Construction, Forestry, Mining and Energy Union v Mt Arthur Coal Pty Ltd

Case •

[2013] FWC 2548

•

25 JUNE 2013

No judgment structure available for this case.

[2013] FWC 2548

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Construction, Forestry, Mining and Energy Union
v
Mt Arthur Coal Pty Ltd
(C2012/6205)

COMMISSIONER ROBERTS

SYDNEY, 25 JUNE 2013

Application to deal with a dispute re employer request for Monday to Friday employees to work on public holidays - Is employer request reasonable? - Is employee refusal reasonable? - Whether requirement is contrary to National Employment Standards

[1] This decision concerns an application filed on 3 December 2012 by the Construction, Forestry, Mining and Energy Union (the CFMEU or the Union) pursuant to s.739 of the Fair Work Act 2009 (the Act) to resolve a dispute between it and Mt Arthur Coal Pty Ltd (Mt Arthur or the Company) under the Mt Arthur Coal Enterprise Agreement 2011 (the Agreement) regarding the requirement for Monday to Friday workers to work on public holidays. The Union’s application was the subject of conciliation before me on 7 December 2012. That conciliation was unsuccessful and the matter proceeded by way of a mention and directions hearing before me on 7 January 2013. Directions were then issued for the filing and service of witness statements or other materials. Those directions were complied with by the parties and the matter proceeded to hearing in Sydney on 12, 13 and 26 March 2013. The CFMEU was represented by its Industrial Research Officer, Mr K Endacott. Mt Arthur was represented at the mention and directions hearing by Mr B Rauf of Ashurst and by Mr R Warren of Counsel with Mr Rauf for the substantive hearing.

[2] The Agreement was approved by me on 26 May 2011 with a nominal expiry date of 28 April 2014. The union parties to the Agreement are the CFMEU, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU) and the Australian Manufacturing Workers’ Union (the AMWU). The Agreement operates to the exclusion of the Black Coal Mining Industry Award 2010 “and all other awards and agreements that may purport to cover the employees covered by this Agreement” (clause 4).

Background

[3] Clause 20 (Disputes and Grievance Procedures) of the Agreement provides for a number of steps to be taken when a grievance arises. If the matter remains unresolved between the parties, the clause provides at subclause 20.2e): “It shall be referred as a last resort by either party to the appropriate industrial authority for conciliation and if the matter remains unresolved arbitration. The parties involved in the dispute or grievance will accept the result.”

[4] In the case before me, the CFMEU and the Company are in dispute over a company proposal that Monday to Friday workers will be subject to new roster arrangements which will make it mandatory for those employees to work on public holidays falling within their normal rostered week. The dispute does not extend to other employees employed as 7 day shiftworkers. The matter was first place in dispute by the CFMEU Site Lodge on 15 August 2012.

[5] In its form F10 application, the CFMEU characterised the dispute in the following terms:

    “The dispute is about the Respondent introducing a 4x12 hour day shift roster for the field maintenance personnel and the shotfirers. This roster requires employees mandatorily to work 13 hours overtime per week. In addition to this, the Respondent has indicated it is mandatory for employees to work public holidays. The roster with the mandatory requirement to work public holidays is contrary to the National Employment Standards.”

[6] The Company maintains that it is entitled under the Agreement to enforce the new roster arrangements and that the requirement to work on public holidays does not contravene the NES.

[7] In its written Outline of Submissions 1, the CFMEU proposed the following questions to be determined by the Fair Work Commission:

    “a) Is the instruction to employees from the Respondent that they are required to attend all public holidays that fall on their roster a request of an employee to work on a public holiday that falls during the period which the roster indicates it is to operate for?

    b) If the answer to (a) is yes is it a reasonable request taking the matters set out in section 114 into account?

    c) If the answer to (b) is yes is the request for each public holiday not reasonable or is the employee’s refusal reasonable taking into account those matters identified in section 114 of the Act?”

The National Employment Standards

[8] Division 10 - Public holidays of the Act provides at s.114 of the Act:

    “114 Entitlement to be absent from employment on public holiday

    Employee entitled to be absent on public holiday

    (1) An employee is entitled to be absent from his or her employment on a day or part-day that is a public holiday in the place where the employee is based for work purposes.

    Reasonable requests to work on public holidays

    (2) However, an employer may request an employee to work on a public holiday if the request is reasonable.

    (3) If an employer requests an employee to work on a public holiday, the employee may refuse the request if:

    (a) the request is not reasonable; or

    (b) the refusal is reasonable.

    (4) In determining whether a request, or a refusal of a request, to work on a public holiday is reasonable,the following must be taken into account:

    (a) the nature of the employer’s workplace or enterprise (including its operational requirements), and the nature of the work performed by the employee;

    (b) the employee’s personal circumstances, including family responsibilities;

    (c) whether the employee could reasonably expect that the employer might request work on the public holiday;

    (d) whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, work on the public holiday;

    (e) the type of employment of the employee (for example, whether full-time, part-time, casual or shiftwork);

(f) the amount of notice in advance of the public holiday given by the employer when making the request;

    (g) in relation to the refusal of a request—the amount of notice in advance of the public holiday given by the employee when refusing the request;

(h) any other relevant matter.”

[9] The Explanatory Memorandum to the Fair Work Bill 2008 provides the following in relation to public holidays:

    “447. This Division establishes an entitlement to be absent from work on a public holiday. The Division also allow an employer to request an employee to work on a public holiday where this is reasonable and entitles an employee to refuse to do so in certain circumstances.

    Clause 114 - Entitlement to be absent from employment on public holiday

    448. Subclause 114(1) entitles an employee to be absent from work on a day or part-day that is a public holiday where the employee is based for work purposes.

    449. Under subclause 114(2), an employer may ask an employee to work on a public holiday, if the request is reasonable.

    450. However, an employee may refuse a request to work on a public holiday if the request is not reasonable, or if the refusal is reasonable (subclause 114(3)).

    451. Subclause 114(4) sets out a non-exhaustive list of matters to be taken into account when determining whether a request, or a refusal of a request, to work on a public holiday is reasonable. The factors to be taken into account are:

  • the nature of the employee’s workplace or enterprise (including its operational requirements) and the nature of the work performed by the employee;


  • the employee’s personal circumstances, including family responsibilities;


  • whether the employee could reasonable expect that the employer might request work on the public holiday;


  • whether the employee is entitled to overtime, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, work on the public holiday;


  • whether the employee is entitled to overtime, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, work on the public holiday;


  • the type of employment of the employee (e.g., full-time, part-time, casual or shiftwork);


  • the amount of notice in advance of the public holiday given by the employer when making the request;


  • in relation to the refusal of a request - the amount of notice in advance of the public holiday given by the employee when refusing the request; and


  • any other relevant matter.”


    452. The relevance of each of these factors and the weight to be given to each will vary according to the particular circumstances. In some cases, a single factor will be of great importance and outweigh all others, in others there will be a balancing exercise between factors.

    453. For example, where an employee is employed in a workplace that requires a certain level of staffing on a public holiday (like a hospital) and has been given warning of the likelihood of being required to work on public holidays, a request by an employer to work may be considered reasonable.

    454. On the other hand, a refusal by an employee of a request to work on a public holiday maybe reasonable where, e.g., the employee has notified the employer in advance that she or he will not be able to work on the public holiday because of family commitments.”

[10] The interaction between the NES and enterprise agreements is dealt with in ss.55 and 56 of the Act. Section 55 of the Act provides that an agreement must not exclude any provision of the NES. Ancillary and supplementary terms may be included but only to the extent that the effect of those terms is not detrimental to an employee when compared with the NES.

