Macpherson v Coal and Allied Mining Services Pty Ltd (No.2)
[2009] FMCA 881
•9 September 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MACPHERSON v COAL & ALLIED MINING SERVICES PTY LTD (No.2) | [2009] FMCA 881 |
| INDUSTRIAL LAW – Reasonable additional hours – s.226 – where company introduced a new 44 hour roster requiring employee to work consecutive 12 hour shifts – whether the additional hours were reasonable – impact on health, safety and family life of employees considered – whether employees adequately consulted about the changes in accordance with their industrial agreement. INDUSTRIAL LAW – Stand down – where employee refused to complete his shift and was “stood down” until he agreed to work the new roster – claim by employee that his suspension breached the industrial agreement and s.691A of the Act – whether employer had a common law right to discipline its employee over a failure to comply with a lawful command – whether employee entitled to payment of salary for duration of suspension. |
| Workplace Relations Act 1996 (Cth), ss.171, 226, 691A, 691B |
| Inspector Trundle v M & K Angelopoulos Pty Ltd [2009] FMCA 37 TVW Enterprises Ltd v Duffy& Ors (1985) 60 ALR 687 R v Darling Island Stevedoring and Lighterage Co Limited; Ex Parte Halliday & Sullivan (1938) 60 CLR 601 Gapes v Commercial Bank of Australia Limited (1980) 41 FLR 27 Csomore & Anor v Public Service Board (NSW) (1986) 10 NSWLR 587 Welbourn v Australian Postal Commission (1984) 52 ALR 669 Cresswell v Board of Inland Revenue (1984) 2 All ER 713 Australian Workers’ Union v Stegbar Australia Pty Ltd [2001] FCA 367 Foong v The Norfolk Island Hospital Enterprise [2002] NFSC 4 Public Service Association and Professional Officers Association Amalgamated Union of New South Wales v Macquarie Generation re suspension of Psa delegate [2003] NSWIRComm 9 |
| Applicant: | ALLAN MACPHERSON |
| Respondent: | COAL & ALLIED MINING SERVICES PTY LIMITED (ACN 104 081 290) |
| File Number: | SYG 2960 of 2008 |
| Judgment of: | Raphael FM |
| Hearing dates: | 15, 16, 17 July 2009 |
| Date of Last Submission: | 17 July 2009 |
| Delivered at: | Sydney |
| Delivered on: | 9 September 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Slevin |
| Solicitors for the Applicant: | Slater & Gordon |
| Counsel for the Respondent: | Mr A Gotting |
| Solicitors for the Respondent: | Freehills |
ORDERS
The Court declares that the Respondent was in breach of s.691B Workplace Relations Act 1996 by standing down the Applicant on 13 November 2008.
Decision on penalty for the above breach reserved pending a hearing on a date to be fixed.
Otherwise, application dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2960 of 2008
| ALLAN MACPHERSON |
Applicant
And
| COAL & ALLIED MINING SERVICES PTY LIMITED (ACN 104 081 290) |
Respondent
REASONS FOR JUDGMENT
Introduction
Allan MacPherson is a skilled electrical fitter working in the maintenance team for Coal & Allied Mining Services Pty Limited (“the company”), a subsidiary of Rio Tinto Limited, at its Mount Thorley/Warkworth Operations. These operations are an open cut coal mine utilising the dragline truck and shovel method with an annual raw coal production of approximately 13.5 million tonnes. Mr MacPherson works in the Field Services Crew which maintains the mining equipment both on a regular basis and upon breakdowns. He is a married man with four children, two of whom are at university and two of whom were, on 30 January 2009, aged 15 and 13. Prior to 11 November 2008 he worked a rotating day/afternoon shift Monday to Friday roster averaging 40 hours a week. The roster rotated through a three week cycle which included five eight hour afternoon shifts commencing at 3.00 p.m. and concluding at 11.00 p.m. Monday to Friday. Mr MacPherson had organised his family activities so that he could take his boys to training after school except on the afternoon shift weeks. Mr MacPherson’s employment was governed by the Mount Thorley/Warkworth Operations Workplace Agreement 2007. That agreement was subject itself to various provisions of the Workplace Relations Act 1996 (Cth) (the “Act”).
In November 2008, in circumstances which will be set out in detail in the history section of these reasons, the company changed the rosters under which its maintenance crews, including Mr MacPherson, worked to a new roster that provided for an average of 44 hours per week rotating through a two week cycle of four day shifts, being three 12 hour shifts and one 8 hour shift. There was no weekend work and no work after 6.30 p.m. at night. On 12 November 2008, the second day of the first week of the operation of the new shifts, Mr MacPherson informed his supervisor that he was only able to work until 2.30 p.m. that day because he had personal family commitments. This resulted in Mr MacPherson being told that he would be stood down without pay until he was prepared to commit to work all the hours required by the roster. Mr MacPherson did not return to work the next day but did return to work on 14 November when he signed a document indicating that he was prepared, under protest, to work the rostered hours. He has worked those hours ever since.
Mr MacPherson complains to this Court that his standing down was in breach of the Workplace Agreement and in breach of s.691A of the Act which provides for an employer to stand down employees in certain specified circumstances. The company argues that Mr MacPherson was not “stood down” as that phrase is understood in the award or in the Act but was disciplined for not complying with his contract of employment. Mr MacPherson also complains that the new roster was imposed upon him in contravention of s.226 of the Act which provides that an employee must not be required to work more than 38 hours per week plus reasonable additional hours.
Having heard all the evidence and submissions in the case I have come to the view that the first question to be answered is whether or not the new roster contravenes s.226 and those sections of the Industrial Agreement which require any changes to be instituted only following consultation with the employees. The “stand down” of Mr¶MacPherson must be looked at in this context in order to ascertain whether it was effected in breach of the Act or in accordance with the respondent’s common law rights as an employer.
History
The history set out below constitutes my findings on the evidence given by Mr MacPherson, Mr Watkins, the CFMEU site lodge Secretary and employee representative, Mr Gloster, the Maintenance Manager at the Mt Thorley/Warkworth open cut mining operations and Mr Rabe, the field maintenance superintendent at the mine.
In the winter of 2008 the mine managers saw a need to increase operations and decided to order a quantity of new equipment including fifteen new haul trucks and other mobile equipment. The managers had seen that the existing equipment also needed more frequent maintenance. As a result of these observations and decisions management decided that mine maintenance operations needed to be reconfigured. A decision was taken to disband the field support unit and restructure the remaining maintenance crews. There would be a new field crew made up from the merged field support unit heavy crew. There would also be a mobile equipment crew. To accommodate these decisions and to optimise maintenance operations Mr Gloster believed that a roster change for both crews was required. The new rosters would have to provide seven day coverage as the mine operated on a continuous basis. Mr Gloster concluded that the most time consuming regular maintenance to be performed on drag lines, loaders and shovels took approximately 12 hours to complete and for this and other reasons specified in his affidavit, he formed the view that the optimal organisation of workers would provide seven day coverage and a maximum capacity of 12 hours on three days a week. In terms of rosters the new field crew would have to work three 12 hour shifts and one shorter shift. One of those rosters would be a day roster only. Mr Gloster believed that the new system would be welcomed by employees in the heavy crew and field support unit for the following reasons:
“a.most of those employees already worked an average of four hours overtime per week;
b. the proposed new roster would only require those employees to work during the daylight hours;
c.the proposed new roster would not require those employees to work five afternoon shifts every three weeks (as the previous roster had), which would in turn allow them to develop better sleep patterns;
d.the proposed new roster would provide employees with a four-day weekend every second week, which had not occurred under the previous roster; and
e.the proposed new roster would come with a work pattern allowance of $11,856 per year (with the work pattern allowance under the previous roster being $2294 per year).”
