Caltex Refineries (Qld) Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
[2010] FWA 2858
•7 JUNE 2010
[2010] FWA 2858 |
|
REASONS FOR DECISION |
Fair Work Act 2009
s.418 - Application for an order that industrial action by employees or employers stop etc.
Caltex Refineries (Qld) Pty Ltd
v
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(C2010/3601)
Oil and gas industry | |
SENIOR DEPUTY PRESIDENT HARRISON | SYDNEY, 7 JUNE 2010 |
Application for an Order to Stop Unprotected Industrial Action - Caltex Lytton Refinery P&PC Technicians.
[1] Caltex Refineries (Qld) Pty Ltd (Caltex or the applicant) made an application on 5 May 2010 for an order pursuant to s.418 of the Fair Work Act 2009 (the Act) in respect of industrial action at its Lytton refinery. Following a hearing on that day I made an order. These are my reasons for doing so.
[2] The application was made under s.418 of the Act which is in the following terms:
“418 FWA must order that industrial action by employees or employers stop etc.
(1) If it appears to FWA that industrial action by one or more employees or employers that is not, or would not be, protected industrial action:
(a) is happening; or
(b) is threatened, impending or probable; or
(c) is being organised;
FWA must make an order that the industrial action stop, not occur or not be organised (as the case may be) for a period (the stop period) specified in the order.
Note: For interim orders, see section 420.
(2) FWA may make the order:
(a) on its own initiative; or
(b) on application by either of the following:
(i) a person who is affected (whether directly or indirectly), or who is likely to be affected (whether directly or indirectly), by the industrial action;
(ii) an organisation of which a person referred to in subparagraph (i) is a member.
(3) In making the order, FWA does not have to specify the particular industrial action.
(4) If FWA is required to make an order under subsection (1) in relation to industrial action and a protected action ballot authorised the industrial action:
(a) some or all of which has not been taken before the beginning of the stop period specified in the order; or
(b) which has not ended before the beginning of that stop period; or
(c) beyond that stop period;
FWA may state in the order whether or not the industrial action may be engaged in after the end of that stop period without another protected action ballot.”
[3] As originally filed the application sought orders directed to the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU or the union) its officials, delegates, employees and agents and to employees engaged at the applicant’s Lytton refinery whose employment is regulated by an enterprise agreement known as the Caltex Refineries (Qld) Pty Ltd P & PC Maintenance Collective Workplace Agreement 2009 (the Agreement). The order I made did not extend to all of these categories of persons. I refer to its scope later in this decision.
[4] In support of its application Caltex called Mr Zulli, the Reliability and Projects Manager, and tendered two exhibits. The exhibits comprised letters to the relevant employees dated 4 May 2010 (together with attached rosters) and email exchanges between Mr Zulli and Mr Richards, a power and process control (P&PC) technician and union delegate. The CEPU called Mr Richards.
[5] Based on the evidence (and, where there was no witness evidence or contest, the grounds contained in the application) I made the following findings.
Findings
[6] Caltex operates a petroleum refinery situated at Lytton in the State of Queensland. It has employees engaged in power and process control (P&PC) technician classifications. Those employees, Caltex and the CEPU are parties to the Agreement. Eight of these employees are the subject of this decision.
[7] Caltex has commenced what it described as a “Total Steam Shutdown” (shutdown) at the refinery. The duration of the shutdown is to be for approximately 6 to 8 weeks and, at the date of the hearing, around 5 weeks of that period was yet to run. The cost of the shutdown is significant. Mr Zulli said the total project cost is approximately $60 million dollars. Any extension to the total duration would incur a loss of approximately $1 million a day.
[8] The shutdown has been planned for 2 to 3 years. A P&PC technician has been a member of a shutdown planning team for more than 1 year. This is not the first such shutdown. A similar process has occurred on previous occasions.
[9] P&PC technicians, who usually work day shifts, are required for high voltage work during the shut down. Their involvement is critical to this operation and the safe and proper conduct of the shutdown.
[10] Caltex has consulted with P&PC technicians and delegates of the union for a new roster to be implemented to provide for coverage during the shut down. This will require P&PC technicians to work shifts in accordance with this roster rather than doing day work only. The time this temporary roster was to operate was unclear but it was to be for a shorter time than the remainder of the shutdown period – possibly for as little as 14 to 15 days.
[11] Two employees were to be rostered to work shifts from 7pm until 7.30am the following day. The employees who would be working these shifts would rotate through the P&PC technician group. The remainder would continue to work day shifts.
[12] The structure of the roster was agreed by the end of March 2010. It was largely developed by the technicians themselves with them being able to identify the “spots” they would work. Caltex was satisfied the roster met its fatigue management policy and provided adequate operational coverage. Subsequent to the roster structure being agreed a dispute arose between the parties as to the payments to be received for doing the shift work.
