National Union of Workers v Murray Goulburn Co-Operative Company Ltd
[2010] FWA 3092
•15 APRIL 2010
[2010] FWA 3092 |
|
REASONS FOR DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
National Union of Workers
v
Murray Goulburn Co-Operative Company Ltd
(C2009/10632)
SENIOR DEPUTY PRESIDENT KAUFMAN | MELBOURNE, 15 APRIL 2010 |
S.739 - Application to deal with a dispute - Alleged incorrect classification level.
[1] The Murray Goulburn Co-Operative Company Ltd (the company) has been producing cheese at Rochester in Victoria for some 30 years. Not surprisingly it employs a large number of people in various classifications.
[2] A dispute has arisen between the company and the National Union of Workers (the union) over the proper classification for ‘Tower Operators’.
[3] The company and the union are parties to, and bound by, the Murray Goulburn Co-Operative Company Ltd Agreement 2005, a pre-reform certified agreement.
[4] By operation of items 6(1) of Schedule 3 and 1(1) of Schedule 19 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, and clauses 1 and 2(1)(e) of Schedule 7 to the Workplace Relations Act 1996 the dispute is dealt with by Fair Work Australia in accordance with the provisions of the pre-reform Workplace Relations Act 1996.
[5] Although the union applied to have the dispute dealt with under s.739 of the Fair Work Act 2009, I am obliged to deal with the matter under the provisions of the pre-reform Act. As this matter was not addressed by the parties, I caused a letter to be written to them to ascertain their views. Both parties accept that the matter is to be dealt with as I have indicated.
[6] It is common ground between the parties that the dispute is a dispute over the application of the Agreement, which contains a provision empowering (now) Fair Work Australia to settle the dispute.
[7] The dispute, properly characterised, is whether Tower Operators should be classified at the Dairy Operative Level 2, their current classification level, or the Dairy Operative Level 3 classification level in clause 15 of the Agreement, for which the union contends. It is necessary to set out the relevant portions of clause 15:
15. SKILL AND CLASIFICATION STRUCTURE LEVEL
15.1.1 Dairy industry operative level 1
An employee at this level works under direct supervision, performs routine duties and receives detailed instructions. No experience necessary.
15.1.2 Points of entry
. New employee.
. Existing employees performing work within this grade.
15.1.3 Skills/Duties
. Undertakes duties in a safe manner.
. Works in a team environment.
. Exercises minimal judgement.
. Responsible for the quality of their own work within the scope of this grade.
. Performs basic recording functions.
15.1.4 Promotional Criteria
An employee remains at this level until they are capable of effectively performing (through appropriate training certification) the tasks required of this function so as to enable them to progress to the next level as a position becomes available.
(Appropriate standards yet to be set).
NOTATION: This is the basic level of the classification structure and without limiting the range of tasks performed they may include stacker and packer and process worker (general hand).
15.1.5 A new employee engaged at level 1A may remain in this position for a maximum period of 3 months of continuous employment before being promoted to Level 1B. An employee in Level 1B may remain in this position for a maximum period of 3 months of continuous employment before being promoted to Level 2.
15.2.1 Dairy Industry Operative Level 2
An employee appointed to this grade works under general supervision and undertakes a range of simple tasks which involve an increased level of skill from Level 1 and works within established routines, methods and procedures.
15.2.2 Points of Entry
. Dairy Industry Operative Level 1.
. Proven and demonstrated skills (including certification as appropriate) to the level required of this level.
15.2.3 Skills/Duties Level 2 (Base Grade)
. Duties require proficiency in a range of specialised tasks or duties.
. Limited discretionary powers.
. Required to operate/control at least one piece of basic equipment which may include dismantling/re-assembling knowledge.
. Collect samples, apply simple identification techniques.
. Ability to measure basic quantity levels.
. Successful completion of new starter training.
. Simple keyboard recording skills within the scope of this grade.
