Bowen Coke Pty Ltd v Australian Workers Union of Employees, Queensland and Others [1993] QIRC 489 (1994) 145 QGIG 125

124 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [7 Jan uar y, I 994 7 J an uary, 1994) QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 125 ################################ ################# ### QUEENSLAND INDUSTRIAL RE LATIONS COMMISSION lndus1rial Relations i\CI 1990 s. 187(4) - in du st rial di spu te arbitration Bowen Coke Pty. Lid. AND Australian Wo rk ers Un ion of Emp loyees, Queensland and O1hers ( No 0851 oi 1993) COMMISSIONER DEMPSEY 17 December 1993 Industrial Dispute - Redundanci es - Conci li at ion Con ferences - Conciliation Fa il ed - Pub lic l nteres1 - Arbi 1rat ion of Issues Ordered - Staffing Levels - Me thod oi Se l ec tion ior Redundancies - Job Safe ty - Inspectio ns - Ev idence - O ne Extra Producti on Wo rker Over an d Above Proposal to be Emp loyed - Three Mechanical Emp loyees to bw Retai n ed - Targeted Se lection Process Selection Process to be Reconstituted Insufficient Information to In te rvene re Safety Issue. DECISION Not ification of a di spute at the Bowen Coke Works was forwarded to the Commission by MIM Ho ldi ngs Limit ed on 9 November 1993. The information contained in tha t correspondence was io r the information of th e Commission. It was not until 17 November that further correspo ndence was received and the ass istance oi the Industrial Comm iss ion was so ught. A conference oi a prel iminary na1ure was held in Bri sba ne on 19 November and further cons ideratio n was given to th is matter at a conference he ld in Bowen over 1he period 24 to 26 November. Al th e conc lusion oi that conference in Bowen I put to 1he parties an exrensive recommendal io n for their consideration. The recommenda ti on failed to ob tai n a resolution to the dispute. A further conference was held in Br i sbane on 30 November and concluded as fo llows:- "ln this matter I have en deavoured to achieve a settlemenr by conciliati on, however I am now sa ti sfied that concil iation has fai l ed and 1hat in the publ ic interest it i s desirable tha t a sett l emen t be achieved by arbitra1ion. I w ill therefo re proceed to arbitrate this dispute pursuant to the powers granted to me under the Act. Par t 12 section 187 {4) . I direct 1ha t the i ssues to be arbitrated by me shall be as foll ows: -- (1) Staffing /eve ls The emp!oyer is to j ust ify to the Commi ss ion why i t should be permit ted to reduce the existing staffing leve ls from 23 to a l esser number, suggested to be 14. (2) Method of Seleccion The employer is to j ust i fy 10 1he Commi ss ion why it should be permitted to adopt the method proposed to be used to sel ect employees to be retrenc hed or to be retained in the event that any lesser number 1han 23 employees is determi ned by 1he Commi ss ion pursuant to ( 1) above to be requ i red to operate the coke wo rks effec1ive ly and productivel y. (3) Safecy Given that the unions con tend that any reduction in curre nt staffing level s is likely to l ead to sa fe ty hazards arising, the employer is to sat i sfy the Commission tha t it will exerci se the required duty of care and that any reduc1ion in staffing levels bel ow 23 will not impose undue ha rdship or requi re any employee to undertake work in an unsafe manner. I direct that 1he parti es to the arbitration proceedings shall be:- ( 1) Bowen Coke Pty. Lid. (2 ) The Austra li an W ork ers ' Un ion of Emp l oyees, Q ueensland. (3) The Metal and Engineering Wor kers' Ind us tri al Un ion oi Employees, Queens land. (4) The Ama lga mat ed Society of Carpen ters, Joiners, Brick layers and Plastere rs oi Au st ralas ia, Union oi Emp loyees, Queensl an d. (5) The Electri ca l Trad es Un io n of Emp loyees of Australia, Queensland Bra nch if they desire to appear. I direc t th at Bowen Co ke Pty. Lid. shall have carriage of the arbitration proceedings. I direct 1hat the arbitration proceed in gs shall commence at Bowen on Monday 6 December 1993 at a 1ime and place to be advi sed . I reserve t he right to give such other direc ti