The rosters were designed by Mr Gloster and the superintendents. At that stage there was no consultation with the employees or their families or with the union. The management did complete an MTW Change Management Form (22 September 2008) which was designed to be a preliminary informal risk assessment to assess the magnitude and consequences of the intended change and which would guide management to determine whether or not a formal risk assessment needed to take place. In early September Mr Gloster drafted a presentation to be given to all maintenance employees at pre shift (toolbox) meetings by the field maintenance superintendents including Mr Rabe. A powerpoint presentation was prepared. Mr Rabe added two extra slides which provided additional details on the proposed changes that he thought would be of interest to the field maintenance employees. Mr Rabe gave a presentation to all the crews that he was responsible for. There were about 85 people in all. Some of the presentations were fairly short and some were fairly long, depending on the questions that the crew members asked. The presentation slides gave the reasons for the changes, a summary of the new structures, the equipment that would be used, a detailed breakdown of trades that would be involved in each crew, the hours to be worked by the day crew and the roster allowance to be given, the field equipment and two important slides, one entitled “next steps” and one entitled “Q & A”. The “next steps” slide contained the following dot points:
·Communicate with all crews;
·Crew members complete a preference form for the crew they would like (carpooling etc);
·S2/S3 finalised crews based on skills and preferences where possible;
·2 ICs will be selected and appointed;
·ABS notified of changes for work flow approvals;
·Plan to implement in October 08.
The most relevant question in the Q & A slide for the purposes of these proceedings was Question 2:
“Will I get a choice of which crew I can work on? Individuals can request which crew they would prefer for carpooling and travel needs, however, the trade mix and skill set required will take priority.”
Mr Rabe agreed that the length of shift was raised by people who were likely to be going on to a 12 hour shift from the time of the first presentation. He said that issues of a family nature were raised including sporting commitments and they continued to be raised through the informal meetings up to the second presentation. He accepted that the reaction to the changed shifts was hostile from some employees.
Mr MacPherson had, on 30 September 2008, completed a maintenance crew preference form indicating that he preferred to go on day shift. There is nothing in the form itself or in the evidence that would indicate that Mr MacPherson was accepting of this change to his hours.
Mr Rabe reported back to Mr Gloster on the outcome of his toolbox meetings with the crews. On 24 September 2008 Mr Ward, the CFMEU Site Lodge Vice President, sent a dispute notice to Mr Gloster saying that management had failed to effectively consult employees and union representatives in accordance with Clause 8 of the agreement. There is email correspondence between Mr Gloster and Mr¶Ward leading up to a dispute meeting that was held on 30 September. At that meeting Mr Ward provided Mr Gloster with a list of 39 questions which, it was alleged, came from members relating to the proposed new rosters. Mr Gloster considered each of those questions and prepared a response. The relevant questions for the purposes of these proceedings are question 9:
“Have you considered the impact these changes will have on families?”
Question 15:
“New proposed permanent day shift roster field team;
(a) Why does it have to be 44hrs?
(b) Can it be re-configured to 4 x 10, 12/8 12/8.
(d) We already do a reasonable amount of overtime 35hrs to 40hrs (see base salary). It is unreasonable!”
About this time Mr Rabe and Mr Gloster discussed the possibility of developing an alternate 40 hour roster for the proposed field day crew although the company’s preference was for 44 hours. A second series of presentations commenced. This time Mr Rabe brought to the meetings a slide indicating two options for the roster. The first was a 12, 8, 12, 12 and the other was a 12, 8, 12, 8 roster. Mr Rabe told the meetings that the company’s preference was for the 44 hour option which better suited its service arrangements and said that he needed a combined group indication by 17 October as to which roster was preferred. He indicated that if he did not hear the company would go with the 44 hour option.
Mr Rabe’s evidence is that he was aware that some of the employees preferred the 40 hour roster and some wanted to stay on the rosters they were currently on and that he told Mr Gloster that. He said that whilst he had heard these things from Mr Watkins he did not believe that Mr Watkins’ views were representative of the crews as a whole and that Mr Watkins had not told him that he had formal instructions from the crews. Mr Watkins said that he would hold a meeting on 16 October but on that day there was an urgent breakdown and Mr Watkins was sent away to it so no meeting was held. As neither Mr Rabe nor Mr Gloster had received a formal indication of a preference for the 40 hour roster by 17 October a decision was made to go with the 44 hour roster as had been indicated. Mr Gloster said that Mr Rabe had told him that there were four or five employees who were concerned about the new roster. On 8 October 2008 Mr Watkins sent an email to Mr Gloster indicating that his members “discussed in anger” in relation to the way they had not been consulted or their opinions sought regarding the changes and requesting proper and constructive consultation. There is no mention in that email of the preference for a 40 hour roster. There is attached to the email a series of signatures. Mr Gloster said that he had spoken to five employees and asked them if they knew what they had signed. He said they had told him that they had just been asked to sign a document; he did not consider it a proper petition. On 15 October Mr Gloster responded in detail to this email indicating the steps that had been taken to consult with the employees:
“As a result of the attached letter and list of signatures, I made the point of asking several individuals if they still had issues with the communication as outlined, given that they had signed the piece of paper. Most were happy with the new structure, the level of remuneration and crew that they would most likely end up on. Some expressed that their only concern was not knowing which crew they would end up on. As previously mentioned this would be worked out where possible from the preference forms and notification made no later than 24 October 2008 which is still in the future. As has been outlined in the communication to crews the next steps are still on track to occur:
1.Crews notified of new roster each individual will be allocated to (as per their preference sheets in 95% of cases) NLT 23 October.
2.ABS and accounts payable to be notified of the changes to adjust salary payments.
3.New roster to commence 7 November 08. Should there still be issues you want to discuss around the changes please let me know so a suitable time can be put aside to discuss these matters.
Mr Gloster says had he been told by Mr Rabe that Mr Watkins wanted a 40 hour roster and was going to gauge the preference of employees. He said that he made the final decision to go with the 44 hour roster on 20 – 23 October and that at the meeting with Mr Watkins he was aware that there was some discontent with the 44 hour roster but he decided to press ahead and change the start date to 10 November.
