Industrial Relations Commission New South Wales Medium Neutral Citation: Notification under section 130 by Eraring Energy of a dispute with The Electrical Trades Union of Australia, NSW Branch and others re operator restructure [2013] NSWIRComm 10 Hearing dates: 11 February 2013 Decision date: 18 February 2013 Jurisdiction: Industrial Relations Commission Before: Harrison DP Decision: Catchwords: Dispute re business re-organisation. Restructure of Operator function - productivity and efficiency improvements - development of issue management processes - conciliation and mediation. Legislation Cited: Industrial Relations Act 1996 Category: Principal judgment Parties: Eraring Energy; Construction, Forestry, Mining and Energy Union (NSW Branch) (CFMEU); The Electrical Trades Union of Australia, NSW Branch (ETU); Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (PSA); The Association of Professional Engineers, Scientists and Managers Australia (APESMA); New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union (USU); Australian Institute of Marine and Power Engineers, NSW District (AIMPE); The Australian Workers' Union, New South Wales (AWU); Unions NSW Representation: Mr P Moriarty Eraring Energy Mr A Drew (CFMEU) Mr R Wilson (ETU) Mr I Braithwaite (PSA) Mr R Ashton (AIMPE) Mr P McPherson Unions NSW File Number(s): IRC 3045 of 2006 STATEMENT 1This matter was notified by Eraring Energy on 1 September 2006. 2The notification sought the assistance of the Commission in respect to the restructure of Operator duties, specifically: a) The "housing" of new operators prior to filling permanent, on shift vacancies: b) Introduction of dual unit operation by one PPO whilst carrying out normal plant control room duties; c) Introduction of a sixth operating shift rotating through day shift; and d) Review of the Production Group Skills Development, Career Path and Remuneration Program (the "matrix agreement") to align operator numbers with the Business Plan. 3The notification advised that there were associated issues of succession planning (IRC06/857) and establishment of a central control room (IRC06/1352). 4At the time of the notification Operators were refusing to participate in discussion with management in response to those matters or engage on the issues notified in these proceedings. 5The matter was first listed on 7 September 2006. There followed 39 separate listings of the matter; some deferred at the request of the parties as they developed a working party approach to the issues; others requiring the robust intervention of the Commission in mediation, conciliation or assisted negotiation. 6The issues as notified were addressed, but of greater importance the method and style of engagement of the parties was subject to active deliberation. 7During the course of these proceedings and directly associated therewith the parties developed an interest based approach to issues with the assistance of a consultant, Ms Viv Read. 8What has now become known at Eraring Power Station as the IBED process continues as an effective process of co-operative problem solving and issue management. 9In report back proceedings on 11 February 2013 the parties were in agreement that this matter had been specifically valuable in improving relationships on site, productivity, and efficiency of the Power Station. 10In seeking conclusion of the matter Mr Moriarty, on behalf of Eraring Energy, tendered a chronology of events (MFI 47). Mr Moriarty said (TR 11/2/13): "...there's been some expert advice sought during that time; there has been some benchmarking activities that have been undertaken; there have been some technological improvements that have been implemented around software; and there's been some ergonomic configurations trialled. .... there has been a couple of issues that are noted in the document that's tabled [MFI 47] where we've had disputes under our internal grievance process that have been handled. To the union's credit, they sought a meeting with Eraring Energy. That meeting took place on 30 January 2013, just so all the parties in the matter were up to speed with regard to the status of the outstanding issues. That meeting was participated in by Eraring senior management, the unions that are here on my right today, and a number of the people that Mr Drew mentioned that are part of the implementation and review committee, and the local delegates. Post that meeting, your Honour, I'm pleased to advise that those issues that were raised or that remained outstanding are now either resolved or the discussions are continuing in the appropriate forum to have those matters worked through. One of those matters will work through the trio implementation review committee. Another one of those matters relates to shift managers, and those shift managers are having the conversations with the production manager to progress along their salary structure. ... ... The other significant event that's happened since our last report back in this matter, your Honour, is that we have commenced and finalised negotiations on a new enterprise agreement. That agreement was lodged with Fair Work last week, and if I can just work through a couple of those issues, your Honour, and I wouldn't mind handing up another document [MFI 48]. ....this is basically our final terms of settlement document. The reason I've tabled that today as part of this proceedings, your Honour, is because there are some significant elements of our agreement that relate pretty closely to this matter. The agreement that we have reached is a four year agreement with three and a half per cent pay increases each year. It's got some protections built in for employees linked with our privatisation project and some cost saving initiatives in there to fund the increases. I'm pleased to report that the agreement was voted up by almost 94% of our workforce ... .... So, where we are at the moment is we have a brand new enterprise agreement; we have a modern and updated skills development document for the operators; we have the trio implementation and review committee that's coming along and doing its business; and we also have an interest based enterprise development committee that's handling the issues that aren't related to trio