"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v United Group Rail Services Ltd
[2010] FWA 9409
•7 DECEMBER 2010
[2010] FWA 9409 |
|
DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
v
United Group Rail Services Ltd
(C2010/5607)
SENIOR DEPUTY PRESIDENT CARTWRIGHT | SYDNEY, 7 DECEMBER 2010 |
Alleged dispute about any matters arising under the enterprise agreement.
[1] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and United Group Rail Services Ltd (UGL), by mutual consent, sought a ruling from Fair Work Australia on how the “status quo” provision of “Main Train - United Group Rail Services Ltd Enterprise Agreement 2009-2011” (the Agreement) was to apply to a dispute currently before the Tribunal.
[2] The provision relevantly states at Clause 28:
“(v) Emphasis shall be placed on a negotiated settlement. However, if the negotiation process is exhausted without the dispute being resolved, the parties shall jointly or individually refer the matter to Fair Work Australia for assistance in resolving the dispute. If conciliation fails to resolve the dispute, Fair Work Australia (FWA) is empowered to arbitrate on the matter provided that the arbitration is limited to the interpretation, application or process of implementation of a term or terms of this Agreement. There will be leave reserved for either party to appeal such arbitration decision to a full bench of Fair Work Australia or the parties may choose during the life of the Agreement to refer to an Independent Panel.
(vi In order to allow for the peaceful resolution of grievances, work will proceed as normal during this period in accordance with the pre-dispute situation (the status quo shall remain). While dispute settlement procedures are being followed, the parties are to ensure that:
• Industrial action does not take place
• The circumstances that existed prior to the dispute prevail; and
• Work is to continue as normal without detriment to any of the parties.”
[3] The circumstances that existed prior to the dispute appear to be as follows.
[4] Mr Poultney is employed by UGL as a C10 tradesman and, in accordance with clause 17.3 of the Agreement, is “Rewarded by an allowance as per Schedule 12.1 for employees classified at C10-C8” for his duties as Team Leader of the CCO team, a role to which he was appointed around August 2007. The allowance has the effect of lifting Mr Poultney’s hourly rate of pay from $28.3524 to $30.5374 as a C10.
[5] A Team Leader’s duties are set out in clause 17.2 as follows:
“The team leaders’ primary responsibility is to plan, organise, co-ordinate and allocate the productive resources of the team so as to meet planned operational requirements. All of these functions are carried out jointly with the full involvement of the team. Critical areas of the team leader and team include but are not limited to:
• Overtime requirements & rostering
• Safety procedures
• Quality management
• Production planning and resource allocation (white board)
• Continuous improvement
• Team inventory management
• Waste minimisation
• Team task competency matrix.”
[6] The Agreement contains numerous clauses detailing the Company’s and employees’ commitments to multi-skilling, skills acquisition and career development. Clause 8, governing the classification structure, relevantly provides:
“All MainTrain Metal Engineering and Associated Industries Award 1998 employees will be graded under this Agreement. The Classification Structure is tabulated in Schedule B to this Agreement. The structure is competency-based and is consistent with the national Metals and Engineering Industry Training Board’s competency standards and training requirements. The aim of the structure is to facilitate a highly flexible and efficient operating system based on a multi-skilled workforce which is achieving its full potential through continuous skills acquisition and career development. The classification structure has twelve levels with three normal entry points: Level 5 for graduate engineers, Level 10 for trades employees and Level 12 for non-tradespersons.
...
Employees may be relocated within different teams from time to time to meet operational requirements. Consistent with the employer and employee obligations under the Award.”
[7] Clause 9.2 deals with Career Path Development as follows:
“The parties agree to continue to work within the career path development procedures which have been established through earlier Agreements. MainTrain will continue its program of employee reclassification based on skills held providing that:
i) employees seeking reclassification provide relevant, original evidence of education and training attainments from TAFE, Universities and other agreed education providers;
ii) employees seeking reclassification do so on the basis of MainTrain supported education and training modules;
iii) employees have agreed in writing to the supported modules they will study with the Human Resources Manager prior to the start of any given training;
iv) beyond the base trade levels, employees are classified on the basis of skills and the utilisation by MainTrain of those skills (base trade levels for MainTrain are defined in terms of the industry standard and are listed at Schedule B).
The supported modules play an important part in determining employee education and training that is relevant for pay and classification purposes. The parties therefore agree that any and all adjustments to the supported module list will be discussed and agreed through the Steering Group prior to introduction.”
[8] Clause 13.0 Devolution gives some insight into how teams are intended to operate:
“
...
Work within the teams will be so arranged as to facilitate multi-functionalism and team planning will take into account the need to ensure that multi-skilled team members fully utilise their skills via planned rotations within the team. Higher level duties will be directed to those workers with higher qualifications and classification levels.
All team members have equality of access to formal career development at MainTrain via the national skill standards system. At the operational level, team members will be given the opportunity to apply their formal expertise via planned access to practical training opportunities with the team.”
