Construction, Forestry, Mining and Energy Union v Nyrstar Hobart Pty Ltd
[2016] FWC 6796
•21 SEPTEMBER 2016
| [2016] FWC 6796 |
| FAIR WORK COMMISSION |
STATEMENT |
Fair Work Act 2009
s.739—Dispute resolution
Construction, Forestry, Mining and Energy Union
v
Nyrstar Hobart Pty Ltd
(C2016/4155)
COMMISSIONER LEE | MELBOURNE, 21 SEPTEMBER 2016 |
Application to deal with a dispute.
[1] This matter involves a dispute between the Construction, Forestry, Mining and Energy Union (CFMEU) and Nyrstar Hobart Pty Ltd (the Respondent). The CFMEU have notified a dispute in relation to the Nyrstar Hobart Production Enterprise Agreement 2015 (the Agreement) pursuant to s.739 of the Fair Work Act 2009 (the Act). The CFMEU in their Form F10 characterised the dispute in the following terms:
1. Employees have worked the current day shift roster 8 hours per day inclusive of a 20 minute morning tea break, 35 minute meal break and allocated 20 minute shower time. This has been the past custom and practice for at least 37 years.
2. The company want to implement unpaid meal break and extend the working hours to 8 hours and 35 minute per day to commence on 4th July 2016.
3. The company have consulted over a period of months and an agreement has not been reached between the parties.
4. On 2 June 2016 the matter was placed in dispute by the affected employees as per the Dispute Resolution clause of the Nyrstar Hobart Production Enterprise Agreement 2015.
[2] The clauses in the Agreement that the dispute is said to relate to are clause 3.2.1, clause 3.2.2 and clause 3.6.2.
[3] I have conducted two conferences in order to try and resolve the dispute on 30 June 2016 and 30 August 2016.
[4] The parties have held numerous discussions to try and resolve the matter.
[5] The dispute remains unresolved.
[6] I am satisfied that the matter is not able to be resolved by further conciliation. This statement constitutes a formal finding to that affect pursuant to clause 2.4.2 (j) (ii) of the Agreement.
[7] I note that it is common ground that the steps in the dispute settlement procedure have been complied with and that the Commission has the necessary jurisdiction to arbitrate the dispute.
[8] The question the parties seek to have determined is as follows:
“Are the Cellroom Day Services employees properly classified as “Shift workers” or “Day workers” within the meaning of the Agreement?”
[9] It is understood and agreed by the parties that if the answer to the question is that Cellroom Day Services workers are “Day workers”, then what follows is that the Respondent can implement a 35 minute unpaid meal break as to do so would be consistent with the terms of the Agreement.
[10] If the answer to the question is that Cellroom Day Services employees are properly classified as shift workers, then the Respondent cannot implement the 35 minute unpaid meal break as detailed above in paragraph 9 as to do so would be inconsistent with the terms of the Agreement.
[11] Consistent with this, the parties agree that once the question is answered, that will resolve the dispute and the parties will abide by the decision.
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