Mackay Sugar Limited v The Australian Workers' Union of Employees, Queensland
[2011] FWA 5304
•10 AUGUST 2011
[2011] FWA 5304 |
|
DECISION |
Workplace Relations Act 1996
s.170LW - pre-reform Act - Application for settlement of dispute (certified agreement)
Mackay Sugar Limited
v
The Australian Workers' Union of Employees, Queensland
(C2010/3858)
COMMISSIONER SPENCER | BRISBANE, 10 AUGUST 2011 |
Dispute concerning certain employees seeking reclassification of their labour.
Introduction
[1] This Application is made by Mackay Sugar Limited (the Applicant) pursuant to s.170LW of the Workplace Relations Act 1996 (the pre-reform Act) for the settlement of a dispute under a certified agreement. The Application is in relation to a claim by The Australian Workers’ Union of Employees, Queensland (the AWU/the Respondent) for the reclassification of four employees, boiler operators of Mackay Sugar Limited, from Level 8 to Level 9. The employees are engaged in steam and power generation at the Racecourse sugar mill for the Mackay sugar refinery (the employees are also referred to as water tenders and steam plant operators). The refinery is owned by Sugar Australia, a joint venture of CSR Limited and Mackay Sugar Limited. The mill provides steam and electricity services to the adjacent refinery all year round.
[2] The claim predominantly relates to the supervision and specific work performed by these four employees at this mill during the maintenance season, where due to the absence of a mill supervisor, it is claimed, the boiler operators perform higher duties during this period. The employees are engaged under the terms of the Transfield Services (Australia) Pty Ltd - Mackay Sugar Co-Operative Associated Limited Multi-employer Agreement 2006 - 2009 (the Agreement)(AG870763). The Applicant stated the Agreement’s classification structure is linked to the pre-reform Award competency based classification structure, developed in accordance with the Structural Efficiency Principle.
[3] The claim was progressed through the disputes procedure under the Agreement. A conciliation conference was held but the parties agreed the matter could not be resolved and that the matter be escalated to arbitration under the disputes procedure. Accordingly, Directions were set for the filing of submissions and evidence. Inspections were undertaken at the mill and a hearing was held in Mackay, at the mill, with the consent of the parties. The Applicant was represented by Mr Peter Warren of the Australian Sugar Milling Council and Mr Graeme Hay, of the AWU, appeared for the Respondent.
[4] Evidence was provided, for the Applicant, by Mr Paul Stuart, the Factory Manager at Mackay Sugar Limited’s Racecourse sugar mill, and by Mr Mark Younger, boiler operator at the mill (on behalf of the four employees).
[5] Whilst this decision does not refer to all submissions, evidence and materials as provided, all of such have been considered in making this determination.
Relevant provisions
[6] S170LW of the pre-reform Act states:
“SECTION 170 LW PROCEEDURES FOR PREVENTING AND SETTLING DISPUTES
107LW Procedures in a certified agreement for preventing and settling disputes between the employer and the employees whose employment will be subject to the agreement may, if the Commission so approves, empower the Commission to do either or both of the following:
(a) to settle deputes over the application of the agreement...”
[7] The disputes procedure in the Agreement states at clauses 12 and 13:
“Grievance Handling and Dispute Resolution Procedure
13. Any employee or employees with a grievance or complaint regarding any aspect of the employment will comply with the following procedure which outlines the steps to be taken in order to support communication processes and deal with grievances effectively...
vi. If after the above steps the matter remains unresolved or the process becomes frustrated, either party may refer the matter to the Australian Industrial Relations Commission for conciliation, and if the matter remains unresolved and the parties agree to accept a judgement, arbitration. Provided that the party referring the dispute to the Commission submits to the other party a document detailing the issue to be resolved and each party’s position on the issue. This document is to be provided to the other party prior to lodging the dispute with the commission.”
The Classifications Levels
[8] Clause 383 of the Agreement states:
“383. Progression to Higher Classifications. Reclassification to higher classifications is based upon holding and using skills to perform work of the higher classifications. Applications for reclassification are made by employees through their supervisors and administered in accordance with the relevant training and Reclassification Agreement”. 1
[9] A comparison between the wording of the lists of duties in the EBA General Operator Level 8 and Level 9 set out the different required skill or performance in the levels. The table below sets out the duties, and the underlined words emphasise the difference, between the classification levels:
Table comparing what an employee is required to do at Level 8 and Level 9 of the EBA 2
General Operator- Level 8 | General Operator- Level 9 |
i. Work under supervision and may supervise other employees; | i. Work under supervision and may supervise other employees; |
ii. Exercise broad discretion and decision making/ responsibility within their level of skill and training; | ii. Exercise broad discretion and decision making/ responsibility within their level of skill and training; |
iii. Demonstrate knowledge of quality control standards and procedures and be responsible for the quality of their own work and may carry out quality checks on other employees; | iii. Participate in the development and implementation of quality control standards and procedures and be responsible for the quality of their own work and carries out quality control checks on all work stations; |
iv. Provide on-the-job training and may assist in assessing employees undertaking a structured training programme; | iv. Provide on-the-job training and may assist in assessing employees undertaking a structured training programme; |
v. Service, adjust and install equipment according to their level of skill and training and advise of any additional maintenance required; | v. Service, adjust and install equipment according to their level of skill and training and advise of any additional maintenance required; |
vi. Demonstrate general housekeeping skills; and | vi. Demonstrate general housekeeping skills; and |
vii. Demonstrate ability to use common language skills to engage in communication and to read and understand written and oral instructions, prepare records that convey information accurately, able to communicate instructions to other employees, interpret technical data and prepare written reports. | vii. Demonstrate ability to use common language skills to engage in communication and to read and understand written and oral instructions, prepared (sic) records that convey information accurately (sic) able to communicate instructions to other employees. Interpret technical data and prepare written reports and have a high level of written and oral communication commensurate with this position. |
[10] To be reclassified to Level 9 the employees have to discharge duties commensurate with:
“Participate in the development and implementation of quality control standards
and carries out quality control checks on all work stations;
have a high level of written and oral communication commensurate with this position” 3
[11] Each of these elements between the classification levels has been assessed.