[11] Section 56 provides: “A term of a modern award or enterprise agreement has no effect to the extent that it contravenes section 55.”

The terms of the Agreement

[12] Clause 14 (Public Holidays) sets out the days which will be recognised as public holidays for those employed pursuant to the Agreement and notes that Christmas Day and Boxing Day are to be the two non rostered public holidays. The clause goes on at subclauses 14.3 and 14.4 to provide:

    “14.3 PAYMENT

    Employees who are rostered on and work on a public holiday (as defined in clause 14.1) will be paid at treble time for all hours worked.

    Employees not required to work on a recognised public holiday which would otherwise be a rostered shift will be paid shift length x hourly rate.

    Employees who are not rostered on (as defined in clause 14.1 and are not required to work on a rostered day off will be paid ordinary hours x hourly rate.

    An employee who is not required to work on a holiday which would otherwise have been a working day for that employee will be paid for that day at the employee's shift length x hourly rate unless, without good and sufficient reason, fails to work on the employee's:

    • last working day immediately before the holiday; or

    • first working day after the holiday

    in which case the employee is not entitled to payment for the public holiday.

    14.4 NOTICE OF HOLIDAYS TO BE WORKED

    At the commencement of the Agreement the parties have nominated which Public Holidays shall be worked for the period of the Agreement, provided that work shall not be carried out, except by voluntary labour, on two of such holidays (refer clause 14.2)

    If the Company decides not to work on a Public Holiday so nominated, the Company shall give the employees at least four weeks of notice of such decision.

[13] Clause 9 (Roster Arrangements) relevantly provides at subclause 9.1:

    “9.1 MONDAY TO FRIDAY ROSTER

    Employees may be deployed on the following Monday to Friday rosters:

    5 x 8 hrs fixed or rotating (Appendix 2.1)

    5 x 9 hrs fixed or rotating

    5 x 9 hrs 20 mins fixed dayshift

    4 x 11 hrs fixed dayshift

    4 x 12 hrs fixed dayshift or rotating (maximum 3 consecutive nightshifts)

    10 x 12 hrs rotating roster over a 3 week cycle”

[14] Clause 9 further relevantly provides at subclause 9.3:

    “9.3 OTHER ROSTERS

    Alternative rosters may be developed and implemented to meet operational requirements following agreement between the Company, the Employee Representatives and the majority of the employees who it is proposed will work the alternative roster. Where the Company has proposed an alternate roster(s) and the Company and employees are unable to reach agreement in relation to the proposed alternate roster(s), the Company and employees may refer the matter to clause 20 - DISPUTES AND GRIEVANCE PROCEDURES of this Agreement for resolution.”

Evidence

[15] The CFMEU filed witness statements from the following persons:

    ● Rodney Bendall (Maintenance employee)
    ● Micheal Blackhall (Shotfirer/Handler)
    ● Darryl Bowen (Maintenance employee)
    ● Matthew Clark (Maintenance employee)
    ● Michael Collard (Maintenance employee)
    ● Howard Crossley (Maintenance employee)
    ● Adam Dever (Mining Technician)
    ● Jeffrey Drayton (Operator)
    ● Mark Hall (Explosive Handler)
    ● Lachlan Heath (Maintenance employee)
    ● Brian Henry (Shotfirer)
    ● Louise Hunt (partner of Michael Collard)
    ● Beau Jackson (Maintenance employee)
    ● Bradley Jenkinson (Shotfirer)
    ● Dean Jenner (Shotfirer)
    ● Brendon Leadley (Shotfirer)
    ● George Lewis (Maintenance employee)
    ● James Page (Maintenance employee)
    ● Shane Smiles (Shotfirer)
    ● Jesse Sutherland (Maintenance employee)
    ● Shane Thompson (Vice President of the CFMEU, Mining & Energy Division)
    ● Adam Thrift (Shotfirer)
    ● Adam Whatham (Shotfirer)

[16] Messrs Bowen, Collard, Hall, Heath, Henry, Ms Hunt, Messrs Jenkinson, Leadley, Lewis, Page, Smiles, Sutherland, Thrift, Whatham, Blackall and Dever were not required for cross-examination and their witness statements were entered into evidence as Exhibits CFMEU 1 to 15 and CFMEU 17 respectively.

[17] Mr S Thompson, Mr J Drayton, Mr H Crossley, Mr M Clark, Mr R Bendall, Mr D Jenner and Mr B Jackson gave sworn evidence for the CFMEU and were required for cross-examination.

[18] Mr M White, Mr A Margetts, Mr F Botha and Mr M Seears gave sworn evidence for the Company. In the case of Mr White, sections of his evidence in cross-examination and re-examination were given in confidence and that material will not be set out in this decision although I have paid regard to it in making my final determination.

Mr Thompson

[19] Mr Thompson gave sworn evidence and submitted a witness statement 2. In summary, it was Mr Thompson’s statement that he is a Vice President of the CFMEU Mining and Energy Division, Northern District Branch, and has held that position since March 2010. Prior to becoming a full time union official, Mr Thompson had been employed in the coal industry since early 1977.

[20] Mr Thompson went on to say that no coal mine in the Northern District Coal Fields of New South Wales requires Monday to Friday employees to work on public holidays and similarly, shotfiring employees are not required to work on public holidays. No coal mine in the Northern District is allowed to blast on a public holiday without special approval and he has personally never known a shot to be fired at a coal mine on a public holiday.

[21] Mr Thompson went on to say that no coal mine in the district requires employees to work 48 hours per week on 12 hour shifts other than Mt Arthur. The 48 hours comprises 35 ordinary hours and 13 hours of overtime.

[22] “The Maintenance employees and Shotfirers working the Monday to Friday, twelve hour, four day roster are the only Monday to Friday employees to my knowledge required to work on a Public Holiday. All other Monday to Friday employees, from my personal knowledge, are not required to work on a Public Holiday. They are to take the Public Holidays off and if work is required, it is on a voluntary basis.”

[23] Mr Thompson further said that he was involved in negotiations leading to the making of the Agreement and the Company never said that they believed that they could require Monday to Friday employees to work on public holidays.

[24] Mr Thompson said that he attended a meeting with Mr White and other representatives from Mt Arthur in mid November 2012 and he recalled it being raised that Maintenance workers did not need to work on public holidays as maintenance could be scheduled to be carried out on a work day. From his experience working in the coal industry, Mr Thompson said that planned maintenance work could be differentiated from breakdown maintenance, the nature of which required work on public holidays.

[25] In cross-examination, Mr Thompson agreed that he was a signatory to the Agreement 3. He further agreed that he recommended acceptance of the Agreement to CFMEU members.4

[26] Mr Thompson agreed that there is no provision in the Agreement prohibiting an employee being required to work on public holidays except for Christmas Day and Boxing Day. 5 Mr Thompson was asked: “Indeed, seven-day workers, under the agreement, but for Christmas Day and Boxing day, are required to work a public holiday that falls on their roster, aren't they?” and replied: “Seven-day workers, yes.”6

[27] In re-examination, Mr Thompson said that he had no understanding of the interaction between the Agreement and the National Employment Standards at the time the Agreement was negotiated. 7

Mr Drayton

[28] Mr Drayton gave sworn evidence and submitted a witness statement 8. In summary, it was Mr Drayton’s witness statement that he commenced employment at the Mine in December 2003 and is currently employed as an Operator working on a seven day rotating roster. He has been the CFMEU Site Lodge President for nine years.

[29] Mr Drayton went on to say that the great majority of Mt Arthur employees worked a seven day rotating roster: “This roster is the roster that is utilised at the Mine where minimum manning and staffing levels are required for the continuous normal operation of the Mine.” The current dispute concerns a subsection of Monday to Friday employees only, comprising some nine Shotfirers and twelve Maintenance employees.

