Construction, Forestry, Mining and Energy Union-Mining and Energy Division Northern District Branch v Bowditch & Partners Plant Services Pty Ltd
[2012] FWA 1246
•1 JUNE 2012
[2012] FWA 1246 |
|
DECISION |
Fair Work Act 2009
s.526—Stand down
Construction, Forestry, Mining and Energy Union-Mining and Energy Division Northern District Branch
v
Bowditch & Partners Plant Services Pty Ltd
(C2011/453)COMMISSIONER ROBERTS | SYDNEY, 1 JUNE 2012 |
Application to deal with a dispute involving stand down.
[1] This decision concerns an application made on 14 July 2011 pursuant to s.526 of the Fair Work Act 2009 (the Act) by the Construction, Forestry, Mining and Energy Union-Mining and Energy Division Northern District Branch (the CFMEU) for Fair Work Australia (FWA) to deal with a dispute in relation to the alleged stand down of a member of the CFMEU, Ms A Ramos, by Bowditch & Partners Plant Services Pty Ltd (Bowditch or the Company).
[2] After unsuccessful conciliation took place in Sydney on 22 July 2011, a telephone mention and directions hearing was conducted on 27 July 2011 and the application was then heard in Newcastle on 22 September 2011. Final written submissions were concluded on 11 November 2011. The CFMEU was represented by Mr K Endacott and Bowditch by Mr G Fraser, solicitor of Equilaw Solicitors. Ms Ramos gave sworn evidence for the CFMEU and Mr J Tyson, Bowditch’s Occupational Health and Safety Officer, gave sworn evidence for the Company.
Background
[3] Ms Ramos commenced employment with Bowditch on 23 February 2011 as a production employee at the Company’s Mt Arthur Open Cut coal mining contract site. The terms and conditions of Ms Ramos’ employment were governed by the Black Coal Mining Industry Award 2010 (the Award). The Award makes no provision for casual employment or stand downs in relation to employees performing the duties performed by Ms Ramos.
[4] However, the Award provides the following at clause 12:
“12 Employer and employee duties
12.1 An employee:
(a) must perform work as reasonably required by the employer; and
(b) must undertake training that the employer reasonably requires (which may include training to maintain their classification or acquire new competencies).
12.2 Where an employee does not perform work or undertake training in accordance with clause 12.1 the employee is not entitled to payment for that period.
12.3 An employer may direct an employee to carry out such duties as are within the limits of the employee’s skills, competence and training consistent with the respective classification structures of this award provided that such duties are not designed to promote deskilling and provided that the duties are within safe working practices and statutory requirements.”
[5] Prior to taking up the position with Bowditch, Ms Ramos paid $10,000 to Realmine Training Pty Ltd (Realmine) for a training program in the coal mining industry for operating mining trucks and water carts. She was sent to work for Bowditch where her training was to be conducted. Ms Ramos claims that the training was to be conducted over a period of six months. Bowditch disputes this. Realmine is not associated in a corporate sense with Bowditch but its Principal is apparently the wife of Mr G Bowditch, the Principal of the Company. Further, Realmine appears to have a relationship with Bowditch in which Bowditch provides practical training to persons who have contracted with, and paid for, training with Realmine. The commercial arrangements between Realmine and Bowditch are unclear to me on the evidence and materials available. According to the witness statement of Ms Ramos 1, the offices of Realmine and Bowditch are co-located.
[6] Appended to the witness statement of Ms Ramos were a receipt from Realmine for $10,000 and a Tax Invoice from Realmine in the sum of $10,000: “To Attend Training Course RIIMP0311A Haul Truck Operations & RIIMP0206A Conduct Bulk Water Truck Operations.” 2
[7] According to Bowditch, the training was conducted between 25 February 2011 and 8 April 2011. “This employment was for a fixed term for the duration of the training course.” 3 Bowditch allegedly then decided to offer Ms Ramos ongoing employment after the end of her training. As noted above, Ms Ramos says she contracted with Realmine for six months training.
