 16-4-2010 – PN481 – PN483
43 Exhibit ASU4 para 14
44 Transcript 16-4-2020 – PN489
45 Transcript 16-4-2020 – PN496 – PN498
46 Transcript 16-4-2010 – PN501 – PN507
47 Transcript 19-4-2010 – PN324 – PN332
48 Transcript 19-4-2010 – PN369 – PN372
49 Transcript 19-4-2010 – PN487
50 Transcript 19-4-2020 – PN420 – PN434
51 Transcript 19-4-2010 – PN449
52 Transcript 19-4-2010 – PN422
53 Transcript 19-4-2010 – PN512 – PN514
54 Transcript 19-4-2010 – PN516 – PN518
Printed by authority of the Commonwealth Government Printer
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