[30] Mr Drayton went on to say that he speaks regularly with employees affected by these proceedings. Prior to these proceedings, those Monday to Friday workers at Mt Arthur had never been required to work on public holidays.

[31] Mr Drayton went on to set out the structure, and effects on employees, of the new 4x12 roster and the requirement to work 13 hours of rostered overtime per week. He went on to detail the progress of negotiations and discussions leading up to the making of the Agreement. When the Company informed employees that they would need to work on public holidays, there was “a general protest against the requirement”. “I was involved in the negotiations for the Enterprise Agreement and predecessor Agreements. It has never been raised by the Respondent that the employees are required to work Public Holidays. I understood that Monday to Friday employees had never been required to work Public Holidays at any minesite in the Hunter Valley. When the indicative wage calculations were prepared for Monday to Friday rosters in the Enterprise Agreement albeit that it didn’t make reference to the 4 day 12 hour roster, it wasn’t even included what the rate of payment was for working a Public Holiday unlike in the 7 day rosters. All it showed was the how much should be paid for not working on a Public Holiday.”

[32] Mr Drayton went on to say that there was no need for Maintenance employees to work on public holidays. “The work they do is planned work and it can be planned to be done on any day of the week.” Their situation is different to employees doing breakdown maintenance and unplanned maintenance, that group already work on public holidays that fall within their rosters. Mr Drayton said that he is aware of ‘seven day tradesmen’ who would consider working on a public holiday on which they are rostered off, on a voluntary basis.

[33] In cross-examination, Mr Drayton agreed that the Company advised employees in mid October 2012 that the relevant employees would be required to work on public holidays. 9 It was put to Mr Drayton that in negotiations for the Agreement, the Company agreed to a rate of pay for the Mineworker Advanced classification that was some $256 in excess of the award rate of pay and that this was done in pursuit of operational efficiency and increased flexibility. Mr Drayton agreed.10

[34] Mr Drayton conceded that the Agreement does not specifically say that only seven day roster employees can be required to work on public holidays. 11 He went on to say: “As I stated earlier, there wasn't a belief by myself and, as I'm aware, any of the rest of the negotiating team that employees would be required to work public holidays on a Monday to Friday roster.”12

[35] In re-examination, Mr Drayton said that during negotiations leading up to the making of the Agreement, he did not have a complete understanding of the interaction between an agreement, an award and the National Employment Standards. 13

Mr Crossley

[36] Mr Crossley gave sworn evidence and submitted a witness statement 14. In summary, it was Mr Crossley’s witness statement that he commenced work at the Mine in July 2010 and is currently a member of the Break Down Crew working a 4x12 rotating roster. He is an officer of the CFMEU Mt Arthur Lodge.

[37] Mr Crossley went on to say that when new rosters were proposed for the Plant Maintenance Crew there was no mention of work on public holidays. The proposed new roster involved an increase in mandatory overtime from 5 to 13 hours per week.

[38] Employees had been concerned about the working of extra mandatory overtime and this was compounded when Mr Seears said that work would also have to be performed on public holidays. The Company cited ‘business needs’ but employees would not agree to be forced to work on public holidays. Mr Crossley went on to say that planned maintenance does not have to occur on public holidays and that such work could be performed by contractors or other tradesmen who would be prepared to work on a voluntary basis.

[39] Nothing of importance to my consideration arose in the cross-examination or re-examination of Mr Crossley.

Mr Clark

[40] Mr Clark gave sworn evidence and submitted a witness statement 15. In summary, it was Mr Clark’s witness statement that he commenced employment at the Mine in November 2012 and is a Fitter Machinist allocated to do plant maintenance.

[41] Mr Clark went on to say that prior to commencing employment he was informed that he would be allocated to the seven day rotating twelve hour roster on Break Down. However on his first day, he was told that he would be working the Monday to Friday day shift roster. He was not informed that he would be required to work on public holidays.

[42] Mr Clark went on to detail the requirements of the new roster proposed by the Company and the new requirement to work on public holidays. He said that it was his intention to spend every public holiday with his partner and their child and it was unreasonable for the Company to expect him to work on those days. He went on to say that it is not difficult or the Company to plan maintenance for days other than public holidays and in any event, the Company could get the Break Down Crew to work on such days.

[43] “It was the practice of my partner and I to go away on Public Holidays when we did have them off at the same time. I like to go away shooting and wake boarding. When my partner is back at work, and if she is required to work on a Public Holiday, then I would be taking care of our daughter.” He and his partner have a nine week old child. His partner is a Police Officer, currently on maternity leave. Mr Clark’s partner works a rotating seven day roster which requires work on public holiday.

[44] In cross-examination, Mr Clark agreed that when he applied to work a seven day rotating roster, he knew he would be required to work on public holidays. 16 He was asked: “Now, that you are working the Monday to Friday roster, four day, four 12s, suggest to you that the requirement to work on public holidays is less than the requirement would have been had you been working a seven-day roster. Do you agree with that?” and said: “Yes.”17 He was then asked: “Indeed, you've requested to be transferred from the roster you're currently on to a seven-day roster, haven't you?” and said: “Yes.”18

Mr Bendall

[45] Mr Bendall gave sworn evidence and submitted a witness statement 19. In summary it was Mr Bendall’s witness statement that he commenced employment at Mt Arthur in October 2011 and is employed as a Fitter working in the Planned Maintenance Crew (Heavy Crew).

[46] Mr Bendall said that when he commenced work for the Company there was no mention of any requirement to work on public holidays on the Monday to Friday roster. He went on to say: “I do believe there is an operational requirement for me to work on Public Holidays when working in planned maintenance. The working of Public Holidays was not a requirement of me prior to the introduction of the new roster. The Respondent schedules planned maintenance three months in advance and they can plan the maintenance on any other day that is not a Public Holiday. I am aware the Respondent employs over a couple of hundred Fitters and for any work that arises on a Public Holiday that is unplanned, the seven day roster Fitters are there to do the work. The tradesmen on the seven day roster even now come in to do the planned maintenance if it is required. I understand that some of the seven day roster tradesmen, who are not rostered on Public Holidays, if requested to work, will volunteer.”

[47] “The new roster with the mandatory extra eight hours overtime and the twelve hour shifts has had a negative effect on my family responsibilities. The requirement for me to spend even less time with my family and the further requirement to make me work Public Holidays is not fair or reasonable.”

[48] Mr Bendall also detailed his personal circumstances. He is married with four children aged between 5 and 13 years. His wife works Monday to Friday and does not work weekends or public holidays. “Public holidays are very important to my wife and I as these were the days that the entire family were either not working or not at school. ... I cannot recall the last time there was a long weekend where my wife, my children and I didn’t go away together.”

[49] In cross-examination, Mr Bendall said that he signed an employment offer subject to the terms and conditions in the Agreement without sighting the Agreement. However, he is aware that the Company wanted him to work on public holidays that fall during his Monday to Friday rosters and objects to doing so. 20

[50] In further cross-examination, Mr Bendall was asked: “So you know the company is not asking you to work any more hours. It's asking you to work on perhaps three public holidays a year. You know that, don't you?” and said: “Yes, I know that.” 21 He was then asked: “They're not asking you to work the ten public holidays. They're only asking three, isn't it?” and said: “I think so.”22

[51] Mr Bendall went on to say: “The reason I don't want to work public holidays is because I don't spend much time with my family. That is why. On public holidays we go camping, fishing, skiing. They're some of the only days that all the family is together.” 23

[52] Mr Bendall was then asked: “You are saying that even though you may be given significant notice months in advance of when you would be required to work a public holiday, it may be three a year, you won't do that?” and said: “No.” 24

Mr Jenner

[53] Mr Jenner gave sworn evidence and submitted a witness statement 25. In summary, it was Mr Jenner’s witness statement that he started work at Mt Arthur in September 2012 and is employed as a Shotfirer. When he applied for a job at Mt Arthur, he was told that his likely roster would be four twelve hour rosters per week. He was further informed that work on public holidays would be optional. When accepting the offered position, Mr Jenner weighed up several factors, including that there was no requirement to work on public holidays. When the four by twelve roster was to commence, Mr Margetts informed him that he would be required to work on every rostered public holiday.