[8] The CFMEU claims that Ms Ramos was stood down without pay by Bowditch on several occasions and the stand downs occurred in circumstances which are not allowable under s.524 of the Act. The CFMEU also raised issues concerning the terms and conditions of employment of Ms Ramos and that she was erroneously classified as a casual employee. During earlier conciliation before me, it was my clear impression that the Company acknowledged that Ms Ramos should not have been treated as a casual employee and undertook to make the necessary adjustments to her entitlements. I do not know if this has taken place.
[9] The Company terminated the employment of Ms Ramos on or about 24 August 2011. The Company’s termination letter 4 said:
“This is to inform Aileen Apan Ramos that as of today the 24th of August 2011 we officially terminate your employment for the following reasons;
1) refusal to do duties that were allocated to you
2) repeated failure to show up to work without reason
Although we still consider your employment to have been terminated on the 16th of July 2011 this is to officially recognize your termination in accordance with our meeting before the commissioner on the date of August 23rd 2011. We are willing to pay your accrued annual leave and public holiday bonuses as well as your salary till the 16th July 2011. We will only pay for dates after the 16th of July 2011 when we have had the chance to argue our case before the relevant parties.”
[10] Ms Ramos had not worked for Bowditch since on or about 16 July 2011 (according to Bowditch, or 20 July according to Ms Ramos). It is disputed between the parties whether she was stood down from that time until 24 August 2011 or abandoned her employment or was on strike.
Questions proposed by the parties to be determined
[11] The parties were requested to provide the Tribunal with an agreed set of “issues to be determined”. In the event that the parties were unable to reach an agreement on the issues to be determined, each party was invited to submit its own set of questions. The parties were unable to agree and submitted separate sets of questions in the following terms:
The CFMEU
“1. Was Ms Ramos stood down for each of the separate periods for which operators work or training was not provided/or for which Ms Ramos was suspended from performing, as identified in the Statement filed by Aileen Apan Ramos?
2. Were the circumstances for the stand down because of:-
a. Industrial Action;
b. Breakdown of machinery or equipment that the Respondent cannot reasonably be held responsible for;
c. Stoppage of work for any cause that the Respondent cannot reasonably be held responsible?
3. Where Ms Ramos was stood down and there were not circumstances within those identified by point 2 above, taking into account fairness between the parties concerned should Ms Ramos have been stood down?
4. Where Ms Ramos was stood down and there were not circumstances within those identified by point 2 above, taking into account fairness between the parties concerned should Ms Ramos be paid for the period of the stand down?
5. Where Ms Ramos was stood down and there were not circumstances within those identified by point 2 above, was there an absence of work that could be usefully performed by Ms Ramos?
6. If point 5 above applies in the affirmative, taking into account fairness between the parties concerned, should Ms Ramos be paid for the period of the stand down?
7. If point 5 applies in the negative, should Ms Ramos have been stood down; and taking into account fairness between the parties concerned, should Ms Ramos be paid for the period of the stand down?”
The Company
“1. Was the Applicant Stood Down as of 16 July 2011?
2. Did the Applicant abandon her employment as of 16 July 2011?
3. Has the Applicant been paid at the correct rates for work she performed?”
Legislative Framework
[12] Sections 524 and 526 of the Act provide:
“524 Employer may stand down employees in certain circumstances
(1) An employer may, under this subsection, stand down an employee during a period in which the employee cannot usefully be employed because of one of the following circumstances:
(a) industrial action (other than industrial action organised or engaged in by the employer);
(b) a breakdown of machinery or equipment, if the employer cannot reasonably be held responsible for the breakdown;
(c) a stoppage of work for any cause for which the employer cannot reasonably be held responsible.
(2) However, an employer may not stand down an employee under subsection (1) during a period in which the employee cannot usefully be employed because of a circumstance referred to in that subsection if:
(a) an enterprise agreement, or a contract of employment, applies to the employer and the employee; and
(b) the agreement or contract provides for the employer to stand down the employee during that period if the employee cannot usefully be employed during that period because of that circumstance.
Note 1: If an employer may not stand down an employee under subsection (1), the employer may be able to stand down the employee in accordance with the enterprise agreement or the contract of employment.
Note 2: An enterprise agreement or a contract of employment may also include terms that impose additional requirements that an employer must meet before standing down an employee (for example requirements relating to consultation or notice).
(3) If an employer stands down an employee during a period under subsection (1), the employer is not required to make payments to the employee for that period.