. Responsible for quality of their own work within the scope of this grade.
. Competent with mechanical, electrical or power driven handling and lifting device operations.
15.2.4 Promotional Criteria
An employee remains at this level until they are capable of effectively performing (through appropriate training certification) the tasks required of this function so as to enable them to progress to the next level as a position becomes available.
(Appropriate standards yet to be set).
NOTATION: Without limiting the range of tasks performed they may include, assistant to Cheesemaker, Laboratory/Test room employee (other), Tanker washer, assistant to Casein maker, Quality Control tester, powder sifter operator.
15.3 Dairy Industry Operative Level 3
15.3.1 An employee appointed to this grade works under limited supervision, undertakes a range of duties and who would have all the appropriate skills at Level 2.
15.3.2 Points of Entry
. Dairy Industry Operative Level 2.
. Proven and demonstrated skills (including certification as appropriate) to the level required of this level.
15.3.3 Skills/Duties
. Increased level of knowledge in specialist area.
. Records appropriate information to production process.
. Responsible for planning his/her own work on a daily basis.
. Can carry out Quality Control tests.
. May operate and control several pieces of equipment.
. Must have sound knowledge of product specifications.
. Make decisions with predetermined guidelines to ensure that product meets the specifications.
15.3.4 Promotional Criteria
An employee remains at this level until they are capable of effectively performing (through appropriate training or certification) the tasks required of this function so as to enable them to progress to the next level as a position becomes available.
(Appropriate standards yet to be set).
NOTATION: Without limiting the range of tasks performed they may include Cartoning machine operator, Casein dryer operator, Packaging machine operator, Aseptic packaging operator, Palletiser, Separator operator or Milk standardiser, Forklift driver.
[8] To assist me in understanding the work performed by Tower Operators, and others, at the Rochester site, I conducted an inspection with the parties on 30 November 2009. I saw the work performed by the Tower operators and had explained to me what was entailed by the various tasks they performed. I also viewed the work performed by “Odenberg Operators”, who are classified at Dairy Operative Level 3.
[9] I have been provided with voluminous material, including the position descriptions of Tower Operators as well as Odenberg Operators. I do not consider it necessary to refer to particular aspects of these documents which my inspection has assisted me in understanding.
[10] I have also been assisted by written submissions filed by both parties after the inspection as well as their oral submissions at a subsequent hearing on 15 March 2010.
[11] The role of the Tower Operators was succinctly described by Mr. Rod Montague, the company’s Production Supervisor – Cheese at Rochester. He was being cross-examined and was asked to describe the work of a Tower Operator. He said:
“…a tower operator basically controls the weights [sic] that each block – comes out of each block form, as well as present the bags to the block formers themselves. They then come along the conveyor where they are rotated around so the outlet of the bag is facing the operator themselves so they can do a weight adjustment. Then it goes into what we call the automatic bag sealer, like the BetaVac, where they spread the bag nice and flat on a bar where it’s then automatically put into a BetaVac sealer to take any air out of the bag. In that process they monitor the weight and they actually usually check each block for like any foreign matter or any loose open blocks or soft blocks or anything like that. So that’s basically their role. 1
[12] The portion of the production line at which the Tower Operators work is highly automated. The Tower Operators are required to look at the cheese blocks to see if they are too soft or too crumbly. If either of these problems occurs, they inform the leading hand and request that the temperature of the cheese be adjusted, usually by an amount suggested by the Tower Operator.
[13] The cheese blocks are weighed automatically, and if they are beyond the pre-set parameters (which are not set by the Tower Operators) the relevant cheese block is automatically stopped on the scale and does not progress along the conveyor until cheese has either been added or removed by the Tower Operator to bring the block within the set parameters.
[14] The Tower operator is also required to observe the cheese blocks for visible foreign particles. This is something that does not often occur. In the event that some foreign material is found, the Tower operator removes it, ensures that the block of cheese does not make its way into production, and the foreign matter is collected and given to the leading hand. 2
[15] Another manual function performed by the Tower Operators is the collection of samples at periodic intervals, and giving them to the leading hand for testing.
