BP Refinery (Kwinana) Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union

[2012] FWA 3300

[2012] FWA 3300

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.739—Dispute resolution

BP Refinery (Kwinana) Pty Ltd
v
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union; and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(C2012/2863)

COMMISSIONER WILLIAMS PERTH, 23 APRIL 2012

s.739 - Application to deal with a dispute.

Introduction

[1] This application has been referred to Fair Work Australia as a dispute for arbitration in accordance with section 739 of the Fair Work Act 2009 (the Act), and Clause 25 Disputes and Grievance Procedure of the BP (Kwinana Refinery) MAINTECH 2009 Maintenance Technicians Agreement [AE872728] (the Agreement).

[2] The Respondents are the Communications, Electrical, Electronic, Energy, Plumbing, Postal and Allied Services Union of Australia and the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (the Respondents).

[3] BP Refinery (Kwinana) Pty Ltd (BP) is an oil and gas company operating a refinery at Kwinana in Western Australia. The refinery produces most of the petroleum products (including petrol, diesel, aviation fuel and various other products) sold in the retail market in Western Australia. Maintenance employees working at the refinery are covered by the Agreement.

[4] The parties have followed each of the steps required at Clauses 25.1, 25.2 and 25.3 of the Agreement. BP has elected to refer this matter to arbitration in accordance with Clause 25.4 of the Agreement. There is no disagreement between the parties as to jurisdiction and I agree this is a matter then can be determined by Fair Work Australia.

Background

[5] Work which the parties agree would have been Turnaround (TAR) works as defined in the Agreement was scheduled to commence on 12 March 2012 (the disputed work). This TAR included shutting down a catalytic reformer known as CR3.

[6] Employees are normally required to work additional hours to carry out a TAR including working on weekends. The employees had been notified of the TAR and its start date some months earlier.

[7] On the evening of 23 February 2012 an electrical failure caused multiple process units to be shut down including CR3.

[8] As a result of this failure on 26 February 2012 a decision was made to bring the disputed work forward to commence on 2 March 2012.

[9] Depending on their shifts on either 27 February 2012 or 28 February 2012 the employees were told that the disputed work would now begin on 2 March 2012.

[10] The employees and their union representatives did not agree that the disputed work, now to begin ten days earlier on 2 March 2012, was still a TAR under the Agreement.

[11] Following site discussion BP opted to treat the work performed on the public holiday of 5 March 2012 as “flex” time for the benefit of employees and opted to pay an ex gratia payment in recognition of the short notice to employees of the changed timing and the consequent disruption to them.

[12] The parties however could not reach agreement as to whether the disputed work constituted a TAR under the terms of the Agreement and the dispute was referred to Fair Work Australia under the Agreement’s dispute resolution clause (Clause 25 of the Agreement).

[13] The disputed work commenced on 2 March 2012 and has since been completed.

[14] The Applicant submits and asks Fair Work Australia to declare that:

(a) The disputed work falls under the definition of TAR works, in the Agreement (in particular Clause 18 of the Agreement); and

(b) There is no entitlement for the employees to receive “flex” time and/or any other payment in respect of the disputed work.

Relevant Clauses of the Agreement

[15] The relevant provisions in the Agreement are as follows:

“16. Hours of Work

This Agreement and the salary schedules contained within it are based on the provisions of the Standard Hours (Oil Companies) Award 1974.

This Agreement provides for a flexible arrangement for hours of work. The standard working arrangement consists of 70 rostered hours per fortnight plus 2 additional hours per fortnight. Where hours are worked outside these arrangements on Normal Maintenance then those hours may be flexed off as agreed with the work team and Supervisor. Any maintenance activity which requires a return to work shall attract a minimum of 4 hours accreditation to that employee's flex hours.

1. The standard work week shall consist of 4 x 9 hour work periods per week

2. Two rosters shall operate which cover Monday to Friday of every week

3. Each roster shall cover four days in any week

4. Roster Pattern

Monday	Tuesday	Wednesday	Thursday	Friday
A	A	A	A
B	B	B	B
Monday	Tuesday	Wednesday	Thursday	Friday
A	A	A	A
B	B	B	B

Each work day shall consist of three defined work periods. The lunch break shall be at a scheduled time each day with the morning break of 10 minutes taken in accordance with the flow and timing of the job being progressed.

