[2017] FWC 6787

The attached document replaces the document previously issued with the above code on 15 December 2017.

Amendments made to typographical errors.

Associate to Commissioner Simpson

Dated 18 December 2017.

[2017] FWC 6787

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
v
AGC Industries Pty Ltd & Meisei Industrial Co Ltd T/A AMJV
(C2017/3712)

COMMISSIONER SIMPSON

BRISBANE, 15 DECEMBER 2017

Alleged dispute about attendance of the AMWU delegates at a Delegate Development Education Course in Darwin – construction of eligibility rules – role of sheet metal workers – role of cryogenic insulators – insulator not a sub-trade of engineering and kindred trades – insulators not working in or in connection with engineering and kindred trades - insulators not producing or making articles, goods or chattels in or in connection with sheet metal working trades– Applicant not entitled to recruit cryogenic insulators – Respondent entitled to refuse to recognise delegate if delegate not entitled to be a member of the union.

[1] On 6 July 2017, the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (Applicant) filed an application pursuant to s.739 of the Fair Work Act 2009 (the Act) to deal with a dispute in accordance with the dispute settlement procedure in the AMJV Ichthys Onshore Construction Greenfields Agreement (the Agreement). The dispute is brought against AGC Industries Pty Ltd and Meisei Industrial Co Ltd trading as AMJV (the Respondent).

[2] The Agreement was approved by the Commission on 18 March 2015 and has a nominal expiry date of 24 March 2019. The Respondent employs persons in the position of cryogenic insulator and in the position of sheet metal worker. Cryogenic insulators are classified as Group B employees (see clause 12.3(e) of the Agreement). Sheet metal workers are classified as Group A (Mechanical Tradesperson) employees. There is another classification of Cladder in Group C which will become relevant.

[3] The Respondent supplies industrial painting and insulation installation services to the Ichthys LNG Project (the Project). The insulation work involves the installation and jacketing of temperature and acoustic insulation materials to drums, pipes, valves and other vessels and instruments. Approximately 75 to 90 sheet metal workers and 200 cryogenic insulators were employed by the Respondent to perform this work. Both sheet metal workers and cryogenic insulators work together in mixed teams. Mr Martin and Mr McMinimee are employed by the Respondent as cryogenic insulators.

[4] On 6 April 2017 the Respondent advised Applicant of its view that Applicant is not entitled under its eligibility rules to represent the interests of cryogenic insulators at the Project. On 21 June 2017 Solicitors for Applicant advised the Respondent that the Applicant was entitled to represent the cryogenic insulators.

[5] The application states that the Applicant has a number of delegates employed by the Respondent including Mr Martin and Mr McMinimee. The Applicant wrote to the Respondent on 27 and 29 June 2017 advising that Mr Martin and Mr McMinimee were delegates of the Applicant. The Applicant sent correspondence to the Respondent on 23 and 28 June 2017 seeking paid leave for the two employees to attend a delegate training course between 11 and 14 July 2017.

[6] The Respondent did not agree to the requests on the basis it did not accept that the Applicants rules permitted it to enrol persons employed as cryogenic insulators as members, and did not recognise Mr Martin or Mr McMinimee as delegates for the purposes of clause 22 of the Agreement.

[7] The Fair Work Commission (the Commission) has already in an earlier decision determined its jurisdiction to deal with the dispute. 1

[8] Following determination of the jurisdictional issue, directions were issued for the filing of evidence and submissions and the matter was listed for hearing over three days from Wednesday 1 November to Friday 3 November 2017. The Australian Workers’ Union (AWU) sought and was granted the opportunity to be heard as an interested party given its coverage of cryogenic insulators. It was agreed that the first day would be utilised for site inspections which occurred on 1 November at the Bladin Point Construction site.

[9] At the hearing the Applicant was represented by Mr T McCauley of Taylor and Scott Lawyers, the Respondent was represented by A Gotting of Counsel instructed by Ashurst. The AWU was represented by Mr T McKernan an industrial officer of the AWU.

[10] The Applicant called two witnesses, Mr Daniel Hannan who filed two witness statements, his first statement on 29 September 2017 2, and statement in reply on 31 October 2017.3 Mr Benedict Martin filed three witness statements, his first on 28 August 20174, his second on 2 October 20175 and his final statement on 31 October 2017.6

[11] The Respondent called two witnesses who both provided statements, Mr Johannes Schmidt on 23 October 2017 7 and Mr Michael Butler on 23 October 2017.8

[12] The parties posed the questions for determination before the Commission in very similar terms. The Respondent says the questions (and answers) are;

i) Is the Applicant entitled to represent the interests of persons employed as Cryogenic Insulators (also known as laggers) by the Respondent and working at the Ichthys Project at Bladin point?

Answer: No

ii) On the proper construction of clause 22 of the AMJV Ichthys Onshore Construction Greenfields Agreement, does AMJV have the ability to refuse to recognise a person nominated as a Delegate on the basis that the Delegate’s Union cannot represent the industrial interests of the employees?

Answer: Yes

[13] The Applicant proposed slightly different words and says the questions (and answers) are;

i) Is the Applicant entitled to represent the industrial interests of persons employed as Cryogenic Insulators (also known as laggers) by AMJV and working at the Ichthys Project at Bladin point?

Answer: Yes

ii) On the proper construction of clause 22 of the AMJV Ichthys Onshore Construction Greenfields Agreement, does AMJV have the ability to refuse to recognise a person nominated as a Delegate on the basis that AMJV is of the opinion that that Delegate’s Union cannot represent the industrial interests of the employees?

Answer: No

[14] The parties disagreed over the order in which the two questions should be addressed. I deal with that matter below. The Applicant says that the underlined wording missing from the Respondent’s Question 2 is important in the context of the dispute and the construction of clause 22 of the Agreement. The Applicant said if however the Commission is satisfied that clause 22 permits the Respondent to refuse to recognise an elected representative the first question then arises for consideration.

[15] Clause 22 of the Agreement provides:

“Employee Representatives

(a) The Employer recognises the right of their employees to elect a representative(s) (Delegate) to represent them, and will recognise that the Delegate(s) can represent those employees industrially, provided they receive formal advice from the delegate’s industrial Union that verifies the Union is both satisfied a proper election has occurred and the duly elected Delegate(s) is a person who can represent the industrial interests for employees of the Employer and the members of the respective union.

(b) The Delegate(s) is first and foremost an employee and is therefore required to discharge their normal duties and obligations as an employee. Before leaving their normal duties to perform any delegate duties, the Delegate(s) shall first seek permission from the Employer. Such permission shall not be unreasonably withheld.

(c) The Employer will not subject any Delegate to any material disadvantage in his/her present employment or future employment opportunities due to them having performed the role of a Delegate on the Project.

(d) The Employer shall, where requested by the Delegate(s), provide him/her with reasonable facilities to produce and store electronic documents, photocopy a reasonable number of documents and send and receive documents via a facsimile or other electronic means, where the Employer possesses such a machine. Nothing in this subclause requires the Employer to supply the Delegate(s) with dedicated office space to perform their delegate duties.

(e) The Employer will, where it needs to consult with the Union and/or its employees, first consult with the appropriate Delegate(s), duly recognised by the Union(s).

(f) Where the Employer is involved in any industrial proceeding that involves a member(s) of the Delegate(s) Union, the Delegate(s) shall be entitled to attend those proceedings without deduction from their Ordinary Time Earnings.

(g) The Delegate(s) shall, upon application to the Employer, be permitted to take up to five (5) days of non-cumulative leave in any year to allow them to attend formal courses that promote the practice of sound industrial relations.”

[16] The Applicant’s Union Rules include the following: (emphasis added)

1A. Without in any way limiting or being limited by sub rules 1B, 1C, 1D, 1E, 1F, 1G, 1H and 1I the Union shall consist of an unlimited number of persons who are employed or usually employed in or in connection with the following trades or calling or branches thereof:

(a) …………all workers engaged in the engineering, shipbuilding and kindred trades.

…

(c)(i) Producing, making, completing by any process …….or repairing, or assisting to produce, make or repair any articles, goods or chattels, in or in connection with ………..sheet metal working, …………..sheet metal trunk and box making,……”

Applicant submissions on construction of Rules

[17] The Applicant submitted that eligibility rules of organisations should not be construed narrowly or technically. 9 The Applicant referred to the principles as set out in the Full Bench decision in AMWU v ResMed Limited10;

“[34] The general principles applicable to the interpretation of union eligibility rules are well established. As relevant to this appeal, they may be summarised as follows 15:

(1) Union eligibility rules will be construed objectively: R v Williams; Ex parte Australian Building, Construction Employees’ and Builders Labourers’ Federation. 16

(2) The nature of union eligibility rules means that they should be construed liberally rather than narrowly or technically: R v Cohen; Ex parte Motor Accidents Insurance Board 17; Co-operative Bulk Handling Ltd v Waterside Workers’ Federation of Australia18; Electrical Trades Union of Australia v Waterside Workers’ Federation of Australia (No. 2)19.

(3) It is permissible to have regard to any common understanding among people concerned with relevant industries and particularly with industrial matters of the ordinary application of the words used, and to the previous use of the words in the relevant organisation’s rules and in statutory provisions, decisions, determinations, awards, reports and other papers concerned with the relevant industry or industries: R v Williams; Ex parte Australian Building, Construction Employees’ and Builders Labourers’ Federation. 20 Federal awards, including consent awards, made by Commonwealth industrial tribunals at a time when the legislative award-making power was founded upon the industrial disputes power in s.51(xxxv) of the Constitution, are important sources in this respect since a union may only be a party to an industrial dispute involving employees eligible to be its members: Co-operative Bulk Handling Ltd v Waterside Workers’ Federation of Australia.21

(4) If there is ambiguity as to the meaning of words in the eligibility rules, assistance may be sought in the terms of the industry rule (subject to it being understood that the scope of the eligibility rule is not restricted by the scope of the industry rule): R v Gough; Ex parte Municipal Officers’ Association. 22

(5) Words in an eligibility rule should not be read in isolation such as to give the rule a wide and indefinite scope of operation that is unlikely to have been intended: R v Gough; Ex parte Municipal Officers’ Association 23; Construction, Forestry, Mining and Energy Union v CSBP Ltd.24

(6) Terms used in union eligibility rules should not be interpreted statically in accordance with the meaning they bore at the time that they were first introduced into the rules. Although such terms will have a fixed connotation, they bear a changing denotation - that is, they may be interpreted in accordance with their appropriate current meaning, taking into account changing technologies and methods of work: Co-operative Bulk Handling Ltd v Waterside Workers’ Federation of Australia. 25 This may mean that eligibility rules may cover industries or callings not known when the rules were originally drafted: R v Isaac; Ex parte Transport Workers’ Union.26

(7) The words “in or in connection with” are words of expansion. However, for the requisite connection to be established, the work of the employees in question must be referable or significant to the work of the second group of employees with whom there is said to be a connection. It is not sufficient that the work of the relevant employees makes it possible for an employer to conduct a business involving the performance of work by the second group of employees: Federated Miscellaneous Workers Union of Australia v Colonial Sugar Refining Co. Ltd.”

In engineering….and kindred trades

[18] The Applicant says it is not necessary to identify a particular trade within Rule 1A within which the workers fall. It was said when considering whether an eligibility rule extends to particular work, it is not necessary for the occupation of the employee to fall solely within one occupation described by the rule, and multiple occupations may be relevant. The Applicant referred to the High Court decision in R v Isaac. 11

[19] The Applicant submits it is possible for workers to be engaged in roles that fall, in whole or in part, within several of the occupations listed in an eligibility rule. Further, a job title assigned by an employer is of little assistance and the relevant question is what work is actually performed. The Applicant submits that the cryogenic insulators perform sub-trades work within the engineering and kindred trades, and thus fall into coverage.

[20] The Applicant submitted that the words ‘engineering … and kindred trades’ are words of expansion that have formed part of the Applicant’s rules since 1936. Citing the Federal Court decision in Federated Tobacco Workers Union of Australia v Amalgamated Metal Workers Union, 12 (Tobacco Workers) the Applicant submitted that the purpose of the words are to avoid the necessity of continual amendment of Rule 1A(a) to specifically name each new calling as it arose in the industry. The Applicant submitted the phrase has conventionally been interpreted as extending coverage to workers who are wholly or substantially engaged in occupations or callings within the engineering or kindred industries.

