Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Rio Tinto Aluminium Limited T/A Rio Tinto
[2023] FWC 2391
•15 SEPTEMBER 2023
| [2023] FWC 2391 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Rio Tinto Aluminium Limited T/A Rio Tinto
(C2023/2887)
| DEPUTY PRESIDENT DOBSON | BRISBANE, 15 SEPTEMBER 2023 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]
This Decision concerns an application made on 24 May 2023 by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (ETU) (the Applicant) pursuant to s.739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a dispute under the dispute resolution procedure in Rio Tinto Gove Enterprise Bargaining Agreement 2022 (the Agreement). The application is made by the ETU on behalf of its member, Mr Chris Henderson. The Respondent is Rio Tinto Aluminium Limited T/A Rio Tinto, Mr Henderson’s employer.
The agreed questions for determination are as follows:
Question 1:
“Do the Leave Allocation Guidelines (LAG) offend the NES and/or clause 36 of the Agreement?”
Question 2:
“Is the refusal of Mr Henderson’s annual leave application for 23-24 December 2023 unreasonable?”
Permission to appear
The Respondent sought to be represented before the Commission by a lawyer, the Applicant was represented by the ETU.
Relevantly, section 596(1) of the FW Act provides that a party may be represented in a matter before the Commission by a lawyer or paid agent only with the permission of the Commission.
Section 596(2) provides that the Commission may grant permission for a person to be represented by a lawyer or paid agent in a matter before the Commission only if:
(a) it would enable the matter to be deal with more efficiently, taking into account the complexity of the matter; or
(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or
(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.
The decision to grant permission is not merely a procedural step but one which requires consideration in accordance with s.596 of the FW Act.[1] The decision to grant permission is a two-step process. First it must be determined if one of the requirements in s.596(2) have been met. Secondly, if the requirement has been met, it is a discretionary decision as to whether permission is granted.[2]
I considered the submissions made by the Respondent on 31 July 2023 on the basis that:
· allowing the Respondent to be represented by a lawyer would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; and
· the Applicant had no objection to the Respondent being represented by a lawyer.
Accordingly, at the hearing on 21 August 2023, the Applicant was represented by Ms Lisa Midson from the ETU and Respondent was represented by Mr Damian Payard of Counsel instructed by Mr Callum Young of Minter Ellison.
Legislation
The Act provides for the Commission to deal with disputes in relation to disputes under enterprise agreement dispute settlement terms. Section 739 of the Act states:
“739 Disputes dealt with by the FWC
(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.
(2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:
(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or
(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.
Note: This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)).
(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.
(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.
Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).
(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.
(6) The FWC may deal with a dispute only on application by a party to the dispute.”
On 26 May 2023, I issued a direction for the Respondent to file a written response by 1 June 2023 and listed the matter for a conference on 13 June 2023. In its response, the Respondent denied that they had contravened the agreement, nor that they acted unlawfully in any way towards Mr Henderson. The Respondent’s position was that its refusal of Mr Henderson’s requests was not unreasonable and that they had sound and genuine operational reasons.
Following the conference on 13 June 2023, the matter was unable to be resolved and I issued directions for the filing of material and listed the matter for Hearing.
Background
Mr Henderson is employed by the Respondent in the low voltage electrical team (LV team) as a low voltage (LV) electrician on the Maintenance Services Team (MST) and commenced employment in 2010.
The Applicant submitted that Mr Henderson applied for leave on or around 23 February 2023 and sought a period of leave for four shifts during 23-26 December 2023. The application for leave was refused by the Respondent. The Respondent advised Mr Henderson that the reason for the refusal of the leave was “it looks like it does not align with the annual leave guidelines”. It later became apparent that this was because another employee on the same paired crew as Mr Henderson had made an application for the same period of leave prior to Mr Henderson’s application. The Respondent subsequently granted leave for two of the four dates, as the other employee who had put in for leave at the same time, had changed those two days from annual leave to long service leave, therefore the only days that remain in dispute are 23 and 24 December 2023.
Mr Henderson initiated the dispute resolution procedure in accordance with clause 13 of the agreement alleging that the refusal was unreasonable. Mr Henderson took up the dispute with his Supervisor, subsequently escalated it to the Superintendent and Acting Plant Operations Manager and then the General Manager. Each stage of the dispute resolution procedure confirmed Mr Henderson’s leave request was rejected and Mr Henderson sought that the ETU make an application to the Commission pursuant to the Agreement.