[54] In cross-examination, Mr Jenner agreed that he was told in November 2012 that he would be required to work certain public holidays, through to the end of 2015, which fall during his rostered shifts. 26 He went on to agree that this provided “a lot of notice”.27 He further agreed that he would be required to work three public holidays per year.28 Mr Jenner also agreed that if he were to work on a public holiday, he would still only work four days per week but be paid triple time for the public holiday.29

Mr Jackson

[55] Mr Jackson gave sworn evidence and submitted a witness statement 30. In summary, it was Mr Jackson’s witness statement that he commenced employment at Mt Arthur in January 2006 and is currently employed as an Electrician.

[56] Mr Jackson went on to say that he volunteered for the Monday to Friday eight hour roster but was placed on a Monday to Thursday and Tuesday to Friday four day x twelve hour roster which included work on public holidays. “The working of twelve hour shifts and having to work so much overtime per week means that I am going to have problems even getting to football training.” Issues of mental fatigue after twelve hour shifts makes any sports training very difficult.

[57] “The area I now work in which is the ‘heavy vehicle crew/planned maintenance’ is unlike my previous maintenance role where I was working in the seven day break down crew. In the area where I work the maintenance is planned and the Respondent can plan to do the work that would normally be performed on a day that a Public Holiday would fall due on one of the working days in the week that is not a Public Holiday. This is what they currently do for Saturday and Sunday, for example, when they don’t do any planned maintenance. The way the planned maintenance occurs, even if work is required on a Public Holiday, the Respondent can use the maintenance employees who are on the seven day roster to do the work or they can use contractors.”

[58] “On Public Holidays it is my practice to try and spend my time with my girlfriend. ... She currently does not work on Public Holidays. I also take the opportunity to go away if I can when Public Holidays fall due. In Easter I have planned to go and see my family in Queensland. I’m using the Public Holiday’s to facilitate that and taking some time off before and after it. At the moment I am told by the Respondent that I have to attend my rostered shifts where Public Holiday’s fall due.”

[59] In cross-examination, Mr Jackson agreed that he volunteered to move from the seven day roster to the Monday to Friday four day roster as it suited his personal situation and allowed him to “better time off to spend with friends and family”. 31

Messrs Bowen, Collard, Hall, Heath, Henry, Ms Hunt, Messrs Jenkinson, Leadley, Lewis, Page, Smiles, Sutherland, Thrift, Whatham, Blackall and Dever

[60] The above persons submitted witness statements 32 but were not required for cross-examination.

[61] I have paid regard to each of the above witness statements but will not set them out here. Broadly, the statements cover the views of individual employees concerning the history of work on public holidays at Mt Arthur and, in some cases, other mines and the circumstances in which employees were employed and events surrounding the introduction of the new 4x12 rosters. Many of the statements also concern the alleged effect on the individuals and their household members if work on public holidays was to be required. In the case of Ms Hunt, her statement is supplementary to and supportive of that of her partner Mr Collard. In relation to the witness statements as they concern individual reasons for refusing to work on public holidays. I am, on balance, satisfied that the summaries contained in Exhibit MAC6 are fair.

Mr White

[62] Mr White gave sworn evidence and submitted a witness statement 33. In summary, it was Mr White’s witness statement that he has been General Manager of the Mt Arthur Coal Mine since 2007 and prior to that was the Operations Manager from 2005 to 2007. He is responsible for all operational aspects of the Mine, particularly the management of safety, production and costs. The mine extracts some 24 million tonnes of raw coal each year and this will increase to 32 million tonnes in the future. The mine has approximately 1,500 employees, production and engineering employees are employed under the Agreement.

[63] Mr White said that employees, when offered employment, had been informed that they would have to work roster and shift arrangements as required by the Company and also to work reasonable overtime. He went on to say that negotiations for the Agreement led to changes in roster arrangements “including the addition of a 5x9 hour fixed or rotating Monday to Friday roster and a 4x12 hour rotating roster, as well as changes to the 7 day and weekend rosters.” In relation to work on public holidays, Mr White said: “During my participation in the negotiation of the Agreement, there was no discussion about imposing any additional or other restrictions on the ability of Mt Arthur coal to require that its employees work on public holidays, except the Christmas Day and Boxing Day public holidays.”

[64] Mr White’s witness statement goes on to set out the Company’s alleged operational requirements for employees to work on public holidays. He said that those operational reasons were based on the fact that blasting operations can only operate on a Monday to Friday basis and are also heavily affected by weather etc. Overburden digging operates on a 24 hours, 7 days per week basis every day of the year, except for Christmas Day and Boxing Day. To avoid delays in overburden digging operations it is important that the number of blasted cubic metres waiting to be cleared be high. In the case of extended weather and other disruptions to blasting operations “it becomes important to utilise each available day to undertake blasting operations to catch up on inventory levels.” When no work is performed by the Blast Crew on public holidays, inventory levels fall further behind.

[65] “From an operational perspective, it is important to keep activities at the Mine moving in the most consistent and stable process possible given the continuous nature of the operation and the interdependent relationship between different operations and the processes at the Mine. This is particularly the case with the blasting operations.”

[66] “[I]t was decided that under the 4x12 Roster, Blast Crew employees would be expected to work on the public holidays that fell on their roster. From the start, the position of Mt Arthur Coal has been that it would consider each public holiday for the Blast Crew workers on an operational basis about a month prior to that public holiday. If it had sufficient inventory levels and there were no operational reasons to work on that public holiday, then it would not require the workers to attend work. However, the ability to require Blast Crew employees to work on public holidays was aimed at providing to Mt Arthur Coal the flexibility to conduct blasting operations in case there was a need or disruptions had been caused to blasting operations due to other factors.”

[67] Mr White went on to say that a majority of production and engineering employees at Mt Arthur are rostered to work on a 7 day roster which requires them to work on public holidays that fall on their rostered days. In addition, some Monday to Friday workers such as the Planned Components Replacements crew and Ultraclass Pre-service Inspectors also work on public holidays.

[68] In response to evidence filed by the CFMEU, Mr White disputed statements that no other Monday to Friday workers at the Mine are rostered to work on public holidays. Mr White also took issue with other aspects of the Union’s evidence and I have paid regard to that further material. In particular, Mr White stressed that even if maintenance and blast crews at some other mines are not required to work on public holidays, this would not be relevant in the case of Mt Arthur as “the Mine is the largest single coal production operation in Australia”.

[69] Part of the cross-examination of Mr White contained material of a commercially sensitive nature and it was agreed in proceedings that I would not refer to that material specifically in my decision. However, I have paid regard to it in my overall consideration. The other material covered in cross-examination is set out below.