As part of the implementation of the new roster system a further risk assessment analysis was done which was attended by some members of the maintenance crew including Mr MacPherson. This meeting took place on 4 November. It took the form of a round table discussion which lasted approximately two hours and at the beginning one of the crew members asked why the meeting was necessary when the crew members had not agreed to a 44 hour roster:
“I did not wish to enter into a discussion about whether the 40 or 44 hour roster would be implemented because that was not the purpose of the risk assessment process. At the time the 44 hour roster was the roster that was to be implemented and I believed that the risk assessment process needed to be conducted.” [30] Rabe Affidavit.
One of the participants of the meeting walked out, the remainder stayed. A risk assessment worksheet was produced but was not signed.
Mr Rabe prepared a response to each of the 39 questions. This response was not handed to employees. Rather Mr Rabe prepared another presentation, which he believed dealt with the major issues. Mr Gloster’s evidence was that the only group of employees who appeared concerned about new rosters were the 12 employees on the day shift maintenance crew and that a reliability crew also did a 44 hour shift but that had been agreed between himself and that crew. Mr Gloster said that he did not believe that all 12 employees on the crew were unhappy about the 44 hours. He thought there were a couple who were concerned and Mr Rabe had told him that the concerns were around car pooling and sports training. He said that he thought 130 employees had accepted the change although the majority of those people were still on 42 hour rosters.
The new roster was introduced on 10 November for Field Day Crew 1. All the employees worked the full eight hour shift required. On 11 November the Field Day Crew 1 worked the full 12 hour shift required by the roster. On 12 November a pre shift meeting was held by Mr Rabe at which he made a presentation. At this time a dispute had been notified by the union, which had asked the AIRC to have dispute resolution processes conducted. The slides shown by Mr Rabe to the employees at the toolbox meeting indicated that the company was aware of the dispute but that it expected that employees would work the full hours for which they had been rostered and that if they did not the company believed they would be in breach of their contracts of employment.
After Mr Rabe had made his presentation and left the room nine members of the crew told Mr Allan, the supervisor of the Field Day Crew, that they would not be working the full 12 hours and would be leaving work at 2.30 p.m. for personal or family reasons. Mr MacPherson was one of those employees who gave the reason “family commitments”. About 12.50 p.m. on that day Mr Rabe called Mr Allan and asked him to send up those people who had indicated that they were finishing early so that he could discuss with them their reasons for so doing. Mr MacPherson was the first to arrive at 1.00 p.m. with Mr Watkins. Mr Rabe asked Mr MacPherson what the reason was for him leaving early and Mr MacPherson responded “personal reasons”. Mr Rabe asked Mr MacPherson whether he wished to tell Mr Rabe what those personal reasons were and Mr MacPherson said words to the effect that they were personal and he did not wish to discuss them. Mr Rabe indicated that the company expected Mr MacPherson to work through to the end of the shift and asked him if he intended to do so to which Mr MacPherson responded that he did not. Mr Rabe indicated that the matter would have to be referred to Mr Gloster. Mr Rabe gave his reasons for not accepting that Mr MacPherson’s grounds for leaving early were genuine at [55] of his affidavit:
“a.I did not learn of Mr Macpherson’s intention not to work the full span of hours required under the new roster on 12 November 2008 until earlier that same day;
b.Mr Macpherson had not requested leave for 12 November 2008;
c.Mr Macpherson refused to explain the reasons for his intention to finish early beyond stating that he had ‘personal reasons’. This made it difficult to assess the truth and seriousness of his reasons and weigh them against the operational requirements of the company;
d.On 12 November 2008, Mr Macpherson was one of nine employees to communicate after the pre-shift meeting that he did not intend to work the full duration of his shift that day. All of these employees advised that they would finish at the same time of 2.30pm for personal and family reasons. This suggested to me that the actions of Mr Macpherson were part of a collective protest against the new roster, rather than a real response to genuine personal concerns; and
e.Mr Macpherson’s refusal to work occurred simultaneously with the union’s dispute regarding the new roster.”
At about 1.20 p.m. Mr Gloster arrived and spoke to Mr MacPherson. He told him that his contract required him to work a full shift and asked him whether he intended to do so. Mr MacPherson replied that he did not and Mr Gloster asked him his reasons and Mr MacPherson informed him that they were personal and that he would not discuss them with Mr Gloster. Mr Gloster then said words to the effect:
“Then I’ve got no choice, I have to stand you down without pay until you are willing to comply with your contract.”
Mr Rabe also considered the other eight employees and allowed four to finish their shifts early, three on the condition that they would make up the hours lost and one on condition that he provided a doctor’s certificate confirming that he had the appointment that he had indicated was the reason for his leaving. The other four crew members were referred to Mr Gloster and were all stood down.
Mr MacPherson did not return to work on 13 November but he did return to work on 14 November after signing a document entitled “Commitment with respect to hours of work” in the following form:
“I inform you with respect to commitment that you require from me concerning the working of the new roster as follows.
In my previous roster, I was required to work 5 hours in addition to my ordinary hours each week which required me to work 260 hours per annum in addition to my ordinary hours. The Company has introduced without appropriate consultation with me, other employees and my Union, a new roster that provides for the working of 9 hours of overtime each, in addition to my ordinary hours. This roster that I am told I must work requires me to work 468 hours in addition to my ordinary hours each year which is an increase of 208 hours from my previous roster.
The Company has stood down persons where they have failed to commit to work the new roster. The new rosters contain the working of hours that are more than reasonable additions for me.
I have been informed from my representatives that the Workplace Relations Act provides that an employee must not be required or requested by an employer to work more than reasonable additional hours.
With respect to the commitment that requires, for the want of the Company either standing employees down or taking other action against them, I commit to the Company that I will work the roster to the extent of those hours on the roster that are ordinary hours and reasonable additional hours. I will not commit to working hours that are more than reasonable additional hours, that is, the commitment with respect to the hours required/requested by the Company for me to work.
Any hours worked by me under the roster that are more than reasonable additional hours are because the Company has forced me to because of the action it has or has threatened to take against me and other employees.
I ask you to direct any further communications to me about this matter through my Union Representative.
I understand the Union has written to the Company on my and other employees’ behalf about this matter.”
Mr MacPherson has worked his full shifts since that date as have the other employees who were stood down with him.
On 20 November 2008 Mr MacPherson was given a document entitled “WRITTEN WARNING – Refusal of reasonable direction and serious breach of employment obligations”. The letter is in the following form:
“I refer to my discussion with you on 12 November 2008 regarding your refusal to comply with a reasonable direction made by the Company and to perform your full rostered hours on 12 November 2008.
Specifically, you stated that you intended to leave work 4 hours before the end of your shift that day due to family commitments. You were informed by me that due to the operational requirements of the business your request could not be granted and you were directed to work the full hours of your rostered shift. You then stated that you still intended to leave early.
Complying with the reasonable directions of the Company is a fundamental requirement of the employment relationship. Your actions constitute a refusal to comply with a reasonable direction requested of you and had serious operational implications.
On 12 November at 1.21p.m. you were stood down without pay indefinitely until you stated that you would comply with the reasonable direction of the Company and work the shifts of the roster you are required to work.
You returned to work on 14 November and advised you would work the shifts of the roster until the dispute is resolved. Due to your absence, a total of 17 hours will be deducted from your next pay.