[12] The weekly wages applicable to these levels for full-time employees (at the time prior to submitting the claim) was $1087.60 per week for Level 9 and $1047.60 for Level 8 (according to the March 2010 wage rates in clause 224 of the Agreement). This constituted a difference of $38.00 per week.
Inspection
[13] Prior to the commencement of the hearing, an inspection of the Racecourse sugar mill was conducted. The inspection showed the plant the boiler operators are responsible for maintaining, in the context of the mill’s operations, including in particular, the Control Room.
[14] The inspection was attended by the boiler operators and managers of the Applicant, as well as the parties’ representatives. During this time, the parties had the opportunity to ask questions and were able to indicate duties or tasks that were pertinent to the matter.
[15] The Applicant tendered a map of the Racecourse mill which was used to guide the inspection. The map contained markings which indicated the different responsibilities of the boiler operators in accordance with the operational requirements of the mill, depending on the time of the year (that is whether the operations were being undertaken in the crushing season or the maintenance period).
Summary of Applicant’s submissions
[16] The Applicant stated that:
“The four employees work on a 4-shift roster operating three stations (2 boilers, milling train and power station) during the crushing season and consistent with the award Cl.39.1 (and EBA Annex A, Part 1) classification structure, they are classified at level 8.
Although they operate only 2 stations (even then reduced to 1 of the boilers and 1 of the alternators in the power station) during the maintenance season they still get paid level 8 all year round.” 4
[17] The reclassification claim is opposed by the employer on the following basis:
“The additional work has not significantly increased the employees’ workload considering their year round classification level (L8) and the work they perform year round;
The change in the nature of the work required to perform the additional duties does not constitute such a significant net addition as to warrant the reclassification sought;
The additional work requirements are mostly not performed frequently, and the competencies of most of the additional work requirements are found in their classification level or in lower levels of the relevant classification structure;
Consistent with the classification structure, the employer may require an employee to perform work in competencies at or below their classification level providing they are trained, and it’s safe, legal and logical for them to perform that work
The claim is generally inconsistent with the Work Value Changes principle in the Statement of Principles in PR002005.” 5
[18] Furthermore the Applicant stated:
“This arrangement has been in place since the refinery commenced operation in 1994…
During the crushing season, the sugar mill shift supervisor (whole of factory shift supervisor), supervises these four steam plant employees.
The Engineering Superintendent (formerly known as Chief Engineer) provides the broad technical direction all year round and sets the overall goals and boundaries for operation of the boilers. This has been the arrangement since the refinery commenced operations.
Since April 2007 there has been no direct maintenance season shift supervision of these four employees. This came about through a change in commercial arrangements wherein the refinery supervisor (including refinery management under Sugar Australia) no longer held responsibility for the steam plant operations. Instead, Mackay Sugar resumed responsibility for management of energy supply to the refinery.
The employees are claiming a reclassification to level 9 based on extra duties that they perform now that they are not directly supervised on shift.
The applicant maintains that the work supporting the claim for reclassification is not from higher level callings and is found in other callings in the classification structure on levels at or below the claimants’ current classification level 8.” 6
[19] The Applicant submitted that the claim should be dealt with under the Work Value Changes wage fixing principle as follows:
“There is a classification structure that sets relativities; it has been in place since 1992;
The classification structure has an implementation manual to assist with understanding of the structure and its implementation;
The structure is an agreed structure, was developed in an agreed manner and was based on material collected in a neutral manner by an independent consultant;
The structure set 100% relativity (L6) to the national 100% relativity – the engineering classification level c10.
The structure has its own internal relativities from L2 to L9.
There is a risk that were the claim to succeed it would have the potential to flow on to other employees in the workplace or perhaps to other sugar mills;
There is a real risk that granting the claimed reclassification will upset relativities within the award process classification structure and across the Award trades classification structure.”
[20] The Applicant submitted that the Work Value Changes 7 principle in the Statement of Principles8 have not been rescinded nor replaced and that these should be applied as they provide certain applicable tests to assess the employees’ claim. In applying these tests the Applicant argued that the claim does not satisfy the requirements of the Work Value Changes principle.”9
[21] The Applicant submitted that the case to deny the reclassification has been sufficiently made out, on the basis of the evidence of the comparison of the duties in the classification levels. The Applicant also stated that the position that reclassification was not justified was also in alignment with the ‘Work Value’ arguments and the Structural Efficiency Principle.
[22] The Applicant in the first instance relied on the reclassification process in the EBA and that in line with this process the boiler operators were correctly classified. The Applicant submitted:
“Being a competency based classification structure with its inherent characteristic of broadening the range of tasks which a worker may be required to perform 10, the requirement to perform additional duties, alone, will not result in a reclassification upwards. In a competency based structure, a prerequisite for consideration of a reclassification claim is that the additional work itself is found only at higher levels in the structure and then those higher duties form a significant net addition to the work of the employee making the claim.
A principal plank of the employer’s submission in this matter is:
a. that the additional duties that have been identified to support the claim are found at or below the employees’ present classification level 8; and/or
b. They don’t form a significant net addition to the employees’ maintenance season (refinery mode) work especially when balanced against the fact that during the maintenance season the claimants supervise less employees (PN525–PN528) and operate one less station (the 7 turbine milling train is idle during refinery mode);
c. The additional duties don’t result in a net increase in workload between crush and refinery mode.” 11
…
“The submissions in the above extract are adopted in this current case with emphasis on the orderly and inseparable process required by the SEP. That is, the consultative process that analysed the work performed in sugar mills in the Sugar Industry Award Restructuring Skills Register Project Report (sometimes identified as the McMahon Report or simply the Skills Register Project) and the National Food Industry Training Council National Competency Standards - Sugar that identified the competencies which, in turn, were allocated to levels in the industry’s skill based process classification structure which (in accordance with the SEP) was developed to establish relativities with the National Metal and Engineering classification structure reflected in the structure in the Engineering Award – State and the engineering structure in the Sugar Industry Award – State.