[21] The Applicant also referred to the following in Tobacco Workers; (emphasis added)

“At times when technology is changing, it is not unexpected to see in an eligibility rule of an organisation general words which, of necessity, cover specific matters already included in the rule. It would not be surprising to discover that several of the trades or callings listed are not now being followed by anyone. The history of the rule shows that specific trades or callings have been added from time to time. The concluding words obviate the need to continue to do that in the future. Those words refer to the activities of the employee and should be construed accordingly. The opening words expand further the concluding words. The structure of the rule is very different from that considered by the High Court in R v Coldham; Ex parte The Australian Workers’ Union [1984] HCA 62; (1984) 59 ALJR 95. In the present case, there is no structure of the eligibility rule of the Metal Workers’ Union which permits a construction similar to that adopted by the High Court in construing the eligibility rule of the Australian Workers’ Union.”

[22] The Applicant submitted that the rule was introduced in the context that technological change increased below trade specialisation. This is, sub-trades were arising involving workers being dedicated to tasks which otherwise would have fallen within the broader remit of a fitters work. As stated the point was to avoid the necessity of continual amendment of Rule 1A(a).

[23] The Applicant says that the phrase has been conventionally interpreted as extending coverage under Rule 1A(a) to workers who are wholly or substantially engaged in occupations or callings within the engineering or kindred industries, including the metal or fabrication industry.

In or in connection with

[24] On and from 10 January 1972 the opening words of rule 1A were:

“The Union shall consist of an unlimited number of persons who are employed or usually employed in or in connection with the following trades or callings or branches thereof…”

[25] The Applicant submitted that the words “in or in connection with” are expansionary and capture circumstances where work of one group of employees is “referable or significant” to the work of a second group of employees. 13 The Applicant cited Tobacco Workers as authority for the interpretation of the words “in or in connection with”. There, the Court stated at 271: (emphasis added)

“The opening words, on their face, are words of expansion. In particular, the words "in or in connection with" show that in addition to the listed trades or callings, persons who are "employed" in connection with those trades or callings are eligible to become and remain members of the Metal Workers' Union. In this context the word "employed" is to be read as "engaged." Thus, it is quite appropriate to say of a person who is employed by an employer which is not engaged in the engineering industry, but is employed to assist another employee who is performing the tasks of a metal worker, for example, a fitter, that the first person is engaged, or employed, in or in connection with the trade or calling of that fitter. These words of expansion are separate and distinct from the concluding words of paragraph (a), namely "all workers engaged in the engineering, shipbuilding and kindred trades." The opening words of the new rule, on their face, expand further those concluding words so as to make persons engaged or employed in connection with workers engaged in the engineering or a kindred trade eligible to become and remain members of the Metal Workers' Union.”

[26] The Full Bench in AMWU v ResMed said the following about the words “in or in connection with”; (emphasis added)

“The words “in or in connection with” are words of expansion. However, for the requisite connection to be established, the work of the employees in question must be referable or significant to the work of the second group of employees with whom there is said to be a connection. It is not sufficient that the work of the relevant employees makes it possible for an employer to conduct a business involving the performance of work by the second group of employees: Federated Miscellaneous Workers Union of Australia v Colonial Sugar Refining Co. Ltd.”

[27] The Applicant submitted that the FWC Full Bench observed in AMWU v ResMed that the relevant connection is not limited to assisting; rather this is only an example. The Applicant submitted that the correct test is whether there is a substantial interlinkage between the work of the person whose eligibility is in doubt and the metal worker (or other person otherwise uncontroversially within the rules).

Respondent submissions on construction of Rules

[28] The Respondent submitted that the eligibility rule of a union determines the industrial pursuits from which members can be drawn and with which the union can be legitimately concerned, and the eligibility rule constitutes a reference point for employers to determine the proper coverage and field of operation of the union. 14

[29] The Respondent submitted the words in the eligibility rule of the Applicant’ Rules are, subject to the consideration of other rules of construction, to be afforded their ordinary and natural meaning. 15 The words are to be construed in accordance with their current denotation.16

[30] The Respondent submitted there is a specialised meaning of the words in the eligibility rule of the Applicant’s Rules, especially the phrase “engineering …and kindred trades”. 17 There is a relevant history of the eligibility rule of the Applicant’s Rules.18 There are relevant decisions concerning the Applicant’s Rules relating to the phrase “engineering …and kindred trades.”19

[31] The Respondent submitted that the reference in the opening section of the eligibility rule of the Applicant’s Rules to “in or in connection with” has a wide connotation. 20 The reference in the opening section of the eligibility rule of the Applicant’s Rules to “trades or calling” means the “activities” being carried out by the employees.21 The reference in the eligibility rule of the Applicant’s Rules to “engineering….and kindred trades” refers to the activities being carried out by the employees.22

[32] The Respondent submitted that the specialist meaning of the word “engineering” in the phrase “engineering….and kindred trades” in rule 1A of the Applicant’s Rules entails the manufacture of a particular item, and the specialist meaning of “machinist” in rule 1A(a) is an employee that uses a machine primarily for the purpose of working with metal, 23 that is to shape or modify metal.24

[33] The Respondent submitted that the overall effect of rule 1A(a) in light of previous decisions, is that it permits coverage of employees in a number of specified trades or metal trade skills. 25

Activities Performed by the “trades or callings” within rule 1A(a) and 1A(c)

[34] From the authorities and submissions referred to above it seems in this case in order to fall within rule 1A(a) cryogenic insulators must be engaged or usually engaged in the “engineering …and kindred trades” that being the trade or activity, or related trade or the related activity of the manufacture or fabrication of an item. Or alternatively, the cryogenic insulators must perform activity “in connection with” “engineering ….and kindred trades”, being work that is referable or significant to the sheet metal work, and have a substantial interlinkage with the work of that trade.

[35] From the authorities and submissions referred to above it seems in order to fall within rule 1A(c) cryogenic insulators need to be engaged in “producing” or “making” “articles, goods or chattels” in or in connection with trade work within that sub-rule.

EVIDENCE

[36] At the commencement of the hearing a video was viewed that was an annexure to the statement of Mr Schmidt that demonstrated the process of installing insulation. 26

[37] Mr Hannan gave evidence that he commenced working at the Project in late July 2016 as a sheet metal worker and he is a member of the Applicant. He said at the Respondent, laggers are called insulators or cryogenic insulators. 27

[38] Mr Martin said he commenced working in July 2015 as a cryogenic insulator (lagger) at the Project. He said the dispute concerning non-recognition of the Applicant’s right to cover laggers has been going for nearly 12 months. 28 Mr Martin said his nomination as a delegate of the Applicant happened early in the Project. He said he had been a member of the Applicant for some years including when he worked in Western Australia. He said he has worked for the same companies that make up the Respondent as a lagger previously, and had been a member of the Applicant and was represented by the Applicant in a dispute about classification levels.29

[39] Mr Schmidt is a qualified sheet metal worker. He commenced at the Project in March 2015 as a quality control inspector. In February 2016 he worked at the Project as a quality control superintendent – insulation. He is also a training superintendent. He said in his role as quality control superintendent he is responsible for leading the team that inspects insulation and cladding installed by the Respondent on the Project to ensure both are completed to Project specifications and standards. In his role as training superintendent he is responsible for delivering verification of competencies (VOC tests to the Respondent workers, including insulators and sheet metal workers who are to start on the project.) 30

[40] Mr Butler is currently employed by the Respondent in the position of superintendent (insulation). Mr Butler said his background was in construction as an insulator and his experience includes working on multiple construction projects of gas/LNG plants, primarily on the west coast of Australia.

Work of Cryogenic Insulators and Sheet Metal Workers

Sheet Metal Workers

[41] Mr Butler said there were 80 – 90 sheet metal workers employed by the Respondent on the Project. He described them fitting into three categories.

(a) Sheet metal workers at the Respondent workshop at Pinelands where sheet metal is fabricated using operating machines. He said this involves sheet metal being cut, bent and shaped, all of which uses trade skills. The items fabricated include sheet metal cladding placed on top of the insulation and sheet metal boxes for foam injection. He said these sheet metal workers generally work alone or with other sheet metal workers.

(b) Sheet metal workers who are “scopers”. He said there are approximately 8 sheet metal workers in this category. He said this work primarily involves line chasing, that is using drawings to identify physical plant on site, performing measurements of flanges and valves on site and designing metal boxes which will be cut to size, fabricated (using sheet metal) and subsequently installed (by them) to provide protection to those valves and flanges. This fabrication is generally performed by the sheet metal workers at Pinelands although some fabrication is undertaken at a smaller “satellite” workshop at the Project where approximately 3-4 sheet metal workers are employed. Mr Butler said this type of sheet metal worker works alone or with other sheet metal workers in this category.

(c) The third category is the rest of sheet metal workers on the Project who work “in the field” or “on the plate”. Mr Butler said they install sheet metal fabricated by the first category of sheet metal workers onto vessels, pipes and the like which have been fitted with insulation. He said they install sheet metal boxes on flanges and valves that have been specifically designed by the second category of sheet metal workers and fabricated generally by the first category. Mr Butler said the work of these sheet metal workers does not involve working with sheet metal, for example, making holes in sheet metal so that it can be fixed on top of insulation. The work of these sheet metal workers does not involve substantial use of trade skills such as fabricating, cutting or bending sheet metal. Mr Butler said in his view, the work of this group of sheet metal workers could, to a significant degree, be described as cladding. Mr Butler said in his view cladding is a skill and is not a trade. 31

Pinelands Workshop

[42] Mr Schmidt said that the Respondent sheet metal work is fabricated offsite at a workshop at Pinelands, approximately half an hour from the Project site. He said approximately 15 sheet metal workers work in the workshop. He said they are engaged in traditional sheet metal work, using trade skills such as bending, cutting, shaping and joining sheet metal using mechanical equipment. He said these sheet metal workers fabricate sheet metal in accordance with plant designs prepared by sheet metal workers on site (“in the field”). He gave the example of sheet metal workers in the workshop fabricating metal flange boxes that are measured up and designed by a sheet metal worker in the field. 32 Mr Schmidt said no insulation work is performed in the workshop. Mr Schmidt accepted that some sheet metal workers have moved between Pinelands and the site.33

[43] In respect of sheet metal workers at Pinelands Mr Butler described their primary duties as:

(1) Fabricating and assembling sheet metal products and equipment, including sheet metal cladding and sheet metal boxes;

(2) Converting blueprints (prepared by Sheet Metal Workers on site at the Project) into shop drawings for assembly of sheet metal products;

(3) Fabricating or altering parts and sheet metal using guillotines, shears, hammers, punches and drills.

Line chasing (Scopers)

[44] Mr Schmidt said that in the field there are approximately 3-4 sheet metal workers whose work primarily involves ‘line chasing’ (which is using site diagrams to identify plant (such as flanges or valves)) and measuring up and designing metal boxes on that plant. He said sheet metal workers involved in ‘line chasing’ had minimal interaction with Insulators and tend to work alone or with another Sheet Metal Worker performing a similar task.

[45] Mr Hannan who is a ‘scoper’ disagreed, saying in his current role he regularly had interface with insulators to perform measurements and order cladding. He said he then communicates his measurements back to insulators to ensure the effectiveness of the cladding orders. He said he has been tasked with ordering insulation. 34

[46] Mr Hannan accepted that in his role as ‘scoper’ he determined the design for cladding of an item of plant that he identified. He agreed that he measured the item and drew shop diagrams to send to the workshop at Pinelands. 35 Mr Hannan accepted that when he worked as a ‘scoper’ he primarily worked alone, however he sometimes used the assistance of insulators for measuring an item.36

[47] Mr Hannan said that scopers not only measure and order sheet metal, he said they are also tasked with ordering insulation to be manufactured and fabricated by the insulation workshop. Mr Martin said there were two satellite workshops on the site, one at E600 and the other in Train 2 underneath the A2EB module. He said both could be used for the purpose of fabricating, cutting and shaping sheet metal. 37 It was apparent however from the evidence that the E600 workshop was not being used for fabricating, cutting and shaping sheet metal and was in fact used for shaping insulation materials.

