National Union of Workers v Olex Australia Pty Limited
[2010] FWA 2278
•29 MARCH 2010
[2010] FWA 2278 |
|
DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
National Union of Workers
v
Olex Australia Pty Limited
(C2009/11140)
OLEX AUSTRALIA VICTORIA (TOTTENHAM AND LILYDALE) SITE – NUW 2007 COLLECTIVE AGREEMENT
[AC312965]
Metal industry | |
COMMISSIONER BLAIR | MELBOURNE, 29 MARCH 2010 |
Alleged dispute concerning manufacturing employees to perform warehouse duties.
[1] This decision arises out of an application to Fair Work Australia (the Tribunal) by the National Union of Workers (the Union), with the respondent being Olex Australia Pty Ltd (the Company). The matter in dispute concerns a restructuring of the forklift drivers’ positions with drivers who currently support manufacturing being integrated into a much broader despatch area.
[2] The Company’s proposal is outlined below:
“(a) The 7 forklift drivers presently supporting manufacturing would be integrated into a broader despatch team together with the existing 14 despatch employees resulting in an integrated despatch team of 21 employees across the 3 shifts responsible for all materials handling across the site;
(b) all 21 staff would report to a common manager, Bob Sima, Material Handlers/Despatch Team Manager;
(c) a change in work flows with a common systems platform in SAP and a move away from siloed support for each manufacturing department to a team based support approach. Rather than materials handling being specific to each manufacturing department, materials handling would be performed across the site, supported by a team with more even and flexible distribution of labour together with better utilisation of capital equipment (forklifts). Double handling and unnecessary movement of product through staging areas would be minimised;
(d) the duties and overall work load of the team would be approximately 2/3 in the warehouse and 1/3 supporting the production process;
(e) all employees would be trained in all aspects of materials handling and despatch;
(f) all 21 employees would be required to perform all materials handling work across the site as directed, which would be done taking into account skills and experience;
(g) all 21 employees would enjoy their current or more favourable terms and conditions as enjoyed by the current “despatch employees”, including but not limited to rates of pay and other employment conditions; and
(h) employees with current machine skills will have the opportunity to utilise these skills as required, allowing them access to any potential overtime.”
[3] The Union’s argument is that employees working under the manufacturing classifications may only work in manufacturing and employees working under the warehouse classifications may only work in warehousing in accordance with Appendix C of the Agreement. Alternatively, the Union seeks determination that what the Company has proposed breaches Appendices B and C of the Agreement.
[4] The Tribunal does not intend to put Appendices B or C in this decision. The parties are aware of the wording of those Appendices.
[5] The Company submits that the appropriate outcome for the Tribunal is to find that neither Appendix B nor Appendix C of the Agreement are breached by the implementation of the proposed restructure and that the implementation and restructure should occur.
[6] A number of witnesses were provided by both parties. Witnesses for the Union were:
• Christopher Calvert
• Jack Walhout
• Garry Griffin
• Tony Cicchelli
Witnesses for the Company were:
• Edward Hughes
• Wayne Otter
• Robert Bruce
[7] The following is also a brief summary of events leading up to the making of the current 2007 collective agreement:
• 13 August 2007 – the Company provided a list of items and explanation that the Company was seeking to change and develop motivated skilled modern workforce. Part of that claim was to eliminate demarcations between warehouse and factory (artificial demarcations). The Company believes that everybody at Lilydale works for Olex and there should be no barriers between what employees are able to perform providing that they be trained and it is safe for them to do the job.
• 24 August 2007 – the Union responded to the Company claim to eliminate demarcation in correspondence signed by the Assistant Branch Secretary, Mr Esmond Curnow.
• 18 September 2007 – in correspondence sent to Mr Peter Thompson, lead organiser for the NUW Victorian Branch, the Company provided a final formal offer for the Union’s consideration. It states “this offer has been developed in order to finalise discussions and represents Olex’s minimum requirements from these negotiations.” It goes further “to ensure all parties understand Olex’s position, this document details Olex’s position on all items relevant to finalising this matter. This includes a number of the items that have already been discussed by the parties and agreed in principle. These items are listed below.”
[8] At point 7 of the Company’s final and formal offer point 7, demarcation, states the following:
“7. Demarcation
The following actions will occur to address demarcations on both the Tottenham and Lilydale sites;
a) Integration of Raw Material into Despatch
The parties acknowledge that under normal day to day operational circumstances there will not be a necessity to transfer employees from area to area with the despatch department, however if circumstances arise due to absenteeism, leave or a peak in workload the company will in consultation with the despatch department employees make flexible arrangements to ensure the required daily workload is covered.
b) Temporary transfer of suitably trained factory personnel into Despatch
With the integration of the raw material store employees (2 employees) into the despatch department, the company now has flexibility through additional manning to, when necessary, cover peaks in the workload.