This was in accordance with the SEP, the classification structure was developed to “create appropriate relativities between different categories of workers within the award and at enterprise level” and to properly fix rates for classifications in the award “related appropriately to one another”. It is incumbent on the claimants in this matter to provide sufficient evidence to prove that their jobs have been wrongly classified at L8 against this framework.” 12
[23] The broad banded classification structure was trialled and inserted in the Sugar industry Award - State. The Applicant submitted:
“The published QIRC Full Bench Decision that inserted the structure in the award on 13 November 1992 acknowledged:
It is a skills based structure with the potential for the performance of a wider range of duties (p.648 LH column, 4th para);
Appropriate relativities have been established by comparison with awards applicable to metal workers…(p.648 LH column, 5th para);
Level 6 has been established as the 100% trade equivalent level (p.648 LH column, 5th para);
All past relativities have been set aside in favour of the progressional opportunities offered by the new classification structure (p.648 LH column, 5th para).
That QIRC Decision also acknowledges the “… Implementation Manual which is a joint publication of the parties and which is intended to assist managers, employees and Union Officials in understanding the principles of the new classification structure”. (p.648 RH column, 1st full para);
The Implementation Manual Classification and Principles (section 2.2 on page 5) reiterates this where it deals with the principles in the structure: -
“The structure will be based on skills, competency and training in accordance with the Australian Standards Framework” and importantly, for this case,
“Level 9 is for employees who are in charge of the total factory operation whilst on shift.”
Fair Work Australia is urged against damaging the integrity of the industry’s classification structure that was carefully developed with the consensus of all parties.
The skills register project (the McMahon Project) is already addressed in the employers submission of 11 August (paras 39 to 49). One of its functions was to form the basis for the Industry Competency Standards.” 13
…
“The Competency Standards are not expressed in the classification structure (however, the work expectations and typical tasks are).” 14
…
[24] Further to this the Applicant relied on the application of the Work Value Principles (VW) that required a set of tests to be met as follows”
“Changes in work by themselves, may not lead to a change in wage rates – there is a strict test that the changes in work should constitute such a significant net addition as to warrant the claim - WV Principle 6(a);”
The claimant is required to justify the changed wage relativities that may result, not only within the award, but against external relativities as well – WV Principle 6(a) 2nd para (this affects the process structure’s relationship to the trades classification structure, with 100% relativity at tradesperson level 15);
There must be no likelihood of wage leapfrogging arising out of the changes in relative position – WV Principle 6(a) 2nd para;” 16
[25] On this basis the Applicant argued that the Respondent cannot establish a claim for reclassification. That is, the Applicant argued the test for the “Significant net addition” of work has not been met.
[26] The Applicant referred to a significant net subtraction of work “with the closure of the Milling train during refinery mode”. Furthermore, the Applicant stated:
“Evidence is that the additional duties relied on by the claimants is work with skills or competencies that can already be found at lower classification levels, and/or was work the boiler operators performed even when the refinery supervisor was involved with them, and/or is work that is rarely performed (and sometimes never performed by some employees). This is addressed in analysis of the evidence later in this submission” 17
[27] The Applicant also stated that the strict test for a wage increase of an allowance under VW Principle 6(c) on the basis of the work being performed on an intermittent basis has not been met. In relation to WV Principle 6(b) establishing the Skill, Responsibility and conditions under which the work is performed. The Applicant maintained that the ‘skill’ and ‘responsibility’ of the work is not above the Level 8 classification.
[28] Accordingly the Applicant submitted that the reclassification should be refused.
Summary of Respondent’s Submissions
[29] The Respondent submitted that the duties being undertaken by their members substantiated the claim that the positions (during the maintenance season) be upgraded to Level 9.
[30] The Respondent claimed that the duties being undertaken by their four members substantiate the claim that the positions be upgraded to Level 9 during the maintenance season. The AWU claimed on behalf of those members that they had had extra duties imposed on them (without appropriate consultation) and that they are now undertaking the duties of a Level 9 employee. Therefore, the claim for these employees is for the maintenance season only; particularly as the employer abolished the shift supervisor for this period. They submitted in lieu of the reclassification the effected employees should receive an allowance of higher duties whilst performing the additional duties throughout the period. They stated the Respondent was refusing to pay the employees at the Level 9 rate and refusing to enter into any meaningful consultation.
[31] The Respondent emphasised that the claim related to the four positions and is not applicable across the industry. The Respondent relied on the comprehensive statement of evidence prepared by the four members and the evidence given by one of these employees, Mr Mark Francis Younger.
[32] With respect to the Work Value Changes principle, the Respondent submitted the strict test for an alteration in classification level and wage rates, is that the change in the nature of the work should constitute such a significant net addition to work requirements as to warrant the creation of a new classification or upgrading to a higher classification. In support of this, the Respondent relied on the statement provided by the boiler operators collectively. The following points from this evidence set out the additional work in support of their reclassification claim:
“Additional duties in regard to supervising
Additional skills and expertise in regard to maintenance e.g. shut downs
Additional decision making skills due burden placed on Boiler Operators as Refinery Supervisor position is not in place
Additional responsibility in the case of breakdowns in finding and contacting additional manpower
The absence of supervisory staff in attending to breakdowns
In absence of shift supervisor the operators are responsible for meals
In the absence of a supervisor the allocating of overtime falls on the operators
In the absence of a supervisor the entering of data in regard to maintenance now falls on the operators
Additional duties in dealing with bagasse quality and quantity
Operators are now responsible for coal stock control levels
Additional burden has been placed on the training of low classified workers” 18
[33] The Respondent emphasised that the assessment of the reclassification should be focussed on the work and the duties of the boiler operators at Racecourse mill only, rather than in terms of the ‘macro’ approach taken by the Applicant.
