Lend Lease Infrastructure Services Pty Limited v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

[2012] FWA 3898

[2012] FWA 3898

FAIR WORK AUSTRALIA

RECOMMENDATION

Fair Work Act 2009
s.418 - Application for an order that industrial action by employees or employers stop etc.

UGL Resources Pty Ltd; Lend Lease Infrastructure Services Pty Limited
v
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(C2012/3659)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 4 MAY 2012

Summary: s.418 of the Act - stop orders - recommendation

[1] On 4 May 2012, UGL Resources Pty Ltd and Lend Lease Infrastructure Services Pty Limited (“the Companies”) lodged an application under s.418 of the Fair Work Act 2009 (“the Act”) seeking stop orders against their employees who are members or eligible to be members of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (“CEPU”) who it was alleged had that day taken unprotected industrial action.

[2] The subject matter of the alleged industrial action has been before the tribunal on previous occasions. Essentially, the Companies are concerned that the tolerance it had demonstrated in relation to the usual commencement time had been systematically abused by its employees, and had resulted in lost productivity. This had caused it to adopt a rigid commencement time after which employees would not be taken to have presented for work that day. Employees themselves were consequentially concerned that bona fide reasons for late commencement were being ignored and employees who were later to work for such reasons were losing a full day's pay.

[3] With the project now entering its critical phase, the issue of productivity has signal importance.

[4] Following a discussion with the Companies and the CEPU, the Companies agreed to withdraw their application in lieu of the following recommendation.

• The employees are to make every reasonable effort to present to (and swipe on at the gate for) the 5:45am bus from the camp to the work site for each of their rostered days’ work.



• The gate will close as usual at 6.00am.



• Employees will continue to be able to make themselves available for work so long as they swipe on at the camp bus station for 6.00am. Whilst they will be permitted to do so, their conduct in this regard will have implications, albeit of a statistical kind (see further below).



• Employees will be permitted until 6:30am to present for work so long as they have a bona fide reason for not presenting at the gate for the 5:45am bus. Each case will be dealt with on its merits.



• An employee who does not present for work by 6:30am will be taken to have not presented for work for that day.



• An employee who encounters an exceptional circumstance, such as the illness of a child or family member, will be given consideration as they would ordinarily in the course of the working day.



• The Companies will maintain the more flexible commencement time only so far as there is continuing evidence of significant compliance with the 6.00am commencement time.



• To this end, the Company will monitor attendances and late arrivals. An employee who fails to present at the 5:45am bus will for statistical purposes only be considered to be a late arrival. That is, while an employee will still be taken to have presented for work if they swipe on at the camp bus station before 6.00am, their conduct in this regard will be counted as a late start for the purposes of the collection of statistics.



• Should there be statistical evidence accumulated that demonstrates a pattern of evasion of the 6.00am commencement time and the 5:45am bus is under-utilised (particularly in a context where travel allowance is provided), the Companies may return to the 6.00am deadline for employees to present for work. Further steps may be taken as the Companies determine.



• If the Companies become aware of any statistically significant trend towards evasion of the 6.00am commencement time, they will advise the relevant delegates as soon as possible.



• In such circumstances, the CEPU Organiser will be informed of the pattern of conduct and must undertake to meet with the Companies and counsel the employees as to their obligations.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr P. Copeland, solicitor for the Applicant

Mr P. Ong for the Respondent

Hearing details:

Brisbane.
2012.
May 4.

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