[48] Mr Schmidt, who has worked as a scoper himself on other projects said the scoper uses isometric drawings to locate each and every pipe that he has to find and, on the bottom on the isometric drawing, it will tell the size of the line, it will tell the insulation code, and it will tell the insulation thickness. He said it will also identify all the bends, straight sections, T-pieces, reducers, and fittings identified on the drawing. He maintained scopers have minimal interaction with insulators. 38

[49] In respect of this second category of sheet metal workers Mr Butler described their primary duties as:

(1) Performing mathematical calculations to do various developments (e.g. measuring areas and volumes);

(2) Development blueprints and patterns for sheet metal boxes to be installed on flanges and valves;

(3) Measuring, making and cutting correctly the cut-outs required to fit valve or flange boxes onto piping systems with minimal gaps.

Sheet Metal Workers other than at Pinelands or working as Scopers

[50] Mr Schmidt said the majority of persons employed as sheet metal workers by the Respondent on the Project install in the field sheet metal over insulation installed by insulators. He said that work involves very little if any bending or shaping sheet metal, and generally only cutting or puncturing of sheet metal to make holes so that the sheet metal can be secured onto the insulation. Mr Schmidt said these sheet metal workers utilised minimal sheet metal trade skills. 39

[51] Mr Hannan disagreed with Mr Schmidt’s evidence on this point, saying that in the field, a keen understanding of geometry is required for the effective installation of sheet metal components onto pipework and vessels, especially items that require metal that has been fabricated using pattern development. He said these are trade skills. He also said the sheet metal workers on site use a “satellite” work shop with access to guillotine, break press, roller, and swage machine. 40

[52] Mr Hannan accepted that the process of straight line cladding involves lifting the cladding into place on top of the insulation and then affixing it. He accepted that this was a skill that could be learnt on the job. 41 He accepted that the process of installing straight line cladding did not involve a trade skill.42

[53] In respect of all categories of sheet metal worker Mr Butler described their duties as:

(1) Fastening seams and joints together with bolts, rivets, metal drive clips, and bonds in order to affix cladding or to repair sheet metal items;
(2) Drilling and punching holes in sheet metal, including sheet metal cladding, for screws, bolts and rivets; and
(3) Trimming, filing grinding, buffing, and smoothing surfaces, seams, and joints of sheet metal cladding, using hacksaws, and hand, rotary or squaring shears. 43

[54] Mr Butler said the above duties are not performed by insulators on the Project. 44

[55] Mr Hannan took issue with Mr Butler’s evidence that the third category of sheet metal worker does not involve substantial use of trade skills. He said Mr Butler’s ‘conjecture’ was uniformed and offensive to a qualified tradesperson. 45 Mr Hannan agreed he had completed an apprenticeship over four years and during the apprenticeship he learnt about sheet metal design, how to prepare diagrams for sheet metal products and cutting and bending sheet metal.46 Mr Hannan agreed that sheet metal workers working ‘on the plate’ do not use cutting torches, or use solder, or braze. Mr Martin agreed that in his experience sheet metal cladding is usually done by sheet metal workers.47

[56] Mr Martin said as an insulator he had been involved in installing sheet metal cladding. He agreed that it involved the lifting of the cladding into its place over the top of the insulation, and the applying of bands or screwing it into place. He said it was not what he generally did but as you repeat things you get quicker. He described it as somewhat straightforward. 48

[57] Mr Butler accepted that the satellite workshop A200 was being used by sheet metal workers to make patterns from time to time. He also accepted it was being used to make adjustments to boxes from Pinelands that don’t fit. 49

[58] Mr Hannan said that the duties of each work group or crew vary depending on priorities and direction. He said commonly the work involves the installation of insulation (lagging) and sheet metal (cladding) on pipework and vessels. He said the workers are divided into work groups or crews made up of supervisors and workers, and there is one supervisor and two or three leading hands per workgroup or crew. He said each workgroup usually contains both insulators and sheet metal workers. He said typically working together is one sheet metal worker and one lagger. Other times its two sheet metal workers working together.

[59] Mr Schmidt denied that it is typical for one sheet metal worker and one insulator to work together. He said typically an insulator works alone or with other insulators, performing an insulating task, before a sheet metal worker applies sheet metal protection on that completed insulation. He said from time to time an insulator may provide low level assistance to a sheet metal worker, for example holding a large piece of sheet metal. 50

[60] Mr Butler also denied that it was “typical” for one sheet metal worker and one insulator to work together. He said there are normally twice as many insulators in an insulation team as sheet metal workers because the insulation process takes longer due to the multiple layers of insulation to be installed and only one layer of metal jacketing. 51 Mr Hannan accepted that there are twice as many insulators employed as sheet metal workers.52 Mr Martin also accepted that there were generally twice as many insulators as sheet metal workers.53

[61] Mr Hannan said a supervisor is a senior leader with experience in insulation sheet metal work, and leading hands can be either insulators or sheet metal workers. He said leading hands can delegate both insulation and cladding work. 54 Mr Hannan said leading hands act as a ‘back to back’ when the supervisor is absent, which means they assume higher duties. Mr Schmidt said that he did not agree leading hands assume higher duties when a supervisor is absent, as a backup supervisor can be transferred to fill in for an absent supervisor.

[62] Mr Butler said a leading hand can delegate insulation and cladding work but this is subject to overall direction from a supervisor or superintendent. He said a leading hand does not direct workers into teams. For example if a leading hand requires more sheet metal workers in the team because of the work being undertaken that day, that request is passed through the supervisors or superintendents who will arrange sheet metal workers to be sourced from another team. 55

[63] Mr Hannan said that the process for insulating pipework or vessels is that;

(a) The insulators apply one or more layers of insulating product to the pipework or vessels. The products vary depending on operating temperature, noise, the material being insulated and the contents of the pipe. More than one insulating product may be used and multiple layers could be installed.

(b) Following installation of insulation a ‘jacketing’ or ‘cladding’ is installed. More often than not it is sheet metal that covers the insulation and protects it from damage or whether. 56

[64] Mr Hannan said the ways which the insulation is fixed to pipes and vessels are similar to the way sheet metal is fixed to the insulation. He said specific adhesives or stainless steel banding can be used. 57

Cryogenic Insulators

[65] Mr Schmidt said that insulators install insulation on vessels, pipes, valves, flanges etc. Insulators then secure the insulation using tape or metal banding. He said insulators do not undertake any of the work performed by sheet metal workers in the workshop or by sheet metal workers engaged to perform line chasing.

[66] Mr Schmidt said that insulators do not undertake the work of sheet metal workers who install metal cladding onto insulation, although on occasion an insulator may perform the task of installing a straight piece of sheet metal onto insulation. He said this installation work by insulators occurs very seldom and does not involve the use of any sheet metal trade skills such as bending, shaping or cutting metal. He said it is simply securing a pre-fabricated piece of sheet metal using screws (for hot work) and banding (for cold work). 58

[67] Mr Schmidt described the different types of thermal and acoustic insulation that Insulators work with including Polyisocyanurate (“PIR”); Rockwool; Flexible Elastometric Foam (FEF); and Foam glass. Mr Schmidt described the duties of an insulator as;

(a) Measuring, marking and cutting different type of insulation, e.g. by using a boot knife

(b) Fitting insulation around vessels, pipes, flanges and valves;

(d) Securing insulation using the correct method for the type of insulation used (e.g. securing by using metal banding or wire, tape or screws).

[68] Mr Schmidt said that insulation installing is a skill and not a trade, and the skills can be learned in a short time. Mr Schmidt said he knows this because of his role as the training superintendent and because he developed and taught an insulation upskilling program for the Respondent at the Project. He said this program is delivered to trades assistants and labourers over a five-day period and teaches the participants the basic skills required to install insulation. The video shown in the course of the hearing was developed for demonstrating the application of insulation. Mr Hannan said he disagreed that insulation could be learnt in a short time frame as the statement does not highlight the complexity of using patterns to cut insulation to conforming shapes. 59

[69] Mr Butler said that the primary duties of an insulator are;

(a) Determining amounts and types of insulation needed and the methods of installation, based on factors such as location, shape of the plant and equipment use;

(b) Obtaining the appropriate insulation type;

(d) Measuring and cutting the appropriate insulation type to cover surfaces of the plant, using tape measures, handsaws, knives, and scissors;

(e) Fitting insulation onto the surfaces of the plant; and

(f) Securing the insulation using the correct method for the type of insulation used (e.g. securing by using metal banding or wire, tape, or screws).

[70] Mr Butler said that insulators do not bend or cut sheet metal. Insulators do not bend or cut the sheet metal boxes used for foam injection. Insulators do not fabricate or assemble sheet metal. 60 He said insulators do not use welding torches and do not use solder. He said insulators do not cut boilers, vessels or pipes forming part of the plant.61

[71] Mr Martin said that insulators in the E600 Insulation Workshop use 240 volt electric rotating cutters to cut Armacell products, as this is much quicker than using a knife and results in a neat finished product. 62

[72] Mr Hannan said insulators may be required to fit sheet metal onto the outside surface of insulation to protect it from piercing or puncturing from the installation of the cladding, and or in fixing screws or rivets that may puncture the insulation. He said to achieve this insulators cut and fold sheet metal sections to the insulation. Mr Hannan also said insulators drill or cut injection points in sheet metal boxes to inject foam. 63 Mr Hannan said he acknowledged that insulators do not manufacture the sheet metal boxes used for foam injection.64

[73] It was put to Mr Hannan that insulators did not use grinders on site. He said they used a cylindrical cutting disk or wheel in the E600 workshop. 65 He accepted that Insulators did not use cutting torches, and did not solder, did not braze.66 It was put to Mr Hannan that insulators do not use presses to bend or shape metal. Mr Hannan said that in the instance where an insulator is required to protect the out layer of insulation they may require a sheet metal cut off or even cut some themselves and then take that to a folder or press and fold it and apply it to corners of insulation for protection.67 He said insulators may put scrap or waste into a roller if it needs to be cylindrical, or use slage wheels if they need small turnouts applied to the sheet metal.68

[74] Mr Butler said off cuts of metal are no longer used. He said they were rubbish and you can’t do anything with them. 69

[75] Mr Martin accepted he did not use a welding torch on the project and is not involved in the manufacture of vessels, plant or pipes or anything of that kind. He accepted his role on the project was to install insulation. 70 When Mr Martin referred to ‘fabricating’ of insulation, he agreed he meant cutting into pieces in the E600 workshop. He accepted insulation was manufactured offsite.71

[76] Mr Butler said at a very basic level the insulating process on the Project involves insulation and cladding being applied to items of plant such as vessels, pipes, flanges and valves. He said there are a number of different types of insulation which can be used depending on whether the work is “hot work” or “cold work” and depending on whether the insulation is noise cancelling or minimising. He said insulation is installed by insulators. 72

[77] Mr Butler said that once the insulation is installed, cladding is installed and the cladding is designed to protect the insulation and it is sometimes sheet metal and sometimes rubber. He said the sheet metal cladding is installed by sheet metal workers and the rubber cladding is installed by insulators or sheet metal workers who have been trained in using and installing rubber cladding. 73

[78] Mr Butler said the insulation process is performed by an insulation team and the purpose of the insulation team is to complete the insulation and cladding of the item of plant, and the team generally comprises insulators, sheet metal workers and trades assistants. Most commonly a team will comprise twice as many insulators as sheet metal workers. 74 Mr Butler said that there are occasions where an insulation team comprises only insulators or less commonly only sheet metal workers. He said some sheet metal workers who are members of the insulation team do not perform insulation work, they install sheet metal cladding.

[79] Mr Butler said that insulators perform different duties and use different skills to sheet metal workers and trades assistants. Mr Hannan disagreed saying though the product worked may be different, the use of skills pertaining to geometry and conformance to shapes, relevant to the item being insulated share common connection skills. 75 Mr Hannan referred to the sheet metal patterns and shapes formed up by sheet metal workers to be used as templates on insulation by the insulators. These patterns were viewed during inspections and a photograph of them was attached to one of Mr Hannan’s statements.76

[80] Mr Butler said that within each insulation team, there are leading hands (the number of which depends on how many workers are in the team. He said each leading hand is generally responsible for allocating jobs to the team, consistent with the directions of supervisors and superintendents.