at a local level under our consultative framework. ... ... The IBED process doesn't involve people like me in those negotiations, nor does it involve people like the unions. It involves local management and local employee reps to work through issues at a local level. If those issues have to be escalated for whatever reason, then the grievance and disputes process under the enterprise agreement manages that, that process, and, as I've previously stated, your Honour, I don't believe there are any issues in that that are outstanding that require the assistance of the Commission. ... ... I actually had to go back and remind myself of really how we got here. So, I went back and had a look at our original notification which was submitted by me on 1 September 2006, a long time ago. ... .... ....at that time, as you'll remember, without the benefit of the environment that I've just described, we had a number of reforms that we sought, Eraring Energy sought. Some of those reforms are no longer relevant. You know, here we are six years later. The sorts of things in that original notification, your Honour, were to have a housing arrangement which has been in place now for nearly six years and is updated and referenced in the current enterprise agreement. At that stage, we didn't want trio, we wanted duo. We no longer want that; we've moved on. We wanted everyone to have a sixth shift; we no longer want that; we've got a shift manager working a sixth shift and we did want our numbers aligned to the business plan which we think the most recent version of the enterprise agreement and the production, skills development, career path and remuneration program delivers. When the dispute notification was made six and a half years ago, the operators didn't want to talk about the reforms or the changes, but, again, as I've detailed above, that's no longer the case. We've moved into an environment now where internal committees are handling the issues that were previously in dispute and working through those issues. You know, with the assistance of your Honour and the unions during that process, all the parties have moved considerably and notably, from Eraring Energy's perspective, the housing agreement that we established and the IBED process that was sort of born out of these disputes have allowed us to move on. ... ... I mentioned the enterprise agreement before, and the reforms that are in the enterprise agreement I think were also born out of the way that we've engaged each other in these proceedings; we've moved on; we are talking; and we actually cracked some pretty big eggs in the enterprise agreement to set up a four year deal. .... ... As I understand it and, your Honour, you might confirm this for me: that the many issues discussed in this matter will remain part of the record. I think from Eraring Energy's side but also from the union's side and the employees' side, it's important. So that not only can we remember our journey but, if required, relevant documents or discussion points can be referred to at a later date. Again I thank your Honour for your efforts and assistance during this process. This matter was actually brought on at short notice many times over the last six and a half years, and we've had conferences both formally here in the Commission but also at site on a number of occasions which enabled operator delegates to attend those matters as well as the unions. I'd like to note the work of the unions over that period who, a number of times, certainly Mr Drew and Mr Ferguson and Mr Braithwaite as well as Mr Wilson from the ETU, in particular, Mr Ashton; there's been a fair few hours on site, many conferences held after hours in the control rooms, and while we didn't always agree on the issues, I would like to note that during this proceeding, the unions certainly always conducted themselves in a professional manner. Finally, your Honour, I'd like to acknowledge the good faith and active contribution of our operators in the current trio trial, and I look forward to working together under the consultative process we have jointly developed to actually bring the trio trial from trial mode to implementation mode. My final comment, your Honour, is I request that the matter be finalised after today's report back and further request that if your Honour could issue a statement that notes some of the acknowledgements that I've highlighted above in my submission and that statement be provided after the conclusion of these proceedings. 11Mr Moriarty was supported by Mr Drew for the Construction, Forestry, Mining and Energy Union (NSW Branch) and The Electrical Trades Union of Australia, NSW Branch; Mr Braithwaite for the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales; and Mr McPherson for Unions NSW. 12I note in concluding this matter that: * The process and material filed remain a matter of record and where relevant may be relied upon by the parties in the future. * The Eraring Energy Enterprise Agreement 2013 includes a consultative mechanism which embraces the IBED process and a dispute resolution procedure which allows quick and efficient reference of issues to this Commission pursuant to s 146B of the Industrial Relations Act 1996 ("the Act") or to the Fair Work Commission. * The development of the productivity initiative known as TRIO, conveniently but inadequately described as the operation of multiple units by a single operator, is progressing through a staged implementation process. * It is accepted that the Unions may bring a work value case if so advised to determine the appropriate rate of pay or classification level for Operators involved in TRIO when the implementation phase is complete and the facts necessary for such a consideration are established. 13I note the undertaking by Mr Moriarty to resolve the ongoing discussion with shift managers concerning their classification level or rate of pay as a matter or urgency, which I strongly endorse. 14The process and outcome of these proceedings reflect credit upon all participants, of which there were many over the course of the matter, and they are collectively congratulated. 15Matter No IRC 3045 of 2006 is concluded. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 February 2013