Leave Allocation Guidelines
There are four crews of employees that work in the LV Team in the MST; S, T, U and V and Mr Henderson is in S Crew. LV electricians are employed on a 4 day on and 4 day off Continuous Rotating Day and Night Shift Roster pursuant to the agreement. There are two crews of employees that work in the high voltage electrical team (HV Team) in the MST: Q and R Crew. High voltage (HV) electricians are employed on 4 day on and 4 day off Continuous Day Shift Roster. HV electricians can perform LV electrical work but LV electricians cannot perform HV work without further qualifications.
The LAG are set out as follows:
“Electrical Workshop – Leave Allocations
The following will be the guidelines for approving annual leave as from 23-08-22.
HV Electrical A/L x 2· 1 x Person on leave – Q crew
· 1 x Person on leave – R crew
LV Electrical A/L x 2
· 1 x Person on leave between – S and U crew
· 1 x Person on leave between – T and V crew
Long Service leave will be managed on a case by case basis separately outside of the above A/L guidelines.
…”
The LAG provides for the pairing of crews such that only 1 person from each paired crew is permitted to be on annual leave at any one time. In the LV Team there are two lots of paired crews they are S and U crew and T and V crew.
The shift roster is as follows:
| D | N | D | N | D | N | D | N | D | N | D | N | D | N | D | N |
| Q | Q | Q | Q | ||||||||||||
| R | R | R | R | ||||||||||||
| V | V | V | V | ||||||||||||
| T | T | T | T | ||||||||||||
| U | U | U | U | ||||||||||||
| S | S | S | S |
D is Day shift
N is Night shift
Relevant Provisions of the Agreement and the NES
Clause 4 of the Agreement states:
“4) Relationship with Other Industrial Instruments and Industrial Law
This Agreement provides the sole terms and conditions of the Employees to which it applies and operates to the exclusion of all Awards, and previous Enterprise Agreements.
The Parties will ensure full compliance with the Fair Work Act during the life of this Agreement.
The National Employment Standards (NES) apply to all Employees as a minimum standard. If there is an inconsistency between the National Employment Standards and a clause of this Agreement, the NES will apply and the clause of the Agreement will not apply, except to the extent that the clause of the Agreement provides for a more beneficial outcome for employees than the NES. Without limiting the foregoing, RTA will apply clauses 20, 29, 36 and 38 of this Agreement consistent with the National Employment Standard.”
Clause 11 of the Agreement states:
“11) Model consultation term
(1) This term applies if RTA:
(a) has made a definite decision to introduce a major change to production, program, organisation, structure or technology in relation to its enterprise that is likely to have a significant effect on the employees; or
(b) proposes to introduce a change to the regular roster or ordinary hours of work of employees.
…”
Clause 36 of the Agreement states:
“36) Annual leave
Employees working shift rosters receive 252 hours of annual leave per annum.
Annual leave may be taken as it is accrued during the year and at the time of application.
When taking annual leave, payment will be at base salary plus the applicable shift allowance. On termination of employment, any accrued annual leave will be paid as if the Employee had taken the leave.
Annual leave will be exclusive of any public holiday falling during the period unless the Employee’s roster requires the public holiday to be worked.
Annual leave shall be taken within 12 months of its accrual, at times and in periods suitable to the operations. Employees may request that they accumulate their annual leave to an amount to not exceed two years accrual. Such requests may be considered and approved at the discretion of their leader.
Unless otherwise agreed, Employees will give 2 weeks’ notice of their desire to take leave. RTA may refuse the application if it will cause undue disruption to the operation.
Scheduling of annual leave must accommodate operational requirements and must be approved by RTA. Workgroups are encouraged to expend all efforts to ensure annual leave is taken at the best opportunity on a mutual basis, plus all annual leave days must be arranged and approved in advance.
…”
Submissions of the Parties
The Applicant submitted that the LAG are inconsistent with section 88(2) of the Act and clause 36 of the Agreement and that Clause 4 of the Agreement provides that the NES prevails to any inconsistency unless that Agreement offers more beneficial terms.
Section 88(2) of the Act requires that an Employer must not unreasonably refuse a request by an employee to take paid annual leave.
The Applicant submitted that there is no genuine nor sound business reason for the implementation of the LAG. The Applicant submitted that the LAG cannot be considered sound because they:
i.were not subject to consultation; and
are applied inflexibly at all times, not in response to any peak periods; and
restrict the taking of leave to one Employee because an Employee on a different crew with no shared work has been approved leave for the same period;
do not directly address any operational issues which might arise; and
do not address any issues from the existing leave allocation arrangements.
The Applicant submitted that an inflexible, arbitrary policy such as the LAG cannot be regarded as reasonable.
