Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union v Transfield Worley Power Services Pty Limited

[2013] FWC 9624

[2013] FWC 9624

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union
v
Transfield Worley Power Services Pty Limited
(B2013/1503)

COMMISSIONER WILLIAMS PERTH, 9 DECEMBER 2013

Proposed protected action ballot by employees of Transfield Worley Power Services Pty Limited.

[1] This is an application for a protected action ballot of members of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (the AMWU or the applicant) employed by the respondent Transfield Worley Power Services Pty Limited (the respondent). The application is made pursuant to s.437 of the Fair Work Act 2009 (the Act).

Background

[2] The applicant purports to represent these employees of the respondent who are employed as casual supervisors.

[3] The casual supervisors supervise employees of the respondent covered by the Transfield Services (Australia) Pty Limited Power Plant Maintenance Greenfields Agreement 2011 [AE890906](the Agreement), which also covers the AMWU.

[4] The employees whom are supervised by the supervisors involved in this application perform work as described in clause 4 of the Agreementat Verve Power Station sites, which include Muja, Collie and Kwinana. Verve Energy is the owner of those power stations and the respondent’s client at each of those sites.

[5] The respondent opposes the application on the grounds that the applicant is not entitled to represent the industrial interests of the casual supervisors and so has no standing to make the application. If however the Commission finds that the applicant does have standing to make the application the respondent submits that the Commission cannot be satisfied that the applicant has been and is genuinely trying to reach an agreement because the circumstances demonstrate that this application is premature.

[6] The respondent does not otherwise take issue that the application meets the other statutory prerequisites under the Act.

The evidence

[7] The evidence of the two witnesses is generally not controversial.

[8] Mr Alistair Robinson (Mr Robinson) an AMWU Organiser gave evidence for the applicant.

[9] He is the applicant’s representative for four sites being the Bluewaters Power Station, and the Collie, Kwinana and Muja Power Stations.

[10] Mr Robinson was involved in the negotiation of the existing Transfield Worley Power Services Bluewaters Collective Agreement 1 July 2012 [AE403050] (the Bluewaters Agreement). The Bluewaters Power Station is not operated by Verve Energy but by Griffin Energy.

[11] There is currently no agreement covering the production and maintenance supervisors employed by the respondent at these power stations.

[12] These supervisors oversee the work done by all mechanical trades and maintenance employees working at these power stations who are employed under the Agreement and some employed under the Bluewaters Agreement.

[13] On 20 September 2013 Mr Robinson wrote a letter to Ms Amanda Yearsley (Ms Yearsley) the Employee Relations Manager of the respondent advising that these supervisors, members of the AMWU, had asked the union to negotiate an enterprise agreement with the respondent under the Act. Mr Robinson’s letter requested that Ms Yearsley advise a suitable time to meet to progress these matters.

[14] Following this there were meetings on 2, 24, 31 October 2013 and 6 November 2013 held between Mr Robinson and representatives of the respondent with Mr Robinson seeking pursue his members desire to negotiate an agreement with the respondent. These meetings commonly lasted from an hour to an hour and a half each time.

[15] Mr Robinson’s evidence was on each occasion the respondent stated that it would not be entertaining a collective agreement but despite that he persisted with the discussions for an agreement.

[16] On 8 November 2013 Mr Robinson sent the respondent correspondence containing a log of claims on behalf of these supervisors. On 11 November 2013 Mr Robinson was advised that Ms Yearsley was away on leave and would not return before the 18 November 2013.

[17] Ms Yearsley responded to Mr Robinson by email on 21 November 2013.

[18] This application was lodged with the Commission the following day on 22 November 2013.

[19] Mr Robinson’s evidence was that at the four meetings held prior to sending the log of claims, on 8 November 2013, those claims were raised by him and discussed with the respondent’s representatives 1.

[20] Ms Yearsley’s evidence for the respondent is that the respondent is a contractor providing services to clients in the power generating industry, both within power stations and on mine sites. These services include planned maintenance ad-hoc maintenance, conducting outages and repairs, refurbishment or replacement of old or degraded plant equipment.

[21] Verve Energy has engaged the respondent to provide services to the Muja, Kwinana, and Collie stations. These are all owned by Verve Energy.

[22] Bluewaters Power engaged the respondent to provide services to the Bluewaters Power Station.