[70] Mr White agreed that at the time the Agreement was negotiated, there was no requirement for Monday to Friday employees to work on public holidays. 34 He further agreed that the issue of those employees working on public holidays was not discussed during negotiations leading up to the making of the Agreement.35

[71] Mr White was asked: “I put it to you this, in addition to the eight extra required hours of work each week as a result of the new roster. Also the new roster requires them to do further hours in the sense of they are also required to work on public holidays that fall due that were not required prior to the new roster?” and said: “The 48 hours that we're talking about when public holidays are worked will not trigger additional hours over and above those 48 hours.” 36

[72] Mr White went on to say that there was a need for Monday to Friday workers to work on public holidays and that the work cannot be scheduled to occur on another day. 37 Mr White went on to say that calling for volunteers to work on public holidays would not be “an acceptable solution to ensure that we get the right people guaranteed with the right skills to be there...”38 He later said: “We cannot run the business on likelihoods, we need certainty.”39

[73] Mr White also addressed the issue of the use of Break Down Maintenance Fitters to perform the Planned Maintenance Fitters’ work. In that regard, he said: “What we need to be able to do, Mr Endacott, is to be able to deliver with the installed assets that we spent a lot of money on we need to be able to have people that are consistently working on equipment giving us high levels of reliability, good understanding and expertise on those specific items of equipment and efficient maintenance practices, that's how we're going to stay in business and sustain our workforce.” 40

Mr Margetts

[74] Mr Margetts gave sworn evidence and submitted a witness statement 41. In summary, it was his witness statement that he has been the Manager Mine Engineering at the Mt Arthur Coal Mine since July 2012. Mr Margetts is also the Manager Shovels and Contract Mining, four Superintendents and an administration assistant report to him. He has been working in the mining industry since 1999. “The position is a statutory position under the Coal Mine Health and Safety Act 2002. In this capacity, I liaise with the operators and open-cut examiners, and review Mt Arthur Coal’s procedures, standards and practices, to ensure that Mt Arthur Coal complies with its obligations under the [Act].”

[75] As Manager Shovels and Contract Mining, Mr Margetts manages the Blast Crew which carries out a full basting service for the Mine. “At the Mine, there are typically 3 to 5 shots to be loaded at a time. The time it takes to load a shot is highly variable, but generally takes several days. There are typically 1 to 2 shots fired per day.”

[76] “The activities to be undertaken by the Blast Crew are planned on a monthly basis, with schedules being reviewed and updated by the Drill and Blast engineers each week. Mt Arthur Coal also develops higher level plans for blasting capacity that span up to five years.” Blasting operations are subject to a number of constraints which limit the times when blasting can occur and other factors can cause delays in scheduled blasting.

[77] Mr Margetts went on to discuss the new 4x12 roster arrangements. “Under the 4x12 Roster, they work 13 rostered overtime hours per week, and in addition, they have worked an average of 4.73 voluntary overtime hours per week. Accordingly, overall, the Blast Crew Workers work fewer voluntary overtime hours under the 4x12 Roster.”

[78] Mr Margetts went on to set out the Company’s alleged operational requirements for the new roster and the decision to require those workers to work on public holidays. He said that 3-4 public holidays fall on the 4x12 roster days per year over the period 2013 to 2015. Work on those days by Blast Crew workers would result “in a gain of 269 tonnes of explosives loaded and 104,000 tonnes of coal being uncovered”. Working on rostered public holidays would also provide the Company “with the flexibility to work to the required schedule and work towards ameliorating the effects of any disruptions caused by other factors, such as supply issues form external suppliers, wet weather interruptions and drill and blast capacity constraints. Conversely, if workers do not carry out loading work on public holidays, this reduces Mt Arthur’s ability to respond to other disruptions and also impacts on the blasting capacity on other days as workers will be required to catch up on the work that was not completed.”

[79] “If a public holiday is coming up but the Mine has high blasted inventory and is not behind schedule, then it will not request the Blast Crew Workers work on that public holiday. The request to work on public holidays is focused on ensuring Mt Arthur Coal has the flexibility to require the Blast Crew Workers to work on a public holiday if and when it is needed.”

[80] Mr Margetts went on to say that in discussion with affected employees, none gave any reasons for their refusal to work on public holidays. He had offered a compromise position that Blast Crew workers would only be required to work on the Easter public holidays but this has been rejected. “At no stage during the implementation process has any of the Blast Crew Workers informed me of any specific reasons why a particular worker will not work on a public holiday.”

[81] Mr Margetts went on to respond to evidence filed by the CFMEU. He said that he agreed with the position put in a number of witness statements filed by the Union that shots cannot be fired on public holidays. However, he went on to say that: “All of the other activities involved in loading and preparing a shot can be carried out on a public holiday and are required to ensure that the shot can be fired on the next working day after a public holiday.”

[82] Mr Margetts also disputed some of the Union evidence relating to alleged conversations between himself and employees. I have paid regard to that further material.

[83] In cross-examination, Mr Margetts was questioned extensively about shotfiring practices and requirements at the Mine. He went on to say that the introduction of the twelve hour roster was because it mirrored the availability of the blast trucks. 42 He went on to say that the requirement to work on public holidays was to provide the Company with flexibility.43 “We need to be in a position where we can reliably work those public holidays.”44 Mr Margetts went on to say that when he spoke to the Shotfirers on an individual basis or in a group, no reason was given to him why those employees refused to work on public holidays.

Mr Botha

[84] Mr Botha gave sworn evidence and submitted a witness statement 45. In summary, it was Mr Botha’s statement that he is Superintendent Drill and Blasts at the Mt Arthur Mine and is responsible for implementing the plan provided by Technical Services in relation to drilling and blasting operations. Five Supervisors report to him, one of whom is the Supervisor for the Blast Crew. That crew has some 31 members and there are 25 workers in various drill crews. Mr Botha has worked in the mining industry since 1991 and for Mt Arthur since March 2011. He has held his current position since March 2012.

[85] When he took up his current position, Mr Botha became aware that mine management was discussing recruiting new workers to the Blast Crew due to a 30% shortage in numbers. Around the same time consideration was being given to implementing a new roster of 4 shifts of 12 hours per day to replace a roster whereby Blast Crew employees work 9 hours per day, 5 days per week. The new roster was motivated by operational requirements. The Company further decided that new Blast Crew workers would be recruited onto the proposed 4x12 roster rather than requiring existing Crew workers to transfer to the new roster.

[86] Mr Botha went on to say:

    “I was involved in the recruitment process for the new employees. … At each of the interviews, I said words to the effect: ‘We will be recruiting for a new roster which involves working 12 hour shifts, 4 days a week. We don't know when it will be happening, it’s a question of timing. We’re doing this so that we can maximise our Manufacturing Unit utilisation during the afternoons instead of relying on overtime.’”

[87] In May 2012, Mr Botha had discussions with CFMEU representatives about existing Blast Crew workers performing overtime after 3 pm each day. However, Mr Botha found that there were not sufficient workers performing overtime on Thursdays and Fridays as employees preferred to do their overtime hours earlier in the week. In September 2012 he had a discussion with Mr Drayton to that effect saying to Mr Drayton: “I will have to manage it more closely and maybe limit the hours they can work earlier in the week.”

[88] In relation to public holidays, Mr Botha said:

    “During the recruitment process, I did not say anything about working on public holidays. This is because the decision to require the New Blast Crew Workers on the 4x12 Roster to work on public holidays had not been made at that stage. The 4x12 Roster was still under consideration and its implementation depended on the New Blast Crew workers completing their required training and competency assessments and certifications.”

[89] Around mid November 2012 Mr Botha spoke to the new Blast Crew workers and told them that the new roster would be implemented and that it would require work on public holidays that fell on their rostered work days. He told the affected employees that this was a business requirement “especially over Easter time when we are below blast inventory”.

    “At no time during the process has any of the New Blast Crew Workers told me about any specific reasons why they cannot work on public holidays. The only reason that I have been given is that the New Blast Crew Workers were not told during the interview process that they would be required to work on public holidays. In addition, I have been informed by the CFMEU Delegates that in their view, Monday to Friday workers should not work on public holidays.”