ons during the h ear ing as ma y be deemed n ecessary to enable t he effec ti ve arbitra ti on of th is di sp ut e. In deciding 10 take this course o/ ac tion t he Commission firmly beli eves that it is ac ti ng in the pu b! ic interest. In particular 1he Commission is apμrehensive that if the dispu te is left to drift idly along d ec i sions may be taken elsewhe re as to the continued operati on oi the coke works w it h resulti ng impact on the emp lo yees themselves and th e commun ily of Bowen. In these ci rcums 1ance s the Commission strongly recommen ds to the employer that it lake no precipi ta live aclion w ith respect 10 the immediate future of Bowen Coke Pty. Lt d. and tha t ii allows a reasonable time for the resu lt oi t he arbilration 10 be assessed before maki ng any decisi on about the future opera ti on oi t he pl ant .". On Monday 6 December formal hearings commenced 1n Bowen. At the ou tse t I should advise that it i s no t my in ten tion to report in detail the submissions or eviden ce ru t by t he pa,, ies, however, where I beli eve i t to be rel evant I wil make reference to the informa ti on ob1a ined over the period 6, 7, 8, and 9 December as I inform th e pa rt ies .of my conclus:ons. As can be seen from the directi on i ssued by the Commi ss i on on 30 November 1993, the onus of proof was pl ac ed on Bowen Coke to j usti fy it s proposed staffing leve ls and the me1hod of se lec ti on used to derermine wh ic h empl oyees w ill be retrenched and those to be retain ed. Furthermore the employer was requ ired to sat isfy the Commi ss ion t ha t it wi ll exerci se the required du1y oi care to emp loyees w it h respect to the issue oi safety. During t he course of proceedings the employer and unions ca lled a number of w i1 nesses, submi ss ions we re made by the ernpioyer, the four unio ns invo lved, i. e. , Aust ra lian Wo rk ers Uni on, Amalgamated Society of Ca rp enters, j oiners, Bricklayers and Pl aste rers, Automotive Me ta l s and Eng ineering Industrial Uni on and El ect ri ca l Trades Un io n, w ith t he employer having t he nght oi r ep ly which was exerci sed . -- 1 of 2 -- W i th re spect to the mailers I was reqwr ed 10 determine I have come to the foll owi ng condus1ons:- 1. STAFFING LFVEJS Th e employer proposes to reduce its el\rSting wor!<lorce from 23 (excluding apprentices) to 14. The existing workion.e comprises 14 coke worKers, ~ mechan,cal maintenance employees, 2 building uadesmen, 2 el ec tr ic i ans and 2 tr ades as sistant s. In essence the employer proposes to reduce the number 01 coke w orkers 10 10, introduce a skills b ased class ii1 ca ti on structure whereby the coke workers would work across the range of production functions required and be required at least ,n pan 10 perfo rm some oi the trad es ass i~tan t fu nctions ds i i is intended to e lim inate the tr ad es <1ssistants, reduce the mechanical ma,ntenance employees by one and contract out the buikling and refractory brick work. The sk ills based cl ass ification structure for coke worker~ r eq uires those employees 10 unden,,~e training on 1he new wor k meth ods pr opo,ed whrch inc l ude m.rllipli> 1w1ctions C:l1r ren1 ly und ertal..en by two or more employees, e .g. hose and daub, 10 now be done by one. lhe ~tructure also ;nvolves coke wo rke: ~ becoming an operator ma in tarner, which wou ld ena ble them to perform work on minor breat..downs and service c~rt<111) equipment. Further cxplanat,ons of the new sys tem can be 1ound ,n a number of the ex hibits tendered, however exhibits 8 and 29 con ta in the range of detail that became •mportant to my considerations RefPrence has been made by the employer of the need to overcome a cuhure that exist~ and in pnnc1ple the11 belief that lht> w orkforce hold s a strong view or "ONE MA N ON[ JO B". The cost or producing coke through the Bowen Cok!' worf..s ve, sus ob1ain1ng coke from ahernatP supplie rs h as b een ten dered 1n the se proceedings and i t has been demonstrated through the evidence of Mr Arndt and Mr Baud1nette that cheaper supplies arP ava i lable. The unions on behali