The Applicant submitted that the evidence of their Member, Mr Henderson, and Mr Shannon Cooper (LV Electrician in the MST) demonstrates that the previous annual leave allocation guidelines had existed since at least 2014 and that between 2014 and 2020 there would only be two LV Electricians rostered on shift at a time.
Mr Henderson stated that he became aware that Mr Paul Richter introduced a leave allocation guideline by email in August 2022 and that prior to this, one electrician per crew could take leave at any given time. Mr Henderson further stated that he was not aware of a similar set of guidelines having been imposed on any other team.
Mr Henderson stated that prior to the LAG introduction, that if any Electrician took leave over a period that the temporary roster arrangements for coverage were disruptive as only 2 electricians would usually be rostered, however now that 3 electricians are rostered, this arrangement worked well.
Mr Henderson stated that he applied for leave on 23 February 2023 for 4 days over 23-26 December 2023 and that he was the only person in S Crew who had applied for leave over this same period. Mr Henderson has three sons with whom he wished to spend the Christmas period and is the only person on S Crew who has school aged children. Mr Henderson stated that his colleagues typically avoid using their leave during this period and that he was granted leave last year. Further, taking a shorter period of leave during the Christmas period is not practical for Mr Henderson as the travel time to and from the Respondent’s site is significant. The final reason for Mr Henderson’s request is to spend time with his Father who has been ill for some time. Mr Henderson did not note this on his leave request and stated that when his request was rejected, he was not invited to provide reasons for his request.
Mr Henderson stated that he was not consulted in relation to the LAG prior to their implementation. Mr Henderson stated that he did not believe that the work over the Christmas period would require his presence when there would be two Electricians rostered. Mr Henderson stated that the Respondent required two electricians to be on site to perform certain work but that most of the jobs would not require two electricians.
Mr Henderson stated that both days that he has requested, would have a number of other electricians rostered at the time and others available to fill in, if there was a breakdown. Mr Henderson stated that planned maintenance work could be completed with only one electrician on shift. During the period in question, Mr Henderson’s leave request, if approved, would result in his having 12 days off, as a result of his roster falling in such a fashion around the Christmas period. It was for this reason he requested to the 23rd to the 26th of December 2023 as annual leave. Mr Henderson Mr Henderson also had leave approved for the block 15-18 December 2023.[3]
The Respondent submitted that it had rejected Mr Henderson’s leave request reasonably as it had already approved another Electrician’s leave (who was rostered on the paired crew) for the same period and that the answer to both questions should be ‘no’. The Respondent subsequently approved two of the 4 days requested (the 25th and 26th of December 2023) as those two days of the other electrician’s leave was changed from annual to long service leave. Mr Henderson stated that this was futile to him as the location of the Respondent’s site, would require such long travel, that it would be pointless for him to take any of his leave if he had to return for just two shifts between 11 and 31 December 2023.[4]
The Respondent submitted that it has structured its employees to meet its obligations to supply electricity to the Gove site and the Gove community. It submitted that the LV Team is responsible for providing electrical support for the site and the four teams are rostered in such a way to ensure continuous service. The Respondent referred to clause 9 of the Agreement which states:
“9) Continuous Production
The Parties and the Employees recognise the need for continued production at all times. In order to resolve issues as close to the workplace as possible without disruption to production, the Parties and the Employees commit to adhere to the Equitable Treatment Procedure (ETP). While the ETP is underway, the Parties and the Employees will ensure that no unauthorised work stoppage, strike ban, limitation or lockout occurs”
The Implementation of the Leave Allocation Guidelines
The LAG was emailed to the Respondent’s supervisors on 31 August 2022.[5] The Applicant submitted that neither Mr Henderson nor the workgroup were consulted about the LAG prior to their introduction. As outlined, the LAG provide that only one LV Electrician between 2 groups of teams (of which there are 4) should take leave at the same time.
The Respondent submitted that the LAG are essential to ensure that service is continual and that they were intended to reduce the occasions when only one electrician can work on a shift. The Respondent submitted that there were five important aspects of the LAG:
1. They allow one out of the six electricians can be on annual leave in a 24-hour period, when crews are rostered together.
2. Under them, The LV Team can access leave in a way that is consistent with other teams in the Respondent’s Gove operation.
3. They operate on a ‘first in best dressed’ system.
4. They only relate to annual leave and do not affect an employee’s ability to take long-service or parental leave. Further, they do not prevent an employee from requesting annual leave when someone from their matched crew is taking personal leave, long service leave, or parental leave.
5. They are not inflexible or arbitrary. Where special circumstances apply, the Respondent submitted that they would consider a request even if it is not in line with the LAG.
