Port Waratah Coal Services v Transport Workers' Union of Australia, New South Wales Branch

JUDGMENT: - 13 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Tuesday, 17 August 2004 Matter No IRC 478 of 2004

Notification under section 130 by PORT WARATAH COAL SERVICES OF A DISPute with Transport Workers' Union of Australia, New South Wales Branch re CLAUSE 12(B) OF THE PWCS ENTERPRISE AGREEMENT 2002

1 The notification of this matter was filed on 4 February 2004 by Port Waratah Coal Services Limited (PWCS), advising of a dispute with Transport Workers' Union of Australia, New South Wales Branch ("the Union") in the following terms: PWCS is experiencing difficulty in applying Clause 12(b) of the PWCS Enterprise Agreement 2002 and commencing a control room trial of a single operator under that clause at Carrington Coal Terminal .

2 The notification was subject to compulsory conference proceedings on 9 February 2004, with an inspection of the control room at Carrington Coal Terminal and conference on 8 March 2004. These proceedings established that the matter could not be settled by agreement between the parties and a Certificate of Attempted Conciliation was issued on 8 March 2004.

3 The matter was subject to Directions proceedings on 26 March 2004 and consequently proceeded to arbitration on 8 and 9 June 2004.

4 Mr R Warren of Counsel appeared on behalf of PWCS with Mr G Garvin.

5 Mr A Hatcher of Counsel appeared on behalf of the Union with Mr C Heuston.

6 Mr Warren brought evidence from Mr Anthony Butler, employed by PWCS Carrington as the Operations Superintendent; and Mr Barry White, employed by PWCS at the Kooragang Coal Terminal as an Operations Shift Supervisor.

7 Mr Hatcher brought evidence from Mr Anthony Monagle, employed by PWCS at the Carrington Coal Terminal; Mr Dennis Outram, employed by PWCS at the Kooragang Coal Terminal as a Level 2 Operator; Mr James Morris, employed by PWCS at the Carrington Coal Terminal as a Level 3 Operator; and Mr Mark Crosdale, Secretary of the Newcastle sub-branch of the Union and the official responsible for the PWCS site since 1999.

8 The control room at PWCS Carrington terminal has, from inception, been manned by two operators. The employment of control room operators at the Carrington terminal is regulated by the Port Waratah Coal Services Limited Enterprise Agreement ("the Agreement") approved by the Commission as presently constituted on 22 September 2002 [2002] NSWIRComm 249.

9 The Agreement provides for new technology and work practice change at cl 12(b) in the following terms: PWCS will introduce new technology and work practice changes into the plants when PWCS considers it appropriate.

Employees in the affected areas and their Union Representatives will be consulted prior to the introduction of proposed changes, and will be encouraged to contribute to the process.

Such changes may be facilitated by: · A trial system set up to ensure that the requirements of both parties are met. The trial system shall be as follows: i) The proposed change shall be detailed for the parties. This detail will include the proposed manning requirements, safety and work procedures. ii) The trial time shall be set to reflect the significance of the change. Trial time may be from 1 to 3 months depending on the significance of the change and trial results are to be continually reviewed. iii) Report back to the respective delegates on the state of the trial. iv) The new work practice and/or manning structure once agreed shall be implemented as the relevant standard.

Work practices changes and improvements in productivity is an ongoing activity that shall be supported by the work groups.

Where implementation of the changes will result in employees being made redundant, then the redundancy process as outlined above will be followed.

10 PWCS has changed the computer based control room system as a result of the "old" system becoming obsolete in that it was no longer possible to obtain replacement hardware or technical support.

11 PWCS contend that the "new" computer based system, identified as CITECT, which was commissioned on 17 November 2003, is capable of operation by one person.

· all operators have been trained and are capable of operating the CITECT system in single operator mode; · a risk assessment has been undertaken by the Carrington Coal Terminal Health and Safety Committee; · operation of the CITECT system by one operator can be achieved without risk to safety, and such work method would not place an unreasonable burden on employees involved.

13 PWCS seeks orders in the following terms (exhibit 2): 1 At the commencement of shift the supervisor shall allocate one suitably qualified operator to man the Control Room. This Operator shall be paid at the rate of Operator Level 3 in accordance with the Port Waratah Coal Services Enterprise Agreement, whilst working in the Control Room.