[90] Mr Botha responded to the witness statement evidence of Mr Drayton, Mr Hall, Mr Jenner, Mr Leadley, Mr Smiles and Mr Blackhall. I have paid regard to that material.

[91] In cross-examination, Mr Botha agreed that the Mine achieved record production in the December 2012 half year and that Shotfirers were not required to work on public holidays during that period. 46 Mr Botha went on to agree that it is rare for the Mine to fire a shot on a Saturday.47

[92] Mr Botha further agreed that shots could be fired on Saturdays and it would be possible to change rosters to provide for Saturday work or to bring in employees on overtime. 48 He was then asked: “I said you don't have to get the shot firers to work on a holiday to make up any loss in the blasting that's happened on a public holiday, do you, you don't have to do that?” and said: “We don't have to do it, our only concern or the biggest concern we've got is Easter weekends which is quite a lengthy period and having our diggers working for that full extent of the Easter weekend we find ourselves running short on blast inventory for certain digging units, yes.”49

[93] Mr Botha also agreed that when a shot is fired on a Monday that is not a public holiday, Shotfirers are not required to work on a Saturday or Sunday prior. 50 He disagreed that shotfiring could be easily managed without requiring Shotfirers to work on a public holiday.51 He went on to emphasise that the main problem for the Company with public holidays occurs over the Easter period.52 Mr Botha disagreed that 13 hours overtime each week is excessive.53 Mr Botha agreed that when employees were offered positions at Mt Arthur there was no discussion relating to working on public holidays.54

Mr Seears

[94] Mr Seears gave sworn evidence and submitted a witness statement 55. In summary, it was his witness statement that he has been Superintendent Field Maintenance at the Mt Arthur Mine since June 2010 and has been employed by the Company since April 2007. He is responsible for the maintenance of field equipment and oversees the planning of maintenance work. He reports to the Manager Maintenance and has nine supervisors and one engineer who report to him. As Superintendent Field Maintenance, Mr Seears has been responsible for implementing the 12x4 roster and explaining the new arrangements to the relevant employees.

[95] Mr Seears went on to say that Mt Arthur has undergone a rapid expansion in recent years and this has changed the resourcing needs at the Mine. Mr Seears’ statement went on to deal with those matters at some length and I have paid regard to that material.

[96] “Mt Arthur Coal’s maintenance strategy is to minimise the unscheduled maintenance work undertaken by the 4 Panel Roster Crew and to control the planned work undertaken by the Shovel and Drill Maintenance and Excavator Maintenance Crews. In doing this, the planned work can be scheduled to occur at the times that have minimum disruptive impact on the rest of the operations at the Mine. The equipment is maintained so that it is kept in optimal condition making it less likely to break down.”

[97] The planned maintenance involves schedules over varying time periods, up to five years in advance. Schedules are very difficult to rearrange, particularly in short notice. The decision to move to new rosters was based on operational requirements. Again Mr Seears dealt with those matters in some detail and I have paid regard to that material.

[98] In relation to work on public holidays, Mr Seears said that such work by employees on the 4x12 roster was “consistent with other maintenance crews performing work on public holidays which fall on their rostered work days.” It was not practical for other maintenance workers to work voluntarily on public holidays instead of the Field Maintenance workers.

[99] Mr Seears’ statement went on to detail his consultation with Field Maintenance workers regarding the 4x12 roster and the requirement to work on public holidays. As part of that process, a formal consultation group was formed, comprising a representative from the day shift, a representative from the night shift and two CFMEU delegates. That group indicated that workers did not want to work on any public holidays but no reasons for refusing were provided. Some employees were also concerned about loss of earnings arising from any restrictions on overtime. After considering the views of the consultation group, he indicated that the Company “might be willing to accept a compromise whereby the Field Maintenance Workers would only work on public holidays which fell on Tuesday, Wednesday and Thursday. I explained that on this compromise, an average of approximately 2.3 public holiday were required to be worked per year over a three year period.” Field Maintenance workers rejected that proposed compromise. “No reasons were given for this decision.”

[100] Further discussions occurred with affected employees and on 3 December 2012 each Field Maintenance worker was formally notified of the transition to the 4x12 roster and the expectation that public holidays that fell on their roster would be worked. The roster came into operation on 7 January 2013. Since that time, no Field Maintenance worker has volunteered to work on public holidays and the Company has not pressed the issue due to the matter being before the Commission.

[101] Mr Seears’ witness statement went on in some detail to respond to evidence filed by the CFMEU. I will not set that material out here but have paid regard to it.

[102] In cross-examination, Mr Seears agreed that the Company had not trialled a system whereby employees would volunteer to work on public holidays. 56 He went on to say: “I could say with a lot of confidence that it wouldn’t work.”57

[103] Mr Seears went on to disagree that 13 hours overtime per week was a large amount of overtime to be performed by an employee. 58 Mr Seears agreed that there was no need during 2012 for employees to work on public holidays but said that this year there is additional volume of equipment which will require planned maintenance on public holidays falling on Monday to Friday.59 Mr Seears agreed that planned maintenance could be scheduled around public holidays but said that this “would have a detrimental impact on other areas of the business.”60

[104] I have also paid regard to the supplementary oral evidence given by the witnesses.

Submissions

[105] Both parties filed written outlines of submissions prior to the hearing 61.

[106] The outline deals with the National Employment Standards contained at s.114 of the Act. That section is set out earlier in this decision.

[107] The outline goes on to argue that the totality of the witness evidence called by the Union shows that Mt Arthur’s request for the relevant group of employees to work on public holidays is not reasonable and that their refusal to work on those days is reasonable. It went on to say:

    “a. The Respondent is currently its requiring its employees to work unreasonable overtime and excessive hours and those employees should not be required to work on Public Holidays as it just results in them working more hours.

    b. The employees that are now required to work forty eight hours per week and work on Public Holidays are working more hours than any other group of employees at the Mine and any other group of twelve hour shift employees in the Hunter Valley and that these employees should not be required to work on Public Holidays.

    c. These employees that are now required to work more mandatory overtime hours than any other group of twelve hour shift employees in the Hunter Valley and they should not be required to work Public Holidays.

    d. Coal industry employees in the region that work Monday to Friday are not required to work Public Holidays and these employees should not be required to work Public Holidays. With respect to shotfiring employees, no other shotfiring group of employees is required to work Public Holidays in the Hunter Valley. This group of shotfiring employees should not be required.

    e. The employees should not be required to work Public Holidays even if the working of Public Holidays was operationally required unless volunteers are being called for. There is evidence that, especially for the maintenance employees, but by extrapolation to the shotfiring employees there are other employees that would be happy to work on Public Holidays if they had nothing else on who could do the work.”

[108] In the alternative, the submission argues that if I was to find that Mt Arthur’s request to work on public holidays is reasonable, then I should further find that the refusal of the employees to perform such work is also reasonable.

[109] In its outline, Mt Arthur argues that its request in relation to work on public holidays is reasonable and the employees’ refusal to do so is unreasonable. The outline goes on to submit that the relevant employees “have not demonstrated that they each have a reasonable basis under s.114 to refuse to work on every public holiday which falls on their rostered work days and nor could they as they cannot anticipate in advance unforeseen personal circumstances. The relevant shift workers are also aware well in advance of the need or otherwise to so work and can therefore be reasonably expected to arrange their social calendars taking into account the requirement to work.”

[110] The outline sets out Mt Arthur’s view of the questions which I must determine. They are:

    “(a) Is the request by the Respondent that the Relevant Shift Workers attend for work on public holidays which fall on their rostered work days a reasonable request under s.114?

    (b) Do any of the Relevant Shift Workers separately have a reasonable basis under s.114 to refuse to work on any or every public holiday which falls on their rostered work day?”