[81] Mr Butler said that above the leading hand is a supervisor, who is responsible for two or sometimes three insulation teams. There are approximately 10-12 supervisors employed by the Respondent on the Project to supervise insulation teams. Those supervisors report to Mr Butler or one of the other three superintendents. Mr Butler said approximately half of those supervisors are sheet metal workers by trade. Mr Butler said he is not a qualified sheet metal worker. 77

[82] Mr Butler said one of the advantages of placing insulators, sheet metal workers and trades assistants in a single insulation team is that it is possible to coordinate and sequence the work performed by each type of worker. He said the task of installing insulation is a skill not a trade. He said the Respondent is in the process of rolling out insulator training to workers such as labourers and trades assistants who wish to become insulators. He said these workers can undertake a seven day program with the Respondent after which they have the basic skills of insulation. 78

[83] Mr Hannan said that it is crucial for both insulation and cladding to conform to the shape of the item being insulated, and to achieve this specific skills are required. Mr Hannan said these are trade skills using geometry and are taught through training and experience. He said they are a major component of the sheet metal workers’ trade called pattern development, and helps get the shapes of different pipe components. He said patterns are made from sheet metal by sheet metal workers, and are laid over the top of the insulation and the pattern cut. He said the insulation is then installed on the pipework and the same shapes and patterns are used for metal patterns. 79

[84] Mr Hannan accepted that insulators do not complete a trade. 80 Mr Hannan accepted that the patterns he referred to in his first witness statement were patterns designed by sheet metal workers, and made by sheet metal workers. He accepted the patterns are not made by insulators.81 Mr Hannan agreed those patterns were used to cut out insulation at the E600 workshop and this is done by insulators, and it is done by tracing around the sheet metal pattern using a knife or rotary cutter. Mr Hannan agreed that the E600 workshop only worked day shift and about 10 insulators worked in the E600 workshop.82

[85] Mr Hannan agreed that the Armacell jacketing is cut by insulators at the E600 workshop using a sheet metal pattern, tracing the shape using a knife, rotary cutter or scissors or tin snips. Mr Hannan agreed that the Wintech Machines in the E600 workshop involve computerised cutting and it does not involve sheet metal work or sheet metal products.

[86] Mr Martin said that in one module he worked in A2 EA it was common for insulators and not sheet metal workers to remove sheet metal cladding when conditions were ‘out of spec’. This would involve laggers removing metal banding or unscrewing the cladding and taking the cladding off. He said laggers were clearly working with sheet metal. 83 He said this problem partly arose because modules were arriving prefabricated from factories in Asia but a lot had to have the cladding and insulation come off because it was faulty and/or not installed correctly.

[87] Mr Schmidt said he was aware of insulators removing sheet metal cladding in A2 EA. He said he was also aware that Armachek was removed in that area. He said about half the cladding removed in A2 EA was Armachek, which is a rubber material. He said the material was removed because the seals failed. He said the removal of cladding, whether sheet metal or Armachek, is a very simple task of removing metal banding, which could be performed by insulators or trades assistants as well as sheet metal workers. He said this work does not involve dealing or working with sheet metal, that is it does not involve cutting, fabricating or shaping sheet metal. 84

[88] Mr Martin said that laggers engaged by the Respondent were clearly working with sheet metal and the Respondent still engage laggers to do that work. Mr Schmidt denied this, saying that it was inconsistent with the training he conducts as training superintendent. He said in his experience JKC, the principal contractor, does not allow insulators to undertake sheet metal work given the Project specifications that apply. 85

[89] Mr Butler said he recalled the events referred to by Mr Martin occurred at some point after he had commenced. He said the reason insulators were removing sheet metal cladding was that JKC was undergoing an extensive audit and review process involving testing of the plant, so that JKC could form a view about the quality of pre-fabricated products and whether they were to Project specifications. Mr Butler said this process was a “one off” rectification process, in that it was not typical of the work undertaken by the Respondent on the Project. Mr Butler said the insulators were not using trade skills and the task is more accurately described as “handling” sheet metal. 86

[90] Mr Martin said eight or nine weeks ago he was with a fellow Delegate when they saw workers applying sheet metal over lagging. He said he recognised them as laggers. He said he and the other delegate went to HR to complain about this practice of laggers doing sheet metal work on their own, and not just assisting a sheet metal worker. 87 Mr Martin said he had also had a sheet metal worker come to him and complain his supervisor had given him lagging tasks for his entire “swing”. Mr Martin said the worker told him he complained to his supervisor and the supervisor said there was no metalwork to be done.

[91] Mr Hannan also said that as part of the rework laggers have been putting on both insulation and new jacketing. He said laggers are now doing sheet metal workers’ work. He said separate to the current work requirements, insulators are often asked to perform higher duties and install the sheet metal cladding. He said this is common when there is a shortage of sheet metal workers available on the job. 88 Mr Hannan said it was also common for the sheet metal worker to work directly ‘behind’ the laggers moving along the line installing cladding after the laggers in the process of installation.

[92] Mr Schmidt denied that an insulator installing a straight piece of pre-fabricated and pre-cut sheet metal is “sheet metal workers’ work”. He said this work is very straight forward and does not involve the use of any trade skills. 89

[93] Mr Butler denied insulators were doing sheet metal workers’ work. He said insulators have from time to time installed simple pieces of jacketing and this involves screwing pre-fabricated metal jacketing in place or using stainless steel bands to secure jacketing. He said this work is not performed by all insulators, and is not regularly performed, making up a small percentage of the work undertaken. Mr Butler said it did not involve measuring, putting holes in or cutting sheet metal. 90

[94] Mr Butler said from time to time insulators provide some assistance to sheet metal workers in relation to the installation of sheet metal cladding over the insulation. He said this assistance typically occurs when a large piece of sheet metal is to be installed over a large insulated vessel or where a large sheet metal flange box is to be installed around a flange. He said because of the size of these pieces, it can be necessary for someone to assist the sheet metal worker by lifting or by holding the piece of metal in place. Mr Butler said in his view, this assistance involves “handling” sheet metal but does not involve “working” sheet metal in that it does not involve cutting, measuring or installing the sheet metal, all of which is performed by the sheet metal worker. 91 Mr Butler said that the assistance is not a substantial part of the work undertaken by an insulator on the Project.

Wintech Machine

[95] Mr Butler said insulators do not manufacture any items, and insulators do not manufacture items using machine tools. Further insulators do not manufacture the insulation installed on the plant, or items used to secure the insulation. He said insulators do not manufacture any articles using sheet metal. 92 Mr Butler said that insulators do not maintain or repair mechanical equipment. It was put to Mr Butler that the Wintech operator who is an insulator maintains the machine. Mr Butler said no, and that the insulator keeps it clean. He said if the machine breaks down they do not actually maintain the machine. He said it was a computerised machine.93

[96] Mr Hannan said that Mr Butler’s statement was incorrect because in the insulation workshop E600 insulators operate two Wintech machines. Mr Hannan said these machines were required for the manufacture of insulation into conforming shapes needed to fit effectively to surfaces being insulated. Mr Hannan said these machines require operator skills as well as maintenance and safety knowledge outlined in the operator’s manual. Mr Hannan accepted that specialised training was required to operate the Wintech machine, and some insulators are trained to operate it. It was put to Mr Hannan that insulators did not service the Wintech machine. He said he had observed insulators perform maintenance duties on the machine. He was unsure whether insulators service the machine if it broke down. 94

[97] Mr Hannan said that in the task of operating the Wintech machines, insulators must maintain the machines by removing residual insulation product and dust from working parts and on occasion replace cutting wire. He said they must clear and clean filters on dust extraction devices associated with the machine. He accepted that the Master Training Register attached to his evidence identified a person as having been trained as a Wintech operator. 95

[98] Mr Schmidt said that the Wintech machine has a dust collection device that the dust is forced into a specific area, and it is only a matter of removing the container and actually emptying out the dust. Mr Schmidt did not believe that was mechanical maintenance. He said the blade wire needs replacing from time to time however again he said that was not repairing the machine. 96

Foam injection

[99] Mr Hannan said insulators come into contact with sheet metal when a specific task called “foam injection” is required. He said insulators inject a liquid curing foam into the box, thus completing the lagging backwards. He said this process is used when it is too difficult to insulate by hand due to the shape of the valve or flange. He said this is a work process that directly uses both skills groups to complete the task. 97

[100] Mr Schmidt explained that some insulators insert foam (by foam injection) into metal boxes surrounding flanges and valves, the metal boxes having been fabricated off site. 98 Mr Schmidt said that the task is to inject foam into a metal box, using a piece of equipment connected to a machine where two substances are mixed. He said in performing the task insulators do not perform any marking out, cutting or fitting in relation to sheet metal.99

[101] Mr Hannan said that insulators do perform marking out and cutting of metal boxes in relation to the foam injection process. 100 Mr Hannan agreed the cutting out he referred to was the drilling of a hole for the foam injection nozzle.101

[102] Mr Martin said that the metal boxes need to have pouring holes drilled through the metal box. He said this work is generally undertaken by the person “on the gun” primarily laggers. He said this task requires the use of cutting tools. 102 Mr Butler said the process for foam injection involves:

(a) The sheet metal worker measuring the flange or valve;

(b) The sheet metal worker designing the sheet metal box for the flange or valve;

(d) The sheet metal worker installing the sheet metal box once it has been manufactured by the workshop; and

(e) The insulator using a machine to pump foam into the sheet metal box.

[103] Mr Hannan agreed specific training is required to operate the foam injection rig. 103 Mr Martin also agreed special training was required.104 Mr Hannan said the insulators who operate the foam injection rigs are required to maintain these machines due to the chemical reaction that occurs with the machine.105 Mr Martin also said insulators perform maintenance of the two foam injection trucks.106 Mr Butler said while insulators use a machine as part of the process of foam injection, the insulators do not maintain or repair the machine. Mr Martin accepted that the preventative maintenance he referred to in his statement was flushing out the hose lines to ensure the products don’t set inside the hose.107 Mr Butler said all you have to do with the foam trucks is make sure the lines were clean, and the insulators do that.108

Banding Room

[104] Mr Hannan also said that in a “banding room,” employees such as trades assistants and insulators use a banding machine to effectively produce stainless steel banding from coils into correct lengths required on site with clips attached for fixing on the items being insulated.

Training

Armacell Products

[105] Mr Hannan said that a work process that uses both insulators and sheet metal workers is the installation of a product called flexible elastomeric foam (FEF), which is manufactured by Armacell. The insulation product is called Armaflex, and the jacket/cladding is called Armachek. It is used for both hot and cold work as well as acoustic specifications. Mr Hannan said that at the Respondent, both insulators and sheet metal workers have undertaken the same training on this product. Mr Hannan attached training records to his statement. 109

[106] Mr Martin said that sheet metal workers and insulators undergo the same onsite training and verifications of competency (VOC’s). For example, both sheet metal workers and laggers were trained for Armacell competency, regardless of their classification on the job. He said a trainer flew out from the Philippines to conduct training in 2016. He said both sheet metal workers and insulators did the training even though it was about a new insulation product. 110

[107] Mr Schmidt said that while the process followed when installing Armaflex is similar to that of traditional insulation, it differs in that Armaflex insulation is covered with Armachek cladding, which is rubber and not metal. 111

[108] Mr Butler said all members of each insulation team undertook training in the use of Armacell products. He said this was necessary because it was a condition of the guarantee of the effectiveness of the product that those working with the Armacell products had undertaken training conducted by Armacell personnel before they first used Armacell products. 112 Mr Butler said that the procedure for the installation of Armachek is not the same as for installing traditional materials because Armachek does not involve sheet metal cladding but rubber cladding.113

[109] Mr Hannan accepted that the cladding was not made of sheet metal, however he said it requires the same skills as sheet metal to fabricate the cladding into the shapes to conform to the items being clad, and applies the same principles of circumferential measurement and minimum laps that sheet metal cladding require on vessels and pipework. 114 Mr Hannan referred to the Armacell FEF Installation Specifications to argue the skills were similar. Mr Hannan said that the process requires sheet metal skills, specifically pattern development. He said both insulators and sheet metal workers worked with the product and installed it, and both had undertaken training on this product, during which Mr Hannan said he was asked by Mr Schmidt to develop patterns for insulators on the course.115

[110] Mr Schmidt said that Armacell material is a different kind of material, being rubber. He said to fabricate sheet metal is more precise and has to be more accurate. He said with Armachek rubberised cladding there is a 10 millimetre overlap where it bends on each side and that overlap can be cut “a little bit skew”. Mr Schmidt said that it doesn’t matter because it is still going to be glued on. 116 Mr Schmidt said with the FEF insulation it actually gets butt joints, it does not have overlaps. He said the acoustic vinyl has an overlap and the Armachek, has a 50 millimetre overlap.117

[111] Mr Hannan was taken to the Master Training Register (the Register) for Armacell products that he attached to his statement. His evidence was to the effect that few sheet metal workers were trained for the period covered by the Register compared to insulators. He accepted that the training had to be completed in order to install Armacell products on site. He accepted that the Armachek product was a rubber compound. 118 Mr Hannan said more sheet metal workers had been trained after the period covered by the Register attached to his statement. Mr Martin accepted that employees had to be trained in installation of Armachek and he agreed he attended training with a person from overseas.119

[112] During cross examination Mr Schmidt was taken to the attachments to his statements which are application guides for insulation material, and specifically part of the material discussing taking measurements including determining the circumference of pipe. Mr Schmidt was asked who was doing this work. He responded that it was sheet metal workers and insulators. He explained it was whoever had done the Armacell Training. 120

[113] Mr Butler appeared to agree in his oral evidence that there were similarities between fabrication of FEF insulation and installing sheet metal. 121 However he went on to say that the pattern would have been manufactured and developed by a sheet metal worker. He also said it’s an entirely different material altogether.