[23] Verve Energy operates the power stations at Kwinana and Muja itself. It has its own maintenance teams that do most of the day to day maintenance. The respondent is contracted at these two sites to do ad hoc maintenance which arises in addition to the routine maintenance from time to time.

[24] In addition to minor works, the respondent does individual projects from time to time at Kwinana and Muja. Currently there is a major project, Muja AB, involving the refurbishment of four coal-fired boilers.

[25] The respondent at Muja and Kwinana uses “roving teams” of casual employees.

[26] The respondent’s work at Collie and Bluewaters is slightly different, because the respondent both operates and maintains these power stations. However, the respondent also uses “roving teams” at Collie and Bluewaters to do occasional tasks such as outages, which require additional workers.

[27] The respondent’s employees at Muja and Kwinana and the “roving teams” are divided into teams, each with its own supervisor. These supervisors are all casual employees.

[28] The supervisors are given specific tasks for their teams to complete. Their job is to work out a plan for completing each task, ensure that all necessary tools and equipment are available, and make sure that the task is done in a manner which satisfies all of the client’s and the respondent’s safety and quality requirements. They also need to make sure the job is done in an appropriate timeframe and within any other parameters set down by the client. They perform administrative type duties such as ensuring all timesheets are completed and reconciled and working out shift rosters.

[29] Most of the supervisors have a trade background, but there are no formal requirements for becoming a supervisor. They have all worked their way up through the industry.

[30] None of the supervisors have an engineering qualification or background, or are employed as an engineer. None of the workers that they supervise is employed as an engineer.

[31] Ms Yearsley defines an engineer as someone who would design work packages. Her evidence is the respondent therefore does not do any form of engineering; they just execute the works, which is trades work.

[32] Currently there are around 15 casual supervisors at Muja; ten on the Muja AB Project and five on minor works, and these numbers are reducing as the work finishes.

[33] There is also one casual supervisor at Kwinana and one at Bluewaters. There are no supervisors engaged by the respondent at Collie.

[34] Ms Yearsley’s evidence is that the Transfield Worley Power Services Collie Employee Collective Agreement 2011 [AE892490] (the Collie Agreement)applies to all of the employees engaged in the day to day operation and maintenance of the Collie Power Station. It does not apply to the “roving teams” that come in to do ad hoc maintenance and outages.

[35] Similarly, the Bluewaters Agreement applies to all of the employees engaged in the day to day operation and maintenance of the Bluewaters Power Station. It does not apply to the “roving teams” that come in to do ad-hoc maintenance and outages.

[36] It was Ms Yearsley’s evidence that the Agreement covers all of the respondent’s workers engaged in minor works maintenance and project activities at Kwinana and Muja. It also applies to the workers that go to Bluewaters and Collie as “roving teams”. This application concerns the supervisors of these workers.

[37] None of the above agreements apply to the supervisors of these workers operating as roving teams.

[38] It is my interpretation of Mr Robinson’s evidence 2 that he generally agrees with Ms Yearsley’s evidence regarding the coverage of the respondent’s respective agreements.

[39] Ms Yearsley’s evidence was that during a meeting which Mr Robinson attended Mr Bill Pike, Manager Operations West for the respondent, told Mr Robinson the respondent would not entertain an agreement to cover the casual supervisors because of the nature of its contract with its clients which essentially meant that it could not recover increased labour costs from its clients.

[40] Despite this, it was made clear to Mr Robinson that the respondent was willing to explore other ways of changing the terms and conditions of the casual supervisors - for example, at the time of review on 1 July 2013 of the respondent’s rates paid by its client, if there was an increase for labour costs, the respondent could at that time consider off-setting any consequential increase in the rates payable to casual supervisors with non-cash benefits such as income protection.

Submissions

[41] The respondent argues the applicant has no standing to make the application.

[42] Section 437(1) of the Act allows such an application to be made by a bargaining representative of employees who will be covered by the Agreement.

[43] Relevantly, by the operation of s.176(1)(b) of the Act, the applicant is not a bargaining representative of the casual supervisors unless it is entitled to represent the industrial interest of the casual supervisors.

[44] The only Rule of the AMWU that mentions “supervisors” is rule 1(C)(a)(vii).

[45] That rule is confined in its operation to supervisors employed “in” certain specified industries, as opposed to persons employed “in relation to” or “in connexion with” an industry.

[46] On an ordinary reading, the word “in” denotes that the employees are employed within the industry in question.

[47] The word “industry” is a word of wide connotation but has boundaries, nonetheless.