Normal start time shall be 07:00

Normal Morning break shall be 10:00 to 10:10

Lunch Break shall be 12:30 to 1:00

Normal finish shall be 16:30

The actual times for start and finish or the roster above may be varied by agreement between the teams and their respective Supervisor. Such variations shall be implemented on an as required basis with reasonable notice.

Employees shall not be required to work excessive hours over either a single occurrence or a short term period. The work team and Supervisors shall monitor and control the work periods and work allocation to ensure all employees in each team make approximately equal contributions to the team operations. The work team and Supervisors shall monitor and control the work periods to ensure that individuals are not required to attend the refinery more frequently than provisions under previous agreements.

17. Routine Work

The work group in consultation with the Supervisors shall control and manage individual contributions to the team contract delivery. Each team member shall be aligned to the objectives of the team and shall at all times seek to improve the quality of their contribution. It is incumbent on all team members to assist each other, the Supervisors and other members of the Company in the pursuit of the team and the Company objectives.

Management and direction of team activities on a routine basis shall be executed by the Supervisor in consultation with the operating assets for priority setting and scheduling. The formulated plans for work execution form the basis for the work teams objectives in the short term. For larger or longer term works the Supervisor shall involve the work team in the determination of priority and/or assignment to most effectively execute the task.

18. Management of 200 hours

The management of Maintenance commits to and values the contribution that the maintenance workforce can make to the scheduled turnarounds and/or specific projects from time to time.

A component of the total salary indicated in clause 15 is for Turnaround (TAR) works, Special Project works, and maintenance Root Cause Continuous Improvement. On average each employee shall contribute an equal number of Additional Hours per year. The total of available Additional Hours for each year equals the current number of employees times 200 at the time of the turnaround less any previously fulfilled commitments. The management and Supervisors in consultation with the work group shall specify on an annual basis (and manage on a financial year basis) what activities constitute TAR's, Special Projects, and Root Cause Continuous Improvement consistent with the following definitions:

TAR: A planned outage of a process unit with defined dates and scoped work load. The TAR scope commences on the first mechanical day of work and concludes on the day of mechanical handover to operations.

Special Project: A package of work on plant or equipment that has been mutually agreed between award and management representatives to be upgrading of existing or construction of new plant.

Root Cause Continuous Improvement: The implementation of solutions based upon a review of poor performing plant or equipment by the maintenance Workgroups, that has been mutually agreed between award and management representatives.

Once the workscope for either TAR, Special Project, or Root Cause Continuous Improvement activities has been established the Supervisors shall agree with the PCM and/or SRE groups the estimated hours required. This estimate constitutes the teams contract for the activity. This estimate may be varied due to additional or deleted workscope during the work by mutual agreement between work groups and the supervisors. Should the work be completed in less or greater hours the remuneration in hours remains the same.

Should additional work be required that was caused by or is attributable to a lack of quality or due diligence by the work team, then the team shall rectify such works as a part of it's commitment to the TAR, Special Project, or Root Cause Continuous Improvement scope.”

The Applicant’s submissions

[16] Clause 16 Hours of Work of the Agreement prescribes that the standard working arrangement is 72 hours per fortnight, worked over 4 days per week, between 7.00am and 4.30pm, Monday to Friday.

[17] Employees receive an annualised salary set out in Clause 15 Salary Rates - Per Annum of the Agreement. In return for the annualised salary, Clause 18 Management of 200 hours states that “a component of the total salary indicated at Clause 15 is for Turnaround (TAR) works, Special Project works and Root Cause Continuous Improvement works”.

[18] Each employee is required to be available to work up to 200 “Additional Hours” per year, outside of or separately from standard working hours, for these additional purposes.

[19] The balance of Clause 18 Management of 200 hours says that:

“The management and Supervisors in consultation with the work group shall specify on an annual basis (and manage on a financial year basis,) what activities constitute TAR's, Special Projects, and Root Cause Continuous Improvement consistent with the following definitions:

TAR: A planned outage of a process unit with defined dates and scoped work load. The TAR scope commences on the first mechanical day of work and concludes on the day of mechanical handover to operations.

Special Project: A package of work on plant or equipment that has been mutually agreed between award and management representatives to be upgrading of existing or construction of new plant.

