UGL Rail Services Limited v "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)

[2011] FWA 1286

[2011] FWA 1286

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

UGL Rail Services Limited
v
"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
(C2010/724)

Manufacturing and associated industries
COMMISSIONER CARGILL	SYDNEY, 3 MARCH 2011

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]

[1] This decision concerns an application by UGL Rail Services Limited (UGL) pursuant to section 739 of the Fair Work Act 2009 (the Act). The dispute relates to the MainTrain - United Group Rail Services Ltd Enterprise Agreement 2009-2011 (the Agreement). The Agreement was approved on 16 February 2010 and has a nominal expiry date of 31 August 2011. The Agreement also covers the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU).

[2] The dispute concerns the classification of a particular group of employees, known as Authorised Isolation Officers (AIOs), who are engaged at UGL’s Auburn site. In its application the company “seeks a determination that the duties of an AIO in applying a lock to the isolation box and completing the Checklist are within the limits of the employees’ skills, competence and training consistent with their classification, and that no allowance or reclassification is necessary.”

[3] The application was lodged on 22 November 2010 and was the subject of site inspections and a conference on 8 December 2010. The matter was not resolved and, by agreement with the parties, it was set down for arbitration on 15 February 2011. At this hearing UGL was represented by Mr Gee, solicitor, who appeared with permission. The AMWU was represented by Mr Walkaden.

[4] Evidence was given for UGL by the following witnesses:

Ms K Adams	Health, Safety, Security and Environment Manager at the Auburn site. Ms Adams provided an affidavit which became Exhibit UGL1. Her oral testimony is at PN 12-68 of Transcript;
Mr W Evans	Line Manager of UGL Rail’s Presentation and Out of Course (OOC) areas at Auburn. Mr Evans provided an affidavit which was marked Exhibit UGL2. His oral testimony is at PN69-194 of Transcript.

SUMMARY OF WITNESS EVIDENCE

[5] It should be noted that most of the evidence in this matter is uncontroversial.

[6] Mr Evans provides evidence about UGL and, in particular, its operations at the Auburn site. The company provides train maintenance facilities to rolling stock that is owned and operated by the Rail Corporation of New South Wales. The main work conducted at Auburn is the 6 and 12 year scheduled overhauls of Sydney’s passenger trains.

[7] There are around 400 permanent maintenance employees at Auburn together with about 50 staff. In addition, on any particular day, there could be up to 400 contractors on site. Approximately 50 permanent employees work in the Presentation area and 30 in the OOC area. The former area cleans and refurbishes rolling stock and the latter area repairs damaged vehicles.

[8] In October 2009 UGL introduced a new safety policy, the “Rolling Stock Isolation Procedure”. This applies to all UGL sites in Australia. It is a requirement of this policy that AIOs be appointed to place and remove isolating lock-out devices on rolling stock and other items that are being worked upon. Only AIOs may undertake these tasks.

[9] The policy also requires specific instructions about the procedure to be written for each site. Both Mr Evans and Ms Adams were involved in preparing the relevant document for Auburn. The procedure which is currently in place is the second revision of the document. It is at Annexure B to Mr Evans’ affidavit.

[10] At present there are around 80 employees at Auburn who have been trained, assessed and appointed as AIOs. These include Team Leaders, Safety Coordinators, Line Managers and Operations Managers as well as employees classified as C10, C8, C6 or C4 depending on their position. Most of these employees are covered by the Agreement. It is the evidence of Mr Evans that he is unsure whether the Line Managers come under the Agreement and he assumes that the Operations Managers do not.

[11] Mr Evans provides detailed evidence about the present isolation procedure. In brief, there are four levels of isolation. Level 1 involves the removal of fuses, the locking of the pantograph, the isolation and locking of the horn and the isolation and locking of the battery terminals. When all of these steps have been carried out, the AIO completes a checklist identifying that this has occurred; Annexure C to Mr Evans’ affidavit.

[12] The completed checklist and the keys to the locks which have been placed on the various components are then put into a Level 1 Isolation Cupboard (the cupboard) which is itself locked. If the components later require de-isolation, the AIO completes the relevant part of the checklist at Annexure C after carrying out the necessary steps.