[34] The Respondent submitted that due to the withdrawal of the supervisor position; additional duties have fallen on these boiler operators, which has translated into ‘a significant net addition to work requirements’.
[35] The Respondent stated:
“The premise is that additional work requirements have been placed on the Boiler Operators over the last 5 years. This has resulted in additional duties being undertaken including supervisory responsibilities.
It is important to note that the reclassification is being sought in regard merit and not being aligned with the trade classification. The Boiler Operators do not hold Trade qualifications and therefore should not be compared to the trades classification.”
[36] The Respondent stated that the claim only related to these boiler operators, as follows:
“The ... AWU wishes to clearly outline that the duties being undertaken are particular to the positions in question and not across the Industry.
The AWU questions the validity of the references to Implementation Manual for the Sugar Milling Industry (Process, Transport and Service) due to the fact that it does not refer directly to the matter in question, is outdated and makes reference to awards that no longer apply. However, taking into account references to this in the applicant’s documentation certain references will be made to this document.
The AWU fails to see, in regard to this matter, the relevance of the report prepared by McMahon and Associates – Sugar Industry Award Restructuring Skills Register Project Report.” 19
[37] The Respondent argued that the Implementation Manual for the Sugar Milling Industry (referred to by the Applicant) is outdated and does not provide accurate guidance to the current matter. However, in regard to that document the Respondent referred to page 26, as follows:
“9.1 Production, Transport and Service Operator Level 9,
9.2 Typical tasks include:-
Process, Transport and Services
Supervising the total factory operation on shift” 20
[38] The Respondent also referred to the following provision below. They submitted on the following basis that there is latitude to assess these positions in the reclassification process:
“4.2 Normal Skills
In many mills an employee’s normal job or local title does not exactly correspond with the job as described in the indicative classification in the new structure.
Further in this clause:
In some special cases the additional or unusual requirements/responsibilities may mean that consideration should be given to placing them at a different level.
4.3 Reclassification
2. The employee must have completed the necessary training requirements either of the job or on the job and have obtained the necessary skills and competency standards prescribed in the definitions for the next highest classification level and be fully utilising these skills.
4.6 Reclassification – Timing
Reclassification claims for employees without formal qualifications, or without qualifications that are equivalent to those specified, shall be assessed using the existing skill and competency standards applying to each level.” 21
[39] The Respondent stated with regard to “the Training and Reclassification” provisions in the Agreement, these provide guidance in relation to the updating and utilisation of additional skills. The Respondent claimed the additional duties performed by the boiler operators as set out, meet the requirements for reclassification, as follows:
“Provide appropriate recognition for competencies when achieved and when appropriate skills knowledge and attitudes acquired, are put to use in the workplace.
The AWU acknowledge that a broad set of skills are required for an upgrade but believe the Boiler Operators meet the requirements as set out in 3.1 below. However, it is important to note that the Boiler Operators do not hold trade certificates and therefore should not be compared trades classifications.
Classification levels will be determined by reference to the employee’s existing classification structure, to this training agreement, and to the existing Engineering Competency Standards.” 22
[40] The employees’ statement of evidence submitted that the supervisory tasks that are required of the employees in the maintenance season were not discussed with them by management. That is the employer had not met its duty to discuss change with them. Further they were not provided with any training in relation to these duties.
[41] In relation to the task “Communicate with refinery supervisor with regard to factory operations and needs”, the employees stated:
“The Maintenance Supervisor notifies boiler operators of specific maintenance to be carried out. The needs of the boiler and refinery such as shut down of refinery process systems are not included in the maintenance plan. The boiler operators realise that their expertise in this area is important and value the opportunity to consult with the maintenance supervisor, however, the boiler operators are expected to communicate any shut down requests to refinery supervisor. This level of request has major impact on processes and should be authorised or communicated by higher chain of command e.g. the Maintenance Supervisor. Comprehensive and important information is not passed to boiler operator to provide adequate information to the Refinery Supervisor.” 23
[42] The employees also argued that their positions had evolved to discharge a greater degree of decision making as follows:
“Decision making on breakdowns
Historically the Boiler Operators would call the Refinery Supervisor who would undertake break down investigation, analysis and coordinate action to rectify.
This responsibility is now carried out by the Boiler Operators and has so for some years. They must simultaneously take on the Refinery Supervisors role and their own which requires a high level of skill.
Currently when a break down occurs the boiler operators:
• Investigate, analyse breakdowns and prioritise actions
• Make decisions and action the rectifications during breakdowns including calling out and direction people to repair. Recommission (putting back into service including test running) the plant when completed.
• Develop and implement means to minimise reoccurrences e.g create a plan.
• Liaise directly with Ergon Energy Townsville with regards to electrical faults/disturbances that have impacted on our electrical import/export capabilities.
• Liaise directly with local Ergon authorities with regards to isolation of the Ergon incomer/breaker to enable repair work on feeder line.
Decision making on call outs for breakdowns
Once a decision has been made on a breakdown, the Boiler Operators refer to the call out list for the appropriate trade personnel to attend. Although on the call out list, these people are not obligated to attend to rectify the breakdown. This means the Boiler Operators on most occasions have to continue down the call out list phoning up to 8 different numbers until someone commits to attend. This is undertaken in conjunction with their own operation duties during the breakdown.
Communication with mill management on breakdowns written and verbal
Supervisory staff are contacted after hours and informed of issues/breakdowns at the Mill. They don’t attend the mill; the issue is more often left with the boiler operators to deal with.
Communications to supervisory staff on issues that require management advice or action does not produce adequate outcomes to the boiler operators to rectify the reported issue. No feedback is provided and the boiler operators are not included in investigations when they play a pivotal role in the situation.