[13] A meeting was held on 4 May 2010 between representatives of Caltex, and a representative of the union, Mr Gary Rodgers, and delegates representing the P&PC technicians. The meeting was held at a time to allow Mr Rodgers, the relevant union official, to attend.
[14] Caltex was advised that the employees would not work to the agreed roster until the dispute about payments had been resolved. The dispute remains unresolved. In short, the parties disagree about how the provisions of the Agreement apply to the shifts and the appropriate amount employees should be paid for working those shifts. The employees claimed a 90% loading on hours worked and the applicant says it should be a 10 or 30% loading depending on how certain provisions in the Agreement may apply.
[15] The company was also advised in a later meeting on 4 May 2010 that employees who had previously volunteered to work particular “spots” on the roster now withdrew their names until the payment issue was resolved. Caltex said it would agree to go to a conciliation about the matter and back pay any amounts if found to be owed. The employees wanted to be paid the 90% loading. There was no specific proposal about how the company would recoup any overpayments.
[16] After the meeting on 4 May 2010 Caltex issued a written direction to the eight P&PC technicians to attend for duty in accordance with the agreed roster. That direction confirmed that the Agreement provided that Caltex could transfer employees to shift worked when needed, that union representatives had been “consulted extensively”, and a roster had been finalized about five weeks earlier. Employees had, since that time, nominated to work particular shifts in accordance with the roster and they were directed to attend for duty in accordance with the roster a copy of which was attached. To the extent there was a dispute about the payments for shift work Caltex would agree to that being conciliated in this Tribunal. It recorded that the union had indicated that employees would refuse to work the shift work arrangements unless paid in line with the union’s claims. A refusal to work the arrangements was considered by Caltex to constitute unprotected industrial action and be in breach of the Act. Caltex indicated that where any employee was being given less than 48 hours notice of the direction to work in accordance with the roster then they would be paid the appropriate overtime rate as provided by the Agreement.
[17] Two employees rostered to commence work at 7pm on 5 May had attended for work on that day at the usual day shift starting time. The employees were directed to go home and return that evening to work their rostered shift. Due to fatigue management requirements however those employers could not now be required to work in accordance with the roster. It was likely that each of the technicians would attend work at the commencement of day shift on the following day and, it would follow, the two employees who were rostered to work the 7 PM shift would not be able to do so.
[18] Mr Richards said that if Caltex agreed to pay the employees a penalty of 90% for hours worked on the shift roster employees would work in accordance with it.
[19] Significant losses will be incurred by Caltex should the shutdown schedule be extended.
Conclusion and order
[20] Based on the above evidence I was persuaded that:
- The applicant is a person directly effected by the action that was being taken and that was likely to be taken.
- The actions of the employees comprised industrial action as defined in the Act. Although s.418(3) does not require me to specify the particular industrial action here it is clear from the above findings on the evidence the form that it is taking. It is action that, in my opinion, comes within the definition of industrial action in s.19 of the Act. The action falls within the definition contained in ss19(1)(a), (b) and (c). It does not fall within any of the excluded categories referred to s.19(2).
- The industrial action was not protected industrial action.
- Two employees rostered to commence work at 7pm on 5 May 2010 had indicated, by turning up for day work for which they were not rostered, they did not intend to commence the rostered shift. That amounted to industrial action which was happening. I need say no more about whether the remaining technicians were also, as of 5 May 2010, engaging in industrial action on the basis they too had declined to work the shutdown roster. The order as finally sought however was to commence at 7am on 6 May 2010. Accordingly the next consideration was if industrial action was threatened, impending or probable.
- I was satisfied that industrial action was threatened, impending and probable. The employees rostered to work shifts in accordance with the roster would not do so unless agreement was reached about the penalty payments to apply for that work. Associated with this it was likely employees would attend work to commence on the day shift with the consequence being, as was the case on 5 May, the two employees that were rostered to work night shift would not then be able to do so due to fatigue management requirements.
- I was not satisfied that there was sufficient evidence to persuade me that industrial action was being organised by the union.
[21] I decided to issue an order. It was directed to the eight P&PC technicians, came into effect at 7am on 6 May 2010 and would remain in force for five weeks. Special service directions were contained in the order.
[22] I should make one final comment. The applicant served the application on the named P&PC technicians and the National Office of the union but not the Brisbane branch. Ms Inglis advised that the first she knew of the application was the notice of listing my chambers sent to the Brisbane branch.
[23] An application for substituted service had been made by the applicant but I declined to sign the order sought. The application and draft order should have been sent to the Brisbane branch of the union. This is required by the rules. As the evidence and the submissions developed the applicant did not press for the order to cover the union. Had it done so, the consequences of its failure to serve the State branch would need to have been considered.
SENIOR DEPUTY PRESIDENT
Appearances:
H Downes, for Caltex Refineries (Qld) Pty Ltd
K Inglis, for Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
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