As a Mount Thorley Warkworth employee, it is your responsibility to comply with reasonable directions and failure to do so is a serious breach of your employment relationship. You have an obligation to perform your duties diligently and effectively, following safe work practices and adhere to the Coal and Allied Standards procedures, policies and rules that are in place.
This letter constitutes a written warning for refusing to perform work duties. Any further breaches will result in further disciplinary action, which may include termination of your employment. A copy of this letter will be placed on your personnel file.
If you have any questions regarding your responsibilities or the Company’s expectations, please raise these with your Supervisor.
Dave Rabe
Superintendent, Mobile Maintenance”It appears that the method chosen for resolving this dispute was by application to this Court.
The legislation and industrial agreement
The Mount Thorley/Warkworth Operations Workplace Agreement 2007 was exhibited to Mr MacPherson’s affidavit and is accepted as the contract of employment. At Clause 8 the agreement deals with consultation:
“8. Consultation on Flexibility and Business Improvement
The parties acknowledge that employees make valuable contributions to safe, efficient, effective and productive operations through application of their skills, knowledge and experience. The Company will:
1.Provide employees and employee representatives (which may be Union Representatives if the employee chooses), with all relevant information, deemed commercially or legally non sensitive, on the nature and need for permanent changes to teams or work areas or work arrangements that affect employees covered by this agreement.
2.Provide employees and employee representatives (which may be Union Representatives if the employee chooses), reasonable opportunity to express views and provide input to proposed permanent changes to teams or work areas or work arrangements that affect employees covered by this agreement.
3.Undertake temporary changes to work in consultation with the employees affected and by subsequently providing the employees affected and employee representatives (which may be Union Representatives if the employee chooses), with an opportunity to express their views and provide input into the changes. Temporary means a change typically up to 3 months or may be longer where a specific end date is stipulated.”
Clause 10 is described as the “contract of employment” and the relevant Clauses are 10.1 and 10.4
“10.1 General
The Company may direct employees to carry out any work that is within their skills, training, experience and knowledge subject to safety and statutory requirements.
The Company may direct employees within and between work areas to meet short-term business needs.
Work is based on flexibility and cooperation and the Company may access and use any and all skills and competencies held by an employee. There will be no demarcation. Employees may be required to train and assist in the training of other Company employees.
The Company may, by agreement with an employee, temporarily assign the employee to another site. Payment will be on terms and conditions not less than those of this Agreement.
10.4 Standdown
The Company may stand down an employee for any day or shift the employee cannot be usefully employed in productive work because of an industrial dispute, or because of machinery breakdown. In the case of machinery breakdown, employees will only be stood down if the breakdown has continued for four consecutive days (including the day of the breakdown if it is a workday). An employee is not entitled to payment when stood down.”
At Clause 14 salaries are dealt with.
“14. Annual Salary
In this Agreement:
Base Salary
Full time and fixed term employees will be paid an annualised salary that includes compensation for the maximum ordinary hours under the Australian Fair Pay and Conditions Standard and provision for all other entitlements associated with meal breaks, annual leave loading, overtime penalties and all other disability payments and allowances. It covers 35 ordinary hours and payment for reasonable additional hours worked up to 40 hours.
Work Pattern Allowance (WPA)
Means an annual amount paid to compensate for (where appropriate) rostered hours in excess of hours in Base Salary, and the disabilities of afternoon, night, weekend and public holiday work.
The formula for the calculation of the work pattern allowance is set out as Appendix 1. The work pattern allowance paid under the new roster system is based upon an overtime rate of $57.00 per hour x 4 hours x 52 weeks.
Appendix 2 states:
“WORK PATTERNS ON COMMENCEMENT OF THE AGREEMENT
The following work patterns are those expected to be used on commencement of the agreement. This appendix does not limit or restrict the use of the other Work Patterns provided for in the Agreement.”
The workplace agreement was governed at the relevant time by the Workplace Relations Act1996 and in particular s.226 which is in the following form:
“226 The guarantee
(1) An employee must not be required or requested by an employer to work more than:
(a) either:
(i) 38 hours per week; or
(ii) subject to subsection (3), if the employee and the employer agree in writing that the employee’s hours of work are to be averaged over a specified averaging period that is no longer than 12 months—an average of 38 hours per week over that averaging period; and
(b) reasonable additional hours.
Note 1: An employee and an employer may agree that the employee is to work less than 38 hours per week, or less than an average of 38 hours per week over the employee’s averaging period.
Note 2: A requirement for an employee to work a particular number of hours may come, for example, from an award or a workplace agreement.
(1A) An employer only contravenes subsection (1) if the employer requests or requires an employee to work more than the hours mentioned in subsection (1), and the employee works those hours.
Calculating the number of hours worked
(2) For the purposes of paragraph (1)(a), in calculating the number of hours that an employee has worked in a particular week, or the average number of hours that an employee has worked per week over an averaging period, the hours worked by the employee are taken to include any hours of authorised leave taken by the employee during the week, or during that period.
Start of averaging period
(3) For the purpose of subparagraph (1)(a)(ii), if an employee starts to work for an employer after the start of a particular averaging period that applies to the employee, that averaging period is taken, in relation to the employee, not to include the period before the employee started to work for the employer.
Reasonable additional hours
(4) For the purposes of paragraph (1)(b), in determining whether additional hours that an employee is required or requested by an employer to work are reasonable additional hours, all relevant factors must be taken into account. Those factors may include, but are not limited to, the following:
(a) any risk to the employee’s health and safety that might reasonably be expected to arise if the employee worked the additional hours;
(b) the employee’s personal circumstances (including family responsibilities);
(c) the operational requirements of the workplace, or enterprise, in relation to which the employee is required or requested to work the additional hours;
(d) any notice given by the employer of the requirement or request that the employee work the additional hours;
(e) any notice given by the employee of the employee’s intention to refuse to work the additional hours;
(f) whether any of the additional hours are on a public holiday;
(g) the employee’s hours of work over the 4 weeks ending immediately before the employee is required or requested to work the additional hours.
Note: An employee and an employer may agree that the employee may take breaks during any additional hours worked by the employee.
Definition
(5) In this section:
public holiday means:
(a) a day declared by or under a law of a State or Territory to be observed generally within the State or Territory, or a region of that State or Territory, as a public holiday by people who work in that State, Territory or region, other than:
(i) a union picnic day; or
(ii) a day, or kind of day, that is excluded by regulations made for the purposes of this paragraph from counting as a public holiday; or
(b) a day that, under (or in accordance with a procedure under) a law of a State or Territory, or an award or workplace agreement, is substituted for a day referred to in paragraph (a).”