of their members opposed any recl uction ,n s1a1f1ng l('vels for a number of varied re.isons, safe l y, l ac k of consultation, the cl ai m the new wucture put und ut" pressure on individual s who already worx rn an unpleasant and extremely hot environment were some of the reasons advan ced on behalf oi cok e workers, des ki lling, the t ra nsierrin_g o r' sk il ls away from tradesmen to others under a svst em tha l w,fl not g1vp those acquiring !hos(' sk,lls appropnate rec.ogn,tion wa _s p~I to me on behalf oi m ec hanical rra desmen, easy d('Ces s an d tlex,b il 11y or bui lding workers toge1her wi th the iact 1ha1 cert.iin work nPeds lo be undertaken 1n order to en sure a safe •.vorkplace, and on behah of the electricians the pr ovi sion of the Elet.tri wy Regulat ion s rp provisions ior co mpeten t assistants lexhrbit 19). There arc certain princ ipl es rhat lndust rr al tn bunals ha vP adopt ed over J lengthy penod of time, onP being that ,t is 1h c employers responsibil11y 10 mana 0 e an enterprise It 1s not the role or trib unals 10 u su rp that right, ra ther the role of lndustnal Tribunals is basical ly an interventionist role ~nd th ere needs to be justiiicauon to interv«>ne It was tor 1h,s vet) redson that on 30 November the terminology u~ed i n the Co mm issions direction w as to r eq uire the employer to justify i ts posi1ion arid of cou rse ,1 th.it 1s done then there is no reason for 1h s tribunal 10 iniervene and overturn the employers drcision. I am satisi,ed wi1h two exceptions that 1he employer has cons idered ,ts options careiu lly and that its propos('(! me1hods are ca pable of su cc ess ful ,mpl ementat 1o n, h ow ever th e proposed methods will require the acceptance of the coke wo rkers 10 utrl1se all pro1ective equipment that is and will bP ma de available, i.e. iace shi elds. leather apro ns and cool surts. Central 10 the issues I am required to cleterm,ne ,s t hP Lise oi cool sur ts an d in this regard I am sa ti sfied that the ev idence oi Dr . Hoskins together w i th in formdt ion ob1ained rron, Protector Sarety Pty. Ltd. th.it 1here is no medical 1mpedime-nt to the wearing oi this equ ipment tha t the equipment w ill no t unnecessar il y l imit movemen t and make the jobs more difficult. In fact I am 01 the opinion that 1he use of such equipment will make the jobs to be undertak en ea sier if use d properly. In this regard rnanagemen t must al so accept the need to have an adequa1e supply of rcP and have it wa1eg1cally μlaced, 01herw,sp the benPfit, o< the cool s~111s will he lrm1 ted. With respect to the bu il di ng tr ade s emp loyees, man age m en t has ma de a deri sion 10 contract this work out and no matter how unwise 1 m,gh1 icel such a decision may be I can find no !eason to intervene an d direct otherwise as the employer h as the right 10 make thrs decision and has undertaken that work that ,s needed to be done w ill be done. With resoect 10 th e retention oi the tr ades assistants, rt>liance has been placed on the llectncity Regu lauons and in this regard I mus1 draw the d1sti nrnon be tween a irades ass istant and a competen1 assistan t as prescribed by tho se Regulation s. Firstly, should competent ass istance be necessary rt is available due 10 the iac1 1h.i1 th e employer proposes to employ two electnc1an s, therefore when co mpetent ass istance pr escr ibed by the Flectrici ty Regula1i ons is required th e electricians can work ba ck to back. Fu rthermore such assis tance, although it may not be r~g arded as desirable by th e el ec tri cians, ca n be made available rrom other employees who either hol~ the appropriate first aid cer1ificates or who can ii needed be trained to the level requrred 10 meet the regul at io n s. 1 am also of the opini on that the times suggest ed by the employer to have th e vario us tasks undertak en is no t unreasonable, in iact, the actual t ime~ contained in exh,b11s were unchallenged. On.,. o r' my C0'.1tP rns relatf'S . to !h e tas ks that ar~ required by empl oyee~ who work on top ot the oven~.. In this regard. the C'vidence oi the empl oyees and the subm 1ss,o ns of the uni on s h.ive been i nf l uen ti al as has the employers response to engineering r!s way around thP prospect that the canisters ma_y overheat as there is no evidGnce before me 10 suggest that this matter has b een or will be overcome. There is also th e curren t communication ,unction unoertJken by one of the employees who I bel ieve was described as 1he cJoorman. The c:o mmuni ca 1ion fu n c1ion seems to be ca rril?..