On occasions of high volume or customer demand, the manager of despatch after exhausting all available avenues, may in consultation with despatch employees require the assistance of other qualified and trained personnel to assist in the despatch area.
Note:- The arrangements outlined in the above clauses do not alter the guidelines for all in procedure.
c) Re-cuts operator relief – Tottenham
Relief for the re-cut operator will be provided by a suitably trained Despatch employee on a as required basis [sic].
d) Building Wire Plant (Block 5) – Lilydale
Where required Despatch employees will:
* take cable reels that need to be urgently cut directly into the production area,
* remove cable reels that require Despatching from Winding area.”
[9] The content of that final and formal offer has made its way into the 2007 enterprise agreement. As indicated earlier, substantial evidence was provided by a number of witnesses from both the Union and the Company into how the current agreement was arrived at and the respective positions of the parties during those negotiations. It would be fair to say there was disagreement as to whether or not the Company had reserved its position to pursue the current proposal that they now seek to implement.
[10] The evidence before the Tribunal was that if the Company had reserved their position to pursue what they now seek to implement, the agreement would not have been accepted by the employees.
[11] Having considered all the witness statements and evidence provided to the Tribunal and the final outlines of argument by the respective parties, the Tribunal reluctantly comes to the view that what the Company now seeks to do is in breach of their collective agreement.
[12] The Tribunal has come to that view for the following reasons.
[13] The claim made on 13 August 2007, to eliminate demarcation between the warehouse and factory is an all-embracing claim. The proposal put forward by the Union on Friday 24 August 2007, in written correspondence, deals with that claim in detail. A formal response was provided to the Union in correspondence dated 18 September 2007. It states that it is a final formal offer for the Union’s consideration. There are no caveats on that final offer nor are there any reserved items in the 2007 agreement relating to the Company’s claim to eliminate demarcation whereby the Company reserves their position to pursue what they now seek to implement.
[14] The Tribunal also reluctantly takes the view that what the Company now seeks to do is in breach of Appendix C, Despatch Tottenham and Lilydale.
[15] The Tribunal also comes to the view that the Company, in seeking to implement what they now wish to implement, is in breach of the No Extra Claims clause. The No Extra Claims clause is clause 43 of the 2007 agreement and that states as follows:
“It is a condition of this Agreement that the parties bound by it agree not to pursue, prior to the expiration of this Agreement, any extra claims. The Agreement will cover all matters or claims regarding the employment of the employees, which could otherwise be the subject of protected actions pursuant to s435 of the Workplace Relations Act 1996. Neither the employees nor any party to this Agreement, will engage in protected action pursuant to s435 of the Workplace Relations Act 1996, in relation to the performance of any work covered by the Agreement prior to the nominal expiry date. This clause does not preclude a party from implementing changes envisaged by or the provisions of this Agreement”.
[16] The Tribunal will uphold the view of the Union; that Olex Cables are not entitled to pursue the restructuring in the forklift drivers’ area that they are seeking to implement.
[17] Accordingly, the Tribunal determines that Olex Cables are not entitled to pursue the restructuring in the forklift drivers’ area that they are seeking to implement.
Observations
[18] The parties would note that the Tribunal used the term “reluctantly” in determining the outcome of this matter. The Tribunal has used the word “reluctantly” quite specifically. Other than the Union’s argument that what the Company seeks to do is in breach of the current enterprise agreement, which the Tribunal upholds, all other arguments put forward by the Union have little or no merit at all.
[19] It is the Tribunal’s view that for a Union a to quite vigorously, with its delegates, argue for the status quo that being an artificial demarcation barrier between warehouse and manufacturing forklift drivers in today’s manufacturing industries has no merit or place for such a demarcation issue. The demarcation issue does not arise out of any issue relating to occupational health and safety or particular skills that are required. The demarcation issue simply arose out of two different Unions at the time, that is, the Federated Storemen and Packers’ Union looking after warehouse and despatch and the Federated Rubber Workers’ Union looking after manufacturing. Both Unions are now part of the National Union of Workers.
[20] It is the Tribunal’s view that a forklift driver, whether they work in manufacturing or despatch or any other facility all have to have the same requirements to be licensed and the only thing that sets them apart is the training that is required and the familiarity of the position involved. All those can be overcome in time. For the Union to continue to press that an ongoing demarcation issue be enshrined into any future enterprise agreement, in the Tribunal’s view, is unrealistic and should not be pursued.
[21] The Tribunal’s view is that the employer is quite within their rights, other than within the confines of the current agreement, to pursue a breakdown in artificial demarcation barriers that are archaic and contribute absolutely nothing to the ongoing development of skills and knowledge of the employees in question or to the ongoing viability of the enterprise given the pressures that arise due to overseas competition.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
<Price code C, AC312965 PR995216>
0
0
0