AE&E Australia Pty Ltd v Construction, Forestry, Mining and Energy Union of Workers, The
[2010] FWA 1212
•22 FEBRUARY 2010
[2010] FWA 1212 |
|
DECISION |
Fair Work Act 2009
s.418 - Application for an order that industrial action by employees or employers stop etc.
v
Construction, Forestry, Mining and Energy Union of Workers, The; "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)-Western Australian Branch
(C2010/2725)
COMMISSIONER CLOGHAN | PERTH, 22 FEBRUARY 2010 |
Industrial action.
[1] On Monday 8 February 2010, AE&E Australia Pty Ltd (“the Employer”) made application for an order to stop unprotected industrial action pursuant to s.418 of the Fair Work Act 2009 (“the Act”).
[2] The order is sought against the:
- Construction, Forestry, Mining and Energy Union (the CFMEU);
- Australian Manufacturing Workers’ Union (the AMWU); and
- employees of the Employer who are members of the CFMEU and AMWU, and who are covered by any one of the following agreements:
(i) the Worsley Efficiency and growth project AE & E Australia Pty Limited CFMEU/AWU Agreement 2008 (“the Construction Agreement”); or
(ii) the Worsley Efficiency and growth project AE&E Australia Pty Limited Metal Trades Agreement 2008 (“the Metal Trades Agreement”).
[3] For the purposes of this decision, I will refer to the above unions collectively as “the Respondent Unions” and individually where necessary.
[4] Pursuant to s.72 of the Building and Construction Industry Improvement Act 2005, the Australian Building and Construction Commissioner gave notice to make submissions in this application.
[5] The application was heard in Perth on Tuesday 9 February 2010. I issued an Order on the same day with reasons to follow.
BACKGROUND
[6] A multi-fuel co-generation power station is being constructed at or near the Worsley Alumina refinery in Western Australia’s south west region (“the Project”).
[7] The Employer is engaged on the Project.
[8] The Employer employs approximately twelve (12) construction employees (crane operators, painters and carpenters). The construction employees are eligible to be members of the CFMEU.
[9] The Employer also employs approximately 148 metal trades employees (boiler makers, riggers, mechanical fitters, pipe fitters, special class welders and others). The metal trades employees are eligible to be members of the AMWU.
[10] The construction and metal trades employees’ conditions of employment are primarily regulated by the Construction and Metal Trades Agreements. Both agreements are within their nominal terms.
[11] The Employer is a constitutional corporation within the meaning of the Act.
RELEVANT CONDITIONS OF EMPLOYMENT
[12] For the purposes of this application the relevant conditions of employment are essentially identical and are as follows:
HOURS OF WORK
20.1
(a) On a non RDO week employees shall work Standard Project Working Hours (SPWH) of ten (10) hours per day, Monday to Thursday and eight (8) hours on Friday inclusive. On a RDO week SPWH shall comprise ten (10) hours per day, Tuesday to Thursday and eight (8) hours on Friday inclusive. When averaged over a fortnight this totals to forty-three (43) hours per week.
(b) Project Working Hours consist of ordinary Hours, RDO accrual hours and regular scheduled overtime. An employee may be required to work reasonable additional overtime as required by the company and as set out in Subclause 20.2 below.
REQUIREMENT TO WORK OVERTIME
20.2
An employer may require any employee to work reasonable overtime at overtime rates and such employee shall work reasonable overtime in accordance with such requirements.
The assignment of overtime by an employer to an employee shall be based on specific work requirements and the practice of “one in, all in” overtime shall not apply.
DISPUTE
[13] Since April 2009, overtime has been worked.
[14] As the number of employees on the Project has increased, the process to determine which employees work overtime, and for how long, has become more formalised and recorded in advance of the weekend.
[15] When there were a small number of employees, the working of overtime was “programmed” by “word of mouth”. As the number of employees increased, overtime is organised at pre-start meetings where employees would advise if they were available for the coming weekend. The employees’ supervisor or individual employees, would record whether they were available to work the “nominated overtime on the nominated days” (see for example Exhibit A2). “Nominated overtime” is the number of hours and nominated days is either a Saturday or Sunday.
[16] From April 2009 to 9 January 2010, approximately 50%, or one in two employees worked overtime on a Saturday. In the same period, approximately 15%, or one in seven employees worked overtime on a Sunday.