Root Cause Continuous Improvement: The implementation of solutions based upon a review of poor performing plant or equipment by the maintenance Workgroups, that has been mutually agreed between award and management representatives.”

[20] The Applicant submits that the disputed work falls under the definition of a TAR in Clause 18 Management of 200 hours. The words used are clear.

[21] There are three criteria that need to be fulfilled:

(i) A planned outage of a process unit;

(ii) With defined dates; and

(iii) A scoped workload.

Planned outage

[22] The Applicant submits that there was clearly a “planned outage of a process unit”.

[23] In particular, the Applicant submits that:

(i) Preparation and planning for the disputed work (which included an outage of the CR3) commenced over a year ago;

(ii) The employees were briefed on the nature and scope of the disputed work as far back as September 2011; and

(iii) Due to an electrical fault the start date for the disputed work was moved forward on or around 26 February 2012. However the “scope” of the works remained exactly the same.

[24] The fact that the commencement date was varied does not mean that the outage of the process unit was not “planned”. The term “planned” does not indicate that the start or commencement date cannot be altered.

Scoped workload

[25] The scope of work being done from 2 March 2012 was exactly the same as when the disputed work was first planned.

[26] The fact that the TAR works commenced on 2 March 2012, rather than the originally intended date of 12 March 2012, makes no difference to the scope. There is no requirement that the scope of a TAR be agreed between BP and the employees. This can be contrasted with a Special Project or a Root Cause Continuous Improvement, which must be mutually agreed.

[27] BP has defined the scope; it has remained unchanged. The event was planned well in advance. One aspect of the plan changed, the start date, but it was still planned.

Defined dates

[28] The Applicant submits that the disputed works had “defined dates” albeit the “defined dates” changed on or around 26-28 February 2012. The term “defined dates” has to be interpreted in accordance with normal parlance.

[29] “Define” can mean to “set boundaries” or make “clear the outline or form”. It is not the case that to “define” will mean that the definition can never change at any time in the future. Therefore, the Agreement does not oblige the dates of a TAR to be fixed and unchangeable.

[30] The Agreement makes no reference to the fact that the dates must be “defined” a certain amount of time in advance of the commencement of works. To read this into the Clause would be stretching its definition.

[31] There is considerable evidence that the start dates of a TAR change from time to time for all sorts of operational reasons. This has not in the past meant that work was no longer a TAR. To do so would make the Clause meaningless and irrelevant.

[32] TAR works are treated differently to Special Project Work and Root Cause Continuous Improvement (RCCI) under the terms of the Agreement. For instance, the definitions of Special Project Work and RCCI state that the work will be “mutually agreed between the parties”. By contrast, the definition of TAR works does not refer to work being mutually agreed.

Context of the Agreement

[33] The context of the Agreement as a whole indicates that the dates were sufficiently “defined” and the disputed work which commenced on 2 March 2012 constituted a TAR.

[34] It would take a twisting or abuse of the language, and a pedantic or overly narrow approach to suggest otherwise given the context of the Agreement. The Agreement acknowledges that employees must be flexible about TAR works and that capacity and willingness to work on TAR works is critical. It is clear that this is part of the “bargain” by which employees receive the salary rates that are provided. For instance:

Clause 9, paragraph 6 states that:

“Employees shall provide the flexibility to provide maintenance services on plant and equipment, subject to possessing the relevant skills, in the event of an unplanned and imminent failure on a production unit that has the potential for a significant safety or environmental impact. The intent of this flexibility is to provide emergency coverage to make safe and where appropriate, handover, a section of plant and equipment that would be outside the norm al scope of work usually completed by the SRE and PCM Workgroups.”

Clause 9, paragraph 5 acknowledges that the work teams will...

“guarantee participants (who are selected on a voluntary basis) to circulate through a development program of up to 6 months covering various topics. The aim of this is to upgrade technician skills to ... enhance capability for major events such as Projects or Turnarounds.”

Clause 10, paragraph 3 states:

“[t]he annualised salary package includes all previous allowances. It reflects remuneration consistent with a work force commitment to Routine Maintenance and Turnaround Maintenance throughout the year.”