Finally, the Act also contains provisions as to stand down contained in s.691A and the prohibition of unauthorised stand downs in s.691B. These sections are in the following form:
“Division 7—Stand downs
691A Employer may stand down employees in certain circumstances
(1) This section applies if:
(a) an employee employed by an employer cannot usefully be employed during a period because of a particular circumstance; and
(b) that circumstance is:
(i) a strike; or
(ii) a breakdown of machinery; or
(iii) a stoppage of work for any cause for which the employer cannot reasonably be held responsible; and
(c)either:
(i) there is no contract of employment, and no industrial instrument, that binds the employer in respect of the employment of the employee and that contains provision for the standing down of the employee during that period because of that circumstance; or
(ii) a contract of employment, or industrial instrument, that binds the employer in respect of the employment of the employee contains provision for the standing down of the employee during that period because of that circumstance, but the employer’s right to stand down the employee is dependent on the employer having to apply to the Commission, a State industrial authority or another person or body for an order or determination (however described) authorising the employer to stand down the employee.
(2) If this section applies, the employer:
(a) may stand down the employee during the period referred to in paragraph (1)(a) because of the circumstance referred to in that paragraph; and
(b) if the employer stands down the employee under paragraph (a) of this subsection—may deduct payment for the period during which the employee is stood down.
(3) A period during which an employee is stood down under subsection (2) does not break the employee’s continuity of service.
(4) A period during which an employee is stood down under subsection (2) counts as service for all purposes.
(5) A provision of a contract of employment or an industrial instrument that provides as mentioned in subparagraph (1)(c)(ii) has no effect. However, this section does not otherwise affect the operation of any provision of a contract of employment or industrial instrument that provides for the standing down of employees.
(6) In this section:
industrial instrument means any of the following:
(a) a workplace agreement;
(b) an award;
(c) a pre‑reform AWA;
(d) a pre‑reform certified agreement (within the meaning of Schedule 7);
(e) a preserved State agreement;
(f) a notional agreement preserving State awards;
(g) a workplace determination;
(h) an employment agreement (within the meaning of Division 12 of Part 21);
(i) an exceptional matters order (within the meaning of Schedule 7);
(j) a section 170MX award (within the meaning of Schedule 7);
(k) an old IR agreement (within the meaning of Schedule 7);
(l) an AWA (within the meaning of Schedule 7A).
691B Prohibition of unauthorised stand downs
(1) An employer must not stand down an employee from his or her employment if the stand down is not authorised by:
(a) subsection 691A(2); or
(b) a provision of a contract of employment, or an industrial instrument (within the meaning of section 691A), that is binding on the employer in respect of the employment of the employee (other than a provision that is rendered of no effect by subsection 691A(5)).
Note 1: Compliance with this subsection is dealt with as follows:
(a) the model dispute resolution process applies (see subsection (2));
(b) the Court may grant an injunction (see subsection (3));
(c) the compliance provisions of Part 14 apply.
Note 2: If the standing down of an employee is not authorised as mentioned in this subsection, the employee may recover any lost wages by taking appropriate enforcement action (whether under this Act or otherwise).
(2) The model dispute resolution process (other than section 697) applies to a dispute under subsection (1).
Note: The model dispute resolution process is set out in Part 13.
(3) The Court, or the Federal Magistrates Court, on application by an employee who has been stood down or by an inspector, may grant an injunction requiring the employer of the employee to cease contravening (or not to contravene) subsection (1).”
The questions before the Court
The respondent submits, and I accept, that there are three issues for determination in these proceedings:
“(a)Firstly, whether the applicant has established that the respondent contravened s.226(1) of the Workplace Relations Act 1996 (Cth);
(b)Secondly, whether the applicant has established that the respondent contravened s.691B of the Act;
(c)Thirdly, whether the applicant has established an entitlement to payment of salary for 17 hours on 12 and 13 November 2008.”
If I was to find a breach of s.226(1) and/or a breach of s.691B I would be required to consider the question of penalties and reimbursement of lost salary.
The applicant has concerns about the consultation methods utilised by the respondent. He does not go so far as to say that the lack of consultation in some way negated the validity of the roster change, he says:
“[92]Any suggestion that the Respondent’s actions took into account the Applicant’s concerns through a process of consultation is unsustainable. The term consultation was considered in TVW Enterprises Ltd v Duffy (1985) 60 ALR 687 at 694 where Toohey J relying on a number of authorities stated:
Consultation is no empty term: “The requirement of consultation is never to be treated perfunctorily or as a mere formality”
[93]The Respondent in this case has treated consultation as a mere formality. The process followed by the Respondent from September to October 2008 cannot be called in its aid to justify its requirement that the applicant work the hours of the new roster.
[94]The Respondent’s actions are better described as obdurate. It is clear from the material that the Respondent was intent on one thing and that was introducing a 44 hour roster for the maintenance day crew.”
In order to assist me to come to a conclusion as to whether the additional six hours over the 38 hours standard contained in s.226 constituted reasonable additional hours both parties produced expert evidence. The applicant called Ms Georgina Murray, who is a senior lecturer in the School of Humanities at Griffith University. In coming to her conclusions Ms Murray relied heavily on a project commissioned by the Queensland District of the CFMEU on women in mining communities. The project included examination of womens’ perspective of the impact shift arrangements and industry changes have on workers; the impact of systems of work on women, families and communities; commuting arrangements and the impact of fly-in/fly-out arrangements on communities and the impact of industry changes. Other members of the project team were Professor David Peetz, Dr Wendy Keys and Ms Bernadette Flynn. Ms Murray also relied on a review of the literature. But she did not interview Mr MacPherson or his family to discuss the impact of the roster on his family life. Her knowledge of his circumstances comes solely from the documents with which she was provided. Ms Murray opined that Mr MacPherson’s hours of work could be described as unreasonable because they involve 12 hour shifts in a three consecutive day period within a 44 hour week. Ms Murray accepted that literature dealing with long working hours existed but was not numerous. Ms Murray notes that the issues time and again in the literature are fatigue, safety, lifestyle issues, health issues, family relations and participation in community activities. But she felt that the research regarding fatigue, safety and health issues did not directly address the questions that she had been asked concerning Mr MacPherson’s roster. She noted that three consecutive 12 hour shifts would cause Mr MacPherson to be likely to experience:
“(i) Limited family and social time during working days;
(ii) Concerns because of previously better hours;
(iii) Difficulties in scheduling meetings due to lack of time available;
(iv) Reduced tolerance to physically demanding jobs; and
(v) Longer hours away from home cutting into the evenings.”
She referred to some research by Barbara Pocock who found that out of an interview panel of 54 families, five of whom were miners, all the men felt that a roster with 12 hour shifts meant that they were working unreasonable hours and missed out on full fathering. Ms Murray referred to her research with Professor Peetz as indicating that the miners’ wives feared health deterioration as a result of consistent 12 hour shifts and were concerned that the men missed out on full fathering. Concerns identified by Ms Murray were qualified by the fact that:
“Much of the literature is based on night shifts, irregular shifts and Mr MacPherson has neither. The roster that Mr MacPherson is required to work is unusual. The literature concentrates on more regular work patterns often involving blocks of 12 hour shifts worked in patterns of 4 on 4 off for a coal industry effect has been identified ‘where about one-third (6 of 20) of its coalmines operate a three or four day roster (Heiler, Pickersgill et al. 2000; Hogan and Berry 2000). A lot of the literature deals with Fly-in/Fly-out (FIFO) and Drive-in/Drive-out (DIDO) arrangements where workers are domiciled in donga camps at the mine during their block of shifts (Di Mila and Bowden 2007) and so Mr MacPherson’s roster needs should be considered in the context of more limited travel time at the beginning and end of a block of shifts that are predominately still consecutive 12 hour shifts.”