[9] Clause 16 details a commitment to achieving Best Practice Performance.
“The parties agree to renew their commitment to achieving Best Practice Performance at the MainTrain facility. Best Practice is being achieved by continuous improvement programs aimed at significantly enhancing the facility’s operating systems, its working procedures, and its brand/reputation.
The parties remain committed to their shared emphasis on performance related factors such as customer service, safety, quality, career progression, technology, work organisation, education & training and multi-skilling. The parties will build on current achievements by working together to:
• Create a customer-focussed business which is capable of meeting customer requirements on safety, quality, quantity, timeliness and price as a matter of course;
• Create a continuous improvement culture through highly flexible operating systems which are based on multi-skilled-team structures, flat management organisation and additional team responsibilities through further devolution;
• Extensively review jobs and career paths to ensure that they provide maximum scope for enhancing employee capacities through education and training especially in leadership, advanced technical areas, communications, planning and decision making.
A number of performance measures have been identified and adopted as indicators of MainTrain’s progress towards Best Practice.
These measures include:
• Defects and Warranties Claimed
• Cars out of Service
• Bogie and Wheelset Production
• BCO & CCO Cycle Times
• Supply to Production
• Supply to RailCorp Depots
• Absenteeism
• Lost Time Injury Frequency Rate
• Sales per Employee
The parties agree that satisfying customer requirements is a critical condition of achieving world’s best practice. The parties also agree that actions which lead to stop-works critically interfere with the ability to meet customer requirements. Accordingly the parties agree that they will use their best endeavours to avoid actions which interfere with the need to maintain the highest degree of customer service and perceptions.”
[10] Further, the Manufacturing and Associated Industries and Occupations Award 2010 is incorporated into the Agreement in Clause 5. That includes clause 31 of the Award, which provides:
“31.1 An employer may direct an employee to carry out such duties as are within the limits of the employee’s skills, competence and training consistent with the classification structure of this award provided that such duties are not designed to promote de-skilling.
31.2 An employer may direct an employee to carry out such duties and use such tools and equipment as may be required provided that the employee has been properly trained in the use of such tools and equipment.
31.3 Any direction issued by an employer under clause 31—Employer and employee duties must be consistent with the employer’s responsibilities to provide a safe and healthy working environment.”
[11] UGL wants Mr Poultney to work as a C10 tradesman in another team until the dispute itself is resolved and commits to pay him everything he has been receiving until then. UGL also commits to give Mr Poultney time in the alternative role to undertake training to enable him to move up in the classification structure and improve his career prospects. I see no detriment to Mr Poultney here.
[12] However, Mr Poultney argues that there is a detriment to his reputation in being moved to a trade role in another team after a Team Leader role. I accept that is so, though it is difficult in the circumstances to know how to weigh that element.
[13] I agree that Mr Poultney remaining on full pay at home until the dispute is resolved will involve a detriment to both Mr Poultney and UGL, since the period of dispute cannot at this stage by quantified. Consequently, I do not consider that as an option meeting the criteria in Clause 28(vi).
[14] UGL argues that, were its proposal not adopted, it will suffer detriment in being denied its Agreement abilities to move employees in a multi-skilled workforce to carry out duties within the limits of skills, competence and training, consistent with the classification structure. It also argues that its position in resolving the underlying dispute will be prejudiced if it is unable now to relocate Mr Poultney as proposed. I accept both arguments, having provided some assistance to the parties in conciliating the dispute.
[15] In my view the detriment to be suffered by UGL in Mr Poultney remaining as Team Leader of the CCO is greater than the detriment to be suffered by Mr Poultney in moving on an interim basis as proposed by UGL. Such a move in my view is a sensible interim position until the dispute itself is resolved.
[16] But the question of the “status quo” in my mind is to be determined by looking at the role of Team Leader. It is not a discrete role within the classification structure, but one rewarded by payment of an allowanceas an addition to the recipient’s trade classification rate. Nor is it a role with authority, the duties being expressed to be “carried out jointly with the full involvement of the teams” in a multi-skilled workforce where skills training and competence are emphasised.
[17] That is, I am not persuaded that the Team Leader role described in the Agreement is such a distinct role as to preclude Mr Poultney moving from it to work in another team, where such a move in my view would involve the least detriment, on balance, to the parties.
[18] No doubt there is considerable background to the designation of the Team Leader role as relatively weak in this Agreement. While unusual in my experience, it appears to be by agreed design.
[19] At any rate, in the circumstances of this case, the “status quo” requirements are best satisfied by Mr Poultney moving immediately to work in another team in his C10 Agreement classification and relying on UGL’s undertakings referred to above.
Appearances:
Mr A Walkaden of the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
Mr B Gee of Fisher Cartwright Berriman for United Group Rail Services Ltd
Hearing details:
2010
Sydney
November 30
SENIOR DEPUTY PRESIDENT
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