Federated Engine Drivers' and Firemens' Association of Australasia Queensland Branch, Union of Employees v Abbot Point Bulk Coal Pty Ltd [1996] QIRC 829 (1996) 153 QGIG 1361

1360 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 13 December, 1996 13 December, I 996 lI '\ QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1361 ########## ####### ############## ###################### ##### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1990 s. 319(4) - reference to Commission for arbitration Federated Engine Drivers' and Firemens' Association of Australasia Queensland Branch, Union of Employees AND Abbot Point Bulk Coal Pty Ltd (No. D407 of 1996) BUL K LOADI NG- ABB OT POI NT BULK COAI, J>TY . LTD. IND US TRIA L AG RE EMENT COMMJSSIONER FIS I-I ER 2 December l 996 Dispute - Demotion - Referred ro Arbitration - Team training - Disobedience - Disciplinary Procedure - Company not unreasonable - Demotion warranted - Commission decides not to intervene - Grievance Procedure - Employees not disadvantaged. DECIS ION The question of whether the demotions of Mr Jensen and Mr Read were warranted in the circumstances was referred to arbirraci on by Commissioner Bloomfield following dispute conferences held by him on the rna!ler. I do not propose to systematically recount the evidence given by witnesses or to detail the other materi al submitted. I simply note that all evidence and exh ibits have been duly considered in reaching this decision. For rhe purposes of this arbitration I am prepared to accept that Messrs Jensen and Read did not receive the personally addressed memorandum from Mr Allard dared 7 October 1996 advising that al l staff were to attend two days of team training in late October or early November. On their evidence Mr Jensen received advice of the proposed training on 18 October and Mr Read the followi ng day. Ultimately the alleged delay in receiving the advice has not affected the decision I have reached. From their evidence l am satisfied that their reasons for deciding not to participate in the team training was they did nor believe it would be benefi cial based on past experience. Although later qualified th is was the reason that was expressed initially by Messrs Jensen and Read in their evidence. It was also supported by the evidence of Mr Allard who said thi s reason was rold to him at the conclusion of the communications meeting on 21 October. While other employee-s seemed ro have raised some concerns over sh ift changes or the substitution of RDO 's , these were not raised by Messrs Jensen and Read at thar lime. They appear to have been raised in retrospect 10 cloak the refusals wi th a sense of genuine grievance. In support of their arguments the employer' s actions were unwarranted, the Union and its two members relied heavily on several provisions of the industrial instruments which operate at Abbot Point Bulkcoal. In particular, the consultative mechanisms prescribed by tlie Industrial Agreement. especially as they relate to training, received great emphasis. Mr Allard's evidence revealed that on his appointment, he consulted widely with employees. team leaders and supervisors, about the workings at 2 1963_ 1.DOC l -- 1 of 2 -- 1362 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 13 December, 1996 Abbot Point. The outcome of this process was to cement an earlier view that team training was essential to improve productivity and efficiency. Clause 6.3 - Consultation of the lndusu-ial Agreement outlines the consultative procedures It does not establish a formal consultative corn.mince but encourages the development of such a process. The provision requires productivity and efficiency measures including training to be processed through consultation. I have already touched on the consultation undenaken by Mr Allard. While this was not a formal process. nor progressed through formal mechanisms. I am satisfied that the provisions of clause 6.3 have been met. Consultation was undertaken and a decision made by management as a result. Consullatjon over issues does not necessaii ly mean agreement must be achieved (although that would be clearly preferable) or that ultimately decisions cannot be made by management where agreement has not been reached. Reference was also made to clause 18 - Training of the Certified Agreement. This clause establishes a Workplace Training Committee in conjunction with the introduction of career streams. I have examined this clause at some length and in my view it seems to have been designed to assist in the consideration of relevant training to enable employees to enhance s ki lls and career opponunit ies. In other words it seems to be primarily directed 10 training for greater skill acquisition rather than generic training of the type to be delivered through team training. That is not to say th at generic trai ning is necessarily outside the ambit of the Workplace T raining Committee. rather that in the absence of a specifically agreed charter. I cannot conclusively detem1ine that consideration of generic training is properly one of its functions. The Union also took the Commission to clause 4.1(6) of the lndusu-ial Agreement dealing with the transfer of workers from day work to ~hift