2. When the Control Room Operator takes refreshment breaks in accordance with Clause 26 of the Port Waratah Coal Services Enterprise Agreement 2002, such breaks shall be taken at the Control Room facilities.

3. The Control Room Operator will be relieved by a suitably qualified Operator to allow the Operator time to take his/her meal break in accordance with the Port Waratah Coal Services Enterprise Agreement 2002 provisions. The relieving Control Room Operator shall be paid as Operator Level 3 whilst performing the function.

14 It was established that it is the intention that the relief operator would be deployed within close proximity to the control room on duties that could easily be discontinued if and when he/she is required to return to the control room for any reason.

15 The Union refutes the contentions by PWCS and oppose the orders sought.

16 The evidence of Mr Butler is in two affidavits, exhibit 3 filed on 16 April 2004, and exhibit 4 filed on 2 June 2004 in response to material filed by the Union.

17 Exhibit 3 deals with the activities of the control room operator and the interaction with the plant control system and other operators.

18 Mr Butler described the evolution of the old system as a desk with hard wired button controls to a Hewlett Packard mainframe computer system, which he put was a mini computer providing all control functionality for the Carrington plant as well as interfacing with other systems. This is now replaced by the CITECT system, which Mr Butler put consists of a SCADA (Supervisory Control and Data Acquisition) process control system with CITECT as the operator interface. Mr Butler put that the new system at Carrington is directly linked to the plant database known as PROD, resulting in what he described as the advantage of all people involved in the planning, scheduling and execution phases of moving coal, contributing to a single system and database.

19 Mr Butler deposed that this integration makes the work of the planning department and the operations scheduler readily available in the control room, which reduces the level of rework required in the movement of coal as the control room operator has the ability to modify/edit information directly in the PROD database.

20 Mr Butler deposed that the equipment controlled had altered over time, specifically coal movement from the wharf surge bin to the ship loader was added to rail receival stockpile management on amalgamation of the former New South Wales Maritime Safety Board (MSB) operations. Mr Butler put that from the late 1990's to 2001 the control room oversaw the operation of three reclaimers, three ship loaders, and two stackers from a rail receival facility; a road receival facility operation at 10,000 tonnes per day and a ship receival facility of 5,000 tonnes per day capacity.

21 It is Mr Butler's evidence that in 2001 the third shipping stream was decommissioned; reclaimer 1 and stacker 2 were removed from service. Mr Butler deposed that reclaimer 1 and stacker 2 were to be returned to service in the coming months. The ship receival operation has been discontinued. Road receival remains on an intermittent basis.

22 It is Mr Butler's evidence that CITECT screens were first introduced at the Carrington terminal as emulation screens in 1997. Mr Butler deposed that in 2002 the Board of PWCS initiated change from the old system and established a team of two control room operators, two shift schedulers, a shift supervisor and an electrical tradesperson with access to the technical development team, a project team leader and Mr Butler to develop and implement the operating specification for the project, which he put was designed around having one operator in the control room. 23 The evidence of Mr Butler is that the team obtained the assistance of Mr Barry White, an Operations Shift Supervisor at the Kooragang Coal Terminal which has used the CITECT process control system, and has had one operator in the control room from inception. Mr Butler deposed that from an early stage of the operating specification development, the objective of making the control system at Carrington and Kooragang similar to one another, as far as practicable, was established.

24 Exhibit 3 provides a detailed explanation of the inbound and outbound control streams and the interface with other systems. Mr Butler describes the inbound and out bound control information as similar to one another and deposed that interface with other systems has been simplified.

25 In cross examination Mr Butler confirmed that the primary motivation for changing the control system was to achieve a reliable system with current technology. Mr Butler conceded that PWCS had never sought a reduction of the number of operators under the old system. Mr Butler added that over the last two or three certified agreements there had been "notation" of the desire to go from two to one operator in the control room.

26 Mr Butler's evidence is that in November 2003 two operators controlled three reclaimers, two ship loaders and three stackers. Mr Butler confirmed that PWCS intend to return a reclaimer and a stacker to service.

27 It is Mr Butler's evidence that PWCS require one operator to control all of this equipment using three computer keyboards, six primary computer screens displaying five primary screens and 11 additional screens or pages for information, making a total of 16 pages across six computer screens.

28 It is Mr Butler's evidence that the re-introduction of the stacker and reclaimer will not increase throughput above the 25 million tonnes per annum currently achieved but will provide greater flexibility and ease of planning.