No information/reports regarding findings of major breakdowns/blackouts are fed back to boiler operators. It is critical to have this feedback so the boiler operators are aware of the cause of a major breakdown/blackout. On most occasions the boiler operators have to pursue mill management for this information.” 24
[43] The employees also provided evidence on the additional duties they were required to undertake to ensure appropriate call out personnel for overtime, and overtime meals were offered and ordered:
“Ensure overtime meals are offered and ordered
Historically the Shift Supervisor was responsible for offering and organising meals for personnel attending the mill on call outs as per Certified Agreement 164. Meals - If an employee works unplanned overtime... then no allowance is payable. The boiler operators have the role of offering and organising meals with supplier.
Callout boiler personnel for operating duties
Historically the supervisor would authorise callout boiler personnel to ensure appropriate assignment of overtime. The boiler operators are now responsible for the appropriate assignment of overtime an co-ordinating the on call personnel as required, including phone calls and offering and organising of meals.” 25
[44] The employees also pointed to the additional duties they had to undertake to ensure maintenance season data was appropriately recorded and that this had previously been the supervisor’s duty.
[45] Similarly the employees stated they had assumed duties and issues associated with the stripping of bagasse in wet conditions. In relation to this, the boiler operators detailed the issues that arise:
“Boiler operators deal with the issues/incidents as they arise initially. The issue is reported to the supervisor for action/consultation with Zarb Transport for them to adhere to proper procedure required for the control of bagasse quality and quantity. The unresolved issue is creating more duties for the boiler operators. They have to change their processes to reduce the risk of chokes or major breakdown. Boiler operators are also left in the position of directly communicating with Zarb’s truck drivers on shift. The boiler operators believe action to resolve the issue is not adequate.
Not all Zarb truck drivers are adequately inducted to operate the required machinery. Boiler operators are forced to provide induction on operation of machinery for work to continue. This should be the responsibility of Mackay Sugar to ensure Zarb Transport fulfil their induction obligation.” 26
[46] In addition they have had to undertake purchasing department duties, such as the ordering and stock take of coal. The employees stated that their duties had been enlarged by the requirement to communicate with Clermont haulage coal supplier:
“Coal stocktake and ordering of coal has always been the responsibility of the purchasing department. In the past four years this duty has been passed on to the boiler operators without consultation. The boiler operators make decision on levels of coal required and ring the supplier to order the transport of coal to Mackay Sugar.
It is an extra duty for the boiler operators to control the stock levels to ensure that enough coal stocks are available during times of emergent actions i.e. breakdowns/blackouts.” 27
[47] The employees stated they also had additional training duties as follows:
“The boiler operators have always performed on the job training for new starters/trainees. In the 2009 maintenance season, Mackay Sugar introduced a formal training and assessment program for Trainees. The training and competency content of the program was set up by Mackay Sugar and an external Boiler training assessor.
The structure required the boiler operators to supply on the job training, assess performance criteria and provide theory for competency while still performing their principle duty during shift. This created distraction for the safe and effective operation of the boiler station. This concern was reported to management on a number of occasions. After some time boiler operators were removed from their principle duties to perform training assessment activities.
Mackay Sugar directed boiler operators, as workplace assessors, to sign off performance criteria. The boiler operators were reluctant to sign off any performance criteria observed by other operators other than themselves so liability would not fall with them. Therefore the trainee was required to again show evidence of competency for the signing assessor. (The trainee had inconsistent training supervisors; possibly working with one operator 2 days, another operator 3 days). This was time consuming and detrimental to effective training of the trainees and use of boiler operator’s time.
Boiler operators have not received training in workplace assessment. Cert IV in Workplace Assessment and Training is available to locomotive drivers as stated in 5.2.5 Training and Reclassification Agreement. The locomotive drivers have a dedicated trainer and assessor. The boiler operators believe there should be a dedicated assessor for this role so boiler operators are not removed from their principle duties. They found efficient and effective operation of the boilers was put at risk through distraction of this on the job training structure. The boiler operators should have been involved in the development and implementation of the structure/content of the training programs if they were to be the assessors.” 28
[48] The employees’ evidence highlighted that from 2005/2006 when Transfield commenced, the refinery ceased supervisory duties; and the engineering supervisory took over most of the vacated roles. From 2008, whilst the duties of the Engineering Superintendent were to be taken over by a number of other personnel, these tasks became absorbed into the boiler operators’ duties. As a result of a series of changes, the boiler operators stated that there were no toolbox meetings for boiler operators during the maintenance season. They also stated that they have developed documented operation guidelines and isolation procedures that indicated their participation in the development and implementation of quality control standards and procedures, and a responsibility for the quality of their own work and their duties in carrying out quality control checks on all work stations. Further, the employees identified that since 2008, the new management system has not had clear parameters or direction and therefore the boiler operators have had to use their own discretion increasingly. Importantly, the employees stated that it is not just the amount of work introduced to their positions, but the type of workload that has been introduced, that has increased the level of responsibility of the boiler operators.
[49] Further, whilst not all of the employees’ responses to Mr Stuart’s evidence have been reproduced, all have been considered. The employees’ evidence was that a range of additional duties have resulted, as there is no dedicated shift supervisor in the maintenance season and this has necessitated the boiler operators performing a higher level of problem solving, decision making and management activities.
[50] The Respondent submitted that the Applicant had confirmed that additional duties had been added to those of the boiler operators. In particular they submitted that Mr Stuart acknowledged that supervisory duties had been “offloaded” on to the boiler operators in light of the abolishing of the shift supervisor position. In support of this they referred to the following extract of Mr Stuart’s evidence:
“So all this decision-making, communication, et cetera, call-outs, they've always been part of their responsibilities?---Ringing people up - no, ringing people up, like you said before, the refinery shift guys used to do that.
PN278
Yes, but it's not as simple as just ringing someone up, is it? I mean, we were in the control room and there used to be a shift supervisor in there looking at all those panels and screens, et cetera. You know, I mean, you're saying that if something goes wrong, they just make a phone call. You know, phone up a mate. Really, I mean, we were all in that control room. It was explained to us even there the intricacies, the different screens, the different functioning of, you know, the boilers, et cetera. Now, if we go back say five years ago, there was a person whose sole job was to assist with the breakdowns and get the correct personnel in, wasn't there?---It wasn't their sole job. That was the refinery supervisor who had the job of supervising everything.