The Respondent submitted that Continuous service was essential in the provision of power to the town of Gove and highlighted that there are outlying indigenous communities who rely on the electricity from its Gove site.
The Respondent submitted that as of May 2022, there was an operational problem with the LV team in that they were only completing 50% of planned maintenance work and was constantly behind on the maintenance schedule. The Respondent submitted that the LAG were introduced to address the high level of absenteeism in the LV team and to match leave guidelines in other teams. The Respondent submitted that a combination of these factors would cause the LV team to regularly be down to one electrician on a single shift which has led to the LV team not completing all required planned maintenance work. The Respondent submitted that these issues increased risks of failure of essential equipment, which could potentially lead to total stoppage resulting in lost production and posing safety concerns to the Respondent’s employees.
The Respondent submitted that prior to the guidelines, the LV Team was allowed to have up to four crew members out of 12 on annual leave at the same time, and the introduction of the guidelines halved this ratio. The effect of this was to increase the likelihood that there would be sufficient coverage to attend to any unplanned leave.
Mr Paul Richter (Services Superintendent) of the Respondent gave evidence on behalf of the Respondent that the LAG were necessary to address the absenteeism and the backlog of planned maintenance that were generated by the LV team. Mr Richter stated that on or around May 2022, the LV team was only completing 50% of the planned maintenance work and was constantly behind schedule. Mr Richter stated that prior to the LAG, that the LV team could be down to one electrician on any given day and that this would make planned maintenance work difficult. Mr Richter stated that this creates a backlog of planned work as certain work could only be completed with two electricians. When planned maintenance is regularly backlogged, Mr Richter stated the possibility of failure of essential equipment or breakdowns increase.
Mr Richter stated that the LAG operate on a first in, best dressed basis and that if an employee had special circumstances,[6] he would consider making an exception to the guidelines. When pressed on what might constitute special circumstances, he gave evidence that it might include circumstances where a family member was gravely ill. When asked why he had not taken Mr Henderson’s special circumstances into consideration, Mr Richter gave evidence that he had only become aware of Mr Henderson’s special circumstances in the week prior to the hearing. When asked now that Mr Richter had this new information, had he reconsidered his decision, Mr Richter said no because he was on annual leave.
I consider however that there were two sets of circumstances that warranted further consideration of Mr Henderson’s leave application. Mr Henderson made the Respondent aware of the circumstances with respect to his son being at boarding school and his time with him being limited to school holidays, in his first statement dated 3 July 2023.[7] Mr Richter notes Mr Henderson’s circumstances in respect of his son in his statement dated 31 July 2023 and says that even if he knew this at the time he made his decision, it would not have altered his decision.[8]
Mr Henderson’s second statement, signed on 10 August 2023, made the Respondent aware that his father had serious health issues.[9] Considering Mr Richter had signed his second statement on 18 August 2023,[10] it is my view that Mr Richter (or whomever stood in his stead while he was on leave) had time to make further enquiries as to Mr Henderson’s circumstances and to give Mr Henderson an opportunity to provide evidence of those circumstances. Mr Richter gave evidence that accommodations could be made to cover shifts for planned leave and that there is no policy that stops employees from taking short periods of annual leave.[11] Mr Richter was unable to give a cogent answer as to why, given the considerable notice Mr Henderson had given for his leave, that arrangements could not be made to accommodate the leave.[12]
Both parties made submissions in respect of the decision of Commissioner Cambridge in Adriana Stevens v Horsley Park Supermarket Pty Ltd T/A Carlo’s IGA Horsley Park (Horsley Park).[13] Whilst I note that this authority is merely persuasive, the considerations set out therein are relevant:
“[47] It is clear from s. 88 (2) of the Act that an employer must not unreasonably refuse to agree to a request by an employee to take paid annual leave. Whether there has been an unreasonable refusal to agree to a request to take paid annual leave is a matter that involves careful assessment of all of the particular circumstances of each case. Matters such as the nature and size of the employer’s business operation, and the period of notice provided for any requested leave, are matters of significance in any assessment of whether a refusal to agree to leave was unreasonable.
[48] Small and medium size businesses who have fewer employees would ordinarily experience greater difficulty making arrangements to cover for the work of employees who are absent on leave. In addition, certain business operations have particular periods of high demand or activity during which leave requests would not usually be approved. A decision to refuse a request for annual leave which is based upon genuine, sound business reasons would not usually be held to be unreasonable.”