[17] On Saturday 9 January 2010, seventy-seven (77) employees of a workforce of 152 covered by the Agreements, worked overtime. The “nominated overtime” was eight hours. Fifty-one (51) employees finished after six hours worked. Nineteen (19) employees finished after 6.5 hours and three employees finished after seven hours. The remaining employees worked either one or five hours.
[18] Where employees worked more than six hours on 9 January 2010, evidence was given that in these instances, the employees had generally started work earlier.
[19] The uncontested evidence of Ms Allott is that the employees had been requested to work an eight hour shift, however, had “walked off at one o’clock”. 1
[20] On 16 January 2010, overtime was not offered because of supervisor training.
[21] After the shortened working of overtime on 9 January 2010, Ms Allott and other representatives of the Employer discussed the issue (on an unspecified date) with Respondent Union organisers and workplace delegates. The Unions’ representative requested that the nominated hours for overtime be either six, eight or ten hours. The Employer responded by saying that such a proposition was not manageable. The meeting concluded with the Unions’ representative advising, “that if a six hour overtime was offered on a Saturday, that they would give us [the Employer] a commitment that 75 per cent of the workforce will attend”. 2
[22] In the week prior to Saturday 23 January 2010, the Employer sought, by the usual practice, those employees who were interested in working six hours overtime on 23 January 2010. No employee expressed an interest in working overtime 3.
[23] In the week prior to Saturday 30 January 2010, the Employer again sought expressions of interest from employees to work overtime on the following weekend. No employee expressed an interest in working overtime 4.
[24] Following the fact that no employee expressed an interest in working overtime on the weekend of 30-31 January 2010, the Employer issued a “Site Notice” which attempted to: clarify the situation, advise of the discussions held with the Union organisers and delegates, and the commitment that 75 per cent of the workforce would work overtime at weekends if six (6) hour shifts were offered 5.
[25] On 30 January 2010, the Employer produced a document which is entitled, “Weekend Overtime O/T” which reads as follows:
“Due to the non availability of employees over the past few weeks to work any offered overtime we are advising employee’s, in accordance with clause 20.2, of the relative employee agreements to be available to work reasonable overtime this coming weekend.
The usual overtime availability sheets will be circulated at the pre start meeting tomorrow, Tuesday for work on both Saturday (6&8 hour shift) and Sunday 8 hr shift.
Reference—Clause 20.2.
An employer may require any employee to work reasonable overtime at overtime rates and such employee shall work reasonable overtime in accordance with such requirements.” 6
This document was read out by supervisors at the pre-start meeting on either 1 or 2 February 2010 7.
[26] In the days preceding the weekend of 6 and 7 February 2010, employees were asked to express an interest in working overtime. The nominated overtime hours could be either six or eight hours on either day. Again, no employees expressed an interest in working overtime on either day.
As a result of no employees wishing to work overtime, the Employer issued, on 3 February 2010, a directive to all the relevant employees at both the Worsley and Picton sites. The relevant parts of the directive are as follows:
“Dear …
Direction to attend weekend overtime
…
…
A further Site Notice was read at the pre-start on 1 February 2010. Notwithstanding this notice, employees have refused to indicate an availability to work overtime this coming weekend.
Unfortunately, in these circumstances, AE&E is left with no alternative than to require employees to work the overtime which AE&E needs to be performed on the Project and to give directions to employees accordingly.
The site workplace agreement that applies to your employment requires you to work reasonable additional overtime as directed by the Company (see clauses 20.1(b) and 20.2 of the CFMEU/AWU Agreement 2008, Metal Trades Agreement 2008 or the Electrical Trades Agreement 2008). In accordance with the applicable site workplace agreement and AE&E’s legislative right, AE&E directs you to attend work at 7 am on Saturday, 6 February 2010 and perform your normal duties until 1 pm.