Verification Of Competencies Generally

[114] Mr Schmidt denied Mr Martin’s statement that sheet metal workers and insulators complete the same VOC’s. Mr Schmidt said the VOC process for insulators and sheet metal workers involves completing a number of written “challenges”. He said the VOC process for sheet metal workers involves providing oral explanations regarding various sheet metal tasks and skills however the process for insulators does not. He said in some instances sheet metal workers also perform “practical demonstration tests” whereas insulators do not.

[115] Mr Schmidt said some of the VOC challenge tests for sheet metal workers and insulators were the same. Mr Schmidt said there are a greater number of challenge tests for sheet metal workers than insulators. He said there are 10 site based challenge tests for sheet metal workers and 23 workshop-based challenge tests for Sheet Metal Workers. There are five site based challenge tests for Insulators. 122

[116] Mr Schmidt said the challenge tests for sheet metal workers covered topics such as;

(a) Grinding/abrasive wheel attachment;

(b) Using sheet metal equipment such as a pan brake, guillotine and roller;

(d) Fabricating certain shapes used in sheet metal work.

[117] Mr Schmidt said challenge tests for Insulators cover topics such as:

(a) Applying hot & acoustic or cold & acoustic insulation;

(b) Hazards that may be encountered in applying insulation;

[118] Mr Schmidt said in his experience every person who has passed the challenge tests for sheet metal workers (and been employed by The Respondent on the Project as a sheet metal worker) has been trade qualified. He said in his experience it was highly unlikely that an insulator would be able to pass the challenge tests for a sheet metal worker. Mr Schmidt said sheet metal work is very precise and there is no margin for error whereas with insulation poorly cut areas can be patched up in the event that there is an error in cutting. 123

[119] Mr Hannan said he believed that insulation, and specifically cryogenic insulation requires the same if not a higher grade of quality in performing cut outs. He said the practice of leaving no physical gaps in cryogenic insulation is essential to the success of the work. 124

[120] Mr Butler said most of the verification (of competencies) of new workers on the Project is performed by Mr Schmidt. Mr Butler said the verification for insulators was different to the verification for sheet metal workers as there are more competency tests and practical demonstrations for sheet metal workers given the specialist nature of the work they perform and the trade qualifications required to perform the work. 125

Tools used

[121] Mr Hannan said that after site induction sheet metal workers and insulators were issued company tools for the project. He said similar tools are issued due to the close similarities in products worked, techniques and skills to work the products and interchanging nature of the work. He attached to his statement a copy of “laggers tool set up list” and a “Sheet Metal Workers toolbox set up list”, and a copies of emails to demonstrate tools insulators use. 126

[122] Mr Butler was shown the list of tools for insulators attached to the statement of Mr Hannan 127 and he indicated that those tools would be used for insulation.128

Interdependence

[123] Mr Hannan said insulators and sheet metal workers rely on skills to do their job with both contributing to the one task, and they rely on each other. He said if the laggers do not keep the correct shape the metal workers will not be able to successfully install the cladding. He said a sheet metal worker in the insulation discipline would be redundant without the laggers because there is no point cladding a bare (that is, uninsulated) pipe. 129 Mr Hannan said that when allocating work duties at the Respondent, it is common for a sheet metal worker and an insulator to work together. Sometimes the sheet metal worker will help the lagger with insulation duties, or the lagger will act as a trades assistant to the sheet metal worker.130

[124] Mr Hannan said that insulators assist in installing sheet metal and this is common, and is encouraged by supervisors as an effective use of labour in the field and the skill sets are similar making an insulator an ideal assistant to the sheet metal worker. 131

[125] Mr Schmidt denied that it was common for a sheet metal worker and an insulator to work together. 132 Mr Butler said in his experience it is very rare for one insulator and one sheet metal worker to work together on the same item of plant at the same time. He said the necessary sequencing of activities in the insulation process means that apart from foam injection, the work of the insulator must be completed before that of the sheet metal worker. He said therefore one or more insulators install insulation to an item of plant, and one or more sheet metal workers then follow, installing the cladding.133 Mr Butler also denied that it was common for a sheet metal worker and an insulator to work together, however in his oral evidence he accepted that it was wrong to say they did not work side by side.134

[126] Mr Hannan responded to this evidence saying on 25 October 2017 at approximately 8am whilst performing his duties he observed in the work area A2SE sheet metal workers working with cryogenic insulators. In one case the task being performed was the installation of sheet metal cladding over rockwool type insulation, and in another case a sheet metal worker working with an insulator installing sheet metal casing on one of multiple lines. In another case he saw a sheet metal worker working with an insulator installing sheet metal boxes around pipe supports. He said on the next day, 26 October 2017, he observed a sheet metal worker working with an insulator installing a sheet metal box. Mr Hannan attached photos of what he said he witnessed to his statement. 135

[127] Mr Hannan said that at the current time certain pre-fabricated products have failed and require rework. He said sheet metal workers are helping remove insulation and this is laggers work. 136

[128] Mr Schmidt responded that it is true that insulation is generally a task undertaken by a lagger, however he denied that such work is “laggers work” and said the task is very simple and can be performed by sheet metal workers or trades assistants. 137 Mr Butler said that he agreed that certain rectification work had been required to be performed on the Project resulting in both insulators and sheet metal workers removing FEF insulation, and he agreed that this work could be described as sheet metal workers undertaking work more commonly undertaken by an insulator. He said he regarded the work as a simple task and does not involve the use of trade skill. He said he understood that sheet metal workers are performing this work as they are meant to on the Project to the full extent of their skills and capacity.138

[129] Mr Hannan accepted that in terms of the pre-fabricated products that had failed, it involved removing cladding and insulation. He accepted that there were endeavours to keep some sheet metal for reuse and this involved cutting the bands or removing screws without cutting the metal cladding where they could. 139 Mr Martin believed site wide most of the cladding that had to be removed because it was faulty was Armachek, the rubber product.140 Mr Martin agreed that the process of removing the Armachek was simple as it involved cutting silicone with a knife, but it was necessary to take care not to damage the surface underneath.141 Mr Martin also agreed the removal of metal cladding affixed by clips or screws was a simple process.142

[130] Mr Martin said that in his experience working for the Respondent at the Project, sheet metal workers and laggers are engaged in the same kind of work. Mr Martin said that sheet metal workers work in the same crews, working side by side. He said there are no crews made up of just laggers or just sheet metal workers. 143 Mr Schmidt denied Mr Martins statement that sheet metal workers and laggers are engaged in the same kind of work because;

(a) Insulators work with insulation. Whilst they occasionally handle sheet metal, they do not work with sheet metal, in that they do not measure, cut or fabricate it.
(b) Measuring and cutting sheet metal is very precise. In this respect, there are no tolerances for error. If the metal is not cut to size, it cannot be used. Insulation however is less precise and small errors in measuring and cutting can be remedied.
(c) Even though sheet metal fabrication is undertaken at the workshop in Pinelands, sheet metal workers installing that sheet metal still need to ensure the sheet metal is installed with precision in order to protect the insulation.
(d) Installing insulation is a skill not a trade. A sheet metal worker is required to complete a four-year-trade during which trade skills are learnt. 144

[131] Mr Butler also denied that sheet metal workers and insulators were engaged in the same kind of work. He said they are both involved broadly in the “insulation” process, however there are significant differences in the work performed.

[132] Mr Schmidt denied that sheet metal workers and insulators generally work in the same crews “side by side”. He said the work in the field is undertaken in order. The usual order is that insulation must be installed before sheet metal protection is installed. He said this results in insulators often working with other insulators to first install the insulation, and sheet metal workers working together to subsequently install the sheet metal cladding. He said the exception to the usual order is foam injection. 145

[133] Mr Martin accepted as a general rule that on this Project, the work of an insulator must be completed before the work of a sheet metal worker installing the cladding. He agreed that sometimes a sheet metal worker may need to wait for the insulator to complete installing the insulation before the sheet metal worker can install the cladding, and sometimes the sheet metal worker might need the assistance of the insulator because of the size or the cladding or if they are directed to help. 146

[134] Mr Schmidt said that when there is a team of insulators and sheet metal workers working together, it has more insulators because the insulation process takes considerably longer than the process of installing sheet metal. He said the insulation process can involve the application of up to seven layers of insulation, but there is only one layer of metal jacketing. 147 Mr Butler also denied that sheet metal workers and insulators are working “side by side”. He denied that there were no teams made up insulators alone or sheet metal workers alone. Mr Hannan accepted that some items of plant require up to seven layers of insulation.148

Pre Starts - Safe Work Method Statements – JHA’s – Toolbox Meetings

[135] Mr Hannan said that both laggers and sheet metal workers sign a Safe Work Method Statement (SWMS) titled “Sheet metal preparation / fabrication / application” typically at daily pre-start meetings and he attached a copy to his statement. 149 Mr Martin said that pre-start meetings were attended by insulators and sheet metal workers each day. He said Job Hazard Analysis (JHA’s) and SWMS’s are signed by everyone in the crew and he attached an example to his evidence.150

[136] Mr Schmidt said the safety training undertaken by sheet metal workers and insulators was the same because of the similar risks presented by working in the same work areas. 151 Mr Schmidt said that a pre-start meeting is usually run by a supervisor or a superintendent; however that person may have a background as either a sheet metal worker or an insulator.152 Mr Schmidt agreed that sheet metal workers and insulators sign on to common JHA’s and SWMS’s and this was because they are working in the same areas exposed to very similar hazards. He said it does not mean that Insulators are performing sheet metal work.153

[137] Mr Butler said at approximately 6:30am each day the supervisors and leadings hands hold pre-start meetings with the insulation team members. At pre-start meetings each member of the team reads and signs JHA’s and SWMS’s. He said there are 5 SWMS’s which are signed onto by members of the team. One SWMS which is signed by members of the team relates to working with sheet metal, and it is signed by sheet metal workers as well as insulators and trades assistants. Mr Butler said insulators and trades assistants sign onto this SWMS because, while they do not work with sheet metal, sheet metal is located within their work area and they may handle sheet metal in the performance of their work, such as moving it from one spot in the work area to another. 154

[138] Mr Butler said weekly toolbox meetings are also conducted, generally with each insulation team, during which particular safety risks are discussed. He said the risks discussed are risks common to all workers on the Project.