In regard to the effect of the roster on Mr MacPherson’s family responsibilities Ms Murray opined that she felt that the hours would have an adverse impact on workers who:
“are at a time in their lives where they have children who are still dependent upon them for physical, emotional and psychological support.”
Ms Murray felt that the three consecutive days of 12 hour shifts would cause stress and a need for sleep for Mr MacPherson. She pointed to the literature which indicated that some miners who undertook 12 hour shifts would come home exhausted and would be unable to take part in family activities and there was also what she described as a “spill over” effect where issues from the work place spill over into the home environment. But she agreed that it would not occur in all cases. She made reference to persons working on lengthy shifts and inconvenient rosters creating what she described as “a second family” of their workmates, these being the only people with whom they could associate because of their unsocial hours. She made reference to the concerns expressed in mining communities that with the introduction of 12 hour shifts sport and recreation amongst the children of the communities had reduced very significantly. Fathers no longer had the time to take their children to after school sport.
Ms Murray agreed that Mr MacPherson could contribute to family life on the weekends, on his rostered days off and on the day when his shift finished at 2.30 p.m. but she felt that there would be a limit on the energy he could put into this and that would deteriorate after working three 12 hour shifts consecutively in a 44 hour week.
I have several concerns with Ms Murray’s evidence. Firstly, she accepted that her opinion was based upon qualitative rather than quantitative research. The number of people who she had interviewed for her studies was small. She had not met a roster like Mr MacPherson’s which provided for work only during weekdays and only during times that would be considered normal working hours. By normal working hours I mean that there is nothing in the start time or the end time of each shift that would take it outside a normal day shift. Ms Murray also avoided any direct comparison with the shift previously worked by Mr MacPherson which involved one week in three working five eight hour afternoon shifts commencing at 3.00 p.m. and concluding at 11.00 p.m. Monday to Friday.
Mr MacPherson had agreed that during that shift he was unable to assist his children in their sporting activities. Mr MacPherson himself deposes to the fact that his two youngest children play a lot of sport, they play club cricket and train one night a week and that he can no longer pick them up from training. They also attend swimming training which commences at 5.00 p.m. and he used to be able to drop them off but is no longer able to. He is a soccer coach and both his sons play soccer during the winter months. That training normally commences at 5.00 p.m. and he is not able to attend on the days that he works a 12 hour shift. He says that when the boys were not training the family would eat dinner at approximately 6.00 p.m. and under the new roster he would miss dinner with his family. He agreed that he worked thirteen days in a three week cycle under the old roster but now only works 12 days in three weeks but said that under the old shift system he could go to school carnivals on the afternoon shift days (presumably only when those carnivals occurred in the morning). As Ms Gibson did not interview Mr MacPherson or his wife we know nothing about the effect of the new roster upon her. It is to be remembered that this is a case brought by Mr MacPherson and we have no evidence as to how the new roster system impacts on any of his colleagues. Whilst I must look at reasonableness in an objective way I have to impose this objectivity upon his circumstances and not on those of others. Mr MacPherson does not, for instance, depose to any medical sequelae of the new shift such as fatigue or difficulty in communication with his wife and family. Whilst it is clear from the literature considered by Ms Murray that these things do occur the evidence points to them occurring where rosters contain shifts of differing timings and length rather than the steady hours worked under this roster. Ms Gibson relies on and has formed the view that those studies, particularly the study of the Bowen Basin community with which she was deeply concerned, did not provide a truly satisfactory comparison with the roster system imposed upon Mr MacPherson. As Ms Gibson acknowledges, his roster is truly unique and to my mind should have been the subject of its own research if a convincing case was to be made against it.
The respondents produced evidence from Mr James Thomas Huemmer, a director of Shiftwork Solutions, a specialist consulting firm focusing on hours of work and the design and implementation of work shift rosters. He holds a BSc and an MBA and has undertaken sleep research training under the direction of Dr Richard Coleman of Stamford University. Mr Huemmer’s opinion is based upon quantitative research and consideration of various health and safety guidelines. His company has a data base of roster arrangements within various industries and he noted that roster arrangements within the mining industry ranged primarily from 7.5 to 12.75 hours of work per shift and from 35 to over 56 hours of work on an average week. Where seven days per week 24 hours per day roster arrangements are in force as they are in the Mount Thorley/Warkworth Operations, 12 hour shift lengths and 42 hour averaging working weeks are used almost exclusively. His research indicated that the most commonly used patterns for seven day rosters arranged work cycles of 48 hours (four 12 hour shifts in a row and then scheduled four days off). Mr Huemmer noted that his experience in the Hunter Valley since 1991:
“Saw many mines move from five crew roster structures and thirty five hour average work weeks to four crew roster structures and forty two hour average work weeks. This change was supported by a majority of employees because the increase in work hours provided a significant increase in employee pay.
The other significant change we experienced in rosters (all across Australia) during this time was a rapid migration to rosters using twelve hour shift lengths (from eight hour shift lengths). This preference for twelve hour shifts was driven primarily by employee interests, not by business interests.”
In Table 3 of Mr Huemmer’s report he reproduces a response of 2,280 four workers on residential based mine sites in Australia indicating shift preferences. The 12 hour shift was preferred by 75 percent of the respondents. He stated that this data was supported by data from the Chambers of Minerals and Energy in Western Australia where 72 percent of employees from the overall industry profile worked 12 hour shift lengths and 74 percent of maintenance employees worked 12 hour shift lengths. In Table 4 he provided results from a questionnaire of 2,678 workers as to how many hours per week they preferred to work. The highest percentage (25 percent) preferred to work between 46 and 50 hours and only 13 percent between 40 and 41 hours.
Mr Huemmer considered the impact of the new roster on the sleep of people working that roster. He concluded that because the roster provided between 12 and 16 hours off between consecutive shifts and two to four days off on weekends between work cycles there was enough time for rest and recovery between periods of work. It is fair to say that the benchmarks against which he compared this shift were benchmarks created by his own organisation. When he was asked to provide his opinion on the impact of the new roster on health and safety he compared the roster with the guidelines published by various state authorities and in Table 6 there is a direct comparison with the safety factors published by Work Cover in New South Wales. This is an important comparison and the table is set out below:
| WorkCover NSW ‘When planning a roster, safety factors should include: | New Roster Parameters |
| ‘a work cycle that is no more than six 8-hour shifts or four 12-hour shifts’ | Work cycles utilise three, 12 hour shifts plus one 8 hour shift |
| ‘Avoid work cycles of more than seven continuous days’ | Work cycles utilise four consecutive days |
‘keep night work to a minimum’ | No night work is rostered |
| ‘allow for two free weekends in four’ | Allows for four free weekends in four (no weekend work) |
| ‘try not to start day shifts before 6 am’ | All day shifts start at 6.30am |
| ‘have minimum of 11 hours between shifts, preferably 12’ | Breaks between consecutive shifts are 12 to 16 hours |
| ‘try to give workers at least one week’s notice of their roster, longer if possible’ | The roster is a permanent two week cycle (ie it is predictable) |
Mr Huemmer noted that in Western Australia the hours of work have to exceed 48 to require control measures and even the ACTU guidelines for shift work and extended hours allow a maximum of 48 hours rostered work per week and 60 hours in emergencies. Mr Huemmer concludes that there is no occupational health risk to the new roster.