526 FWA may deal with a dispute about the operation of this Part
(1) FWA may deal with a dispute about the operation of this Part.
(2) FWA may deal with the dispute by arbitration.
Note: FWA may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).
(3) FWA may deal with the dispute only on application by any of the following:
(a) an employee who has been, or is going to be, stood down under subsection 524(1) (or purportedly under subsection 524(1));
(b) an employee in relation to whom the following requirements are satisfied:
(i) the employee has made a request to take leave to avoid being stood down under subsection 524(1) (or purportedly under subsection 524(1));
(ii) the employee’s employer has authorised the leave;
(c) an employee organisation that is entitled to represent the industrial interests of an employee referred to in paragraph (a) or (b);
(d) an inspector.
(4) In dealing with the dispute, FWA must take into account fairness between the parties concerned.”
Evidence
Ms Ramos
[13] Ms Ramos gave sworn evidence and submitted a witness statement. 5
[14] In summary, Ms Ramos said in her witness statement:
- “I have not been provided any work by the Respondent since 20 July 2011 when I was informed by Mr Ken Clarke, the Respondent’s General Manager, I was stood down because I refused to sweep the floor with a broom after I was not allocated to operate a truck; and I had informed the Respondent I had paid for training and wished to be allocated to a truck. I have been stood down many other times during my employment. I have not been paid for the periods of the stand downs. I currently remain stood down.”
- Realmine undertook to arrange employment by Bowditch for six months at the Mount Arthur mine with an option to continue working for Bowditch after her training was completed.
- She undertook a medical examination on 21 February and induction training on 24 February 2011. She was first allocated to a roster on 4 March 2011 and was treated as a casual employee.
[15] Ms Ramos’ statement went on in some detail to set out her work history at the Company between 10 March and 19 July 2011. That evidence sets out occasions when her rostered hours were allegedly changed without notice, she was allocated work which did not relate to the training she had paid for and a number of stand downs initiated by the Company. According to her, very little work involving truck driving was offered or provided and she was often requested to do cleaning duties, to which she objected. “I was thinking that I am not going to sweep; I am not here to clean. I paid $10,000 to learn how to drive a truck and water cart.” “I said [to Mr G Bowditch] that it was six months training I paid for and that’s what Mr Irvine [Realmine’s Manager] had told me and I had paid $10,000 for that and I didn’t come here for workshop work. I said ‘I paid for you to train me. I paid to be trained on a truck.”
[16] Ms Ramos went on to say: “I was concerned about the manner in which the Respondent was employing me and the terms and conditions of my employment. I was also concerned about being allocated cleaning duties and not being given the production work and the training that I was employed for and had paid for and the fact of being continually not provided with my rostered work.”
[17] As to the events of 19 July 2011, Ms Ramos said: “On Sunday 19 July 2011, I received a text message from Mr Clarke saying ‘Can you come on day shift tomorrow please? We have no 777 in production today. Come in for day shift and we will allocate work to you. Ken’. The day shift was 6.30am to 5.30pm. I arrived at work at the commencement of day shift on 20 July 2011 and there was no truck allocated to me. I was the only person that was not allocated a truck to operate. Mr Clarke approached me and told me to go to the crib room and wait. I went to the crib room as instructed and a gentleman attended the crib room shortly after. He was carrying a broom and said ‘Ken told me that you will be helping me today’. He told me I would be sweeping the floor and shovel mud. I phoned Mr Clarke from my mobile after he had not responded to a text message and informed Mr Clarke that I would not sweep, I was a truck operator and that was what I was paid for. Mr Clarke came and seen me. He said ‘There may be crib relief work for you later in the day but your now to clean’. I said ‘I’m not cleaning the floor; I paid for training on a truck not cleaning’. Mr Clarke said ‘Are you refusing work as you have previously done with Warren?’ I said ‘I’m not refusing work. I am refusing to sweep’. I was getting very upset and distressed by what was happening. Mr Clarke told me I was stood down. I was required to leave. Mr Clarke told me he wasn’t going to pay me.”
