"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Thiess Pty Ltd

[2013] FWC 3632

[2013] FWC 3632

FAIR WORK COMMISSION

RECOMMENDATION

Fair Work Act 2009
s.739 - Application to deal with a dispute

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
v
Thiess Pty Ltd
(C2013/4479)

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Thiess Pty Ltd
(C2013/4528)

The Australian Workers’ Union
v
Thiess Pty Ltd
(C2013/802)

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 5 JUNE 2013

Alleged dispute regarding rights and entitlements.

[1] The AMWU, the CEPU, and the AWU (“the Unions”) made application respectively on 24 May 2013, 28 May 2013 and 29 May 2013 under s.739 of the Fair Work Act 2009 (“the Act”) in relation to a dispute with Thiess Pty Ltd under the Thiess Pty Ltd QCLNG Project Upstream Works Agreement (“the Agreement”). The unions each agitated two principal matters in relation to the application of the all-purpose rate of pay under the Agreement to employees employed under the Agreement.

[2] The unions and the Employer fell into dispute following a Memo issued by the Employer and dated 10 May 2013 in which, amongst other things, the Employer notified employees that it had made an overpayment over time in relation to the R&R travel clause under the Agreement. The R&R travel clause (12.5) under the Agreement reads as follows:

Travel for R&R shall commence on the last working day of the employees work roster, with normal work on site continuing for up to (8) hours. Non-local employees will be paid travel payment of four hours at the employees base hourly rate.

[3] The Agreement also makes provision for R&R travel in relation to employees returning to the project at the commencement of their new swing. According to the Agreement, these travel payments will be:

Non-local employees travelling by bus\road will be paid travel payment of four hours at the employees base hourly rate.

[4] The issue here subject to concern is whether the all-purpose rate of pay should apply to the travel period to be paid to employees.

[5] Clause 14.2 of the Agreement sets out the base hourly rates as well as the allowances which are added to the base hourly rate to form the all-purpose allowance.

[6] The Employer agrees that the base hourly rate plus the all-purpose allowance is the inclusive rate for ordinary hours for those classifications stipulated in the schedule in clause 14.2(a) of the Agreement.

[7] The Employer also agrees that despite clause 11.5(d) of the Agreement, RDO’s are not paid out at the employees’ base hourly rate at the rate applicable under the schedule in clause 14.2(a) of the Agreement. That is, despite clause 11.5(d) of the Agreement stating that RDOs will be paid out at the employees’ base hourly rate, that does not hold in relation to employees who attract the all-purpose allowances. The Agreement clearly is not a precise instrument in respect of its use of the notion of “base hourly rate”.

[8] It appears to me that it is difficult to sustain an argument that the four travel hours on the last day of the swing which are counted as hours for the purposes of averaging of ordinary hours (and likely to be so for a accrual purposes as well) are not in themselves ordinary hours but intended to be hours of a different character (such as “non-worked hours”). The Agreement does not distinguish between hours of different kinds on a day on which ordinary hours are worked and the employee is otherwise at the direction of the employer.

[9] I therefore recommend that the four hours of R&R commencing on the last working day of the employee’s work roster, when an employee is returning to their home base, be paid at the all-purpose rate where the employee has an entitlement to such a rate under the schedule in clause 14.2(a) of the Agreement.

[10] However, a different situation arises in relation to employees who are returning to the project from R&R, and in respect of that matter I recommend as follows.

[11] Where the employee enters camp from R&R on the day prior to the commencement of his ordinary hours of work, the travel payment must be made at the base hourly rate of pay (regardless of the employee’s classification). This is because there is no relationship between those hours and an employee’s ordinary hours of work.

[12] There remains another matter in dispute between the parties. This matter is the subject of continuing discussion between the parties and the Commission.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code A, AE885236  PR537636>