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

[2013] FWC 7748

[2013] FWC 7748

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
Stowe Australia Pty Ltd
(C2013/5835)

Electrical contracting industry
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 3 OCTOBER 2013

Summary: whether payment due re safety dispute.

[1] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (“the CEPU”) has made application under s.739 of the Fair Work Act 2009 (“the Act”) in relation to a dispute with Stowe Australia Pty Ltd (“the Company”) concerning the payment that ordinarily would have been made to its members who are employees of the Company in relation to Monday, 5 August 2013 and Tuesday, 6 August 2013. The non-payment of that period arose from a concern that the Company’s employees may not have been entitled to withdraw their labour on the basis of s.19(2) of the Act.

[2] The central question in this matter, about which the parties have sought my view, concerns whether or not the Company’s employees had an entitlement to be paid their ordinary wages and other ordinary payments under the terms of their industrial instrument for the period Monday, 5 August 2013 to Tuesday, 6 August 2013 inclusive.

[3] At around that time, a wider dispute had arisen on the Brookfield Multiplex Australia (“BMA”) construction site at the Indooroopilly shopping centre concerning the detection of asbestos in certain demolition works on or about 1 August 2013. The site has previously (earlier in 2013) encountered asbestos as it demolishes an old building structure and had developed policies and procedures for responding to such discoveries.

[4] Notwithstanding these policies and procedures, there appears to me to have been very considerable uncertainty about site safety following the asbestos discovery in early August 2013 (and the extent to which the policies and procedures as developed were properly applied at the time).

[5] This uncertainty persisted across Monday, 5 August and Tuesday, 6 August 2013, which was the period across which employees of the Company did not perform their ordinary duties.

[6] Though some time had passed since the point of discovery in the prior week, testing for the presence of asbestos spores had not been completed across the site, or in the crib rooms or air-conditioning units.

[7] The Site Safety Committee remained unconvinced over the course of Tuesday, 6 August 2013 that the site was safe as the testing remained incomplete at that time. It remained concerned that certain areas where employees congregate had not been sampled and tested for asbestos. The site was not declared safe by the SSC as a consequence.

[8] I understand that there is some suggestion that a new car park development which was a green field area known as Zone One was unaffected by the potential contamination and was an area in which duties could have been performed.

[9] Notwithstanding this, I have not been able to discern that any direction was given to any employees to perform duties in this area. I am also uncertain, in any event, as to whether (for public health reasons) duties could have been performed in such an area where there appeared not to have been any amenities or crib rooms (noting that at the time all the other crib rooms and amenities on site were not able to be accessed at the time).

[10] In such circumstances (where genuine safety issues concerning exposure to asbestos remained unresolved; the site had not been declared safe by the SSC; the BMA WHSO appears not to have challenged the employees’ safety apprehensions; and no directions to work in other safe areas had been given) it appears to me that the employees’ refusal to perform their ordinary duties was based on a reasonable concern on their part about an imminent risk to their health and safety. It appears also that BMA has not treated the conduct of its own employees at the time as being (unprotected) industrial action.

[11] My view, on the basis of what has been put before me and discussed between the parties, is that there is a strong likelihood that the conduct of the employees conformed with the requirements of s.19(2) of the Act, and that as a consequence, they had an entitlement to be paid for their ordinary hours of work and other ordinary allowances for the period Monday, 5 August 2013 and Tuesday, 6 August 2013 inclusive. Indeed, many of the issues are similar to those canvassed in my decision in [2013] FWC 2014.

[12] This statement of my view about how the conduct of the Company’s employees (between 5 and 6 August 2013) can be best characterised has been made public upon request that I do so.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code A, AE897701  PR542863>