[35] The Agreement also states at Clause 6 (Contract of Employment) that:

“6.5. It is a term and condition of employment, and of the obligations and rights accruing under this Agreement, that an employee shall:

6.5.1 To become entitled to payment of the Salary prescribed by this Agreement, be available, ready and willing to perform such work as the Company shall, from time to time, lawfully require on the days, and during the hours usually worked by the employee. Participate with the work team to complete reasonable hours / working back etc to meet the intent of the Agreement.

6.5.2 Make himself / herself available to complete tasks outside normal hours of work in order for the work team to fulfil their obligation of maintaining refinery operation at all times during the seven days of the week.

...

6.5.5 Perform such work, including shift work, required for refinery shut-downs or breakdowns or Start ups or other emergency work as the work team may require to fulfil it’s obligations under this Agreement. The work team will take into account the circumstances of individual employees which may reasonably affect their availability in such work bonuses by changes and improved work practices.

...

6.5.7 Be available for call back as required for the work team to meet their obligations under this Agreement.

6.5.8 At the Company's direction carry out such duties as are within the limit of the employee's skill, competence and training.”

[36] The “Aims and Intent” of the Agreement (Clause 3) contains the following:

“To enable the BP (Kwinana Refinery) employees who are involved in the care for physical assets (plant and equipment) to carry out all or any of the tasks associated with the monitoring, construction, design, installation, operation and maintenance so as for the BP Kwinana refinery to achieve Best In Class performance in all aspects of asset like management [...]

To improve and maintain lifestyle and standard of living for all maintenance work team members through the provision of a guaranteed annual salary and common achievable bonuses by changes and improved work practices [...]”

[37] If Clause 18 Management of 200 hours was interpreted to mean that dates for a TAR must be defined a certain amount of time in advance and never changed, this would be inconsistent with the aims of the Agreement and the other provisions as discussed above. It would also be a strange result if the disputed work was a TAR for approximately a year prior to 23 February 2012 but suddenly, due to the movement of the start date of the works, the same work no longer constitutes TAR works. It is the same work, same scope and same activity. It is still TAR works.

[38] There is no clear reason why the time worked on this TAR should be paid or treated in any other way, such as “flex” (or time off in lieu). The only possible way to argue that the time should be paid as “flex” is to argue that they constitute “Normal Maintenance” in accordance with Clause 16, paragraph 2.

[39] There is evidence that in the negotiations for this Agreement the parties did not debate or propose that TAR works needed to be defined as a set period in advance, or with a certain period of notice, or that it could not be changed at all. This was not raised as an issue.

[40] The concept of TAR works, being part of the “200 hours” has been an element of the enterprise agreements since at least 2003. At no point has the relevant Clause provided that a TAR must be scheduled a set period in advance, or that the start date can never be changed. Yet there is evidence that TAR works do change start dates for all sorts of reasons.

Conclusion

[41] In light of the above, BP asks Fair Work Australia to make a declaration to the effect that:

(a) The disputed work falls under the definition of TAR works, as envisaged by the Agreement (in particular Clause 18 Management of 200 Hours of the Agreement) when it began on 2 March 2012; and

(b) There is no entitlement for the employees to receive “flex” time and/or any other payment in respect of the disputed work.

The Respondents’ submissions

[42] The dispute relates to whether the work performed from 2 March 2012 to 11 March 2012 is work covered by the 200 hours of overtime incorporated into their annualised salaries as set out in Clause 18 Management of 200 hours of the Agreement.

[43] The Respondents assert that the work performed, that is the subject of this dispute, does not come under the definitions set out in Clause 18 Management of 200 hours and should instead be covered by Clause 16 Hours of Work, in that the work performed was normal maintenance work under the definition contained within Clause 16 Hours of Work.

Clause 18 Management of 200 hours

[44] Clause 18 Management of 200 hours sets out:

“The management of maintenance commits to and values the contribution that the maintenance team make to the scheduled turnarounds and/or specific projects from time to time.”

[45] The Respondents assert that this paragraph sets out the intent of the remainder of the Clause.

[46] The Respondents emphasise the use of the term “scheduled turnarounds” in this paragraph as indicating that the turnaround is planned, put on a calendar and known of in advance. The Clause clearly denotes that employees are assisting with planned activities by using the 200 hours of overtime in their annualised salary.

[47] The Oxford dictionary defines “scheduled” as:

“Included in or planned according to a schedule.”

[48] The Oxford dictionary further defines a “schedule” as:

“A plan for carrying out a process or procedure, giving list of intended events and times.”