[13] The skills required for Level 1 isolation are the ability to read, write and understand both English and the training package as well as being able to fit the isolation components. The only formal qualification required is that only electricians can isolate the battery terminals. Mr Evans agreed that most of the jobs at the Auburn site would require an ability to read, write and understand English. He also agreed that the vast majority of the employees had this ability.

[14] The Level 2 procedure involves the placement of red flags and the installation of wheel chocks followed by the locking of these chocks after the rolling stock is split into separate cars. The devices which were isolated earlier are inspected and the cupboard checked to ensure that all keys are there. The keys from the Level 2 procedure and the cupboard are then placed in a group lock box together with the operating keys to any portable power supplies in the area.

[15] The AIO then completes another checklist which indicates that each of the Level 2 steps have been undertaken. This checklist is at Annexure D to Mr Evans’ affidavit. This checklist is placed in the group lock box with the keys referred to earlier. This box is itself then locked. The keys to this box are retained by the AIO. As with Level 1, if the Level 2 components need to be de-isolated, the relevant part of the checklist is completed after the relevant tasks are carried out.

[16] The skills for Level 2 are the same as for Level 1. Mr Evans described the completion of both checklists as an installation and inspection function.

[17] Level 3 of the procedure occurs when there is to be live testing of a powered vehicle. It involves the AIO ensuring that the Level 1 and 2 isolations have been carried out. The keys to the power units are removed and placed in the relevant group lock box. The AIO places their identification details on the isolation station together with the lock from the group lock box. Any person then working on that vehicle must place their own personal lock and identification card in the box.

[18] If electrical power is to be used, the AIO extracts the relevant keys from the box. De-isolation and then re-isolation steps are completed on the relevant components as required. The checklist at Annexure D is filled-in by the AIO to identify the steps taken in the process.

[19] The skills required for this level are the same as for Level 1 except that only qualified technicians can apply power to the vehicle.

[20] Level 4 of the procedure is required where work is carried out on a powered vehicle when it is on the arrival or departure roads. It is a similar procedure to Level 3.

[21] UGL has recently revised the isolation procedure at Auburn. The company wishes to make it more efficient without compromising safety. It intends to implement the revised procedure in the future. This will be the third version of the procedure.

[22] The main difference between the present and proposed versions is that, under the revised procedure, the AIOs will be those employees who occupy the positions of shunters. The shunters are generally classified at C10 to C6 and the Shunting Co-ordinators are generally C6 to C4. This will be more efficient as the shunters are the first and the last employees to perform work on the rolling stock as it enters and leaves the site.

[23] The proposed new procedure also streamlines the checklists. Instead of multiple checklists stored in different areas, there will be just one for each vehicle. This will be stored in a group lock box attached to the particular vehicle.

[24] During trials of the present procedure in October and November 2010, the Level 1 and Level 2 procedures were carried out by one person. Mr Evans observed the procedures to take between 7.5 and 15 minutes for the whole process. He agreed that only a small part of a shunter’s job would be undertaking AIO tasks. Mr Evans estimated that it would be about 30%.

[25] There are several documents that must be signed off by employees at various levels indicating that work has been completed, inspected or checked. Examples are set out in Annexure E to Mr Evans’ affidavit. By completing these documents, including the isolation checklists, an employee is only indicating that the work has been done.

[26] Mr Evans agreed that the isolation/de-isolation procedure would often occur at the start and end of shifts when all workshop employees would be in close proximity to the vehicles.

[27] Ms Adams provides evidence about UGL’s safety requirements. She became aware of the issue of the isolation of rolling stock during an occupational health and safety committee meeting in February 2008. The issue was a constant agenda item from that time onwards.

[28] A draft procedure was tabled at the meeting on 21 July 2008. Changes were made to the draft during the remainder of 2008.

[29] The issue of an isolation procedure was also raised at the combined sites occupational health and safety committee meeting in August 2008. All UGL sites in New South Wales have considered introducing an isolation procedure for rolling stock which involves the use of locking devices.

[30] The first version of the lock-out procedure was implemented at the Auburn site on 31 July 2009. The introduction of the corporate procedure in October 2009, as referred to in Mr Evans’ evidence, meant that the Auburn procedure had to comply with that corporate policy.

