Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v TransAdelaide
[2009] FWA 351
•25 SEPTEMBER 2009
[2009] FWA 351 |
|
DECISION |
Fair Work Act 2009
s.240 - Application to deal with a bargaining dispute
v
TransAdelaide
(B2009/10455)
Fair Work Act 2009
s.739 - Application to deal with a dispute
v
TransAdelaide
(C2009/10231)
TRANSADELAIDE MAINTENANCE CERTIFIED AGREEMENT 2005
(ODN AG2005/5977) [AG843623]
Public transport industry | |
COMMISSIONER LEWIN | MELBOURNE, 25 SEPTEMBER 2009 |
Stand down of employees – usefully employed.
[1] This decision concerns a dispute between the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and TransAdelaide. The subject matter of the dispute is the action of TransAdelaide in standing down a number of its signal maintenance fitters on 12 August 2009. The stand down arose in the context of protected industrial action taken by the employees in support of a proposed collective agreement.
[2] The dispute was notified by the CEPU on 12 August 2009 under the provisions of s.240 and s.739 of the Fair Work Act 2009. An urgent hearing of the dispute was requested. The Commission convened a conference in Adelaide on 13 August 2009.
[3] At the conference the parties addressed a number of issues concerning the stand down including the provisions of the Fair Work Act 2009 and industrial instruments applicable to the employment of the employees who were stood down. Embedded within the differing contentions of the parties in relation to those matters was a dispute over the legal competence of TransAdelaide to make the stand downs.
[4] Rather than pursue litigation in relation to those legal issues and in the interests of providing an expeditious means by which the dispute could be dealt with, the parties reached an agreement which was documented by the Tribunal and published on 17 August 2009. The terms of the agreement are as follows.
1. “The Commission will determine whether the 13 employees stood down on 12 August 2009 could have been usefully employed for the whole or any of the period for which they were stood down on that day,
2. If the Commission determines that for the whole or any of the period for which the employees were stood down, the employees, or any of them, could have been usefully employed the employees will be paid for any such period as they would have been paid but for the stand down.
3. The CEPU agrees that it will not take any other legal action against Trans Adelaide in respect of the stand down dealt with by the Commission in accordance with this Agreement.
4. Trans Adelaide and the CEPU agree to accept the determination of the Commission hereby agreed as final settlement of all issues and claims arising from the fact of the stand down on the day in question.”
[5] On 19 August 2009 Directions were issued for the filing and serving of material for the purpose of hearing and determining the issues as agreed on 17 August 2009, to be completed by 9 September 2009.
[6] On 17 September inspections were conducted at the Mile End maintenance depot of TransAdelaide and the Clarence Park Railway station and a hearing conducted for the purpose of receiving evidence in relation to the matter.
[7] At the hearing on 17 September Mr Paul Baker, Manager Rail Maintenance, gave evidence for the TransAdelaide. Mr Steven Annells, Signal Maintenance Fitter, Team Leader and Mr Tristan Paul Smith, Signal Maintenance Fitter gave evidence for the CEPU.
[8] It is TransAdelaide’s submission that the stand downs occurred because of protected industrial action by way of a ban on the use of two way radios and mobile phones issued to the signal maintenance fitters, which was in effect of the 12th of August, as a consequence of which the employees could not be usefully employed for the whole of the period for which they were rostered to work on that day. Emphasis was placed on TransAdelaide’s duty of care to provide a safe working environment for the employees and the public, the requirements of the Rail Safety Act 2007 and TransAdelaide’s Common General Operating Rules 1. In essence, it was submitted, without the availability of communication provided by the banned equipment, no work could be usefully performed by the signal maintenance fitters on that day.
[9] In my view, for this submission to succeed TransAdelaide carries both the procedural and substantive onus to satisfy the Tribunal that none of the employees could be usefully employed for the whole of the period for which they were rostered to work on the 12th of August. I think this was accepted by Mr Colgrave, of counsel, who appeared for TransAdelaide.