29 In response to Mr Hatcher, Mr Butler confirmed that at the time the stacker and reclaimer were decommissioned, 12 employees were made redundant. There is no proposal to increase the number of employees on recommissioning.

30 Mr Butler was unable to quantify any particular reduction in work for control room operators arising from introduction of the new system. At p 10 of transcript (8/6/04) the following exchange is recorded between Mr Hatcher and Mr Butler: Q. Well I want you to answer the question. Are you saying that there is less work in total to be performed as a result of the introduction of the new system as compared to the old system or not? A. I'm having trouble answering that as a yes or no question because I see - I don't understand what you mean by the term work. If you mean the term work - the number of tasks that are required - the number of tasks that are required by the Control Room Operator is the same. If you're talking about the interaction at a particular point in time to do something then I think it's different. In that case I think it's reduced at a particular instant in time -the total number of tasks across a period would be the same.

31 Mr Butler was later obliged to concede that on a reduction from two operators to one the remaining operator would be required to carry out twice the number of tasks previously undertaken (TR p11).

32 Mr Butler described that advantage of the new system as allowing tasks to be pre-planned and pre-prepared, which on his evidence spread the required tasks more evenly. Mr Butler deposed that the new system allowed connection with planning systems allowing direct input of information, therefore overcoming problems of ensuring the correct computer syntax when entering information.

33 During the course of cross examination Mr Butler conceded (TR p14-15) that reductions in workload from the new systems are minor and incidental, and that as a result of a system "lock out" which occurs from time to time tasks are banked up, requiring the operator to find time to make up the tasks later. Mr Butler rejected an assertion by Mr Hatcher that the backing up effect doubled peak workloads though he was unable to quantify the effect on peak work level.

34 Mr Butler based his observation from his involvement in development and commissioning of the system which he acknowledged had required a lot of operator intervention. It is Mr Butler's evidence that the extent of operator interaction has meant that the system has not worked in the automatic mode. Mr Butler put that the new system worked better when in automatic mode compared to the "old" system which required intervention to operate, adding that areas of improvement required to be attended to in the new system. Mr Butler conceded that the "new system" had not improved stockpile management procedures so as to eliminate coal contamination.

35 Two risk assessments have been undertaken. There is considerable dispute between the parties in respect to the outcomes.

36 Mr Butler's evidence is that toilet facilities are planned to be put on the control room level to minimise the time away from the control room to meet calls of nature, and proposed that a second operator would be assigned work in the vicinity of the control room allowing quick response to calls for assistance or relief. Mr Butler put that each operator could work six hours in the control room and six hours of relief over the 12 hour shift.

37 The evidence of Mr White is that he was involved in the development of the new system at the Carrington Terminal. Mr White deposed that an objective of the new system was to be as similar as possible to the system in place at the Kooragang Coal Loader. Mr White's evidence is that achieving one person operation was never an issue that he was made aware of.

38 The evidence of Mr Monagle is that he has considerable experience as a control room operator in both the old and new systems. Mr Monagle's evidence is that no appreciable reduction in workload arises from the new system, the risk analysis is flawed, and that the proposal for a backup operator allocated other tasks in the vicinity is unworkable.

39 It is Mr Monagle's evidence that the "backup operator" could not respond in reasonable time, deposing that the "backup operator" would become involved in allocated tasks with other staff and be placed in position of conflict of task priority when called, delaying response times and placing an unreasonable burden on the employee concerned.

40 Mr Outram deposed that he is employed as an Operator Level 2, undertaking all tasks at the Kooragang Coal Loader, including the control room on a rotational basis, only attending there when it is his turn.

41 Mr Outram described the equipment and functions of the Kooragang control room, which is located in the vicinity of the general administration area and has toilet facilities within a few feet thereof.

42 The evidence of Mr Morris is that the has been employed as an Operator Level 3 at the Carrington terminal from 1981. Mr Morris has been the elected Occupational Health and Safety (OH&S) representative for his shift from 1985, and from 1989 has been chairman of the Carrington terminal OH&S Committee. Mr Morris has performed work as an Acting Supervisor for the Operations Department from 2002. Mr Morris is trained in control room operations and has been signed off as competent to undertake that work by Mr Butler.

43 Mr Morris deposed that he was involved in the risk assessment for a single control room operator at Carrington terminal. Mr Morris brought attention to a number of "controls" required by the risk assessment and deposed that he was not aware of any formal meeting taking place to confirm that the controls in the risk assessment have been completed. Mr Morris deposed that he was aware of a number of recommended controls that had been implemented, detailed in his statement of evidence (exhibit 9), and a range of controls that could not and had not been put in place.