[111] Mt Arthur submits that the question whether its request is reasonable “must necessarily be determined at a global level given that it relates to a general request made by the Respondent, as an aspect of a roster which has been implemented, to apply to all of the relevant shift workers. Otherwise, if it was to be answered in relation to each individual to whom a direction is given, the test becomes unworkable and difficult to apply in situations where, as is generally the case, an employer issues a general direction to its workforce.

[112] “Once the Respondent has established that the request is reasonable, the onus under the Act shifts to each individual employee to demonstrate that, in their particular circumstances, he or she has a reasonable basis to refuse the Respondent's reasonable request to work on a particular public holiday. Therefore, the second question must be answered having regard to the specific circumstances of each individual who refuses to work in accordance with the request of the Respondent. Further, such refusal must be considered in respect of each public holiday rather than generally in relation to all public holidays.”

[113] The outline goes on to say: “The only reasonable inference that may be drawn from the provisions of the whole of clause 14 is that employees are required to work on public holidays except the Christmas Day and Boxing Day Public Holidays. Indeed, if the employees are not so required, they are to be notified at least four weeks in advance of such non-requirement. There is otherwise no provision in the Agreement which limits the ability of the Respondent to require that employees work on public holidays which fall on their rostered work days. This is clearly the reason why the CFMEU does not rely on any provisions in the Agreement to support or advance its opposition to the decision of the Respondent and instead relies on what is a problematic interpretation of s.114 of the Act.”

[114] Mt Arthur relies on the following factors to support its submission that the Respondent’s request for the relevant employees to work on public holidays::

    ● The Mine operates twenty four hours a day, seven days a week, including public holidays, with the exception of Christmas Day and Boxing Day. Work on public holidays is a normal practice at Mt Arthur and within the wider coal mining industry.

    ● The need for work on public holidays which fall on rostered days off is an operational requirement.

    ● If an employee is not required to work on a public holiday then they are given at least four weeks notice.

    ● The Agreement specifically provides for the 4 x 12 hour rosters.

    ● Approval of the Agreement by the CFMEU’s membership is prima facie evidence that the provision in the Agreement is reasonable.

    ● Each of the relevant employees was given a written letter of offer prior to taking up employment which informed them that rosters were subject to change and that reasonable overtime would be required.

    ● There are other employees at Mt Arthur Mine who are rostered to work on public holidays, including 7 day shift workers and Monday to Friday shift workers.

    ● The Company consulted extensively with employees before implementing new rosters, including the need for employees to work on public holidays.

    ● Throughout the consultation process, no specific reasons of a personal nature were provided by any of the relevant shift workers relating to their refusal to work on public holidays. Rather, a principled position was adopted by the CFMEU in accordance with which the Relevant Shift Workers refused to work any public holidays which fall on their rostered work days. The only reasons conveyed were through the CFMEU. Those reasons were of a general nature.

    ● Under the Company’s proposal, Blast Crew workers would only be required to work between three and four public holidays per year from 2013 to 2015. Even then, the Company would review its operational requirements at least a month before a public holiday was due to be worked and if it did not require employees to work, it would provide at least four weeks notice to them.

    ● Maintenance Crew workers would only be required to work between three and six public holidays per year from 2013 to 2015.

    ● Employees who work on public holidays are entitled to treble pay for the hours worked.

    ● Sufficient advance notice of the request to work on public holidays has been provided to allow employees to arrange their social calendars to accommodate this.

[115] In relation to the argument from the CFMEU that work on public holidays would exacerbate excessive working hours, the outline argues that prior to the current rosters being implemented, the relevant employees in some cases worked longer hours than they do now. It further argues that the hours to be worked on public holidays are not additional to the 48 rostered hours but form part of those rostered hours. In addition, the letters of offer to the relevant employees and the terms of the Agreement were agreed upon by all parties. “It is therefore disingenuous to now suggest that they are unreasonable or ought to be read in a limited manner.”

[116] “The relevant shift workers were at all times informed, including during the consultation process, that the Respondent would consider on a case by case basis any instance where an employee did not wish to work on a public holiday.”

Final oral submissions

[117] In final oral submissions, Mr Endacott relied on s.114 of the Act read in the light of the Explanatory Memorandum. He went on to consider the evidence from the Union’s witnesses and expanded upon those matters contained in his outline of submissions.

[118] Mr Endacott contended that it was reasonable for employees when applying for a Monday to Friday position to assume that they would not be required to work on public holidays in the manner that would be required if they were employed as seven day shift workers. In closing, Mr Endacott said that: “it goes without saying we would say that if you've got this request going out to 2015 that you're required to attend on a public holiday and you don't even know what the circumstances are going to be in 2015, then the request by its nature has to be unreasonable.” 62 To that should be added the personal and family circumstances of individual employees as set out in their evidence.

[119] In his final oral submissions, Mr Warren disputed the CFMEU’s assertion that s.114 of the Act gives an employee an absolute entitlement to not work on a public holiday. He went on to say that nothing in the agreement attempts to override the NES. He went on to set out aspects of the evidence of both the Union and the Company witnesses. He said: “It was not until these proceedings commenced that the company had any specific evidence from any of the employees with respect to the reasons why they personally had refused to work on public holidays.” 63

[120] Mr Warren went on to say that having considered the stated personal circumstances of three of the union witnesses (Mr Collard, Mr Smiles and Mr Jackson), the Company had now accepted the refusal of those employees to work on certain public holidays during 2013.

[121] Mr Warren went on to say that the approval of the Agreement by the Commission means that prima facie it is “reasonable in the circumstances that may require an employee to be rostered to work on a public holiday in accordance with the reasonable roster, in accordance with the reasonable request of the employer and in accordance with the reasonable needs of the employer.” 64 When the Agreement is read in conjunction with ss.114 and 55 of the Act, it is consistent with those provisions.

Conclusions and Determination

[122] Section 114 of the Act provides that employees are entitled to be absent from work on public holidays but also that an employer may request employees to work if that request is reasonable. An employee may refuse a request to work on public holidays if that refusal is reasonable. In the former situation, the onus of proof is on the employer, in the latter it is on the employee(s). There is nothing in s.114 to support a proposition that employees can only be requested to volunteer to work on public holidays or that work on public holidays is prohibited.

[123] Now I will turn my consideration to whether the Company’s request is reasonable or unreasonable and also as to whether the employees’ refusal is reasonable or unreasonable in the context of both a general refusal to work on public holidays and whether the circumstances of individual employees provide reasonable grounds for not working on some or all public holidays. In so doing, I have had regard to the evidence and materials before me, including the terms of the Agreement, the Act and the Explanatory Memorandum.

[124] The employees concerned are those engaged as Shotfirers and Maintenance employees who are employed by Mt Arthur on 4x12 rosters spread over Monday to Friday. Prior to the introduction of those rosters, those employees had not been asked to work on public holidays which fell during Monday to Friday. The Union’s argument is that the 4x12 rosters involved an increase in working hours of nine hours per week, performed as overtime. It is argued that it is unreasonable in the context of the working of thirteen hours rostered overtime per week for those employees to also work on public holidays. It is further argued that when the employees were employed, there was no advice to them that they might be expected to work on public holidays and in any event, the operational needs of the employer do not support Mt Arthur’s contention that it needs to roster Shotfirers and Maintenance employees to work on public holidays to meet its reasonable operational requirements.

[125] The Agreement at subclause 14.4 provides that the parties have nominated which public holidays shall be worked for the period of the Agreement and, importantly, goes on to provide: “if the Company decides not to work on a public holiday so nominated, the Company shall give the employees at least four weeks of notice of such decision.” Prima facie therefore, the Agreement anticipates that employees will be required to work on public holidays but will be given reasonable notice if not required to do so.

