Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Broadspectrum Australia Pty Ltd

[2015] FWC 2737

[2015] FWC 2737

FAIR WORK COMMISSION

RECOMMENDATION

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

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Broadspectrum Australia Pty Ltd
(C2015/2115)

Electrical contracting industry
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 21 APRIL 2015

Alleged dispute about matters arising under the enterprise agreement and the NES;[s186(6)].

[1] These recommendations arise from a dispute notification under s.739 of the Fair Work Act 2009 (“the Act”) lodged by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (“the CEPU”). The dispute application concerned to two matters in respect of which the CEPU and its members had fallen into dispute with Broadspectrum Australia Proprietary Limited (“the employer”). The employees concerned are covered by the Broadspectrum (Lytton Refinery Electrical Services – Queensland) Enterprise Agreement 2014 – 2015 (“the agreement”). The employer provides contracted services to Caltex at the Lytton refinery site.

[2] The dispute application was the subject to a conference conducted on 21 April 2015.

Recommendation #1

[3] On or about Saturday 29 November 2014, two employees were advised by a representative of the employer that they were to have their hours of work changed on Monday 1 December 2014 so that they would be performing shift work from that day onwards.

[4] The CEPU contend that neither of the two employees were afforded notice of the commencement of a change to shiftwork in accordance with the requirements of the agreement.

[5] Clause 15 of the agreement defines a “rostered shift” as meaning a shift for which the employee concerned had at least one week’s notice.

[6] The agreement also defines shiftwork, afternoon shift, night shift and continuous shiftwork.

[7] A rostered shift is shiftwork that is carried out in accordance with the definition of shiftwork in the agreement. There is no contention in this matter as I understand it that shiftwork was not being carried out in accordance with the agreement.

[8] The employer contends that a supervisor sought the support of employees for the performance of shiftwork some two weeks prior to the commencement of the shift. At that time, it appears as though the two employees came to agree that they would perform shiftwork as directed by their employer. There is no claim, however, that either employee was informed of the commencement date of the shift. Indeed, the employer itself appears to have been informed at a very late stage as to the requirements of the client in this regard.

[9] Consequently, neither of the two employees were provided one week’s notice of the commencement of the shift.

[10] The employer contends that in informing the employees concerned that such shiftwork was to be available or required to be performed in the future and that the two employees had acceded to its request to perform such shiftwork that the requirements of clause 15 of the agreement were satisfied.

[11] I do not think that this is the case, however. Notice in the context of the agreement reasonably implies that the employees concerned will be informed of the date and time on which the rostered shiftwork will commence and must be informed of that date and time no less than seven days prior.

[12] The notion of “notice” would have little value if the employer could simply indicate that shift work would be required at an undefined point in the future and by so indicating could discharge the obligation under clause 15 of the agreement. In such circumstances, an employer could require an employee to perform shiftwork at any time and without any notice so long as they had at some prior point indicated that shiftwork is required to be performed (in the future).

[13] Clause 15, in actuality, serves to provide employees with reasonable notice of a change in their hours so that they can accommodate that change in the interim period.

[14] For this reason, my recommendation - based on my preliminary view of the material - is that the employer has not complied with the requirements of clause 15 of the agreement and that the two employees as a consequence did not perform “rostered shift work” as defined in the agreement.

Recommendation #2

[15] The CEPU contends that there is an obligation under the agreement for the employer to pay CIRT payment to employees who are on workers compensation.

[16] The agreement provides relevantly as follows in relation to CIRT contributions:

37.2 Subject to the terms of this clause, and without disadvantaging any employee against the terms of Division 10, Subdivision B-Redundancy Pay of the National Employment Standards of the Fair Work Act 2009 the following weekly payments will be made by the Company on behalf each eligible employee (as defined) into CIRT which is the Redundancy Trust Fund applying under the terms of this Agreement.

[...]

Definition of eligible employee means all employees including full time, part time and casual employees and excluding apprentices or trainees. Provided eligibility for the weekly contribution is subject to the employee working or receiving payment i.e. annual, personal or other approved leave for 19 hours in any weekly pay period.

[17] The definition of an eligible employee for the purposes of CIRT contributions does not extend to an employee who is on workers compensation. Eligibility only applies in respect of employees who are working or who are receiving payments that have been approved for the requisite number of hours in a weekly pay period. An employer cannot authorise payment in relation to workers compensation claims or income insurance measures. Reasonably, they are matters that fall outside the terms of the agreement.

[18] The exclusion of such arrangements from CIRT contributions has been manifest in the recent history of enterprise agreement making between the CEPU, the employees and the employer.

[19] The obligation to provide for CIRT payment more widely was a feature of the 2009-2011 enterprise agreement. But the eligibility criteria were constrained from the 2012-2013 enterprise agreement onwards. Indeed, the log of claims for the 2014-2015 enterprise agreement included a claim in relation to payment of CIRT where an employee was on workers compensation. That claim was not accepted and does not form part of the 2014-2015 agreement, as cited directly above. The employer contends that it took the view in the face of such a claim that it would not re-include such broadened eligibility within the 2014-2015 agreement and the agreement was made on that basis.

[20] In my view, there is no reasonable basis to the claim that the employer should on the terms of the 2014-2015 agreement make contributions to CIRT where an employee is on workers compensation. There is no express or implied term of the agreement or, otherwise, any mutually shared understanding that mandates an employer to make such contributions in such circumstances.  

[21] My recommendation therefore is that the employer is under no obligation by way of a term of the agreement to make contributions to CIRT where an employee is on workers compensation.

SENIOR DEPUTY PRESIDENT

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