[49] This is also consistent with other usage of the word “scheduled” in the Agreement, such as at Clause 13 Training and Development. Clause 13 provides that training and assessment material will be developed. That development is “scheduled” pursuant to a table giving specific time periods during which material is to be developed. It is reasonable to interpret the Agreement on the basis that term “scheduled” is used consistently throughout the Agreement.

[50] Clause 18 Management of 200 hours, paragraph 2 of the Agreement goes on to state that:

“The management and supervisors in consultation with the work group shall specify on an annual basis (and manage on a financial year basis) what activities constitute TAR’s, Special Projects, and Root Cause Continuous Improvement consistent with the following definitions:”

[51] This part of the Clause therefore provides that there will be a consultative process that will lead to the specification of what activities will constitute the TAR on an annual basis. Any such specification must only occur after consultation with the work group and must be consistent with the definition of the TAR (which includes, as set out below, the setting of “defined dates”).

[52] The work scope and dates of the TAR were arranged as early as September 2011 and were communicated to the work force in November 2011 at the latest.

[53] Employees were asked to block out those dates and were instructed that leave would not be granted over that period.

Definition of TAR

[54] A TAR is defined within the Clause 18 as:

“A planned outage of a process unit with defined dates and scoped work load...”

[55] The Respondents assert that this means that the process of determining which activities are to be considered TAR work under Clause 18 Management of 200 hours follows consultation with the work group, is planned and contains dates which are defined on an annual basis.

[56] The Applicant sets out the definitions of both “planned” and “defined” in its submissions 1. The Applicant suggests that the word planned in the Clause does not denote that a plan must abide by a time frame, it must merely be intended that a thing be done in the future, at some point. The Applicant goes on to suggest that the word “defined” used in the context of a “defined date” in the Clause, means that the dates are changeable at any point and still remain “defined”. However, this is clearly inconsistent with the requirement of the Clause that activities are to be specified, after consultation, and on an “annual basis”.

[57] The Respondents assert that these words must be given their natural meaning, but in the context of the totality of Clause 18 Management of 200 hours and the Agreement as a whole.

[58] To take the Applicant’s argument through to its logical conclusion the Applicant may go through a process of defining the work scope, the dates for the work, a schedule for the work and then at any point, with minimal notice, if any, change the schedule and dates of TAR work.

[59] This would make the entire Clause redundant, or at the very least it would only indicate that the scope of work is set and will occur at some undefined point.

[60] Overall the Clause outlines that a TAR is a planned process, set out by management and employees in advance and on an annual basis. It clearly does not envisage discretion being exercised at any time and without consultation.

[61] In the matter which is in dispute a TAR was scheduled to commence on 12 March 2012. A planning process had occurred well in advance and employees had been notified of the dates of the TAR.

[62] The Applicant then sought to move the date of the TAR forward, following an unexpected problem at the refinery. This was an unplanned event, and the management sought to move the TAR forward in order to deal with an unplanned event at the same time as the TAR work. The Respondents assert that this is not in accordance with how Clause 18 Management of 200 hours operates.

[63] The unexpected problem could have been dealt with separately to the activities that would otherwise make up the TAR process, but the Applicant chose not to do this. The Clause sets out an extensive process of planning in order to utilise the 200 hours of overtime.

[64] The Applicant cannot then bypass the plain words of the Clause and move the TAR forward with some 4 days notice.

[65] To accept the Applicant’s position in this dispute would mean that there are parts of Clause 18 Management of 200 hours that have no work to do. It would mean that despite a TAR being planned, scheduled and put on the calendar for a period of time, it could then be moved, by the giving of any period of notice to the employees involved.

[66] In this case the disputed work to be conducted was moved forward 10 days, with the giving of 4 days notice. The Respondents say this is an unacceptable period of notice, given the annual planning process used to set the dates and scope of the TAR.

[67] It could not have been intended that the Applicant had carte blanche following such a process to unilaterally move the dates and still be able to claim that such work makes up part of the 200 hours referred to as scheduled work in Clause 18 Management of 200 hours.

[68] The employees, while acknowledging the offer of monetary compensation offered by BP, were inconvenienced by the moving of the TAR from the planned dates. In any case to purport to do so was inconsistent with the clearly intended operation of the Clause.