44 Mr Morris supported the evidence of Mr Monagle that no workable control mechanism had been developed to relieve the operator, adding that a two way radio call requesting relief for a toilet break would be heard by more than 20 people due to the frequency, giving rise to some embarrassment and loss of dignity.

45 The evidence of Mr Morris detailed the frequency of multi-cargo vessels at the terminal, the requirement for control room operators to be involved in problem solving, and the ability by them to use both shiploaders at Carrington to load one vessel at the same time, which is unique to that facility.

46 Mr Morris deposed that ships with deck gear, such as on board cranes, and smaller vessels are normally loaded at Carrington as opposed to Kooragang, putting that these types of vessels are more complex and require greater attention.

47 Mr Morris acknowledge the data produced in Mr Butler's affidavit that to date in 2004 more multi cargo vessels have been loaded at Kooragang than Carrington in percentage terms.

48 The evidence of Mr Crosdale is that he has been an organiser of the Union from 1998 and in 2000 was elected to the position of Secretary of the Newcastle Sub-Branch. Mr Crosdale deposed that he had been the Union official responsible for representation of members at PWCS since 1999.

49 Mr Crosdale's evidence described consultation and correspondence between the Union and PWCS management from early 2003 in respect to the control room changeover at the Carrington terminal, and management's desire for a reduction from two operators to one. Attached to Mr Crosdale's statement (exhibit 10) is extensive correspondence between the Union and management on those issues in which the Union questioned and opposed the reduction in manning.

50 The principles to be applied in consideration of matters such as these are well settled and are succinctly stated in OneSteel Trading Limited v The Australian Workers' Union, New South Wales and Others [2001] NSWIRComm 337 by reference to John Lysaght (Australia) Ltd v Automotive, Metals and Engineering Union and anor (IRC 340 of 1994, Hungerford J, unreported); Re Cram, ex parte NSW Colliery Proprietors' Association Limited (1987) 163 CLR 117; John Lysaght (Australia) Ltd Port Kembla Slit Recoil Line Rates of Pay Award (1994) 279 IG 548; and BHP Steel (JLA) Pty Ltd v AWU-FIME Amalgamated Union (IRC 2374 of 1994, Hungerford J, unreported) wherein it is held that the role of the Commission is not to assume the position of the employer, but to assess where the employer's actions imposed unfair or unreasonable demands on employees, sometimes referred to as industrial injustice, or to intervene where safety is involved.

51 In Re Cram the High Court said: Many management decisions once viewed as the sole prerogative of management, are now correctly seen as directly affecting the relationship of employer and employee and constituting an industrial matter. A dispute about the level of manning is a good example. It has a direct impact on the work to be done by employees; it affects the volume of work to be performed by each employee and the conditions in which he performs his work.

52 The argument advanced by Mr Hatcher is that the reduction in manning would place an unreasonable burden upon the employee required to operate in the control room. Mr Hatcher questioned the risk assessment and safety measures but did not put that the proposed system would be inherently unsafe, submitting that it should not proceed until all the risk assessment controls had been fully and properly implemented.

53 Mr Hatcher relied upon the evidence of Mr Butler that the workload had not diminished by introduction of the new system, and accordingly under a one man operation the remaining operator would be required to undertake double the number of tasks compared to a two person operation.

54 Mr Warren relied upon the evidence of Mr Butler and other PWCS witnesses to support the argument that one man operations was reasonable and refuted assertions to the contrary.

55 Mr Warren put that any uncertainty in respect to the operation of the new system by one person was exacerbated by refusal of the operators to undertake a trial.

56 The essential submission of Mr Hatcher that the workload for a one person operation would double upon the individual is inescapable. I am not satisfied that the relief system would do anything to alleviate that demand. Nor can I be satisfied that the surrounding issues of operational safety have been properly met.

57 The orders sought by PWCS do not propose a trial and do not propose two persons on six hour rotation between the control room and the relief position raised in Mr Butler's evidence.

58 I conclude that operation of the control room in accordance with the orders sought in this matter would result in a harsh, unreasonable and onerous workload upon the person concerned, and accordingly the application is refused.

59 Matter No IRC 478 of 2004 is so concluded. oo0oo

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