[18] “In the pay week ending 3 July 2011, the Respondent ceased paying me the casual loading and I understand as my employment was meant to be permanent. I remained stood down by the Respondent. I have not been attending for work until the Respondent confirms that I will be allocated to production duties and not cleaning duties. The Respondent refuses to confirm. These representations have been made by the Union on my behalf and the Respondent will not confirm that I will be allocated to truck duties.”
[19] In her supporting oral evidence, Ms Ramos said that she had not been provided with any certificates or statements of attainment relating to training, prior to the filing of the application which led to the hearing before me. 6 Ms Ramos gave further evidence in relation to two Certificates of Attainment each dated 2 June 2011, in relation to the operation of water trucks and haul trucks respectively.7 Her evidence was that she had not seen either of those statements until the day of the hearing before me.8 She went on to say that the first time she operated a water cart was on 9 June 2011 and that this was the only date on which she operated such a cart.9
[20] Ms Ramos went on to say that other trainees performed floor sweeping duties in addition to herself and that such work was always offered by the Company when a truck was not available. 10
[21] In cross-examination, Ms Ramos:
- Said that on commencement with the Company, she was told that there was no sick leave for casual employees or trainees. 11
- Gave extensive evidence concerning the allocation of trucks.
- Was questioned about her attendance record at the mine.
- Was questioned about mechanical problems with various trucks.
- Was questioned about her absences due to sickness.
Mr Tyson
[22] Mr Tyson gave sworn evidence and submitted a witness statement. 12
[23] Mr Tyson is employed by the Company as the Occupational Health & Safety Officer. Attached to the witness statement were a number of documents which were entered into evidence as part of the statement.
[24] In cross-examination, Mr Tyson said that he commenced employment with Bowditch on 21 August 2011 and therefore had no direct knowledge of the events concerning Ms Ramos’ employment. 13 He went on to say that operators of plant equipment “would generally only sweep if they have no machine to operate ...”14
[25] In cross-examination, Mr Tyson was taken to a number of the attachments to his witness statement and I have paid regard to those attachments. In particular, I note Attachments C, E and F.
Mr Irwin
[26] Bowditch attempted to introduce a statement from Mr Irwin in relation to this matter by way of an Annexure to the witness statement of Mr Tyson. This was objected to by the CFMEU as Mr Irwin was not present to undergo cross-examination. It was my decision to exclude Mr Irwin’s statement. In written submissions, the Company asked that I re-visit this issue and allow Mr Irwin’s statement to form part of my consideration. I decline to do this. If the Company considered evidence from Mr Irwin to be important to its case, it should have called him to give sworn evidence at the appropriate time.
Submissions
The CFMEU on behalf of Ms Ramos
[27] The CFMEU filed an outline of submissions 15 plus written final submissions and submissions in reply. In its main written submissions, the CFMEU, in summary, argued:
“There was no direct evidence from the Respondent challenging any aspect of any of the factual matters Ms Ramos put in evidence either through her evidence in chief or contained in her witness statement, which is marked Exhibit CFMEU3.
This matter is Ms Ramos was treated akin to a casual employee with the Respondent during Ms Ramos’ employment reserving the right in treating Ms Ramos as akin to a casual employee with flexible days and hours of work, in effect sending her away during her rostered shifts or requiring her not to work shifts she had been rostered. The manner in which the Respondent treated Ms Ramos was in effect standing Ms Ramos down at any opportunity it was convenient to the Respondent and not within the circumstances provided by section 524(1).
The employer was responsible for each stand down occasion, as the principle [sic] cause was the way the Respondent administered wrongly and contrary to the terms of the Award the employment relationship with Ms Ramos. It must be remembered that Ms Ramos paid for training and the employment and experience and those obligations should have been met by the Respondent. In any event after Ms Ramos commence employment with the Respondent, the obligations on the Respondent was to treat Ms Ramos as a permanent employee and not as a highly flexible causal, which she was not. In any event work always remained available for Ms Ramos because training was required to be provided.”
[28] The CFMEU’s submissions went on to set out specific instances where stand downs were alleged to have occurred. I have paid regard to that material and to the evidence and witness statement of Ms Ramos.
[29] According to the CFMEU, Ms Ramos never refused to undertake truck driving work and that “the conduct towards Ms Ramos in asking her to do cleaning work was spiteful and capricious under the circumstances.”