Your failure to attend work at the time specified above in non-compliance with AE&E’s reasonable, lawful direction may result in disciplinary action (including up to termination of employment).” 8
[27] On 6 February 2010, 12 employees attended the Picton site and less than five attended the Worsley site. 9
[28] It is not clear whether the employees commenced overtime or not, but it appears when the employees at the Picton site found out that there were few employees at Worsley, they left the site without authority. 10
[29] On Friday, 5 February 2010, the Employer’s representative, Ms Robyn Allott and others had discussions with Union delegates regarding the reason why the Disputes Settling Procedure, as contained within the Agreements, was not being used to resolve nil participation in overtime. In the first instance, the Union Organiser, Mr Anton Askervaald, referred to an “overtime ban” but then corrected himself. In the same discussion, Union delegate Mr Steve Fay advised that “he had no intention to work at all this summer”. 11
[30] On the same day, a discussion occurred between Ms Allott and Mr Sneddon, Lawyer, CFMEU in which one option to resolve the issues was to refer the matter to the “Commission”.
[31] Mr Sneddon put the position for his Union which was adopted in its entirety by the AMWU. No evidence was called by the Respondent Unions.
[32] The position of the Respondent Unions is that no overtime ban was in place.
[33] Simply put, Mr Sneddon stated that:
- overtime was worked on 9 January 2010;
- no overtime was offered on 16 January 2010;
- the weekend of 23 and 24 January 2010 preceded a rostered day off (RDO) on Monday, 25 January 2010 which was followed by Australia Day on 26 January 2010. On that weekend, employees took advantage of a four day break;
- by the weekend of 30 January 2010, employees had only worked three days that week and chose to “extend that break” 12; and
- finally, on the weekend of 6 February 2010, there was confusion, hyperbole and a threat by the Employer.
[34] In summary, Mr Sneddon states that:
- nothing has been organised;
- there are justifiable reasons why employees are not working overtime; and
- there is no industrial action.
[35] For the Respondent Unions, it is simply a fact that the Employer has “fallen behind on the project and are panicking” 13.
[36] I am unable to agree with Mr Sneddon’s assessment of the situation. While there may be some validity as to the reasons why some employees did not work overtime, the “long arm” of coincidence, is unlikely to have reached so far as to encompass all employees, especially given the practice in the previous eight months.
[37] Secondly, the Respondent Unions submitted that, as the employees are working an average of 43 hours per week over a two week cycle (including one RDO), “quite clearly, there isn’t an overtime ban because overtime is being worked”. 14 This position is deduced from the fact that, from 1 January 2010, the National Employment Standards for a full-time employee are 38 hours per week.
[38] While the National Employment Standards set a maximum of 38 hours for full-time employees and employees can refused to work unreasonable hours beyond that amount, the Respondent Unions fail to acknowledge that, in determining what is reasonable, the following has to be taken into account in sub-section 62(3) of the Act:
(a) …
(b) …
(c) the needs of the workplace in which the employee is employed;
(d) whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, working additional hours;
(e) any notice given by the employer of any request or requirement to work the additional hours;
(f) any notice given by the employee of his or her intention to refuse to work the additional hours;
(g) the usual patterns of work in the industry, or the part of an industry, in which the employee work;
(h) …
(i) …
(j) any other relevant matter.
[39] A number of observations could be made in determining what is reasonable, but suffice is it to say that the Respondent Unions agreed, less than 18 months ago, that the Standard Project Working Hours would be 43 per week and the practice, to date, is for approximately 50% of employees to work beyond those hours each Saturday, and approximately 15%, on Sundays. For these reasons, I am unable to accept the Respondent Unions’ deduction that overtime is being worked and hence, there is no overtime ban in place.
[40] Exhibits A10, A11, A12, A13 and A14 were submitted by the Applicant to demonstrate the usual pattern of working hours in the industry to which the Employer is broadly engaged in. I do not propose to detail the components of each exhibit, save to say that, with some circumstantial differences, they are indicative of standard working hours being in excess of 38 hours, and more akin, to the Employer’s arrangement.
[41] Finally, the Respondent Unions put the position that, “there is no industrial dispute, there is no bargaining occurring, that being the case that whatever is happening on site, if indeed there is anything happening on site, certainly doesn’t fall within the definition of industrial action as outlined in the Fair Work Act” 15. To support this proposition, Mr Sneddon referred me to section 19 of the Act and, in particular, the legislative note alerting the reader to the Automotive, Food, Metals, Engineering Printing and Kindred Industries Union v The Age Company Ltd PR946290.