[139] Mr Hannan disagreed that insulator and trades assistants sign on to the sheet metal SWMS because sheet metal is in the area they work. He said they install the sheet metal. 155 He also disagreed that sheet metal workers and trades assistants sign the insulations SWMS because it is in their work area and they may handle it. Mr Hannan said that sheet metal workers install insulation onto vessels and pipework due to a slowdown in metal work occurring.156 Mr Martin said the sheet metal SWMS’s are signed by insulators in case they are required to assist a sheet metal worker and the installation and/or removal of cladding.157

History of Job Advertisements, Right of Entry

[140] Mr Hannan said that he was aware that when AGC or Ausgroup advertise for sheet metal workers they currently ask for experience in cryogenic insulation removal and application and those candidates “must be flexible and willing to complete duties in both sheet metal work and insulation.” Mr Hannan said that it was his belief that the similarities in both work and skills are so similar that laggers and sheet metal workers are of a kindred work group. The work of each without the other would not be achievable. 158 Mr Hannan accepted that the job advertisements were for Western Australia. He accepted one of the jobs related to a shut down and two others related to maintenance work and that broader skills are required in maintenance work compared to construction work.159

[141] Mr Butler said that the advertisements attached to the statement of Mr Hannan did not relate to positions on the Project but related to positions in Western Australia. He said one of the advertisements related to work on shut down for a three week period only. He said two of the advertisements related to maintenance work, not construction work. Mr Butler said in his view broader skills were required for shut down and maintenance work than construction, especially given maintenance work is often to be performed within a short time frame. He said he considered it important that sheet metal workers involved in shutdown and maintenance work have knowledge and experience in working with insulation given insulation is an integral part of the plant being replaced. For example, a person maintaining insulation needs to know of the nature of insulation to ensure that the steps taken as part of maintenance does not undermine the effectiveness of, or damage insulation. 160

[142] Mr Martin said that about eight months ago, after he had been elected as delegate he had a meeting with Bronwyn Foot, a Human Resource adviser to the Respondent. He said they discussed a document title ‘Union Right of Entry’ that was attached to second statement. 161 He relied on the document to argue Ausgroup had previously recognised that the Applicant could represent laggers as on page three of the document, under a heading ‘Established Union Status’ it indicated the Applicant shared cross coverage of laggers with the AWU.

[143] Mr Schmidt said he had not seen the ‘Union Right of Entry’ document referred to by Mr Martin used on the Project. 162 Mr Butler also said he had not seen the document used at the Project, and noted that it only referred to AGC and not Meisel Industrial, and that the document only refers to Western Australian Acts and not Northern Territory Acts.163

[144] Mr Butler initially said in his evidence he had not seen the ‘Union Right of Entry’ document before but when he was reminded that he had referred to it in his witness statement he said he had seen it but couldn’t say when, possibly in the office. 164

[176] There was a reference in the evidence of Mr Hannan to insulators using scrap sheet metal, or offcuts to protect insulation, however Mr Gotting said that it was possible it could be done, but there was no indication in the evidence of the number of times or the regularity, or the proportion of time and therefore the Commission is not assisted by any detailed evidence on the issue. 189 It was also put that the work of using the scrap metal to protect the insulation does not necessarily entail the use of a sheet metal work skill as it was the use of scrap metal to protect insulation, not as part of the formal process of insulating the item.

[177] The Respondent says that insulators assisting sheet metal workers install cladding was a small percentage of their time, and it was not fulfilling the purpose of the insulator, but was akin to acting as a labourer because it was lifting heavy or awkward cladding into position or applying sealant or holding the cladding in place to allow it to be fixed. 190 The Respondent submitted the evidence of insulators holding an insulation box to allow it to be fitted is handling sheet metal not working with sheet metal.

[178] It also said insulators removing sheet metal cladding, particularly when the Armacell product failed did not involve sheet metal skills, and was a simple task. In any event 50% of it was not sheet metal but the rubber product. 191 In regard to the evidence of insulators drilling holes in insulation boxes to inject foam, the Respondent said there was evidence use of the rig had not started, and the drilling of holes is not sheet metal work, its simply identifying the location of where the holes are to be put and then drilling the holes in the box.192

[179] The Respondent says the sheet metal work on the plate involves lifting cladding manufactured at Pinelands workshop into place and affixing it using bands or screws that is a simple task not using sheet metal skills. 193 The Respondent submitted from time to time sheet metal workers on the plate would perform insulation work but that work is not sheet metal work for the purposes of the Applicant’s rules as it doesn’t involve the use of trade skills. Where Mr Hannan said in his role as scoper he ordered insulation products that was said to be insulation work, not sheet metal work.

[180] There was evidence that sheet metal workers removed cladding, but some of the cladding was rubberised product, not involving sheet metal skills and where it was sheet metal it was endeavored to be saved. That involved removing screws or banding that was cut such that the cladding could be reused. Where the sheet metal was stuck to the insulation or the vapour barrier, with the product being damaged the cladding and insulation was demolished, and in that sense it was not sheet metal work. 194

[181] In response to the Applicant’s submission that sheet metal workers and insulators have the same skills because insulators use templates to cut insulation, the Respondent submitted this occurred in the E600 workshop where 10 insulators worked on day shift. The Respondent said the templates were made in the Pinelands workshop and sent across and the insulators traced out the shapes using the patterns from Pinelands. Mr Gotting said that does not involve sheet metal skills, it is cutting out with a template. 195 Mr McCauley responded to this submission saying the insulators were actually doing the measurements.196

[182] The Respondent said the fact of sheet metal workers and insulators using the same tools does not entail that they are using the same skills, the sheet metal skills being fabricating, assembling, bending, cutting that are part of the trade, not performed by insulators. The Respondent said where insulators and sheet metal workers are working together then if they are both working on insulation that does not involve sheet metal work skills. If they are both removing cladding that also does not involve sheet metal work skills. Where they are installing the cladding it is necessary to examine whether they are assisting in the simple sense of enabling a large item of cladding to be put in place, or holding an item so that bands can be affixed to it, or sealant affixed, or involves simple cladding on a straight section of casing where no sheet metal skills are involved. 197

[183] The Respondent said that there was less detail in the evidence than was suggested by the Applicant that work on bends and matters of that kind involved sheet metal skills. However the Respondent said there was no evidence insulators were involved in the cutting of sheet metal when it was around a bend. 198

[184] In regard to the evidence concerning the SWMS’s the Respondent submitted that Mr Hannan signed the SWMS for Plant and Equipment even though he did not use the plant and equipment that was the subject of that SWMS. 199 Mr McCauley responded that Mr Hannan drives a Ute and that was why he signed the SWMS.

[185] In relation to the Union Right of Entry Document attached to Mr Martin’s statement, the Respondent referred to the document referring to investigation of safety breaches under state OHS Law, Occupational Safety and Health Act 1984 (WA) or the Mines Safety and Inspection Act 1994 (WA) for the purpose of relying on those passages to demonstrate that the document was intended to apply in Western Australia, and not to Northern Territory legislation. The next page of the same document states that a Union Official must show a valid WA Right of Entry permit registered by the WA Industrial Relations Commission. Further the document referred to Ausgroup, the parent of one of companies to the joint venture. 200

[186] The AWU provided written submissions. The AWU submitted that the work of insulators is not referable or significant to the work of sheet metal workers. The AWU submitted that the Applicant had not demonstrated significant interlinkage between the insulators and sheet metal workers.

FINDINGS ON THE EVIDENCE

[187] I have considered the evidence and am satisfied it is apparent sheet metal workers at Pinelands have effectively no interaction with insulators at the Bladin Point site, and minimal interaction with sheet metal workers at the Bladin Point site, with the exception of the small group of scopers. There was some limited evidence to suggest sheet metal workers may have moved between Pinelands and the plate on occasion.

[188] I am satisfied from the evidence that whilst scopers do have interaction with insulators on the plate from time to time it is minimal, with their working being performed primarily alone.

[189] I am satisfied that whilst sheet metal workers use their trade skills to a limited degree whilst working on the plate, for the majority of time spent working on the plate, the activities of those sheet metal workers do not require the use of trade skills.

[190] The Respondent made clear that it did not dispute that what it described as the third category of sheet metal workers working on the plate were classified under the Agreement and paid as tradespersons, and it had no intention of revisiting that. However I accept the premise of its submission that the mere fact that those persons are called and classified as a sheet metal worker does not mean that all of the activities that those workers perform must be trade related “activity” for the purposes of the Applicant’s rules.

[191] I am satisfied that on the evidence the bulk of their work could in substance be described as cladding and in the main does not involve work requiring trade skills. Having said that, I am also satisfied they do perform some activities using trade skills including at the satellite workshop at A200 where there is access to a guillotine, break press, roller, and swage machine, and on occasions such as when installing metal boxes where cutting, bending or folding is required, or work on bends and matters of that kind involved sheet metal skills.

[192] However the evidence supports the conclusion that the bulk of their working time is spent working in teams dedicated to installation of prefabricated sheet metal, or non-steel based cladding, or assisting insulators install various insulation products and the substantial proportion of that work does not require trade level skill.

[193] I am not satisfied that the level of complexity in the task of insulators using patterns to cut insulation to conforming shapes would mean that the task is a trade skill as argued by the Applicant. Mr Hannan argued the use of skills pertaining to geometry and conformance to shapes relevant to the item being insulated share common connection skills with the sheet metal trade. The insulators use a sheet metal pattern and trace the shape using a knife, rotary cutter or scissors or tin snips. It is a skill learnt on the job following training. Mr Martin, the only currently working insulator to give evidence accepted his job was to install insulation, and agreed that when he referred to ‘fabricating’ of insulation, he meant cutting it into pieces in the E600 workshop. In any event of the 200 odd insulators only approximately 10 worked in the E600 workshop cutting out patterns at a given time.

[194] I am also satisfied the evidence shows insulators do not use welding torches, operate cutting plants to make boilers, vessels, pipes or the like, or produce or make articles, goods or chattels from sheet metal on site, and are not working within a sub-trade for the purposes of rule 1A(c). Nor are they engaged in connection with doing those things.

[195] It was not disputed that specialised training was required to operate the Wintech Machine which is computer operated. Mr Hannan accepted that the Wintech Machines in the E600 workshop involve computerised cutting and it does not involve sheet metal work or sheet metal products. The skills associated to operate the machine are not trade or sub-trade skills within the Applicant’s rules.

[196] I am satisfied that the activities of insulators in connection with the Wintech Machine that the Applicant characterised as maintenance are more akin to cleaning and not activity that would of itself bring the insulators within the Applicant’s rules.

[197] I am satisfied that the work that insulators were trained to perform using Armacell Products is not trade work that would make it work within the Applicant’s rules. The work is a skill learned from the specialised training provided. It does not involve working with sheet metal, and the evidence indicates it does not require the level of precision and accuracy that trade skill demands, given the tolerances of the products used not being metal. Small errors in measuring and cutting insulation can be remedied. Where templates were made in the Pinelands workshop and sent across and the insulators traced out the shapes using the patterns from Pinelands that work does not require the use of trade skills by the insulators.

[198] I am not satisfied that from the very limited evidence that insulators had on occasion apparently cut or folded a piece of scrap metal onto the outside surface of insulation to protect it from piercing or puncturing from the installation of the cladding that that evidence has the effect of bringing those insulators within a sub-trade.

[199] The evidence that insulators drill or cut injection points in sheet metal boxes to inject foam is not manufacturing of the metal boxes, or fabrication of the boxes. I am not satisfied that activity of drilling a hole in the metal boxes, or the cleaning of the hose lines of foam injection rigs are trade or sub-trade activities. The drilling is simply identifying the location of where the holes are to be put and drilling the holes in the box. Nor is the use of the banding machine to produce the stainless steel bands a trade skill.

[200] I am satisfied given the necessary sequencing of activities in the insulation process that apart from foam injection, the work most commonly performed by insulators must be completed before that of the Sheet Metal Workers, however it is also clear it is common for both classifications to assist each other, and are at times directed to do so for the practical purpose of completing the work in an efficient and timely way. Having said that, the primary function of the insulator remains insulating, and that of the sheet metal workers on the plate is to affix the sheet metal cladding.

[201] The evidence concerning some rectification work was to the effect that both insulators and sheet metal workers removed FEF insulation and sheet metal cladding together and sheet metal workers undertaking much work removing insulation products. The evidence indicated this was a relatively simple task not involving the use of trade skill. Mr Martin agreed that the process of removing the Armachek was a simple task.

[202] I am satisfied that the Verification of Competencies process is not the same for sheet metal workers and insulators, the evidence demonstrating sheet metal workers are required to complete far more testing as would be expected given their trade qualifications.

[203] I accept that the fact of sheet metal workers and insulators using common tools does not entail that they are using the same skills, the sheet metal skills being fabricating, assembling, bending, cutting that are part of the trade and rarely if ever performed by insulators.

[204] It is unsurprising that sheet metal workers and insulators sign common SWMS’s, JHA’s and participate in the same safety training given they work in teams and together. The evidence is clear they are both handling and working with the products that each of them respectively use for their primary functions. Of itself it is not indicative of the insulators falling within the Applicant’s rules.

[205] I have not placed any particular weight on the Right of Entry Document for the purpose of determining the matter. It is plain from its terms it was intended for use in Western Australia. Similarly the job advertisements did not relate to the Project and appeared to be for roles in Western Australia and pertained to shut down and maintenance roles.