-1 out physic;,il ly at this point ,n time and while ! accept tha1 this may be overcome quickly wi 1h th<' introduct ,on o: an e!ectron1c co m mun 1cauon system, 1he fact remai ns that the sy stem ,s currently a phys1_cal one. These two princ iple concerns draw me to the conclusion that the produc1,on w orkiorce should be increased by one ov er and above 1h e figures propo sed by the e mpl oyer. My other concern is wrth r esp ec t to the n1 ech;m,cal work ror ce an d 1he employers d esi re 10 redu ce from t hree 10 two empl?yef'~. it wou ld appear that th e employer ,s _r elying on_ the transter 01 skills 10 production employees for service and minor 1epdir wor k that ,s c urr en tly undertaken by the mechanical employee~ In my opinion there are two reasons why th_is proposal ,s incapable of speedy 1mpl<>mentat1on. One 1s rt wd l take more th an Just a couple of weeks to tr ai n the producti on workP.rs 10 a level of pr ofic iency that w i ll require the wo rk to be done without d degree oi supervision. This is unders1andable, however, ii tack led properly an d ad eq uate tra ining i s pr ov ided it may be a ~u ccess ful ini ti ative over time. Secondly ,f tne employees w ho acqu ire these skill s are to be given accreditation thJ t i, portable then a level of agreement be1"een the employer and the appropriate union will be of tremendous as~is1ance to !he employer .ind the employees. Wit hout such agr ee ment the desires and promi ses of a career pa th may not be su~t.iined. I have raken into co ns ideration the submissions th a1 h ave been made by 1he employer and Mr Donaldson (a witness I iound to he very honest) with respect 10 the ,s sue of over1 1me worked by maintenance emp lovees and h dve come to !he view that I should direct the employer and the Metals and Engineering Union to conter for the purpose 01 reorganising the hours of work with 1he intent to r ed uce what could on l11 be descri be d as an unhealthy overtime hill in an environment where costs need l o be reduced 10 simply survi,·e. The discussio ns bP tween the par1ies should add ress the 5 in any 7 concept, 4 >. 10 hour shiits, day and anernoon sl>iits or anv 01her me th od oi work ing 10 reduce the overtime worked and i ts associated costs. 1 he lndustndl Commission would be available to assis t i i this 1s rcqu irnd or requ e~ted ny either pany. Un der th ese circumstances 1he three mechanical employees should be retained. 2. ME1H00 OF SEL FCTION 1h e mt:thod used b>' the l:'mpl nyN has b een referred to as " Targeted Selection" and in this regard Mr Scott Roberts was called to give evidenC'e. I J 4UI\.H.UY , .t ~;:.t '+J v u tt.:,J~::>L AN U UUV ERNMENT INDUSTRI AL GAZETTE 127 Mr Roberts is suitably qualified and has testitied to the use oi Targeted Sel eetr on " rn other co m par11es and_ with i n Mt. Isa M ines I 1mi ted . Howe ver, !here 1s a l ac k of evidence 1n using th is method in redu ndancy appl ic auons although chere is no reason 10 ><'e why ii may not wo rk or ror that matter be fair and r easo n ab le as the sys tem i t~c li seems to h,we bc•e n su cces sfu l. Its application at Bo\, en Coke appeJrs :o have been resisted by th<? employees re fus ing to pa rtic ipate in the selection proce;s. The employer was thereiore compelled to substitute the 1ndi v,dual interviews that would normally be unde n,1kcn by u~1ng supervisors to make ;in assessm en1 of th e employees li kely to be di,,,cted. I have co nsidered M r Rober1s ev idence and wh ,le he contends th at the method u sed is adequate and capable of bnnging about a fair resul!, I am persuaded 10 a different v,ew on the tact that he ac know ledged 1he poss ib ility oi a