work and vice versa. Attention was drawn to the specific circumstaJ1ces in which this could occur. While some debate emerged over "day work" versus "day shift" I am of the view that if such a transfer occurred the minimum period of notice as required by the first proviso was given. The second proviso is irrelevant as it only relates 10 a transfer from day work to shift work; this was not the case in this instance. Moreover, clause 4.3(7) of the Industrial Agreement makes provision for the employer to require reasonable overtime to be worked and for an employee 10 work such overtime. In my view had a genuine grievance been raised at the time then clause 4.3(7) of the Jndusuial Agreement could have been invoked. The refusal of the two employees to attend the team training constituted disobedience. Mr Jensen's continued refusal 10 participate despite a written directive from Mr Al lard and in the absence of a valid reason at the relevant time cxacert>ates the si tuation. l agree with the Company that such a position adopted by a team leader cannot be sanctioned . ln the case of Mr Read, I have reached the view that his refusal was supponive of Mr Jensen; that he wa~ the follower not the leader in the matter. It i_s evident from clause 12 - Disciplinary Procedure of the Ccnified Agreement that the disobedience of Mr Jensen and Mr Read constituted grounds for summary dismissal. In this case the employer elected not to adopt that course but to impose the lesser penalty of demotion. The Un io n complai~ed that demotion is not provided for within the disciplinary procedure and that the process outlined in the clause was not followed, in pai1icular that the counselling and warning procedure was not implemented. In my view. given the employer could have dismissed the tw o employees concerned, that this act ion was not followed does not lessen the severity of what occurred such that the disciplinary procedure prescribed for lesser "offences" automatically applie s. It was open to the employer to take the action it did. It was not as though the employees were unaware of the provisions of the industrial instruments. They seemed capable of extracting relevant provisions to suit their purpose in attempting 10 retrospectively ju stify their stances and more particularly, as job delegates, would have been au fait with their contents. Having considered all of the evidence and material before me J have reached the conclusion that the decision to demote Mr Jensen and Mr Read was one that was reasonably open to the employer bearing in n1iod the positions they held on site. I am satisfied Mr Allard took steps to explain the reasons for the training yet such explanation fell on deaf ears. The Company's decist0n in light of this attempt and subsequent written direction to Mr Jensen wa~ not unreasonable. I should however comment on the Company's decision not to positively respond to the Union's request for discussions as a consequence of the activation of the grievance procedure. Often employers criticise unions and their members for failing to comply with grievance procedures by initiating direct action. Jn this ca<,e the Union has anempted to act responsibly only to be rebuffed by the employer. It should be noted that discussions between Company and Union representatives arc mandatory according to clause 11 (4) of the Certified Agreement. A disinclination or belief that discussions would be fruitless does not negate the relevant provision. Mr Staker argued that failure to comply with provision disadvantaged his members in that the sraw.s quo (ie. continuation as team leaders) was not maintained wllile the disputes procedure was being invoked. l have examined this matter for completeness. The documentation before me reveals that Messrs Jensen and Read were notified by letter dated 24 October both of their demotions and tl1eir effect from 28 October. The Union contacted the Company on 25 October and in the face of its unwillingness to discus., the maner, notified the Industrial Registrar of a dispute on 28 October. A conference was held on that day before Commissioner Bloomfield who decided not to in tervene. Against this chronology of events. it is evident the employees did not suffer any disadvantage by the Company's decision not 10 enter into discussions with the Union in accordance with the grievance procedure. I need to restate that the fact that no disadvantage resulted does not excuse the decision to not have discus.,ions with the Union. Jn view of al l of the foregoing. l run satisfied the demotion of Messrs Jensen and Read were warranted in the circumstances. AccordingIy, the Commission proposes not 10 in tervene. Order accordingly. G.K. Fisher. Commissioner. Appearance.c- Mr R.L. Staker of the Federated Engine Drivers' and Firemens' Association of Australasia Queensland Branch, Union of Employees on behalf of the Messrs Jensen and Read. Mr J. Hardy fo r the Australian Mines and Metals Association (Inc.), Quet!nsland Branch and with him Mr Allard on behalf of the Company. Operat ive Date: NIA Decision - Dispute arbitration Relea,ed: 2 December 1996 lr I / •I i. 13 December, 1996 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1363 21963_ 1.DOC -- 2 of 2 --