[48] The applicant has presented no evidence from which the Commission can conclude that the casual supervisors are employed “in” any one of the “industries” mentioned in rule 1(C)(a)(vii) of the applicant’s Rules.

[49] The Agreement evidences that the respondent’s employees are employed in the power generation industry in that the respondent provides the services of its employees to perform certain types of work at power stations. This is clear from clause 4 of the Agreement and the classifications set out in Schedule 1 of the Agreement.

[50] There is no basis on which it can be held that the applicant is entitled to represent the industrial interest of the casual supervisors. Therefore, the applicant is not a bargaining representative for the purposes of s.437(1) of the Act. Consequently, the application is incompetent.

[51] In particular, the Commission cannot be satisfied that an application has been made, as required by s.443(1)(a) of the Act. The application must be dismissed for this reason; see s.443(2) of the Act.

[52] The applicant argues that under its Rules the employees in question are persons employed... “in any of the industries of Architecture, Chemistry, Engineering, Science,...as: ...” supervisors.

[53] Specifically the applicant submits that the employees are employed in the industry of “Engineering”.

[54] Separately the respondent submits the circumstances demonstrate the application has been made prematurely and so the applicant has not been and is not genuinely trying to reach an agreement.

Consideration

[55] Section 437 of the Act specifies that only a bargaining representative of an employee who will be covered by a proposed agreement may apply for a protected action ballot order. This provision is set out below.

“437 Application for a protected action ballot order

Who may apply for a protected action ballot order

(1) A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to the FWC for an order (a protected action ballot order) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement...”

[56] Separately s.176 of the Act defines who are bargaining representatives for a proposed agreement. This is set out below.

“176 Bargaining representatives for proposed enterprise agreements that are not greenfields agreements

Bargaining representatives

(1) The following paragraphs set out the persons who are bargaining representatives for a proposed enterprise agreement that is not a greenfields agreement:

(a) an employer that will be covered by the agreement is a bargaining representative for the agreement;

(b) an employee organisation is a bargaining representative of an employee who will be covered by the agreement if:

(i) the employee is a member of the organisation;...”

[57] Both parties acknowledge that organisations are only entitled to enrol as members persons whom fall within the coverage of the union’s Rules.

[58] The Rules of the AMWU at 1C(a) relevantly reads as follows”

“(vii) All persons employed in any of the industries of Architecture, Chemistry, Engineering, Science, Surveying and Draughting including Tracing as:

Foremen and Supervisors of Engineering Production;

Foremen and Supervisors of Manufacturing Processes;

Foremen and Supervisors of Construction Work except where employed in the Building and Civil Engineering Construction Industry save that Foremen and Supervisors of Construction

Work employed in the said Building and Civil Engineering Construction Industry by the Commonwealth, its departments, authorities, commissions or instrumentalities shall not be so excepted;

Foremen and Supervisors of Maintenance Work except where employed in the Building and Civil Engineering Construction Industry save that Foremen and Supervisors of Maintenance Work employed in the said Building and Civil Engineering Construction Industry by the Commonwealth, its departments, authorities, commissions or instrumentalities shall not be so excepted; or

Foremen and Supervisors of Repair Work except where employed in the Building and Civil Engineering Construction Industry save that Foremen and Supervisors of Repair Work employed in the said Building and Civil Engineering Construction Industry by the Commonwealth, its departments, authorities, commissions or instrumentalities shall not be so excepted;

Provided that all Foremen and Supervisors of Engineering Production, Foremen and Supervisors of Manufacturing Processes, Foremen and Supervisors of Construction Work, Foremen and Supervisors of Maintenance Work and Foremen and Supervisors of Repair Work who are employed in any of the Metal Industry, the Aircraft Industry or the Vehicle Industry in any of their branches and in all Industries allied thereto shall remain eligible for membership of the Union.

Provided further that the following shall not be eligible for membership of the Union pursuant to this sub-rule 1C: ...” (Underlining added)

[59] It is only this section of the applicant’s Rules that refers to persons who are supervisors being eligible to be members of the applicant.

[60] The supervisors in question in this application are supervisors of employees whom carry out the particular work specified in clause 4 of the Agreement which reads as follows:

“4.1 This Agreement shall apply in respect of work performed on, or associated with, Verve Energy sites as follows:

● mechanical and electrical works associated with the modification, refurbishment, maintenance and upgrade of power plants and power generating equipment;

● preparation, shutdown and/or outage work, tie-in and all other associated works;

● routine maintenance work which includes regular, ongoing maintenance activities (routine and defect) breakdowns and pre-outage/post-outage work including commissioning and decommissioning;

● any other work necessary to successfully complete the work concerned.