Mr Huemmer was asked to prepare a response to the opinions expressed by Ms Murray. He states:
“The information sources used by Ms Murray to support her opinions contain many studies of continuous, 7 day, 24 hour operating rosters from both residential based and long distance commute sites. A review of 31 documents from the bibliography in the report (that were available to us) indicated 20 studies based on rosters requiring work on nights, weekends and public holidays. A summary of our review is shown in Appendix VIII. These ‘continuous’ 24/7 rosters require employees to regularly work:
·Nights (typically 50 percent of all shifts worked),
·Weekends (typically 50 to 66 percent of all weekends) and
·Public holidays (typically 50 to 60 percent of all public holidays).
The new roster does not require work on nights, weekends and public holidays. In my opinion, the new roster is quite different in many ways from the rosters used in these studies and it would be inappropriate to associate all negative feedback from the hours of work in these studies with the new roster.”
When he considers Ms Murray’s concern that the new roster is unreasonable because it involves 12 hour shifts in a three consecutive day period within a 44 hour work week, Mr Huemmer notes that the only guideline he could find in support of that opinion came from a guideline published by the ACTU on shiftwork and extended hours (ACTU Health and Safety Guidelines for Shiftwork and Extended Working Hours September 2000) which had a maximum of two consecutive 12 hour shifts. He noted that the roster conformed with all the other guidelines for maximum hours including those of rostered work per week (48 hours). In response to the question whether he considered the hours in excess of 38 hours per week required by the new roster to be reasonable Mr Huemmer stated:
“It is my opinion that the hours of work in excess of 38 hours per week in the new roster are reasonable. It has been my experience that employees not only find these hours of work to be reasonable, but very desirable.
I also acknowledge that preferences for hours of work are very personal and individual to each employee. Data from workers show us that these preferences can change over time as an individual’s personal circumstances change, especially interests in additional pay or time off.
One of the key features of the new roster is that it provides 26, four day weekend breaks per year. To maintain pay (based on 44 hours) and obtain these long breaks the roster also has less time off for personal and family activities on three days each week. I acknowledge that each individual working these hours will have an opinion about whether or not they think these features are worth it.
In my work as a roster specialist, it is rare to ever achieve 100 percent agreement or satisfaction from all employees regarding their hours of work (as shown previously in Tables 8 and 9). However, in my opinion a personal preference for hours of work that is different than the new roster does not make the new roster unreasonable. There is no perfect roster. Rosters [are required] to satisfy competing interests. It is very difficult for organisations to satisfy all business, employee and health and safety requirements with one roster. Based on my experience the new roster is a very popular and sought after roster arrangement by workers in mining and all other industries.”
Mr Huemmer does not examine the effect of the shift on worker’s families as Ms Murray has done. His impressive statistics concentrate on the views of the workers themselves. He acknowledges some downside in lengthy shifts but takes into account the benefits provided. These include the shiftwork allowance for the extended hours, lengthy weekend breaks, the weekday and day hours only nature of the shift and the certainty of the arrangement which he would argue outweigh the losses.
What I take from the evidence of Mr Huemmer is that 12 hour shifts of the type worked by Mr MacPherson are both popular and numerous. Neither the shift length nor the total hours per week worked appear to breach any government health and safety guidelines. The possible detriment caused to an employee’s social life are the length of the shift in terms of its physical affects and its restriction on social activity which are compensated for in extra time off and overtime payments. For Ms Gibson this is not sufficient compensation. Whilst I am more attracted by the statistical based evidence of Mr Huemmer than the qualitative approach adopted by Ms Gibson, I accept that qualitative research is a legitimate academic tool and had the literature been more amenable to the situation in the Hunter Valley and in particular to the roster being worked by Mr MacPherson it could well have had a more determinative affect upon me. As it is, a consideration of whether the 38 hours per week and six additional hours constitutes “reasonable additional hours” for the purposes of s.226(1)(b) requires more than a mere preference for one expert over another. The section requires that all relevant factors must be taken into account.
The applicant submits that s.226 is a remedial provision that provides a guarantee of maximum ordinary hours. That guarantee is 38 hours plus reasonable additional hours. The applicant notes that the provision commenced in March 2006 and has not yet been judicially considered other than being mentioned in Inspector Trundle v M & K Angelopoulos Pty Ltd [2009] FMCA 37 in which case there was no argument as to the meaning of the provision. The applicant notes that s.226 falls within Part 7 of the Australian Fair Pay and Conditions Standard whose purpose is set out in s.171 of the Act
“171 Purpose of Part
(1) The purpose of this Part is to set out key minimum entitlements of employment.
(2) The key minimum entitlements relate to the following matters:
(a) basic rates of pay and casual loadings (see Division 2);
(b) maximum ordinary hours of work (see Division 3);
(c) annual leave (see Division 4);
(d) personal leave (see Division 5);
(e) parental leave and related entitlements (see Division 6).
(3) The provisions of Divisions 2 to 6 constitute the Australian Fair Pay and Conditions Standard.”
The applicant’s submissions continue with references to his family commitments which, he says, could be accommodated in the 40 hour roster but not in the 44 hour a week roster. He argues that the disruption to his family life means that the additional hours that he is required to work are unreasonable.
The respondent provides a more detailed argument. He submits that the Court must consider all relevant factors (s.226(4)) and sets out 18 factors that it believes are relevant. These factors go further than those specifically referred to in s.226(4) and incorporate some of the matters raised in argument in the Working Hours Case – July 2002 – PRO72002 [2002] AIRC 857, as well as factors particular to the mining industry. Having listened to the evidence of the parties in these proceedings, I am satisfied that this is a comprehensive list of relevant matters and I have been unable to add any of my own. Those matters raised in the Working Hours Case which are not presently relevant relate to employee workload, understaffing and performance based pay schemes. Similarly, the requirement under s.226(4)(f) to consider whether any of the additional hours are on a public holiday does not arise on the present facts. The list includes those matters raised by the applicant and I shall deal with each in turn.
(a) The number of additional hours
This factor was raised by the ACTU in its claim in the Working Hours Case at [10]. The respondent’s submission on this point is that the applicant is only required to work an additional six hours up to 44 hours per week. It might have added that at [211] of the Working Hours Case the Bench noted:
“The ACTU, after referring to a number of cases relating to the number of hours of overtime that may or may not be reasonable, submitted:
(1) in summary, there are circumstances in which 44 to 45 total hours per week are seen to be reasonable. There are no cases which indicate that regular overtime giving rise to working weeks in excess of 48 hours per week is reasonable. There are cases which indicate that overtime giving rise to working weeks regularly in excess of 48 hours is unreasonable; and
(2) while the circumstances vary, it can be said that the borderline between reasonableness and unreasonableness exists somewhere between an overall working week of 44 and 48 hours. In any event the limit of reasonableness is less than the descriptions of extreme hours set out in subclause 3 of its claim.”