Clause 16 Hours of Work

[69] The Respondents assert that this situation does not fall within the definition of Clause 18 Management of 200 hours and that therefore, the period up to the start of the scheduled TAR work should come under the definition set out in Clause 16 Hours of Work of the Agreement.

[70] Clause 16 Hours of Work states that:

“... The standard working arrangement consists of 70 rostered hours per fortnight plus 2 additional hours per fortnight. Where hours are worked outside these arrangements on Normal Maintenance then those hours may be flexed off as agreed with the work team and supervisor...”

[71] The Respondents say that as the work performed falls outside of the planned and defined TAR work, that the only logical place for the work to fall is under Clause 16 Hours of Work and that the employees should therefore, given the circumstances, receive flex time for the hours worked over the period.

[72] The Respondents submit that the fact that this event occurred outside of the parameters of Clause 18 Management of 200 hours means that it is not defined as TAR work under Clause 18 Management of 200 hours and is thus normal maintenance for the purposes of the Agreement.

[73] The Respondents assert that a similar event occurred at the workplace in 2011, although involving a Special Project and that the employees were given flex time in accordance with Clause 16 Hours of Work of the Agreement.

Summary

[74] The Respondents submit that the Agreement is clear and unambiguous in its meaning when read contextually.

[75] The Respondents submit that the events preceding the moving of the scheduled disputed work forward were unexpected and unplanned. The TAR work was planned ahead of time with set dates.

[76] The change of the dates of the disputed work was not scheduled in accordance with Clause 18 Management of 200 hours and the work performed before the date of the original TAR work does not therefore fall within the definition of Clause 18 Management of 200 hours of the Agreement.

[77] The Respondents seek that Fair Work Australia finds that the work performed prior to the scheduled TAR work of 12 March 2012 is not covered by the 200 hours incorporated into the employee’s annualised salaries and is therefore flex time as per Clause 16 Hours of Work of the Agreement.

Consideration

The facts

[78] Evidence in this matter for BP was given by Mr Newton the Maintenance and Engineering Manager, Mr Marsden the Maintenance Superintendent Instrument and Electrical, Mr Gumbleton the Maintenance Supervisor, Mr White the Turnaround Manager and Mr Scally the Health, Safety, Security and Environment Manager all from the BP Refinery Kwinana.

[79] Evidence for the Respondents was given by Mr Robbins an Instrument Electrical Tradesperson and Mr Williams an Electrician, both employees of BP at the refinery in Kwinana.

[80] There is little dispute about the central facts of the matter however it is necessary for there to be a number of findings of fact which I make as follows.

[81] Up until late February 2012 the disputed work that was intended to begin on 12 March 2012 was agreed by all parties to be TAR works within the terms of Clause 18 Management of 200 hours of the Agreement.

[82] The disputed work that was intended to begin on 12 March 2012 had been planned by BP’s management for a long period in advance and there had been consultations with employee work groups about the work during 2011.

[83] The starting date for the disputed work was brought forward to 2 March 2012 by decision of the BP's management.

[84] The employees were notified on either 27 or 28 February 2012, dependent upon their shift roster, that the disputed work would be brought forward and commence on 2 March 2012.

[85] There had been an electrical fault at the refinery on 24 February 2012 which required approximately half of the refinery to be shut down including the CR3 processing unit.

[86] Whilst the CR3 was being prepared for a restart a problem was identified with a leaking gasket on a reactor. BP’s conclusion was that the gasket needed to be replaced otherwise it would not be safe to operate the CR3.

[87] There are significant risks associated with every shut down and restart of a processing unit such as the CR3.

[88] BP’s management considered it was prudent to avoid restarting CR3 twice in a short period of time, that is once following the replacement of the gasket and then a few weeks later following the completion of the disputed work due to commence on 12 March 2012.

[89] Consequently the decision was made to bring forward the disputed works to begin as soon as possible which would mean the CR3 unit would only be restarted once rather than twice.

[90] The evidence is that the disputed work that commenced on 2 March 2012 required the process unit, CR3, to be out of production.

[91] The scoped workload of the disputed work that commenced on 2 March 2012, other than for minor variations made during the work, was identical to the scoped workload that was to have commenced on 12 March 2012. The Maintenance Consultative Committee discussed the scope of this work in November 2011.