[31] Ms Adams then worked with Mr Evans to develop a site specific procedure for Auburn. The original version of this procedure was rolled out at the site in May 2010. All AIOs at Auburn participated in information sessions about the procedure.

[32] As indicated in Mr Evans’ evidence, the original procedure has been revised. This has resulted from feedback from employees, managers and occupational health and safety committee members about how to make the procedure safer and more efficient.

[33] There are two reasons why the AIO tasks will be carried out by the shunters only under the proposed third version of the isolation procedure. First, the smaller the group of employees undertaking the work, the more frequently they will do it and the more skilled they will become.

[34] Secondly, the shunters are the first and last to touch the rolling stock. They move it from place to place. If they are performing all of the isolations they will not waste time waiting for an AIO. This will allow the system to run efficiently. At present, time is lost isolating and de-isolating at the beginning and end of each shift. The task need only be done when the vehicles are moved.

SUBMISSIONS ON BEHALF OF UGL

[35] Mr Gee referred to the principles of award interpretation, in particular as enunciated in the decision of National Union of Workers v Arnott’s Biscuits Limited[2005] AIRC 865. That decision in turn adopted an approach set out in a decision of Ives DP in National Union of Workers v GrainCorp Operation Pty Ltd [PR918161] (GrainCorp). Mr Gee noted that these principles are relevant to the consideration of both the Agreement and the award in the present matter.

[36] Mr Gee submitted that several clauses of the Agreement were of particular relevance in considering the document as a whole. Clause 2 commits the parties to “no extra claims” during the life of the Agreement. Mr Gee noted that the first version of the isolation procedure had been introduced at the Auburn site prior to the time the Agreement had been negotiated. It was known to the AMWU and its members and, consequently, the union’s position in relation to the AIOs is a new and extra claim.

[37] Clause 5 of the Agreement incorporates the terms of the relevant modern award, the Manufacturing and Associated Industries and Occupations Award 2010 (the Award). Clause 8 refers to the classification structure in the Schedules to the Agreement. It also notes the normal entry points under the Agreement as Level 5 for graduate engineers, Level 10 for trades employees and Level 12 for non-tradespersons.

[38] Mr Gee noted that, in the classification structure in Schedule A, a Level 4 employee is an Engineering Associate Level 1. He further noted that such a classification has a minimum training requirement of “22 appropriate modules of an Associate Diploma”. Mr Gee submitted that the absence of the words “or equivalent” was significant. He noted the evidence that the AIO tasks are basic and ancillary and do not require any trades qualification.

[39] Mr Gee noted that, as the Agreement did not contain detailed classification descriptions and definitions, it was necessary to turn to the modern Award. He submitted that the description of engineering associate in clause B.3.13(a)(i) of the Award was especially relevant. Mr Gee submitted that the AMWU’s reliance on the reference in that description to “occupational health and safety and/or standards”, was misguided and ignored the principles of award interpretation.

[40] Mr Gee submitted that it was necessary to consider the description as a whole. Such a consideration revealed that the engineering associate is not a person who merely fills in forms and completes tasks but rather is an employee engaged in making policies and procedures or performing technical duties in a specific field such as occupational health and safety and who has completed the minimum training requirements referred to earlier. Such an employee is a paraprofessional or a professional.

[41] Mr Gee referred to the description in the Award of duties of other classifications and noted that the tasks performed by AIOs are spread throughout the classification structure including at the C13, C10 and C9 levels.

[42] Mr Gee referred to the penultimate paragraph of clause 8 of the Agreement and submitted that it called up clause 31 of the Award. The Award clause permits an employer to direct an employee to carry out such duties as are within the limits of the employee’s skills, competence and training consistent with the award classification structure. Mr Gee submitted that the AIO’s tasks are ancillary or peripheral to the particular employee’s primary duties regardless of their classification level.

[43] Mr Gee referred to the evidence of Mr Evans about the tasks which are performed by the AIOs including the completion of the checklists which are attached to Mr Evans’ affidavit. Mr Gee submitted that these documents merely record the work that has been done. They do not create any higher level of responsibility under the occupational health and safety legislation than for any other employee.