4.2 For the purposes of this Agreement "outage" means a scheduled , pre-planned, shutdown to undertake a defined work scope as well as a major breakdown or repair work which can only be performed with the unites) concerned off-line, or which prevents a unit returning to service.

4.3 The scope of work covered by this Agreement shall include shutdown periods. The Parties acknowledge that shutdown work covered by the scope of this Agreement is essential work and as such are committed to ensuring that shutdowns run smoothly and without disruption while any dispute is being processed through the Resolution of Disputes procedure in this Agreement.”

[61] I note that the classifications this Agreement covers include...“Instrument Technicians, Advanced Tradesperson, Welder Special Class, Electrician Maintenance Tradesperson, Maintenance Worker, Certified Rigger/Scaffolder, Crane Operator and Trades Assistant” 3.

[62] The applicant argues this work the supervisors oversee falls within the industry of engineering which is included in the applicant’s Rules at 1C(a). In support of this the applicant points to the terms of the Manufacturing and Associated Industries and Occupations Award [MA000010] (the Modern Award) and specifically to the references in that Modern Award to various engineering streams and then to the classifications of supervisor within those streams as demonstrative of the fact that the work of these supervisors does fall within the industry of engineering as detailed in the applicant’s Rules.

[63] Having considered this I agree with the applicant that the references in the Modern Award to “engineering” does support the view that this term should be interpreted broadly such that it would encompass the work undertaken by the employees these supervisors supervise.

[64] If I am wrong in that that however the applicant’s Rule also provides (see underlining of the applicant’s Rules at [57] above) that supervisors of maintenance work and repair work employed in the metal industry, and any of its branches, and in all industries allied thereto are eligible for membership of the union. In my view this provision in the applicant’s Rules is very broad. Taking into account the nature of the work those employees covered by the Agreement are doing, which work is overseen by the supervisors in question in this application, I am satisfied that this provision in the applicant’s Rule does mean that the applicant union is able to enrol these supervisors as members. The work specified in clause 4 of the Agreement means the industry the supervisors work in is a branch of or an industry allied to the metal industry.

[65] I am satisfied then that the applicant union is entitled to represent the industrial interests of the supervisors in question and that the applicant then is a bargaining representative for the purposes of s.437(1) of the Act. The applicant has standing to make this application.

[66] Turning to consider the question of whether the application has been brought prematurely such that it cannot be said that the applicant has and is generally trying to reach an agreement with the respondent. The evidence is that the applicant alerted the respondent by letter dated 20 September 2013 that it wanted to meet to commence negotiations for an enterprise bargaining agreement for the supervisors. What followed were four face-to-face meetings over a period of five weeks prior to the applicant making this application. The evidence is that at these meetings the applicant has pursued an enterprise bargaining agreement on behalf of its members, the supervisors in question.

[67] The evidence of Mr Robinson which I have accepted is that the items that were detailed in the written log of claims which he emailed to the respondent’s representatives on 8 November 2013 were in fact the matters that had been discussed throughout the course of the four meetings. The respondent has maintained a position that it was willing to perhaps consider some improvements for the supervisors but is not willing to enter into an agreement under the Act.

[68] In the circumstances I do not accept that the making of this application is premature at all. I am satisfied that the applicant has been and is genuinely trying to reach agreement with the respondent.

Conclusion

[69] In this case I am satisfied that all of the statutory requirements have been met by the applicant. An application has properly been made under s.437 of the Act and I am satisfied that the applicant has been and is genuinely trying to reach an agreement with the respondent employer of the supervisors, the employees who are to be balloted.

[70] That being the case, as required by s.443 of the Act, the Commission must make a protected action ballot order and I will now do so.

COMMISSIONER

Appearances:

P Lim for the applicant.

T Caspersz, representative for the respondent.

Hearing details:

2013.

Perth and Melbourne (video hearing):

November 27.

 1   Transcript at PN119, PN156 and PN160.

 2   Ibid., at PN128 to PN150.

 3   Schedule 1, Transfield Services (Australia) Pty Limited Power Plant Maintenance Greenfields Agreement 2011 [AE890906].

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<Price code C, PR545444>