[92] It is common during TAR works that extra work is identified that needs to be done or it becomes clear that some work is not necessary and consequently changes to the scoped workload are made.

[93] The disputed work that commenced on 2 March 2012 had a specific start date and an end date approximately 18 days later.

[94] Planning for TAR works begins years before they are undertaken and the start dates for scheduled TAR works commonly change.

[95] In December 2010 the disputed work was planned to be carried out in April 2012 along with associated TAR works however, in early 2011 this was brought forward to 12 March 2012 and the associated works rescheduled as TAR works that would be carried out in October 2012.

[96] In 2011 other TAR works were scheduled to commence on 22 February 2011 however because the project team were not ready to commence on that date those TAR works were rescheduled to 15 March 2011. Subsequently these TAR works began a day later than this because of supply concerns caused by the Japanese tsunami a few days earlier.

[97] In the past when there has been a change to the start date for TAR works there has been no dispute that the work when it is carried out is TAR works covered by Clause 18 Management of 200 hours.

[98] The working hours of employees doing the disputed work was not the standard working arrangement set out in paragraph 2 of Clause 16 Hours of Work but rather was 10 hours per day nominally for 13 in every 14 days.

[99] Repairs to the gasket of the reactor that had failed were not carried out by BP employees but by contractors.

[100] A scheduled Special Project Work known as “the southern pipeline project” that was expected by BP to be covered by Clause 18 Management of 200 hours in 2011 was brought forward to an earlier date. This work was then treated as normal maintenance under Clause 16 Hours of Work (not part of the 200 hours) because there was no agreed scope of work or agreed estimated hours and so there was no mutual agreement the work was a Special Project.

[101] The negotiations for this Agreement did not address the question of whether the dates planned for a TAR to commence could be changed. Nor did the negotiations consider if the start date for a TAR was brought forward whether the work was still a TAR or not.

Was the disputed work undertaken from 2 March 2012 a TAR?

[102] The matter for the Tribunal to determine is whether the disputed work that was commenced on 2 March 2012 is properly to be treated as a TAR under the terms of the Agreement.

[103] Clause 18 Management of 200 hours relevantly includes the following provision:

“The management and Supervisors in consultation with the work group shall specify on an annual basis (and manage on a financial year basis) what activities constitute TAR's, Special Projects, and Root Cause Continuous Improvement consistent with the following definitions:

TAR: A planned outage of a process unit with defined dates and scoped work load. The TAR scope commences on the first mechanical day of work and concludes on the day of mechanical handover to operations.”

[104] Considering first the definition of a TAR, there are three components to that definition.

[105] First there must be a planned outage of a process unit. In this matter there is little dispute between the parties that this element of the definition has been met. The CR3 processing unit was planned to be off-line whilst the disputed work was carried out. I am satisfied that there was a planned outage of a process unit whilst the disputed work was being undertaken. This component of the definition has been met.

[106] Secondly there must be defined dates. Certainly there is no doubt there was a specified start date which was 2 March 2012.

[107] Separately and largely as a function of there being a predetermined scope of work (which is not disputed) there was a specified finish date for the work, being approximately 18 days after 2 March 2012. The work duration was not open ended.

[108] However the Respondents argue that because the start date had been advised to employees many months in advance and was then brought forward 10 days with only a few days notice it cannot be said that the process unit outage was “scheduled” or “planned” nor critically that there were “defined dates”.

[109] Appreciating the disruption to employees caused by this very limited notice of the early start of the disputed work, the Respondents’ interpretation of these words requires the Tribunal to accept that having planned a process unit outage and specified a start date that this cannot be changed or if it is changed it is no longer an outage with “defined dates”.

[110] In my view it is not correct to interpret the words “scheduled”, “planned” and “defined” as also meaning that dates are unable to be changed. It is commonly understood that schedules and plans do change.

[111] The fact of the matter is that in the past the start date for TARs have been planned in advance and then changed and then sometimes changed again. Often this occurs years or months in advance but also in the past it has occurred with only one or two days notice. When this has occurred in the past there has been no argument that the change to the date means the work to be undertaken was no longer a TAR. The evidence of this past practice of the parties strongly suggests that scheduling and planning of TARs and defining the dates for a TAR can involve changes to those dates.