different result h~cJ the ind ivi du al ernploy ees part1cipa1eo. The evidence ot Mr Vea l seems ,o indicate tha t he was n01 entirely aware of wh.:i1. he was doing and even thou gh the emp loyer had establrshf:d the 1act that the other su perv is ors did and th at t ho~(' w ho set this course of action in train h ad catered ior most contingenc,es t-lr Vea l's ev1denct> 1s su/f,cient 10 sup pon the pnss i b1 l i1y 01 drHerenr ou1com es h ad the emp loyee s pa rti cipa ted . It ,s in these circumstances that I must conclucle that the sys 1em of "Target ed Selection " i s oi itself not neces,a nl y uniair but ra ther 1he methodologl' actually applied in this in~1ance 1s suft,c,ent to cast what may be described as reasonable d OLib t. Having drawn that co nclusion it is therefore incumbeni on me 10 consider other factors ,uch as the f an that ,n general terms we are deali ng w it h a rela !1ve l\' small wo rk force (2.3 employeesi, the se!Pct,on of employees to bring about an efficient, effective and sus1ainable worl,Jorc e for iuture considerations together w i th the /act that there may be a lrmit placed on appropri ate skill s rha t are available. I have given con sid era tio n to the proposal that redun da ncies should be by way 01 ca l ling for vol unteers th en apμlving the ~eniority principle as has happened in the past. In this regard 1 .im mindiul of the prospect that the cok e wo rks may close an d the ro nsequen 1i al effects th is may have on the Bowen communi ty and have formed a view that curreni management should be giv en the opp onun11y to make Bowen Co ke a vrable a11d eff,c1cnt opera tion. It is under these circumstances that I determine that the ro!lowing process should br applied to 1he co ke worf..ers and 1r.1 d es ass i stan t s. The selection process should be recon~tituted and the coke workers an d tr ades ass istants afforded an oppo rtun ir y to personally p.irlicipate. Managem en t should select the Pmployees it believes " 111 be the most capable of adapting io the new wor~ methods Jnd acqui ring the necessary ski fl s fo r its prop osed skills ba51;>d , I Jss i fica1 ion w ucture. In the even t that there is a reiusal by the work io rce to pa rticipate in the se l ec1,o n proc ess then the employees previou5ly s!'l('cted plus one more should be offered re!ention oi their μosit,ons and the remaining emp!uyees oiiered th e redun da ncy package I have come w ti11s conclusion aiter 1a,1ng i n10 rons1derat ,on all other alternati ves an d believe that this is tht· only op1 1on thJt w,1 1 give 1he coke \\Orks an oppo•tunity IQ survive. 3. SAFE7 Y Whrlst the employees have alluded and referred 10 safet y •ac tors there rs one cen tral theme to JII of the eviclence ber'ore me and that is that safety ha~ irnprovt>d ,ince Mt. Isa Mine\ I imited "as been the employer. There are is slJes that need to be addressed irrespective- of 1he provisions of the Workplace Health and Safety Act. One is the appointment oi a health an d sa fe ly r ep re se n ta tive. The employer has undertaken to do so an d this should be commended. Once an appropnate emplotee has been chosen and thi~ ~hould be the sole perogatrve of the employees then that employee shoul d l)p oit'ered the opportuni ly oi trainrng an d accrE'dit.ition under the 101111 TLC , A'v\lU, SDA training \Cherne .. In ge neral term s I an1 1101 in possession oi suri,cien t information to rntervene on the issue of safety. H . DEMP SEY, Commissioner. Appearances:- Mr S Beac h ior Bowen Coke Pty. Ltd. M r R. Boscacci for T he! Au st ralian Workers' Unro,, of Employees, Queensland. M r R. Stak er tor the Ama lgamated Society oi Carp en te rs , Joiners, Bricklayers an d Pl <1stercrs oi Au stra l asia, Un,on of Em ployee<, Queensland. Mr W. We lc h for the Aut om otive, M et als and Eng1neenng Industrial union of Emp loyees , Queensland. Mr T. Gill ma n for Th e Electricai Tra des Union of Emp loy ees oi Aus1ralia, Queensland Branch. Op era tive Date: NIA Decision - Di~pute Arbitration Released: 17 December 1993 #### # ######################## ################### #### -- 2 of 2 --