[126] In its form F18 - Declaration of Employee Organisation in Support of Application for Approval of Enterprise Agreement, the CFMEU supported the Company’s application and raised no issues regarding either rosters or work on public holidays. It should have been clear to the Union at that time, and to its members who voted to approve the Agreement, that 4x12 rosters were permitted under the Agreement and that there was no specific limitation placed on any group of employees being rostered to work on public holidays. All the relevant employees joined Mt Arthur’s workforce under the terms of the Agreement and knew, or should have known, that their wages, working hours and conditions would be governed by that Agreement.

[127] It is clear from the provisions of subclause 9.1 of the Agreement that 4x12 rosters are anticipated and can reasonably expected to be applied as the Company determines, subject to compliance with the notice provisions in the Agreement. Those rosters have an inherent requirement for the working of thirteen hours overtime. The Company appears to have made every effort to consult with employees about roster changes and provided early advice that work on public holidays would be requested/required.

[128] The Union argued that a requirement to work on public holidays would involve an increase in the hours worked by the relevant employees. I fail to see how this could be the case when all such public holidays required to be worked would occur over the Monday to Friday period. Accordingly, work on a public holiday would only result in the same number of hours being worked as would normally be worked in any roster week.

[129] It is my view in the light of the above factors that they do not either individually or collectively render Mt Arthur’s request to work on public holidays unreasonable. It is my further view that the Company is applying the Agreement correctly and that the terms of the Agreement relating to rosters and work on public holidays are such as to support a view that the request for Shotfirers and Maintenance employees to work on those days is a reasonable one.

[130] In addition to the factors dealt with above, much time was occupied during proceedings examining whether the Company had a need to roster Shotfirers and Maintenance employees to work on public holidays, based on genuine operational requirements. Taking the totality of the Company’s witness evidence into account, I am satisfied that there is a sound business case for the Company’s request. There is nothing to indicate that the Company’s plan to roster employees on public holidays has been formed as a result of some whim or for reasons that make the request unreasonable. I find it difficult to comprehend an argument that the Company would seek to roster employees on public holidays and incur a very substantial wages cost in so doing if there was not a sound operational case underlying the Company’s request. The offers by seven day shift workers to volunteer for maintenance work on public holidays is so heavily qualified as to be effectively useless to the employer in guaranteeing coverage on public holidays. In relation to operational requirements, the evidence of Mr White, Mr Margetts, Mr Botha and Mr Seears is to be preferred over the evidence of the Union’s witnesses. The Company’s witnesses are privy to commercial information that is not available to the CFMEU or its members.

[131] Accordingly, it is my determination that the Company’s request for Shotfirers and Maintenance employees to work on public holidays which form part of their normal rosters is reasonable.

[132] The next matter to be considered is whether the collective and/or individual refusal by employees to work on public holidays is reasonable. Having closely studied the witness evidence brought forward by the CFMEU from employees at Mt Arthur, I can understand their extreme reluctance to work on public holidays when requested. However, I am unable to discern anything which would justify a collective refusal to work on such days. The collective refusal appears to be based on an erroneous belief that the NES and the Agreement do not permit the Company to request or require such work.

[133] All in all, I determine that a collective refusal to work on public holidays which fall during an employee’s roster week is unreasonable. The Company is therefore entitled to request such work to be performed.

[134] I now come to the last and most difficult issue before me, that is the situation of individuals refusing to work on public holidays on the ground that their refusal is reasonable. Nothing in the evidence and materials before me convinces me that any of the individuals concerned has advanced circumstances that would entitle them to refuse to work any public holidays at all. However, that is not the end of the matter. Some individuals will have good reason to decline to work on a particular holiday. The Company has already recognised that situation in the cases of Mr Collard, Mr Smiles and Mr Jackson. Future cases where the Company wishes an individual to work on a public holiday, and that individual believes he has a reasonable explanation for declining to do, so will need to be assessed on a case by case basis. It is not possible in a decision of this type to decide what may or may not be reasonable in a future scenario.

[135] I note that the employer has projected rosters out to 2015 requiring work on every public holiday but has submitted that in practice employees will only be asked to work a limited number of those days, mostly over the Easter period each year. I expect that the Company when implementing my decision will adhere to its stated position as to the limited requirement for work on public holidays. In this context, I further note the provisions of the Agreement as to the Company’s obligation to provide four weeks’ notice to employees who will not be required to work on any particular public holiday. That four week period is obviously a minimum and I recommend that the Company provide a longer period of notice to employees who will not be required to work on a public holiday so as to assist those employees in making their personal arrangements.

[136] In summary, I determine that the Company’s request for Shotfirers and Maintenance employees to work on public holidays is reasonable. I further determine that a collective refusal to work on public holidays is unreasonable and that an individual refusal to work on any public holidays at all is also unreasonable. However, nothing in my decision prevents an individual employee presenting a case as to why they should not be requested to work on any particular public holiday. Any dispute over an individual being required to work on a particular public holiday may be referred to the Commission for further determination.

COMMISSIONER

Appearances:

K Endacott for the Construction, Forestry, Mining and Energy Union.

R Warren of Counsel with B Rauf for Mt Arthur Coal Pty Ltd.

Hearing details:

2013.

Sydney:

January 7;

March 12, 13, 26.

 1   Exhibit CFMEU 25.

 2   Exhibit CFMEU 18.

 3   Transcript PN481.

 4   Transcript PNs496-498.

 5   Transcript PNs551-552.

 6   Transcript PN555.

 7   Transcript PN567.

 8   Exhibit CFMEU 19.

 9   Transcript PNs624-626.

 10   Transcript PN649 and following.

 11   Transcript PNs677-678.

 12   Transcript PN689.

 13   Transcript PN762.

 14   Exhibit CFMEU 16.

 15   Exhibit CFMEU 20.

 16   Transcript PNs902-904.

 17   Transcript PN906.

 18   Transcript PN907.

 19   Exhibit CFMEU 21.

 20   Transcript PN954.

 21   Transcript PN999.

 22   Transcript PN1000.

 23   Transcript PN1001.

 24   Transcript PN1002.

 25   Exhibit CFMEU 22.

 26   Transcript PN1084.

 27   Transcript PN1085.

 28   Transcript PN1088.

 29   Transcript PNs1093-1094.

 30   Exhibit CFMEU 23.

 31   Transcript PNs1131-1132.

 32   Exhibits CFMEU 1 to 15 and CFMEU 17 respectively.

 33   Exhibit MAC 2.

 34   Transcript PN1295.

 35   Transcript PNs1297 and 1308.

 36   Transcript PN1342.

 37   Transcript PN1386 and following.

 38   Transcript PN1431.

 39   Transcript PN1432.

 40   Transcript PN1434.

 41   Exhibit MAC 3.

 42   Transcript PN1627.

 43   Transcript PN1630.

 44   Transcript PN1631.

 45   Exhibit MAC 4.

 46   Transcript PNs1696-1705.

 47   Transcript PN1708.

 48   Transcript PNs1712-1713.

 49   Transcript PN1718.

 50   Transcript PN1726.

 51   Transcript PN1730.

 52   Transcript PN1733.

 53   Transcript PN1761.

 54   Transcript PN1766.

 55   Exhibit MAC 5.

 56   Transcript PN1928.

 57   Transcript PN1930.

 58   Transcript PN1966 and following.

 59   Transcript PNs1997-2000.

 60   Transcript PN2007.

 61   Exhibits CFMEU 25 and MAC 1 respectively.

 62   Transcript PN2255.

 63   Transcript PN2281.

 64   Transcript PN2341.

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