AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Workplace Relations Act 1996
s.113 application for variation
The Australian Workers' Union
(C2001/6456)
ENERGY DEVELOPMENTS LIMITED - AWU HYDROCARBONS,
GAS AND ENERGY AWARD 2001
(ODN C1992/20468)
[Print L5906] [AW808714]]
Various employees |
Oil and gas industry |
SENIOR DEPUTY PRESIDENT POLITES |
SYDNEY, 27 MARCH, 2002 |
Amendments to award to properly implement the requirements of Item 51.
DECISION
[1] In this matter I am required to determine two issues which arise from mistakes which were said to be made when the Energy Development Limited - AWU Hydrocarbons, Gas and Energy Award 2001 (the award) was simplified. I will deal with each issue seriatim.
[2] The first issue relates to the appropriate classification in the award for equation with the C10 level in the Metal Industry Award. That equation was made at the Operator B level when the award was simplified by agreement between the parties following conferences before me. It is now suggested by The Australian Workers' Union (AWU) that the appropriate equivalent to the C10 is not Operator B but Utility person or on the alternative Operator C.
[3] Four grounds were advanced by Mr Beard, appearing for the AWU, in support of the Utility person comparison, they were:
· a requirement to do on line maintenance in the classification description
· a Utility person could have "trade qualifications" and be paid a trade allowance under the award;
· the company had advertised for trade qualified Utility persons; and
· it had engaged apprentices as Utility persons who were doing trade training.
[4] In relation to Operator C Mr Beard relied on the evidence of Keith Farmer who was a qualified electrician required to obtain a high voltage license. This is within the definition of Operator C in the award and accordingly he submitted Operator C needed to be trade qualified.
[5] I have considered all these arguments but I am not persuaded that the link with Operator B is incorrect. In my view the duties of Operator B are appropriately aligned with the C10 classification. I do not accept that online maintenance in the generic listing of duties of the Utility person means the performance of trade duties. In my view in the context in which it appears "on line maintenance" is more appropriately characterised as duties such as checking fluid levels, small and other non trades maintenance tasks.
[6] Moreover, the fact that a trade allowance is payable under the award to a Utility person who in fact possesses and uses a trade in my view fortifies the position that a Utility person is not the appropriate link with the C10 classification.
[7] Nor is the fact that the company advertised for Utility persons (trades). As Mr Turner, of Counsel appearing for Energy Developments Limited (the company) submitted the companies certified agreement contains such classifications however we are here dealing with the award not the companies certified agreement.
[8] The argument in relation to Operator C has more substance. I am of the view however having regard to the other duties in the Operator C category that it is not the appropriate C10 equivalent. What is in fact wrong is the appearance of paragraph 8.3.4(m) in the job description of Operator C. In my view that paragraph should be transferred to the position description for Operator B. A person who requires and uses these skills should be classified as the trades level.
[9] For these reasons I consider the trades equivalent in this award is Operator B.
[10] The second issue relates to the determination of the appropriate level for the so called "flexible work allowance". It is acknowledged when the award was simplified that the character of this allowance was not appropriately recognised. It in fact compensates employees for a first aid allowance, stand by, working on weekends, annual leave loading, overtime and working on some public holidays together with callouts. Its existence in effect makes the salary provided by the award an annualised salary.
[11] Two issues arise for determination. When the award was made, from the evidence of Mr Whiteman, the levels of compensation payable in the annual salaries for each of the components mentioned above can be identified. The AWU seeks compensation in circumstances where employees work above the amounts identified in Mr Whiteman's evidence eg. where they work in the excess of two callouts per four week cycle.
[12] Mr Beard in effect argued that in order to be a proper safety net the award must compensate for working in excess of the amounts already provided for in the aggregate salary.
[13] Mr Turner opposed this position and argued that employees would in fact be getting the benefit of both the "swings and roundabouts".
[14] I accept Mr Turner's argument in relation to this matter. The concept of an annualised salary is that on occasions employees will work less than the notional times provided for in the salary and on occasions they will work more. If the times are inappropriately fixed then that is a matter that can be addressed by award variation to fix accurate times. The problem is not fixed by providing additional amounts over and above the annualised salary for exceeding notional calculation amounts.
[15] The second issue in relation to annualised salaries relates to the calculation of particular amounts. In my view this matter is to be settled in accordance with the practices in the hydrocarbons industry in relation to annualised salary. In my view the following should apply to the calculations having regard to the origins of the award and cycle nature of the work:
· the first aid allowance should be included for 52 weeks;
· weekend work should be calculated at 7.6 hours; and
· overtime should be calculated on the basis of 52 weeks per year.
[16] I will need to hear argument in relation to stand by and call out.
BY THE COMMISSION:
SENIOR DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<Price code B>