[44] Mr Gee referred to clause 13 of the Agreement, “Devolution”, and noted that it provided that time for functions such as occupational health and safety are to be built in to operational schedules. Mr Gee submitted that Mr Evans’ evidence indicated that the implementation of the isolation procedure was consistent with this provision. It was also consistent with clause 16 of the Agreement.

[45] Mr Gee submitted that it was significant that the AMWU had not suggested that the proposed policy amounted to a “significant effect” which required specific consultation pursuant to clause 17.4 of the Agreement.

[46] Mr Gee made additional submissions about the reclassification procedures under the Agreement. In light of the AMWU’s position on that issue there is no need to consider those submissions.

SUBMISSIONS OF THE AMWU

[47] The union does not contest Mr Gee’s submissions about the interaction between the Agreement and the Award, neither does it suggest that each of the employees who have been appointed as AIOs should be reclassified at the C4 level. Further, Mr Walkaden noted that the AMWU supported the isolation policy itself.

[48] The primary position of the union is that the tasks which are required to be undertaken by the AIOs are properly tasks which should be performed by employees who are classified as C4 and above or who are not covered by the Award or the Agreement.

[49] Mr Walkaden submitted that reference must be made to the indicative tasks listed in the Award in respect of each of the classification levels. In particular, regard should be had to the tasks set out for a C4 level employee, clause B.3.13(a)(i). It is submitted that the reference within that list of tasks to “performing technical duties” is to performing work within a technical field as defined in clause 3 of the Award.

[50] Mr Walkaden submitted that the tasks carried out by AIOs involve inspection. In this regard he relied on the evidence of Mr Evans as well as observations during the site visit. Mr Walkaden submitted that, because the role involves inspection it comes within the definition of “technical duties” in the C4 description because it is work within a technical field. Further, he submitted that those inspection duties are undoubtedly directed towards the engineering practice of occupational health and safety.

[51] Mr Walkaden submitted that, if there is a determination that the AIO duties are C4 tasks, clause 31 of the Award would not permit UGL to direct anyone below that level to carry out the work.

[52] Mr Walkaden rejected the submission that the union’s position was an extra claim. Mr Walkaden submitted that there would be no business impost on the company if UGL amended the proposed new version of the policy to require the AIO tasks to be carried out by C4 employees, or above, rather than by the shunters. Such a group could develop the specialist skills referred to by Ms Adams and produce a better outcome in terms of safety. Mr Walkaden also noted the evidence of Mr Evans that most employees are in close proximity to the rolling stock at the relevant times.

[53] Mr Walkaden submitted that requiring the AIO tasks to be done by C4s and above, or non Award/Agreement employees, would achieve UGL’s safety objectives and would be in accordance with the principles of both the Award and the Agreement.

SUBMISSIONS IN REPLY ON BEHALF OF UGL

[54] Mr Gee noted that, before the indicative tasks of a C4 employee can be relevant, the person must be an engineering associate as defined. The tasks then shed light upon whether the person should be at the C4 or C3 level.

[55] Mr Gee submitted that the Agreement sought to devolve areas such as occupational health and safety to a broad range of employees. Mr Gee took issue with the suggestion that clause 31 of the Award restricted an employer in its ability to direct an employee to carry out duties that only fall within the employee’s classification. He submitted that the only limitation was that the duties be within the employee’s skills, competency and training.

[56] Mr Gee submitted that the evidence showed that the checklists at Annexures C and D to Mr Evans’ affidavit are just documents to be completed as part of an employee’s job. He submitted that the issue of whether the duties were inspection or installation tasks was not important. The completion of the checklists would merely indicate that the job had been done.

[57] Mr Gee submitted that the definition of technical field in clause 3 of the Award did not apply. The C4 list of indicative tasks refers to “technical duties in a specific field’, not a technical field. Mr Gee also submitted that the issue of whether some other group of employees could carry out the isolation procedure was not relevant to the present dispute.

CONCLUSIONS

[58] There is no issue that Fair Work Australia (FWA) has jurisdiction over the dispute. Section 739 of the Act provides that the section applies if a term referred to in section 738, being a term which provides for a procedure dealing with disputes, requires or allows FWA to deal with a dispute.