[112] The Agreement itself in Clause 18 Management of 200 hours also refers to specifying on an annual basis what activities constitute TARs, Special Projects and RCCIs. The Respondents interpret this reference to “on an annual basis” apparently as requiring BP to have planned and defined the dates for a TAR and not to alter these. Again this is at odds with the past practice of the parties and attributes to these words an intention to remove any ability to change the start dates of the TAR. Such an interpretation would create a significant inflexibility for the Applicant in its operations, something the Tribunal should be reluctant to do unless it is satisfied that this was the intention of the parties in making the Agreement.

[113] The evidence with respect to the negotiations leading up to the making of this Agreement does not indicate that either party gave any attention to or consideration of the circumstances that are the subject of this dispute. There is no evidence that supports a conclusion that the negotiations considered at all the concept that the date scheduled or planned for a TAR to start could not be changed once it was advised to employees.

[114] Considering other terms of the Agreement that provides some context it is notable that the balance of Clause 18 Management of 200 hours involves an express acceptance that there will often be changes to the estimated hours required for a TAR, a Special Project or a RCCI activity and that such estimations may be varied for a range of reasons and also that the work scope may change during the work. Obviously if there is a significant addition or deletion to the work scope of a TAR whilst it is being carried out this has the potential to change the defined end date for a TAR. In my view these provisions in Clause 18 Management of 200 hours recognise that scheduling, planning and defining dates and workload scopes for TARs cannot be done with absolute certainty and finality and in some cases changes to these will necessarily have to be made.

[115] The requirement in Clause 18 Management of 200 hours to specify, on an annual basis, what activities constitute TARs, consistent with the definition of a TAR, is not inconsistent with changing the start date of a planned TAR by ten days.

[116] These other terms of the Agreement in my view do not support the Respondents’ argument that the Agreement should be interpreted such that a defined start date once set cannot be changed. I am satisfied that the planned outage did have defined dates as required by the TAR definition.

[117] The Respondents also rely on a past instance where work for the southern pipeline project was similarly brought forward but treated as normal maintenance under Clause 16 Hours of Work rather than as part of the 200 hours under Clause 18 Management of 200 hours. This instance can be distinguished from the matter under consideration here because before the start date was changed in that case BP had proceeded on the expectation that the work would be a Special Project under Clause 18 Management of 200 hours. The definition of Special Project includes a requirement that the package of work “... has been mutually agreed between award and management representatives to be upgrading of existing or construction of new plant.” In that case there was no such mutual agreement. Indeed the evidence was that the parties had not even agreed on the estimated hours required for the work nor had they agreed on the work scope for the project. Clearly then the work in question in that instance had never properly come within the definition of a Special Project and so was properly treated as normal maintenance when its start date changed.

[118] Notably the definition of a TAR does not include any requirement that there be such a mutual agreement as is required for a Special Project.

[119] As mentioned previously the Respondents accept that the disputed work had a scoped workload and I accept this component of the TAR definition has been satisfied.

[120] The Respondents also argue that if the disputed work is not a TAR, employees are entitled to the benefits of Clause 16 Hours of Work and in particular that the hours worked outside the flexible arrangements of hours of work provided for in that Clause may be “flexed off” in the future. The terms of Clause 16 Hours of Work however provide that this occurs only where the hours that are worked outside these arrangements are “normal maintenance”.

[121] The Agreement does not include any definition of “normal maintenance”.

[122] It is difficult to accept in this instance that the work which the Respondents agree is the same scope of work that they accept would properly have been treated as a TAR if it had begun on 12 March 2012 is in fact “normal maintenance” simply because the start date for that work was brought forward by 10 days.

[123] Separately I do not agree that work which requires a processing unit of an oil refinery to be out of production for up to 18 days is properly characterised as normal maintenance. I do not agree that the disputed work is normal maintenance for the purposes of Clause 16 Hours of Work of the Agreement.

[124] Considering then the terms of the Agreement I declare that the disputed work that started on 2 March 2012 is, within the meaning of Clause 18 Management of 200 hours, “Turnaround (TAR) works”.

COMMISSIONER

Appearances:

N. Ellery, Solicitor for BP Refinery (Kwinana) Pty Ltd.

N. Ireland on behalf of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.

J. Wilson on behalf of the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union.

Hearing details:

2012.
Perth:
April 12.

 1   Paragraph 4.3 and 4.4 Applicant’s Submissions.

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