PN279
**** PAUL RAYMOND STUART XXN MR HAY
But it was one of the duties?---It was one his duties.
PN280
Yes, and that has to have been offloaded onto someone, hasn't it, and it has been offloaded along with a lot of others, onto the boiler operators?---That one has. I'm not sure about the others you're talking about.
PN281
Well, we've already gone through the coal ordering. We had the purchasing department. Sort of all of a sudden there was a duty taken up by the boiler operators. Okay. This making a phone call, it's pretty straightforward then?
---Sorry?
PN282
If the screen is going berserk, the operator's assistant is out on a job - the operator's assistant has got to make a decision which could bring, you know, the plant to a standstill. It's pretty easy just to phone up and get someone in then? Go through the list. Is it easy?---What, making a phone call or working out exactly what's the problem?
PN283
Well, both?---They can work out what's the problem. It's more the difficulty than the phone call.
PN284
Yes, but, I mean, so they just phone up the first bloke and he comes running in. What would happen, you know, if it got to the stage where the plant operator with these additional responsibilities of being a supervisor - if the plant came to a standstill because they just couldn't get someone in?---If the plant comes to a standstill, then that's what happens.
PN285
Would there be a huge cost to the company or - - -?---If it's down there's a cost to it, yes.
PN286
Say if it was down for like a day. How much - - -?---Probably 20 to 50 - that sort of - thousand, a day.” 29
[51] The Respondent argued that based on the evidence, a series of duties of the shift supervisor have now been made a part of the boiler operators’ duties and as a consequence there has been a considerable additional workload placed on the operators. The Respondent emphasised that these supervisory duties were previously performed by a person paid at a higher rate.
[52] In relation to the boiler operators supervisory duties; it was qualified that these duties in the maintenance season relate to the boiler operation powerhouse, as the milling train and sugar house are not in operation. 30
[53] In arguing for the reclassification the Respondent stated the additional work met the WV principle as per the below extract:
“The strict test for an alteration in wage rates is that the change in the nature of the work should constitute such a significant net addition to work requirements as to warrant the creation of a new classification or upgrading to a higher classification.” 31
[54] The Respondent submitted that the evidence provided, supported the payment of an allowance for higher duties for the maintenance period. The Respondent stated clause 247 of the Agreement provides for this:
“247. Allowances are paid to employees for a number of reasons as follows:
a. Skill. In recognition of the employee holding special skills or qualifications – eg.
Tradespersons’ allowances;”
[55] The Respondent argued the boiler operators now perform additional duties and special skills that ensure the maintenance operations appropriately function. Furthermore, the Respondent argued there is a basis for a higher duties payment (under clause 26 of the Sugar Industry Modern Award) for the work designated at a higher class and rate:
“26. Higher duties
With the exception of bulk sugar terminals employees, where any person on any one day performs two or more classes of work to which a differential rate is applicable, such person, if employed for more than four hours on the class or classes of work carrying a higher rate, must be paid in respect of the whole time during which the employee works on that day at the highest rate in respect of any of such classes of work, and if employed for four hours or less on the class or classes of work which carry a higher rate, the employee must be paid for such higher rate for four hours.”
Evidence
[56] Mr Paul Stuart, Chemical Engineer and Factory Manager at Racecourse Mill provided evidence on the classification claim. He has been employed in supervisory and management positions at the mill since 1986. He stated that:
“There are a sugar mill and refinery co-located at the Racecourse site.
The sugar mill (Mackay Sugar) has a contract to provide industrial services to the sugar refiner (Sugar Australia).
The Racecourse employees engaged as water tenders perform part of that contract supplying energy and water services across the crush and maintenance seasons (48 – 50 weeks per annum subject to a maintenance closure at the refinery).” 32
[57] Mr Stuart was familiar with the reclassification claim and the work of the employees. He set out:
“During the crushing season, when the sugar mill and refinery are under normal, full operation, the employees who perform this work:
a. Operate 3 stations – boilers, milling train and power house.
b. Supply energy and water services to the Racecourse Mill
c. Supply energy and water services to the Racecourse Refinery.
d. Run 12 turbines to perform that work.
During the maintenance season, the employees who perform this work:
a. Operate 2 stations – one of the boilers and one of the power house turbines.
b. Supply energy and water services to the Racecourse refinery.
c. Run 3 turbines to perform that work.
The claim relates to the work they perform providing energy and water services to the refinery during the maintenance season and the recent change to their work whereby supervision by the refinery supervisor has been discontinued and certain additional work has been required of the water tenders.
At the commencement of this arrangement (mill providing services to the refinery) in 1994 through to March 2007, the refinery supervisors, initially Mackay Sugar employees, supervised these four steam plant employees during the maintenance season, as an adjunct to supervising the refinery operations.
During the crushing season, the sugar mill shift supervisor (whole of factory shift supervisor), supervises these four steam plant employees.
The Engineering Superintendent (formerly Chief Engineer) provides the broad technical direction all year round and sets the overall goals and boundaries for operation of the boilers. This has been the arrangement since the refinery commenced operations.
Since April 2007 there has been no direct maintenance season shift supervision of these four employees. This came about through a change in commercial arrangements wherein the refinery supervisor (including refinery management under Sugar Australia) no longer held responsibility for the steam plant operations. Instead, Mackay Sugar resumed full responsibility for management of energy supply and water services to the refinery.” 33
[58] Mr Stuart considered the claim should not succeed, as whilst he confirmed the employees had additional duties in the maintenance season, their overall maintenance season duties had not increased their workload in comparison to their crushing workload to warrant reclassification.
[59] Further he stated:
“They are classified at L8 because in the crush they operate 3 stations; and get that classification level year round in spite of only operating 2 stations (both at a significantly reduced rate) during the maintenance season.” 34
[60] He provided some tables attached to his statement to identify the work performed by the boiler operators/water tenders during the two different modes the factory is working under from the crushing season to the maintenance season. (The maintenance season is sometimes referred to as “refinery mode”.)