[59] In this instance both the modern Award and the Agreement contain such terms, clause 10 of the Award and clause 28 of the Agreement. Clause 28 provides that an unresolved dispute is to be referred to FWA for assistance. The clause goes on to provide that, if conciliation is not successful, FWA is “empowered to arbitrate on the matter provided that the arbitration is limited to the interpretation, application or process of implementation of a term or terms of this agreement”.

[60] Subject to that limitation I am satisfied that I can deal with the dispute by way of arbitration.

[61] The principles which govern the interpretation of industrial instruments are reasonably well settled. I am content to adopt and apply the approach of Ives DP in GrainCorp.

[62] As will have been apparent from the submissions of the parties, although the dispute itself arises under the Agreement, there are some provisions in the Award which are relevant. This flows from the terms of the Agreement. Clause 5 of the Agreement provides that the terms of the Metals, Engineering and Associated Industries Award 1998 “or successor award(s)” are incorporated into the Agreement subject to the usual inconsistency provisions. It is common ground that the modern Award is that successor award.

[63] Clause 8 of the Agreement is titled “Classification”. It provides that all award employees will be graded under the Agreement and refers to the structure which is set out in Schedule B. The parties acknowledge that the reference should properly be to Schedule A.

[64] Clause 8 provides that the aim of the classification structure is “to facilitate a highly flexible and efficient operating system based on a multi-skilled workforce which is achieving its full potential through continuous skills acquisition and career development”. The clause permits movement of employees between teams to meet operational requirements, subject to award obligations. It is agreed that this is a reference to clause 31 of the Award.

[65] The classification structure which is set out in Schedule A broadly reflects that which is in the Award. There are fourteen levels with Levels 1 and 2 each containing separate (a) and (b) levels. The schedule also sets out classification titles, minimum training requirements and wage relativities for each level.

[66] The parties agree that, because of the absence of descriptors and definitions in the Schedule, it is necessary to have regard to the relevant terms of the Award.

[67] Schedule B to the Award sets out the classification structure and definitions. Clause B.3 provides that the classification definitions should be read in conjunction with the stream and field definitions, which are contained in clause 3, and three specific definitions. These are “or equivalent”, “work within the scope of this level” and “Engineering Associate”.

[68] Clause B. 3.13 relates to wage group C4 Engineering Associate - Level 1. It is the tasks which are set out at the first dot point of this clause, together with the definition of “technical field” in clause 3, which are relied on by the AMWU. The tasks described at the first dot point are:

“
• making of major design drawings or graphics or performing technical duties in a specific field of engineering, laboratory or scientific practice such as research design, testing, manufacture, assembly, construction, operation, diagnostics and maintenance of equipment facilities or products, including computer software, quality processes, occupational health and safety and/or standards and plant and material security processes and like work; or”

[69] In my view a plain reading of these tasks does not bring them within the technical field, or indeed any of the vocational fields which are defined in clause 3. The tasks include “performing technical duties within a specific field of engineering, laboratory or scientific practice such as ...”, not duties within a technical field. If the definition of technical field is not relevant then the connection with inspection falls away as the word is contained only in that definition.

[70] Further, the reference to occupational health and safety in the C4 indicative tasks is not in itself sufficient to support any suggestion that only employees at that level or above can be required to undertake any duties involving OH&S. The description must be read as a whole.

[71] In addition, I am by no means satisfied that the duties required of AIOs involve inspection other than in a peripheral sense. My observations during the site visit and the evidence of Mr Evans in particular leads me to conclude that the inspection component of the role of the AIOs is to fill in checklists in order to note what tasks have been carried out.

[72] For these reasons I determine that any employee at the Auburn site who has been appropriately trained, assessed and appointed as an AIO may be required to carry out the tasks of an AIO regardless of that employee’s classification level under the Agreement. Any such requirement by UGL must of course be subject to the obligations in clause 8 of the Agreement and clause 31 of the Award.

COMMISSIONER

Appearances:

B. Gee and J Cleary, solicitors, with L. Tracey for UGL Rail Services Limited

A. Walkaden for the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)

Inspections and Conference:

2010.

Auburn.

December 8.

Hearing details:

2011

Sydney.

February 15

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