[206] The insulation task performed by insulators on the project is not performed for the purpose of assisting tradespersons, in this case sheet metal workers. The insulators perform their function which has an end in itself. They are not performing some subsidiary function to facilitate the work of tradespersons, if anything the insulators are performing the primary task. The insulation work is not referable to the work of tradespersons.

[207] The primary case of the Respondent is that the sheet metal workers on the plate do not fall within the AWMU rules. The Respondent employs these workers in the classification of a tradesperson and they are identified by title as sheet metal workers by all participants in the matter. I have made findings that whilst the majority of their time is spent performing activities that do not necessitate trade skills; they do to a limited extent use trade skills if and when required. For these reasons I do not accept the Respondent’s view that these workers fall outside the Applicant’s rules.

[208] My conclusion on that matter has not affected the outcome because I am satisfied from the evidence that the Respondent’s argument in the alternative is correct, that being that there is no relevant connection between insulators and the sheet metal work trade, and there’s not the substantial engagement by the insulators in the activities of the sheet metal workers when performing activities of the trade that would to bring them within the Applicant’s rules.

QUESTIONS FOR ARBITATION

[209] Given my findings I have decided, contrary to the submission of the Applicant to address the first question before the second, on the basis that it addresses the more substantive of the two questions and if it were to be determined for the Applicant there would be no need to address the second question, however if I were to address the matter in the order as proposed by the Applicant and it succeeded then the substantive issue in dispute between the parties would not be addressed and remain unresolved.

Question 1

Is the Applicant entitled to represent the interests of persons employed as Cryogenic Insulators (also known as laggers) by the Respondent and working at the Ichthys Project at Bladin point?

[210] For the reasons set out above the answer to the first question is no.

Question 2

On the proper construction of clause 22 of the AMJV Ichthys Onshore Construction Greenfields Agreement, does AMJV have the ability to refuse to recognise a person nominated as a Delegate on the basis the Delegate’s Union cannot represent the industrial interests of the employees?

[211] The Applicant characterised the dispute with the Respondent as relating to the Respondent’s failure to recognise employee representatives who have been properly identified to the employer under clause 22. 201 The Applicant submitted that clause 22(a) does not provide the Respondent with discretion not to ‘recognise’ a delegate where that delegate’s industrial Union has provided the required formal advice.

[212] The Applicant submitted that the Respondent’s argument should fail for three reasons:

“a. Cryogenic insulators are “engaged in or in connection with … the engineering … and kindred trades” and thus fall within rule 1A(a) of the Applicant’s rules;
b. clause 22 does not make union membership a condition of election as an employee representative; and further
c. clause 22 does not include a requirement for the employer to agree with the Union’s formal advice.”

[213] The Applicant submitted that the Respondent refused Mr Martin and Mr McMinimee’s rights under clause 22. The Applicant submitted that in doing so the Respondent rejected the explicit undertakings that had been provided by the Applicant about its delegates that were required by clause 22. The Applicant says that at no time has the Respondent’s basis for denying recognition to Mr Martin or Mr McMinimee risen to any higher than its own purported opinion.

[214] The Applicant says that it provided such formal advice and is satisfied of both the matters that it is required to be satisfied of under clause 22(a). The Applicant submitted that in making the Agreement the Respondent:

a. First, immediately recognised “the right of their employees to elect a representative(s)” and

b. Second, committed that the Respondent “will recognise” that those Delegates can represent the employees industrially, subject to receiving relevant verification from the Union.

[215] The verification required from the Union is that it (the Union) is satisfied of two things;

a. A proper election has occurred; and

b. The delegate is a person that can represent the industrial interests of employees generally, and union members in particular.

[216] Once the relevant Union has provided verification of its satisfaction, the Respondent has committed in clause 22 to recognising the delegate. The Applicant says the interpretation of Union rules is a matter on which views may differ, and that is why the clause is not concerned with the correctness of the union’s views, but simply that it has formed it.

[217] The Applicant submitted that the Respondent’s contention is industrially unsound as it provides the Respondent with a right to capriciously refuse recognition of duly elected delegates until it is proved wrong through a complex, costly and time consuming rules dispute.

[218] The Respondent said it accepts the principles concerning the construction of the Agreement are set out in AMWU v Berri. The Respondent says in determining the proper construction of clause 22, it is appropriate to consider the text of clause 22 and the ordinary meaning of such text. 202

[219] The Respondent submitted one part of the text of clause 22 (the word “provided”) imposes two conditions, with the second condition being the Delegate “is a person who can represent the industrial interests for employees of the Employer and the members of the respective union.” Another part of the text of clause 22 (the phrase “formal advice from the delegate’s industrial Union that verifies the Union is both satisfied”) suggests (at first blush) that it is the satisfaction of the Union that is relevant to determining fulfilment of the second condition.

[220] The Respondent submitted that the process of construction is not confined to consideration of the text and the ordinary meaning of the text and requires consideration of context and purpose among other matters. 203 In terms of the purpose of the clause the Respondent says given the references in clause 22 to “Union” and “union” it is plain that the person being elected as a Delegate will be a representative of the Union. One of the purposes of the clause is to recognise the role of the Delegate of the Union.

[221] Given the requirement to provide formal advice in clause 22, it is plain that the Union is to certify that it is satisfied that the Delegate can represent the industrial interests of the employees. The purpose of the certification is to provide some foundation to support the claim that the Delegate can represent the employees. However, such certification will be relevant to the question of whether the Delegate can represent the interests of the employees but logically and legally such a certification cannot be determinative of the question. If a dispute is raised over the ability of the Delegate to represent the interests of the employees, the certification cannot be conclusive of the ability.

[222] The Respondent submitted the context includes other clauses of the Agreement 204 and the general industrial context.

[223] Clause 23 provides;

“(b) The Unions have agreed that the only persons that each Union will admit or retain as members, or seek to admit or retain as members, will be those Employees for whom that Union has legal coverage under the respective eligibility rules of that Union.”

[224] The Respondent submitted in light of clause 23(b), it is plain the parties intended that a union would only admit into membership employees at the Project who were eligible to be members of the union (and by implication only represent employees who were eligible to be its members).

[225] Further, in light of clause 23(b) the parties appreciated that there could be disputes over the rights of unions to admit members or represent members. The Respondent says there is nothing in the Agreement to indicate that the Employer was ousting its ability to consider and express a view on the rights of the unions to admit members or represent members and if the view was disputed to follow the dispute resolution clause of the Agreement including determination by the Commission.

[226] The Respondent cited authorities to demonstrate as part of the industrial context it is well established that a union can only represent persons who fall within its eligibility rule. The Respondent also submitted that it is highly unlikely that the parties intended to oust the capacity of the Commission to determine the ability of the Applicant to represent a group of employees under its rules.

[227] The Respondent submitted it is proper to consider the effect of alternative constructions. One consequence of the construction urged by the Applicant is that the Respondent would be bound to recognise a person verified by the Applicant to be a Delegate, even if legally the Applicant had no right to represent a group of employees under its Rules, and even if another Union maintained that it had the sole right to represent that group of employees. The Respondent submitted such a consequence makes no sense and is a strong indicator that an alternative construction is preferred.

[228] In response to the Applicants argument that clause 22 does not confer a discretion on the Respondent, the Respondent says it does not contend clause 22 confers a discretion. The Respondent submitted that on the proper construction of clause 22, a person elected by employees and the subject of formal advice from the Applicant cannot represent employees who the Union is not entitled to represent under its rules.

[229] The AWU submissions also argued that clause 22 must be read in the context of clause 23, and that it is erroneous to suggest that the intention of clause 22 was to allow any union to nominate any person to be a delegate irrespective of eligibility.

[230] Having considered the context and purpose of clause 22 I prefer the Respondent’s interpretation of the clause. As the Respondent has identified, it does not have the power to recognise a Delegate as an AMWU Delegate, unless the Delegate is entitled to be a member of the Applicant. The Respondent is correct to say both logically and legally that the act of the Applicant providing certification of its own satisfaction concerning an employee’s eligibility cannot be determinative of the question of whether the employee is entitled to be a member.

[231] Clause 22 when read in the context of clause 23(b) is indicative of the parties being alive to the potential for disputes over eligibility and it is unlikely the parties intended for the Commission to be ousted from being able to resolve such disputes, however that would be the effect of the Applicant’s interpretation. I also accept that the Respondent is correct in saying it is well established that a union can only represent a person who falls within its eligibility rule and this also tells against accepting the Applicant’s interpretation on the basis of the text only.

[232] For these reasons the answer to question two is yes.

COMMISSIONER

Appearances:

Mr T. McCauley of Taylor and Scott Lawyers for the Applicant

Mr A. Gotting of Counsel instructed by Ashurst for the Respondent

Mr T McKernan for the AWU.

Hearing details:

2017,

Darwin:

November 1-3.

Printed by authority of the Commonwealth Government Printer

1 See “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v AGC Industries Pty Ltd and Meisei Industrial Co Ltd T/A AMJV[2017] FWC 4510.

2 Statement of Daniel Hannan 29 September 2017 Exhibit 1.

3 Statement of Daniel Hannan 31 October 2017 Exhibit 2.

4 Statement of Benedict Martin 28 August 2017 Exhibit 5.

5 Statement of Benedict Martin 2 October 2017 Exhibit 6.

6 Statement of Benedict Martin 31 October 2017 Exhibit 7.

7 Statement of Johannes Schmidt 23 October 2017 Exhibit 8.

8 Statement of Michael Butler 23 October 2017 Exhibit 9.

9 The Applicant’s submissions in reply page 6 para 20.

10 AMWU v Resmed Limited[2014] FWCFB 3501.

11 Re Isaac and ors; ex parte TWU 11 IR 303 at 308.

12 Federated Tobacco Workers Union of Australia v AMWU (1988) 29 IR 263.

13 The Australian Manufacturing Workers’ Union v ResMed Limited[2014] FWCFB 3501 at [35].

14 Federated Tobacco Workers Union of Australia v (1988) 29 IR 263 at 265-266; Lifestyle Bakery Pty Limited v NUW[2015] FWCFB 6324 at [24].

15 Re NSW Rugby League Players Union (1995) 62 IR 178 at 183; NUW v Skilled Communications Pty Ltd (2002) 116 IR 404 at [6].

16 Federated Tobacco Workers Union of Australia v AMWU (1988) 29 IR 263 at 272; NUW v Skilled Communications Pty Ltd (2002) 116 IR 404 at [11],[33]; The Australian Manufacturing Workers’ Union (AMWU) v ResMed Limited[2014] FWCFB 3501 at [36].

17 Federated Tobacco Workers Union of Australia v AMWU (1988) 29 IR 263 at 266; Re NSW Rugby League Players Union (1995) 62 IR 178 at 181; NUW v Skilled Communications Pty Ltd (2002) 116 IR 404 at [6],[11],[36]; The Australian Manufacturing Workers’ Union (AMWU) v ResMed Limited[2014] FWCFB 3501 at [34; ] Lifestyle Bakery Pty Limited v NUW[2015] FWCFB 6324 at [24].

18 Federated Tobacco Workers Union of Australia v AMWU (1988) 29 IR 263 at 266; Re NSW Rugby League Players Union (1995) 62 IR 178 at 183.

19 Federated Tobacco Workers Union of Australia v AMWU (1988) 29 IR 263 at 266; Re NSW Rugby League Players Union (1995) 62 IR 178 at 183; NUW v Skilled Communications Pty Ltd (2002) 116 IR 404 at [6], The Australian Manufacturing Workers’ Union (AMWU) v ResMed Limited[2014] FWCFB 3501 at [34]; Lifestyle Bakery Pty Limited v NUW[2015] FWCFB 6324 at [24].

20 Federated Tobacco Workers Union of Australia v AMWU (1988) 29 IR 263 at 272; Re PKIU (1996) 64 214 at 221; The Australian Manufacturing Workers’ Union (AMWU) v ResMed Limited[2014] FWCFB 3501 at [34].

21 Federated Tobacco Workers Union of Australia v AMWU (1988) 29 IR 263 at 272,273; The Australian Manufacturing Workers’ Union (AMWU) v ResMed Limited[2014] FWCFB 3501 at [37]; Re Austral Group Manufacturing H6709 at p17).