[42] Mr Sneddon’s submission is that in his analysis of the Full Bench decision, for industrial action to be occurring, two conditions must be met. Firstly, there must be a dispute, and secondly, bargaining in relation to a demand by employees. The view of Mr Sneddon is that, as the “cause” (my word) of the dispute is unknown, there cannot be a dispute and hence the first pre-condition is not met for industrial action. Secondly, as the parties are not bargaining, the second pre-condition for the definition of industrial action has not been met. In my view, the Respondent Unions’ proposition is misconceived. The context to Mr Sneddon’s proposition reads in its entirety reads:
“In a statutory context which is concerned with industrial disputation and enterprise bargaining it might fairly easily be concluded that a definition of industrial action is intended to be confined to action which occurs in the course of an industrial dispute or bargaining in relation to a demand concerning the conditions to be afforded by an employer to its employees. If such were the case, however, as counsel for the unions pointed out, so-called political strikes may not be amenable to an order pursuant to s.127 – a conclusion at odds with a number of Commission decisions and with the decision of the Federal court of Australia in Communications Electrical Energy Information Postal Plumbing and Allied Services Union of Australia and another v Commissioner Laing of the Australian Industrial Relations Commission and another [(1998) 159 ALR 73; (1998) 86 IR 142]
It seems to us likely that the legislature did not intend to include conduct which stands completely outside the area of disputation and bargaining and that accordingly the definition should be read giving some weight to the word industrial. But precisely how far this qualification might extend is a question of degree. We do not think it is desirable that we go further than is necessary to decide this case. As is clear, we have not found it necessary to go beyond the words of the definition.” 16
[43] Mr Blackburn described the proposition put by the Respondent Unions as absurd, I would simply say that it is contrary to well beaten path of decisions of the Tribunal based on the plain meaning of the words:
“Industrial action” means action of any of the following kinds:
(a) the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;
(b) a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee.
(c) …
(d) …” 17
[44] I do not think it is contestable that overtime is “industrial”. Secondly, that the working of overtime has changed significantly from 9 January 2010 from what existed previously. Thirdly, the wholesale unavailability of the workforce to undertake overtime is a ban or restriction. These three factors, in my view, ensure that the conduct of employees falls within the plain meaning of “industrial action”.
CONCLUSION
[45] Based upon the evidence presented, I am satisfied that:
- since the commencement of the Project until 9 January 2010, approximately 50% of the employees have regularly worked overtime on a Saturday when overtime was available. Further, approximately 15% of employees have regularly worked overtime on a Sunday when overtime was available;
- on 9 January 2010, the majority of employees who were due to work eight hours overtime, “walked off” en masse after six hours;
- since 9 January 2010 to 7 February 2010, all the employees have engaged in action which can only be described as a ban or restriction of the working of overtime. This ban or restriction is inconsistent with the customary practice of working overtime prior to 9 January 2010;
- it is improbable or inconceivable that the action could occur without being organised;
- the CFMEU and AMWU, as the organsiation representing the employees, have been involved in discussions on the unavailability of workers to undertake overtime;
- the Employer has attempted, without success, to resolve the matter consistent with the Project Grievance Resolution procedure;
- the action is industrial action within the meaning of the Act; and
- the unprotected industrial action has happened, impending and probably will continue.
[46] Having heard submissions and received evidence, these are the reasons for my decision to make Order (PR993516) pursuant to s.419 of the Act on 9 February 2010.
COMMISSIONER
Appearances:
Mr J Blackburn and Mr D Scanlon, for AE&E Australia Pty Ltd
Mr K Sneddon, for the Construction, Forestry, Mining and Energy Union of Workers (the CFMEU)
Ms S Thiel, for the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union-WA Branch (the AMWU)
Mr B Mueller, for the Australian Building and Construction Commission
Hearing details:
2010
Perth:
9 February
1 PN 184 and PN 185
2 PN 199
3 PN 212
4 PN 220
5 Exhibit A4
6 Exhibit A5
7 PN 264 and PN 265
8 Exhibit A7
9 PN 295 and PN 299
10 PN 295
11 PN 307 and PN 311
12 PN 31
13 PN 32
14 PN 48
15 PN 50
16 PR946290 para45-46
17 s.19 of Fair Work Act 2009
Printed by authority of the Commonwealth Government Printer
<Price code C, PR993816>
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