“Table 1 is identified as “Table of Services supplied to Racecourse Refinery by Racecourse Mill”. It is dated March 2010.
...
The table shows that the main services supplied from the mill to the refinery are low pressure steam, electrical energy, and water services. Raw sugar is also supplied but is not any concern of the water tenders.
Table 1 demonstrates that there are more services supplied during refinery mode beyond what the water tenders supervise and that the water tenders do not supervise all the work performed during refinery mode.” 35
[61] He also stated:
“Table 2 is identified as “Table of Turbines in Operation at Racecourse Mill”. Note there are no turbines in the refinery.
...
Under normal refinery operation the water tenders run 3 turbines - 1 boiler, 1 feedwater pump and 1 alternator subject to pairs running during moments of transition from one to the other in any pair.
The transition work referred to in the above paragraphs might happen as frequently as weekly during crushing mode. Depending upon maintenance overhaul requirements for the plant, this can occur either weekly or monthly during refinery mode.
Therefore, half of each of the boiler and power house turbines are idle during refinery mode.
All of the milling train’s 7 turbines are idle during refinery mode.” 36
[62] Mr Stuart provided evidence that if the claim were to be granted it would encourage ‘flow-on’ claims. He stated:
“I have a concern that if the claim succeeded it would cause expectations among other employees for their pay classifications to rise as well. For example, the claim is for the employees to be reclassified as L9:
a. The L8 classification is that classification also used for a shift chemist position. In former days at Racecourse Mill, the shift chemist was responsible during the crush season for the cane receivals, clarification and filtration, evaporation, pan stage, fugals, sugar and molasses storage and transport, and laboratory functions. For a supervisor to be classified at L9 they had to be “supervising the total factory operation on shift”, which included the old shift chemist responsibilities (for sugar production and quality controls), as well as the milling train, boilers, and powerhouse, and the shift maintenance personnel.
b. The claim relates to refinery mode, and during refinery mode most of the factory is dismantled or idle and therefore the requirement for supervision is not there to be performed.
c. For a tradesperson to be reclassified to C7 (equivalent to L9) they have to be performing all their basic trades work, performing advanced trade work, and have completed their advance modules, beyond the C8 classification (equivalent to L8).
I believe that L8 (rather than L7) supervision is there to be performed in the maintenance season, despite most of the factory’s operations being closed down (simply idle, or dismantled for maintenance), as the Water Tender is able to take the time available to consider the issues and increase the numbers of decisions made within the operations that remain – energy and water services.
I am also concerned that if the claim succeeded, some employees in other classifications at or below L8 might want reclassification, some examples:
a. those who might be required to do supervision or work such as a loco driver supervising the fireman; or
b. the traffic officer working with the farmers and harvesting crews to organise cane supply; or
c. administration officers organising labour; or
d. analysts organising meals.” 37
[63] Mr Stuart confirmed the boiler operators had been directed to deal with managing external parties such as:
“a. Clermont Haulage for coal supply;
b. Zarb Road Transport for bagasse transport around the mill site from the stockpile to the bagasse bin;
c. Ergon Energy for co-ordination of the electric power supply interface between the mill and the grid. 38
[64] He further stated:
“The water tenders have been limited in what management can ask of them because of the restrictions in their mobility (tied to the boiler station and control rooms) and their time load (must leave enough time for the person to be able to detect and respond adequately to abnormal situations). Hence the work that management can ask of them is necessarily that which is directly related to the energy and water services.
With the continuous shift operations, rather than working through another less well informed employee, the water tenders have the background knowledge and the best current knowledge to be able to best forecast and liaise with external parties and maintenance personnel. Hence management have taken out the “middle man” and resourced the station to enable this more effective process.” 39
[65] The evidence provided by Mr Mark Younger demonstrated that an assessment of the boiler operator duties confirmed they were responsible positions in the overall operation of the factory. These four employees in particular (who had prepared the witness statement) were clearly experienced in these roles and were respected, as to their ability in which they were able to discharge their duties, in a knowledgeable and dedicated fashion. Whilst the employer was denying the claim, it was apparent, from the evidence of Mr Stuart, that these employees were recognised as valued and capable operators.
[66] The evidence provided by the employees reflected their frustrations at the way their amended role had evolved, without any formal consultation with them by management. Mr Younger stated that in relation to the ‘disappearance of the shift supervisor’ that had been a catalyst to the increased supervisory changes to their role and that there had not been any consultation with them regarding this change.
[67] He said it concerned him that there had never been a discussion with the boiler operators regarding the changed duties, and that they had simply undertaken this ever-expanding list of duties.
Conclusion
[68] As set out earlier, to be reclassified to Level 9 the employees have to discharge duties commensurate with:
“Participate in the development and implementation of quality control standards
and carries out quality control checks on all work stations;
have a high level of written and oral communication commensurate with this position” 40
[69] Each of these elements between the classification levels has been assessed.
[70] On these elements of difference between the classification levels in the EBA the Applicant rejected that the employees perform quality control checks for the total factory as per Level 9, instead submitting that they do not perform such beyond that required for Level 8. The total factory is not in ‘total factory operation’ mode during the period of the claim. Significant sections of the factory are closed down, which negates the Level 9 criteria requiring quality control checks on all work stations. The following explanation is adopted of the limitations on these boiler operators’ work in the maintenance season in comparison to the requirements of the Level 9 classification (as set out by the Applicant):
“During the crushing season, the employees working at L8 do carry out quality control checks on their own work and the two employees they supervise in the work stations they have responsibility for – boilers, power house and milling train. In the maintenance season (refinery mode) they also carry out these same quality checks of their own work and the one employee they supervise. This is all Level 8 work.