[16] The parties provided me with an Agreed Statement of Facts, for which I am grateful. It sets out the role of the Tower Operator in a little more detail. I have appended it in these reasons.
[17] Mr. Mujkic, who appeared for the union, submitted that when regard is had to the evidence as to what Tower Operators do and to the Position Description for a Tower Operator, it is evident that their work falls within the skill and classification structure of a Dairy Industry Operative Level 3. He points, in particular, to clause 15.3.1 of the Agreement and submits that Tower Operators work under limited supervision, rather than the general supervision of a Level 2 operative. Further, he referred to cl.15.3.3 – the skills/duties of a Level 3 operative and noted that, at Level 3, operatives may operate and control several pieces of equipment. He submitted that this is what Tower Operators do. He also submitted that they have an increased level of knowledge in a specialist area, being the formation and sealing of cheese blocks. One of the clause 15.3.3 items refers to “Must have sound knowledge of product specifications”. Mr. Mujkic finally submitted that tower Operators “must carry out quality control testing of cheese blocks and have sound knowledge of product specifications, making decisions (by exercising their own discretion) that ensure the cheese blocks meet the product specifications”.
[18] I am comfortably satisfied that Tower Operators have been, and are, properly classified at Dairy Industry Operative Level 2. As I have said, and observed, the part of the production process which is the domain of Tower Operators is highly automated. True it is that there are eight chutes with sealers for each that deposit cheese blocks for the Tower Operators on each shift to deal with. However, in my view, the entire line is more appropriately described as one piece of equipment for the purpose of clause 15.3.3. Even if I am wrong as to this, a Dairy Industry Operative Level 2 is required to operate at least one piece of equipment. In my view, the Tower Operators work under general, not limited, supervision. They have very little discretion as to how they perform their tasks. I do not agree that they have an increased level of knowledge in a specialist area. Inevitably, as with any job, knowledge of the job increases with experience. Tower Operators are trained from Dairy Industry Operatives Level 1 to Dairy Industry Operatives Level 2 in about four days. Although from my observation the Tower Operators at Rochester are dedicated and loyal workers, they are not required to have an increased level of knowledge in a specialist area.
[19] I also do not accept Mr. Mujkic’s final contention. Tower operators do not carry out quality control testing of cheese blocks – they remove samples to be tested by others. Nor do they need to have a sound knowledge of product specifications – ascertaining whether or not cheese blocks are too soft or too crumbly, does not require such knowledge. Finally, they do not exercise any discretion to ensure that cheese blocks meet product specifications.
[20] The Dairy Industry Operatives Level 2 requirements, that they be proficient in a range of specialised tasks or duties; that they operate/control at least one piece of basic equipment which may include dismantling/re-assembling knowledge; collect samples, apply simple identification techniques; and have the ability to measure basic quantity levels, amply cover the work that Tower Operators perform.
[21] Whilst it is not necessary to refer to the work of Odenberg Operators, it is clear to me that their work is of a higher level than that of Tower Operators and is properly classified at Level 3. For example, the Odenberg Operators maintain the operation of several pieces of machinery in the Odenberg machine, the 24-hour Rapid Cooler, and Coarse Salt areas. The Odenberg Operators must plan their work on a daily basis as well as daily setting and recording the parameters for the equipment they use.
[22] In conclusion, I determine this dispute by finding that Tower Operators at Rochester are correctly classified as Dairy Industry Operatives Level 2.