[10] Neither party, and most importantly in light of the above TransAdelaide, attempted to deal with the issues in dispute by reference to the circumstances of each of the individual employees who were stood down on 12 August. This aspect of the proceedings was discussed during the course of the hearing in Adelaide. It was agreed that the Tribunal would have to make a general and summary determination on the evidence and material before it, which would apply to the circumstances of all of the employees stood down.
[11] Industrial and legal reporting services reveal a plethora of cases determined by courts and tribunals where the issue to be determined concerned the ability of an employer to “usefully” employ an employee in circumstances where the employee in question had been stood down. Indeed some such cases were relied upon by Mr Wright who appeared for the CEPU.
[12] In this case I intend to follow the guidance provided by the Explanatory Memorandum to the Fair Work Bill 2009. For this reason I drew the parties’ attention to my consideration of the relevant provisions of the Explanatory Memorandum between paragraphs 2076 and 2083 during the hearing at Adelaide on 17 September and provided an opportunity to file submissions in relation thereto by Tuesday 22 September.
[13] In my view, for the purpose of the determination of this matter, paragraph 2077 of the Explanatory Memorandum provides relevant guidance when considering what should be considered “useful” employment in a stand down situation and is not inconsistent with decisions in cases determined by courts and tribunals concerning the application of stand down provisions in industrial instruments which permit the standing down of employees where such employees cannot be usefully employed.
[14] The terms of paragraph 2077 of the Explanatory Memorandum are set out below.
“An employer can only stand down an employee if they cannot be usefully employed. If the employer is able to obtain some benefit or value for the work that could be performed by an employee then the employer would not be able to stand down an employee.”
[15] Having regard to the above, the primary question to be determined is therefore; has TransAdelaide satisfied the Tribunal that there was no work which could have been performed by the employees who were stood down on 12 August 2009 from which TransAdelaide could have obtained some benefit or value?
[16] If the answer to the primary question is in the affirmative that will be the effective determination of the issues in dispute, in accordance with the Agreement of the parties.
[17] If the answer is negative, however, it will be necessary to consider whether or not there was a period during the hours of work for which the employees were rostered during which there was no work which could have been performed by them from which TransAdelaide could have obtained some benefit or value.
[18] Mr Annells and Mr Smith, who gave evidence for the CEPU testified that work cannot be performed within 2 metres of a railway line without clearance from TransAdelaide Train Control, which would normally be obtained using the banned communication devices. Their evidence is that the work of signal maintenance fitters includes work which does not require such clearances and that the equipment which is maintained by the signal maintenance fitters varies in its proximity to railway lines, some is within two metres and some is not. I accept this evidence.
[19] Of some importance to my consideration of the issues in this matter is the evidence of Mr Baker, upon which TransAdelaide largely relies, to the effect that prior to the stand down he was unaware of what work was scheduled to be performed by the signal fitters in the week beginning 10 August and that he made no relevant investigation in this regard prior to the decision to stand down the employees. Mr Baker’s evidence was that he assumed that all of the work to be performed for the week would have to be performed “on track” and for safety reasons would require the communication capability provided by the banned devices. However, Mr Baker’s evidence cannot be construed such that all of the work assigned to be performed by signal maintenance fitters at the relevant time required the use of the banned devices, particularly in light of his limited experience and immediate knowledge of the work in question, concessions he made under cross-examination and the evidence of the other witnesses.
[20] Mr Baker gave evidence that a system of internal telephone communication is installed at each of the sites where the equipment which is the responsibility of the signal maintenance fitters to service as part of their assignments of work is located. Mr Baker gave evidence that he has decided that this system should be decommissioned due to its age and the possibility of degradation to the cabling. However, he also gave evidence that no action had been taken to effect the decommissioning, that he did not know if any or all of the telephones were working and that it is more likely than not that some or the majority of those telephones were working.
[21] In the circumstances of this case it seems that had the signal fitters been instructed to check the functionality of the internal telephones at the various work locations, to obtain the necessary clearances from train control to perform the duties that required a clearance and not to perform such work without that clearance, by using the internal telephone system where possible, it is more probable than not that equipment at many of the work sites could have been serviced. In addition, if necessary, that system could have been used to communicate any urgent issue of public safety to TransAdelaide Train Control accordingly. No doubt this system of working was the reason for the installation of the internal telephone system originally.