For the Respondent
[30] The Respondent filed an outline of submissions 16 plus written final submissions. In summary, the Company argued:
- That the Tribunal when resolving the dispute as to whether Ms Ramos was validly stood down should have consideration as to what is fair to both parties.
- “We submit that the ambit of the ‘fairness’ requirement relates to finding whether the circumstances of an alleged improper stand down are in fairness the fault of the employer. We submit that the Fair Work Act does not act as a code, and nor is it intended to operate as a code so far as it relates to when an employee may be validly stood down, but considerations of circumstantial fairness must inform Fair Work Australia as to when a stand down is available to an employer.”
- That the Tribunal must confine itself to determining if Ms Ramos was stood down on each particular occasion she alleges and whether such stand down was justified having regard to fairness between the parties.
- “That a worker be prima facie entitled to be paid when there is no work available, or no work is performed, is in our submission, unfair to the employer.”
[31] The submissions go on in some detail to consider a number of instances when Ms Ramos allegedly could not be usefully employed. I have paid regard to that detailed material.
[32] The written submissions went on to say: “Ms Ramos has been asked to do work as assigned by her employer. She has refused to do so. It is not that work is unavailable, but rather that Ms Ramos refuses to do work, unless it is work she prefers to perform.”
[33] “The situation in this Application is that Ms Ramos has refused to perform significant parts of her duties, namely to follow lawful directions of her employer, and to engage in training as prescribed by her employer, and to apply herself to such tasks as are designated to her by her employer. The Respondent has directed Ms Ramos to refrain altogether from working in her job. The Respondent is entitled to decline the services of Ms Ramos for so long as her refusal persists.”
[34] “We submit that Fair Work Australia must take an expansive view of the circumstances surrounding each stand down and determine whether it was fair in the circumstances for the Respondent to dispense with the Applicant’s labour.”
Conclusion
[35] In my view, Ms Ramos was a candid and truthful witness and I accept her evidence wherever it is in conflict with the submissions made on behalf of Bowditch. It was open to the Company to bring evidence to counter that of Ms Ramos but it chose not to do so. The evidence of Mr Tyson is of very limited utility, given that he joined the Company after the relevant events concerning Ms Ramos. His witness statement was the vehicle the Company chose to use to introduce its documentary materials into evidence.
[36] It is clear on the evidence and materials before me that Ms Ramos entered into an arrangement with Realmine for practical and theoretical training in the driving of mining trucks and water carts. Realmine then passed Ms Ramos’ training to Bowditch for execution. Bowditch then employed Ms Ramos on terms between it and Realmine which are unknown to me. What is known is that Ms Ramos entered Bowditch’s employ under the terms of the Award for the purpose of receiving training with the prospect of future ongoing work with the Company after the training was completed. That training would lead to the issuing of Certificates of Attainment to Ms Ramos. In this regard, on balance, I specifically accept Ms Ramos’ evidence that her training was to extend for a period of six months, not the six weeks alleged by the Company. I do not accept the Company’s argument that Ms Ramos was initially a fixed term employee. The issuing of Certificates of Attainment to Ms Ramos dated 2 June 2011 would, on their face, indicate that training took considerably more than six weeks. I further specifically accept as truthful Ms Ramos’ evidence in relation to the Certificates of Attainment (see paragraph 19 above).
[37] It is not disputed that the terms of Ms Ramos’ employment by Bowditch were governed by the Award. That award does not provide for casual employment of production employees or for stand downs. It is evident that Ms Ramos was treated as a casual employee during the period February/March to July 2011. This was not provided for under the Award. It is from that erroneous classification of Ms Ramos as a casual employee that the issues before me largely arise as the Company clearly believed it had no obligation to provide employment to Ms Ramos on a full time basis. Bowditch is clearly wrong on this point.
[38] On the evidence and materials available to me, Ms Ramos appears to have been treated as a supernumerary with no right to expect work involving the driving of vehicles. The regular allocation of Ms Ramos to low level cleaning duties was, in my view, more the result of the Company’s attitude to Ms Ramos’ employment status than a legitimate response to a lack of driving work. Ms Ramos was entitled to protest in circumstances where it appears the allocation of cleaning duties to her was done in a selective manner. She was further entitled to demand that she receive the practical training for which she had paid a large sum of money.