The paradox in the claim is this: – the employees are seeking reclassification on the basis of supervisory duties where they are applying the same supervision skills and same competency all year round but they want a higher rate (or allowance) during the period in question when they are actually supervising significantly less plant and only one other employee, not two. The paradox is perpetuated considering the fact that for the period when the claimants want the higher classification level they are supervising fewer stations than during the crush (the complex milling train is idle).
This makes it highly improbable for the claim to succeed under the work value principle, where the strict test requires that the change in the nature of the work constitutes such a significant net addition as to warrant the upgrading to a higher classification (or the alternate – an allowance).
In considering L9 requirement that the L9 total factory supervisor carries out control checks on all work stations, it’s clear that this is an impossibility during refinery mode because at least five work stations in the factory are idle or dismantled for maintenance – milling train, clarifiers, filters, pans, fugals, driers, cooling water systems, waste water systems, sugar and molasses storage and transport, cane receivals and laboratory. They never supervise nor carry out control checks on the stations in the sugar house.
Accordingly, in terms of arguing “significant net addition” there is a net reduction in work stations requiring supervision during refinery mode – the maintenance season”. 41
[71] In relation to the element of ‘quality control checks on the total factory as required for a L9 supervisor’, the relevant issue to be considered is that the total factory is not operational during the maintenance season. The evidence outlined that in ‘refinery mode’ all of the milling train is not operation. The turbines are dismantled and the associated boiler and turbo-alternator are also idle. The sugar house and its various stations of “clarifiers, filters, pans, fugals, driers, cooling water systems, waste water systems, sugar and molasses storage and transport, cane receivals and laboratory all of which, along with boilers, power station and milling train form “the total factory operation””, 42 are not operational.
[72] During the crushing season these employees supervise the milling train, operating three stations - boilers, powerhouse and milling train. This work is reduced in the maintenance season by the closure of the milling train, with the associated reduction in supervisory duties of the employees and machinery aligned with the milling train. The argument of a net ‘addition’ in the work can’t be sustained, even taking into account the other duties of the boiler operators, as submitted in the Respondents’ list, and the employees’ evidence.
[73] It was considered in the Applicant’s submissions whether instead of re-classifying the boiler operators, a proposed alternative was to provide them with an allowance during the specified period. However, the Statement of Principles deals with intermittent changes of duties, in relation to ‘Work Value Changes’ as follows:
“(c) Where new or changed work justifying a higher rate is performed only from time to time by persons covered by a particular classification, or where it is performed only by some of the persons covered by the classification, such new or changed work should be compensated by a special allowance which is payable only when the new or changed work is performed by a particular employee and not by increasing the rate for the classification as a whole.”
[74] The Applicant submitted that the examination of the provision of an allowance was not warranted, would also impact on classification relativities and would then provide an unjustified precedent for other employees to claim an allowance. The paramount consideration has been whether the employees met the classification criteria of Level 9; on the analysis of the work this has not been met. Accordingly, the payment of an allowance or higher duties payment cannot be granted, in circumstances where the higher level duties are not fully discharged.
[75] It is recognised, that the evidence of the employees, clearly demonstrated there had been a lack of consultation in relation to the changes to their duties. These employees’ duties have been subject to a series of changes over time that have amended their duties, without consultation. It is reasonable and proper practice, that timely and relevant discussions should have been held with the effected employees.
[76] On the basis of the foregoing reasons, the Respondent’s claim cannot be granted and as per the Application, the boiler operators classification at level 8 is confirmed, and a reclassification to Level 9 is rejected. I Order accordingly.
COMMISSIONER
Appearances:
Mr Peter Warren, Australian Sugar Milling Council, for the Applicant
Mr Graeme Hay, the Australian Workers’ Union
Hearing details:
Mackay,
Tuesday 14 September 2010
Final written submissions:
Monday 4 October 2010 and Monday 11 October 2010.
1 Respondent’s Submissions
2 Reproduced from Applicant’s Submissions.
3 Applicant’s Final Submissions paragraph [48].
4 Applicant’s Submissions.
5 Applicant’s Submissions.
6 Applicant’s Submissions.
7 2005 Safety Net Review.
8 PR002005.
9 Applicant’s Submissions.
10 Structural Efficiency Principle – copy attached
11 Applicant’s Final Submission [6] and [7].
12 Applicant’s Final Submission [14] and [15].
13 Applicant’s Final Submissions paragraph [20] to [24]
14 Applicant’s Final Submissions paragraph [26].
15 QGIG 27 November 1992, pp647-648 on 648 LH column, 5th para
16 Applicant’s Final Submissions paragraph [32].
17 Applicant’s Final Submissions paragraph [36].
18 Respondent’s Submissions.
19 Respondent’s Submissions.
20 Implementation Manual for the classification structures in the Sugar Industry Award - State.
21 Respondent’s Submissions.
22 Respondent’s Submissions.
23 Respondent’s Submissions - Statement of Boiler Operators.
24 Respondent’s Submissions - Statement of Boiler Operators.
25 Respondent’s Submissions - Statement of Boiler Operators.
26 Respondent’s Submissions - Statement of Boiler Operators.
27 Respondent’s Submissions - Statement of Boiler Operators.
28 Respondent’s Submissions - Statement of Boiler Operators.
29 Transcript PN 278 - 286.
30 Transcript PN 343 - 386.
31 Respondent’s Submissions, p10.
32 Exhibit 2, Statement of Mr Paul Stuart.
33 Exhibit 2, Statement of Mr Paul Stuart.
34 Exhibit 2, Statement of Mr Paul Stuart.
35 Exhibit 2, Statement of Mr Paul Stuart.
36 Exhibit 2, Statement of Mr Paul Stuart.
37 Exhibit 2, Statement of Mr Paul Stuart.
38 Exhibit 2, Statement of Mr Paul Stuart.
39 Exhibit 2, Statement of Mr Paul Stuart.
40 Applicant’s Final Submissions paragraph [48].
41 Applicant’s Final Submissions paragraph [65] to [69].
42 Applicant’s Final Submissions paragraph [50].
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