22 Federated Tobacco Workers Union of Australia v AMWU (1988) 29 IR 263 at 272,273.

23 The Australian Manufacturing Workers’ Union (AMWU) v ResMed Limited[2014] FWCFB 3501 at [68].

24 The Australian Manufacturing Workers’ Union (AMWU) v ResMed Limited[2014] FWCFB 3501 at [74].

25 Re Austral Group Manufacturing H6709 at p17.

26 Statement of Johannes Schmidt 23 October 2017 annexure JS 3.

27 Statement of Daniel Hannan 29 September 2017 Exhibit 1 para 6.

28 Statement of Benedict Martin 28 August 2017 Exhibit 5 para 6.

29 Statement of Benedict Martin 2 October 2017 Exhibit 6 para 9.

30 Statement of Johannes Schmidt 23 October 2017 Exhibit 8 para 8-10.

31 Statement of Michael Butler 23 October 2017 Exhibit 9 para 73.

32 Statement of Johannes Schmidt 23 October 2017 Exhibit 8 para 25.

33 Transcript PN 862.

34 Statement of Daniel Hannan 31 October 2017 Exhibit 2 para 48.

35 Transcript PN 101-104.

36 Transcript PN 109-112.

37 Statement of Benedict Martin 31 October 2017 Exhibit 7 para 12.

38 Transcript PN 982.

39 Statement of Johannes Schmidt 23 October 2017 Exhibit 8 para 29.

40 Statement of Daniel Hannan 31 October 2017 Exhibit 2 para 49.

41 Transcript PN 212.

42 Transcript PN 215.

43 Statement of Michael Butler 23 October 2017 Exhibit 9 para 75.

44 Statement of Michael Butler 23 October 2017 Exhibit 9 para 76.

45 Statement of Daniel Hannan 31 October 2017 Exhibit 2 para 28.

46 Transcript PN 84-87.

47 Transcript PN 632.

48 Transcript PN 638-644.

49 Transcript PN 1342-1351.

50 Statement of Johannes Schmidt 23 October 2017 Exhibit 8 para 52.

51 Statement of Michael Butler 23 October 2017 Exhibit 9 para 84.

52 Transcript PN 232.

53 Transcript PN 585.

54 Statement of Daniel Hannan 29 September 2017 Exhibit 1 para 12.

55 Statement of Michael Butler 23 October 2017 Exhibit 9 para 85.

56 Statement of Daniel Hannan 29 September 2017 Exhibit 1 para 16.

57 Statement of Daniel Hannan 29 September 2017 Exhibit 1 para 30.

58 Statement of Johannes Schmidt 23 October 2017 Exhibit 8 para 33.

59 Statement of Daniel Hannan 31 October 2017 Exhibit 2 para 51.

60 Statement of Michael Butler 23 October 2017 Exhibit 9 para 59.

61 Statement of Michael Butler 23 October 2017 Exhibit 9 para 61 – 63.

62 Statement of Benedict Martin 31 October 2017 Exhibit 7 para 32.

63 Statement of Daniel Hannan 31 October 2017 Exhibit 2 para 19.

64 Statement of Daniel Hannan 31 October 2017 Exhibit 2 para 20.

65 Transcript PN 133-134.

66 Transcript PN 135-137.

67 Transcript PN 139.

68 Transcript PN 438-439.

69 Transcript PN 1319-1329.

70 Transcript PN 544.

71 Transcript PN 547-555.

72 Statement of Michael Butler 23 October 2017 Exhibit 9 para 17.

73 Statement of Michael Butler 23 October 2017 Exhibit 9 para 19.

74 Statement of Michael Butler 23 October 2017 Exhibit 9 para 23.

75 Statement of Daniel Hannan 31 October 2017 Exhibit 2 para 5.

76 Statement of Daniel Hannan 31 October 2017 Exhibit 2 para 5 annexure DH-1.

77 Statement of Michael Butler 23 October 2017 Exhibit 9 para 31.

78 Statement of Michael Butler 23 October 2017 Exhibit 9 para 54.

79 Statement of Daniel Hannan 29 September 2017 Exhibit 1 para 20.

80 Transcript PN 240.

81 Transcript PN 241-251.

82 Transcript 260-272.

83 Statement of Benedict Martin 2 October 2017 Exhibit 6 para 18.

84 Statement of Johannes Schmidt 23 October 2017 Exhibit 8 para 66.

85 Statement of Johannes Schmidt 23 October 2017 Exhibit 8 para 67.

86 Statement of Michael Butler 23 October 2017 Exhibit 9 para 104.

87 Statement of Benedict Martin 2 October 2017 Exhibit 6 para 24.

88 Statement of Daniel Hannan 29 September 2017 Exhibit 1 para 27.

89 Statement of Johannes Schmidt 23 October 2017 Exhibit 8 para 55.

90 Statement of Michael Butler 23 October 2017 Exhibit 9 para 91.

91 Statement of Michael Butler 23 October 2017 Exhibit 9 para 69.

92 Statement of Michael Butler 23 October 2017 Exhibit 9 para 60.

93 Transcript PN 1337-1340.

94 Transcript PN 294-298.

95 Transcript PN 164.

96 Transcript PN 773.

97 Statement of Daniel Hannan 29 September 2017 Exhibit 1 para 31.

98 Statement of Johannes Schmidt 23 October 2017 Exhibit 8 para 36.

99 Statement of Johannes Schmidt 23 October 2017 Exhibit 8 para 57.

100 Statement of Daniel Hannan 31 October 2017 Exhibit 2 para 53.

101 Transcript PN 423.

102 Statement of Benedict Martin 31 October 2017 Exhibit 7 para 6.

103 Transcript PN 131.

104 Transcript PN 577.

105 Statement of Daniel Hannan 31 October 2017 Exhibit 2 para 22.

106 Statement of Benedict Martin 31 October 2017 Exhibit 7 para 33.

107 Transcript PN 581.

108 Transcript PN 1333-1335.

109 Statement of Daniel Hannan 29 September 2017 Exhibit 1 para 32.

110 Statement of Benedict Martin 2 October 2017 Exhibit 6 para 15.

111 Statement of Johannes Schmidt 23 October 2017 Exhibit 8 para 58.

112 Statement of Michael Butler 23 October 2017 Exhibit 9 para 50.

113 Statement of Michael Butler 23 October 2017 Exhibit 9 para 94.

114 Statement of Daniel Hannan 31 October 2017 Exhibit 2 para 13.

115 Statement of Daniel Hannan 31 October 2017 Exhibit 54.

116 Transcript PN 101.

117 Transcript PN 772.

118 Transcript PN 161-191.

119 Transcript PN 631.

120 Transcript PN 893.

121 Transcript PN 1276.

122 Statement of Johannes Schmidt 23 October 2017 Exhibit 8 para 15.

123 Statement of Johannes Schmidt 23 October 2017 Exhibit para 20-22.

124 Statement of Daniel Hannan 31 October 2017 Exhibit 2 para 46.

125 Statement of Michael Butler 23 October 2017 Exhibit 9 para 48.

126 Statement of Daniel Hannan 31 October 2017 Exhibit 2 para 17-18 annexures 4-5.

127 Statement of Daniel Hannan 29 September 2017 Exhibit 1 attachment DH-5.

128 Transcript PN 1387.

129 Statement of Daniel Hannan 29 September 2017 Exhibit 1 para 23.

130 Statement of Daniel Hannan 29 September 2017 Exhibit 1 para 25.

131 Statement of Daniel Hannan 31 October 2017 Exhibit 2 para 52.

132 Statement of Johannes Schmidt 23 October 2017 Exhibit 8 para 54.

133 Statement of Michael Butler 23 October 2017 Exhibit 9 para 28.

134 Transcript PN 1194.

135 Statement of Daniel Hannan 29 September 2017 Exhibit 1 para 9.

136 Statement of Daniel Hannan 29 September 2017 Exhibit 1 para 26.

137 Statement of Johannes Schmidt 23 October 2017 Exhibit 8 para 55.

138 Statement of Michael Butler 23 October 2017 Exhibit 9 para 90.

139 Transcript PN 304-310.

140 Transcript PN 604-608.

141 Transcript PN 614-617.

142 Transcript PN 623-625.

143 Statement of Benedict Martin 2 October 2017 Exhibit 6 para 13-14.

144 Statement of Johannes Schmidt 23 October 2017 Exhibit 8 para 63.

145 Statement of Johannes Schmidt 23 October 2017 Exhibit 8 para 64(a).

146 Transcript PN 596-600.

147 Statement of Johannes Schmidt 23 October 2017 Exhibit 8 para 64(b).

148 Transcript PN 200.

149 Statement of Daniel Hannan 29 September 2017 Exhibit 1 para 8 attachment DH-1.

150 Statement of Benedict Martin 2 October 2017 Exhibit 6 para 19.

151 Statement of Johannes Schmidt 23 October 2017 Exhibit 8 para 23.

152 Statement of Johannes Schmidt 23 October 2017 Exhibit 8 para 51.

153 Statement of Johannes Schmidt 23 October 2017 Exhibit 8 para 68.

154 Statement of Michael Butler 23 October 2017 Exhibit 9 para 38.

155 Statement of Daniel Hannan 29 September 2017 Exhibit 2 para 10.

156 Statement of Daniel Hannan 29 September 2017 Exhibit 2 para 11.

157 Statement of Benedict Martin 31 October 2017 Exhibit 7 para 25.

158 Statement of Daniel Hannan 29 September 2017 Exhibit 1 para 38.

159 Transcript PN 427-431.

160 Statement of Michael Butler 23 October 2017 Exhibit 9 para 97.

161 Statement of Benedict Martin 2 October 2017 Exhibit 6 para 11 attachment BJM-1.

162 Statement of Johannes Schmidt 23 October 2017 Exhibit 8 para 62.

163 Statement of Michael Butler 23 October 2017 Exhibit 9 para 100.

164 Transcript PN 1108.

165 Federated Tobacco Workers Union of Australia v AMWU (1988) 29 IR 263.

166 Transcript PN 1530.

167 Transcript PN 1543.

168 Transcript ON 1554.

169 [1985] HCA 80; (1985) 159 CLR 323 (12 December 1985).

170 Transcript PN 1575.

171 Transcript PN 1585.

172 Transcript PN 1602.

173 Transcript PN 1659.

174 Federated Tobacco Workers Union of Australia v AMWU (1988) 29 IR 263 at 264.

175 Transcript PN 1703.

176 Federated Tobacco Workers Union of Australia v AMWU (1988) 29 IR 263 at 275.

177 Ibid.

178 Transcript PN1719.

179 Transcript PN 1898.

180 Transcript PN 1729.

181 The Australian Manufacturing Workers’ Union (AMWU) v ResMed Limited[2014] FWCFB 3501 at [80].

182 (1989) 31 IR 421.

183 Transcript PN 1888.

184 Transcript PN 1733-1735.

185 Transcript PN 1753-1761.

186 The Australian Manufacturing Workers’ Union (AMWU) v ResMed Limited[2014] FWCFB 3501 at [21].

187 Transcript PN 1814.

188 Transcript PN 1885.

189 Transcript PN 1834.

190 Transcript PN 1838.

191 Transcript PN 1839.

192 Transcript PN 1840.

193 Transcript PN 1841.

194 Transcript PN 1843.

195 Transcript PN 1844.

196 Transcript PN 1884.

197 Transcript PN 1847.

198 Transcript PN 1849.

199 Transcript PN 1850.

200 Transcript PN 1851-1865.

201 Applicant’s Outline of Submissions dated 2 October 2017 at [3].

202 AMWU v Berri[2017] FWCFB 3005 at [41] [114](1)).

203 AMWU v Berri[2017] FWCFB 3005 at [38](7),[41], [114] (1)).

204 UGL Operations and Maintenance Pty Limited v AMWU[2017] FWCFB 5246 at [32].

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v AGC Industries Pty Ltd & Meisei Industrial Co Ltd T/A Amjv

[2017] FWC 6787

15 DECEMBER 2017

DECISION

Line chasing (Scopers)

Sheet Metal Workers other than at Pinelands or working as Scopers

Cryogenic Insulators

Wintech Machine

Foam injection

Banding Room

Training

Armacell Products

Verification Of Competencies Generally

Tools used

Interdependence

Pre Starts - Safe Work Method Statements – JHA’s – Toolbox Meetings

History of Job Advertisements, Right of Entry

FINDINGS ON THE EVIDENCE

QUESTIONS FOR ARBITATION

Question 1

Question 2