I note that both parties also made submissions in respect of the decision of Commissioner Lee in Australian Municipal, Administrative, Clerical and Services Union; Ashley Hardy; Howard Jones v Shire of Moyne T/A Moyne Shire Council (Moyne).[14] Again the decision is one that is not binding however I make the observation that in the Moyne decision, the reference to a “Restricted Leave Arrangements Policy (RLAP)” notes that a restriction of the nature made in the Moyne RLAP may be inconsistent with its own Agreement and therefore it is differentiated from the matter presently before me. I do accept however that the strict application of a leave policy, without giving consideration to the circumstances such as those set out in Commissioner Cambridge’s decision in Horsley, might in itself be unreasonable but in order to make that assessment the consideration of those and perhaps other relevant circumstances is necessary.
Consideration
Whilst an employer has the right, and indeed the obligation, to roster its staff in a manner that ensures uninterrupted operations for the reasons submitted in these proceedings, on the Respondent’s own evidence, there are circumstances where a deviation from such a policy is appropriate.
Both parties made submissions and provided evidence in respect of what if any consultation occurred in respect of the LAG and whether there should have been more consultation. I find no utility to make findings in this regard as to do so would not alter the reasons for my decision in relation to the agreed questions for arbitration.
Both parties also made submissions and evidence put before the Commission regarding planned maintenance. Inevitably, the Respondent must provide for its employees to utilise their full leave entitlements, in circumstances where it has substantial notice to do so, it should plan accordingly. Again, I find no utility to make findings in this regard as to do so would not alter the reasons for my decision in relation to the agreed questions for arbitration. The question for consideration goes to whether the Respondent unreasonably refused Mr Henderson’s leave request in all the circumstances.
Mr Henderson gave the Respondent a significant amount of time in which to make arrangements to cover his leave. Mr Henderson first applied for the December leave on 23 February 2023 and the application was rejected that same day. Given Mr Henderson had approved leave and rostered time off for the dates 11 December 2023 to 31 December 2023 except for the two dates in dispute, 23 and 24 December, it is plainly unreasonable in my view, given the two sets of circumstances previously outlined, that the Respondent would not make arrangements to accommodate Mr Henderson’s request. Instead requiring him to return to site for 2 days in that period, immediately before Christmas day, despite having 10 months’ notice of his leave request and at least 4 months’ notice of all of his exceptional family circumstances. The Respondent gave evidence it could accommodate two additional days of leave because another employee simply switched his annual leave to long service leave. The Respondent also gave evidence that it could accommodate short periods of planned annual leave. If arrangements can be made to accommodate these situations, it is entirely unreasonable that arrangements could not be made to accommodate Mr Henderson’s request in all the circumstances.
Whilst the Respondent may not have initially considered Mr Henderson’s full circumstances given, I accept, that they were not aware at that point that Mr Henderson’s son being at boarding school, limited his ability to spend time with his son to holidays. Further, they were not initially aware that Mr Henderson’s father was ill and based in Cairns. However, once the Respondent became aware of these issues, they made no attempt to obtain further information from Mr Henderson. At the time of the hearing, at which point the Respondent had knowledge of Mr Henderson’s circumstances for 1 week, the Respondent still had more than 4 months’ notice to make arrangements to accommodate Mr Henderson’s request. Indeed, it has been open to the Respondent to grant the leave request at any time since that point until the issuing of this decision, which would have in my view ended this dispute.
Conclusion
The answer to Question 1 is yes to the extent in which they have been applied to Mr Henderson’s particular circumstances.
It follows that the answer to Question 2 is also yes. I find that the Respondent unreasonably refused Mr Henderson’s request for annual leave in all the circumstances.
The obvious remedy is that Mr Henderson’s annual leave for the 23rd and 24th of December be approved.
The dispute is determined accordingly.
DEPUTY PRESIDENT
Appearances:
Ms Lisa Midson, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
Mr Damien Payard of Counsel instructed by Mr Callum Young of Minter Ellison
Hearing details:
Brisbane In-Person 21 August 2023
[1] Warrell v Fair Work Australia [2013] FCA 291.
[2] Ibid.
[3] Paragraph 21 of Mr Henderson’s Statement – CH2, DCB p215.
[4] Paragraph 22 of Mr Henderson’s Statement – CH2, DCB p215.
[5] DCB p80 [6].
[6] DCB p158 [64].
[7] DCB p75, [17].
[8] DCB p162 [92].
[9] DCB p215 [23].
[10] DCB p233-234.
[11] Transcript at 2.21pm-2.24pm.
[12] Ibid.
[13] [2017] FWC 4626 [47]-[48]; Also referred to in Ms Sandra Barresi v Harris Scarfe Pty Ltd T/A Harris Scarfe[2022] FWC 3293 [26].
[14] [2019] FWC 136 [68].
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