SENIOR DEPUTY PRESIDENT
Appearances:
D. Mujkic for the National Union of Workers.
A. Douglas, solicitor, for Murray Goulburn Co-Operative Company Limited.
Hearing details:
2010
Melbourne
15 March
APPENDIX A
AGREED STATEMENT OF FACTS
1. The Tower Operator position is required to ensure that cheese blocks emanating from towers are correctly formed, weighed, sealed, and free of foreign matter;
2. The Tower Operator reports directly to the Leading Hand Cheesemaker and the Production Supervisor (Cheese);
3. There are two shifts: a day shift that runs from 10am until 8.30pm and a night shift that runs from 8.30pm to 7am;
4. There are three Tower Operators during each of the two shifts;
5. The Rochester Site has been producing cheese for the last 30 years;
6. The Tower Operator position has existed at the Rochester Site for the last 30 years;
7. The Tower Operator’s role has not been changed, modified or adjusted in the last 30 years except for the following:
a. Approximately 15 years ago, the block turner machine was readjusted from facing outside to inside causing the cheese blocks to spin inside, having the open end of the bag facing the Tower Operator. Consequently, the Tower Operator no longer stands on the outside of the area;
b. Approximately three years ago, the label dispenser for labelling the cheese blocks was removed from the Tower Operator area and an inkjet coder was introduced in the Odenberg area to replace the label dispenser. Consequently, the labelling of the cheese blocks is no longer the responsibility of the Tower Operator.
c. Until approximately three years ago, the ends of the bags for cheese blocks provided to the United Kingdom were folded inwards prior to being sealed. The bags are now sealed outwards instead. Consequently, the Tower Operator no longer has to manually fold the ends of the bags inwards. The bags are sealed outwards automatically by the Betavac machine.
8. Over the 30 year period, the Tower Operator has always been paid in accordance with the Level 2 classification under previous enterprise agreements and Awards, which the Respondent has been a party to;
9. The skills/duties of the Level 2 classification have not changed over the last three enterprise agreements;
10. The Tower Operator from time to time may relieve the Odenberg Operator and perform the duties of an Odenberg Operator. The Tower Operator on such occasions is paid at the Level 3 rate. However, the Tower Operator is not required to perform or undertake the Odenberg Operator role as part of their ordinary duties as a Tower Operator;
11. The Tower Operator does not set up their work area at the start of each shift. This duty is performed by the Factory Hand;
12. The duties performed by the Tower Operator each shift are:
a. The Tower Operator will place a bag over the opening of each Tower;
b. The Tower Operator will visually inspect each cheese block that comes through the Tower, for any foreign matter;
c. The Tower Operator will weigh the cheese blocks on a scale which measures whether the cheese block’s weight is between the parameters set by the Leading Hand and Production Supervisor;
d. The Tower Operator will add to or remove cheese from the cheese block until it is at a weight within the set range and the scales automatically drop;
13. The Tower Operator will monitor the temperature. A desirable temperature range is predetermined by the Leading Hand;
14. The Tower Operator periodically collects samples (1st, 50th, 100th, every 200th thereafter) from cheese blocks for the Leading Hand to test their quality;
15. The Tower Operator will visually check that the bags of cheese blocks are sealed properly by the Betavac Machine;
16. The Tower Operator operates the towers, the scale and the sealing machine (Betavac Machine);
17. The Tower Operator cleans their work area towards the end of their shift. If the Tower Operator does not finish cleaning by the time their shift ends, the cleaning is completed by the Factory Hand and often the Odenberg Operator;
18. The Tower Operator fills out a log book reporting on any foreign matter discovered, number of times gloves were changed, any OHS issues that arose and any machine breakdowns that arose;
19. Both parties accept the following documents as evidence:
a. Manual Cleaning of Blockformers;
b. Fault Finding;
c. Blockformer Sampling Procedures;
d. Adjust Block Weight;
e. Position Description of the Tower Operator (Block Former Operator);
f. Position Description of the Odenberg Operator;
g. Pay slips;
h. List of Requests by the Tower Operator to the Leading Hand.
1 PN 342.
2 PN 136
Printed by authority of the Commonwealth Government Printer
<Price code C, PR996207>
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