[39] The Company also had a clear obligation to Ms Ramos to provide her with the training for which she had pre-paid Realmine.
[40] Clause 12 of the Award (see paragraph 4 above) sets out the obligations of Bowditch and Ms Ramos as to the duties of each party in the employment relationship. I am satisfied that Ms Ramos fulfilled her part of the bargain but that Bowditch did not. In this regard, subclause 12(3) of the Award is important. That subclause applies in Ms Ramos’ situation in that it is my view that the consistent directions to her to perform cleaning and associated duties would have promoted her deskilling. This is particularly so in the context of Ms Ramos primarily entering Bowditch’s employ to gain the necessary training and skills to perform the full role of a production worker.
[41] The occasion when Ms Ramos refused to undergo training on a particular truck due to safety concerns, I accept as being justified.
[42] The Act provides clear provisions concerning stand downs. The Explanatory Memorandum provides further guidance by way of explanation and examples. Neither the Act nor the Explanatory Memorandum provide a basis which could support the actions of the Company in standing down Ms Ramos or not allowing her to fulfil her rosters.
[43] In written submissions, the Company relied heavily on the case of Coal & Allied Mining Services Pty Ltd v MacPherson 17 (MacPherson). That case was decided in the context of the Workplace Relations Act 1996, however, the general principles considered in that decision are broadly applicable. MacPherson’s case can be distinguished from that of Ms Ramos in that the employee concerned was refusing to perform certain key duties of his employment in a dispute over rosters. In Ms Ramos’ case, she was demanding the right to perform her core employment role of driving trucks.
[44] The MacPherson case and other case law considered by their Honours within that case, establishes to my satisfaction that the principle to be applied is whether Ms Ramos refused to perform the full range of work properly assigned to her and whether she expressed a willingness to perform the full range of work assigned to her. The Company’s argument, simply put, is that the full range of work which could normally be expected of a production employee included cleaning, sweeping and shovelling mud. In the particular circumstances of Ms Ramos, I cannot agree with the Company’s argument and note that Ms Ramos was always willing to carry out the core functions of her job, and in fact, demanded to be allowed to do so.
[45] As noted at paragraph 34 above, the Company invites me to “take an expansive view of the circumstances surrounding each stand down and determine whether it was fair in the circumstances for the Respondent to dispense with the Applicant’s labour.” I agree that this is an appropriate course for me to take. On balance, therefore, I determine that Ms Ramos should not have been stood down on any of the occasions on which she was stood down. It follows that Ms Ramos should be paid for those occasions.
[46] In doing so, I have considered the application of fairness to each party. I am further satisfied that Ms Ramos did not abandon her employment on and after 20 July 2011 until her employment was terminated by Bowditch on or about 24 August 2011. It is apparent from the materials and evidence before me that on and after 20 July 2011, Ms Ramos remained available at any time to return to the mine site, provided she received an assurance that she would be provided with truck driving work. Here I note the written submissions of the company which are set out in paragraph 33 above. In those submissions, Bowditch states that “The Respondent has directed Ms Ramos to refrain all together from working in her job. The Respondent is entitled to decline the services of Ms Ramos for so long as her refusal persists.” That decision by the Company amounted to a stand down.
COMMISSIONER
Appearances:
K Endacott for the Construction, Forestry, Mining and Energy Union-Mining and Energy Division Northern District Branch.
G Fraser for Bowditch & Partners Plant Services Pty Ltd.
Hearing details:
2011.
Newcastle:
22 September.
Final written submissions:
11 November 2011.
1 Exhibit CFMEU 3.
2 See Annexure AAR-2 to Exhibit CFMEU 3.
3 See Exhibit Bowditch 2.
4 See part of Annexure J to Exhibit Bowditch 1.
5 Exhibit CFMEU 3.
6 Transcript PN131.
7 Exhibit CFMEU4.
8 Transcript PNs145-146.
9 Transcript PNs148-150.
10 Transcript PNs218-225.
11 Transcript PN266.
12 Exhibit Bowditch 1.
13 Transcript PN484.
14 Transcript PN538.
15 Exhibit CFMEU 2.
16 Exhibit Bowditch 2.
17 [2010] FCAFC 83.
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