[22] On the evidence before me, I am satisfied that on 12 August there was work which could have been performed in respect of which TransAdelaide would have been able to obtain some benefit or value. Some of that work was work which could have been safely performed as part of the assigned programme of work of the signal maintenance fitters without the need for the use of the banned devices or the internal telephone system. Moreover, it is more probable than not that where necessary in some cases, where clearance from train control was required to service equipment, it could have been obtained using the internal telephone system.
[23] I am further satisfied that in addition to the work which could have been performed as part of the assigned programme of work of the signal maintenance fitters, from which TransAdelaide would have been able to obtain some benefit or value, there was work of a different kind which could have been performed from which TransAdelaide would have been able to obtain some benefit or value. I will return to this below.
[24] Neither party attempted to calculate the availability of work within the assignment of work upon which the signal fitters could have been usefully employed without the use of two way radios or mobile phones on the 12th of August. To do so would have required a contentious and detailed analysis of where the work to be performed was located, the nature of that work, the particular equipment on which the work could have been performed, the proximity of each item of such equipment to the railway lines, the availability and functionality of the internal telephone system at the various locations of the work and how much of what would normally have been performed could not be safely performed, due to the ban on the use of the communication devices. It is clear from Mr Baker’s evidence that he had no knowledge of these detailed facts and had made no investigation of them at the time of the stand downs.
[25] I am inclined to the view that, whilst there would have been disruption to the normal pattern of work and the order of priority attached to the tasks to be performed, the signal maintenance fitters could have been continuously and usefully employed performing tasks which would not require the use of the banned communications devices for the whole of the day of 12 August. No doubt the productivity of the employees in respect of some of the priority tasks would have been diminished due to only part of the work at some locations being completed and some not completed at all. However, TransAdelaide would have been able to obtain some benefit or value from the work which could have been performed in this manner.
[26] This would have involved the signal maintenance fitters working on any faults or maintenance at any location which did not require the use of communication devices or using the internal telephone communication system where available, if necessary. This would have been quite different to the normal pattern of work and less efficient, however, it would have involved some benefit or value to TransAdelaide and was within the ability of the employer to obtain by appropriate direction and organisation of the pattern of work.
[27] However, given the imperfection of the evidence in this respect, as to the amount of such work which would have been capable of being usefully performed on 12 August, I shall proceed cautiously and assume that all of the signal maintenance fitters would not have been usefully employed for the whole of the rostered hours on 12 August accordingly.
[28] In addition to the work which could have been usefully performed in line with the assignment of the usual type of work performed by the signal maintenance fitters as referred to above, I am satisfied that there was work available to be performed at the Mile End maintenance depot, which could have been performed and from which TransAdelaide would have been able to obtain some benefit or value. While such work may not have been urgent or required immediately it was work in respect of which TransAdelaide would have been able to obtain some benefit or value. The work concerned involved the maintenance of signalling equipment and components of level crossing gates.
[29] Given the limitations in the detail of the evidence and the absence of any attempt to calculate the number of hours of work usefully available in all the above categories of work for each individual employee, I am left to make the best possible judgement of the amount of such work as could have been performed on 12 August from which TransAdelaide would have been able to obtain some benefit or value.
[30] In my judgement TransAdelaide has not positively satisfied the Tribunal that there was a period on 12th August 2009 during which the signal maintenance fitters or any of them could not have performed work from which TransAdelaide could have obtained some benefit or value.
[31] Accordingly the employees stood down on that day should be paid the amounts they would have been paid if not for the stand downs, for the hours of attendance rostered on that day.
COMMISSIONER
Appearances:
Mr M Wright for the CEPU
Mr I Colgrave, of Counsel, for TransAdelaide
Hearing details:
2009
17 September
Adelaide
Final written submissions:
23 September 2009
1 Exhibit TA2
Printed by authority of the Commonwealth Government Printer
<Price code C, AG843623 P>R989394>
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