But I am of the view that to utilise the number of additional hours as a relevant factor is in fact begging the question. The number of hours may be reasonable or unreasonable depending upon the way in which they interplay with the other factors. What might be a reasonable number of additional hours in some circumstances may not be in others. If, after this analysis, the situation is neutral then it would be appropriate to take into account the ACTU’s submission that unreasonable hours commenced at 44 and the finding in the Working Hours Case at [73] that standard hours were between 35 and 44 hours a week and that extended hours were more than 44 hours a week
(b) The total number of hours worked on a particular shift.
This factor was raised by the ACTU in its claim in the Working Hours Case at [10]. The maximum shift time in the proposed roster is 12 hours, to be worked on Tuesdays, Wednesdays and Thursdays. The evidence is that during the shift the applicant is allowed two breaks totalling approximately an hour. The evidence is that 12 hour shifts, whilst popular, are long and can lead to health problems and occupational health and safety issues arising from fatigue. I prefer the evidence of Mr Huemmer when he argues that these consequences are more concentrated where there are varying shifts, for example morning/afternoon, or in fly in/fly out situations. The dangers are much less prevalent in a fixed 12 hour day shift such as the one being considered here.
(c) Extent of night work
This factor was raised by the ACTU in its claim in the Working Hours Case at [10]. There is no night work under the new roster.
(d) Number of hours worked without a break
This factor was raised by the ACTU in its claim in the Working Hours Case at [10]. Whilst Mr MacPherson acknowledged that he had two half hour breaks during his 12 hour shift, I am unable to find evidence as to exactly when this occurred. Presumably it occurred after the first four hours and after the first eight hours, depending upon exigencies. It appears to be common industry practice to allow for two 20-30 minute crib breaks over a 12 hour shift, with an expectation that an employee will not work more than five hours without taking a break (see for example Coal Mining Industry (Production and Engineering) Award). I do not think it unreasonable to work for four hours without a break and that does not appear to be part of the applicant’s case.
(e) Time off between work shifts
This factor was raised by the ACTU in its claim in the Working Hours Case at [10]. The applicant has 12 hours off between the Monday and Tuesday shift and the Tuesday and Wednesday shift although that time includes getting to and from work. He has a 16 hour break in the second week of the new roster between Monday at 2.30 p.m. and Tuesday at 6.30 a.m. and a 108 hour break in the second week of the new roster from 6.30 p.m. on Thursday to 6.30 a.m. on Tuesday. Clearly getting home after 6.30 p.m. at night and having to leave at 6 a.m. the following morning does not leave much time for family activities and would necessitate a relatively early bed time. On the other hand, this is only three days per week in the week one schedule (Tuesday/Wednesday/Thursday nights) and two nights per week in the week two schedule (Tuesday and Wednesday nights). Mr Huemmer in his evidence points to the 75 percent preference for 12 hour shifts in the mining industry which he puts down to the additional rostered days off per year that is achieved by condensing the working week into 12 hour shifts. He also shows that the roster parameters are well within the Work Cover NSW Health and Safety Guide. The website for the NSW Office of Industrial Relations also suggests that employees can reasonably expect a break of at least 10 hours between shifts, including overtime shifts:
“Breaks between shifts
Permanent employees are usually entitled to a 10 hour break between shifts or to be paid double time (200%) for all subsequent time worked until they are able to have that break. Employers should check the relevant award to find out the required duration of breaks between shift, if a penalty applies and the applicable shift penalty rate.”
This is reflected in the Coal Mining Industry (Production and Engineering) Award which guarantees employees a break of at least 10 consecutive hours off between the work of successive days. In light of this, I do not think that the minimum break of 12 hours provided between shifts is unreasonable.
(f) Risks to applicant’s health and safety
This is a matter that is required to be considered pursuant to s.226(4)(a) and is also one of the matters referred to in the ACTU claim at [10] of the Working Hours Case. The respondent argues that the applicant does not work afternoon or night shifts under the new roster and therefore does not suffer circadian rhythm disruption. It says that he does not suffer sleep detriment and that as the applicant has not worked any overtime since the implementation, the risk of fatigue is minimal, particularly when compared to other shifts including night shifts and rotating shifts. Any risk of injury or “near misses” from fatigue has not materialised. It argues that there is no suggestion that the applicant has any increased exposure to noise, heat or chemicals from work in the new roster and that the time off between shifts and the 52 additional days off per annum compared to a five day working week pattern provide Mr MacPherson with adequate opportunities to obtain rest and is not likely to lead to significant sleep debt. The respondent notes that the applicant has not particularised a personal risk to his health and safety from the additional hours and I would note that the evidence of Ms Murray places caveats on her ability to opine on this matter both because it is outside her area of specialisation and because she did not interview Mr MacPherson. The particular roster under consideration has now been operating since November 2008. If there had been any serious concerns about the health and safety of the maintenance crew operating that roster then I would have expected some evidence of it from the applicant, supported as he was by his union, when the case came to trial some eight months later. This lack of evidence would tend to belie an argument that the additional six hours over the 38 hour norm is not reasonable.
(g) The applicant’s personal circumstances including family responsibilities
These matters are required to be considered pursuant to s.226(4)(b) of the Act and are also referred to in the ACTU argument in the Working Hours Case. It was Mr MacPherson’s principal argument and the reason he gave for not working past 2.30 p.m. on 12 November 2008. Mr MacPherson’s evidence was that the new roster impacted upon his ability to attend his sons’ sports training sessions and prevented him from taking part in family meals which usually commenced half an hour before he left work. He also felt that the lengthy working hours would reduce his ability to communicate with his children and spouse. These are not matters to be taken lightly. Qualitative evidence provided by Ms Gibson shows deep concern amongst the partners of miners about the affect of lengthy working hours on relationships and the community, but I am sensible of the fact that in the Working Hours Case an attempt by the ACTU to persuade the Commission to mandate a maximum working hours standard was rejected and the legislation with which I have to deal adopts a similar position. Clearly if Mr MacPherson only worked 40 hours a week, as he wished to do, he would have more time with his family. That does not answer the question of whether the requirement to work for 44 hours a week is reasonable. Mr MacPherson has given evidence that he has managed to change his coaching commitments to Mondays and Fridays thus ameliorating, in part, one of the more serious problems. Only two of his four children live at home and they are both teenagers. He has not deposed to a requirement for them to have constant care and supervision. It would appear that his wife also works. She did not give evidence about any damage to her relationship with her husband. Sitting down to dinner with one’s wife and children is a very important part of stable family relationships. However, given the age of the two boys involved here, there seems to me to be no reason why dinner hour cannot be advanced to 7 p.m. or a time nearest that at which Mr MacPherson arrives home. I would repeat that this case is about Mr MacPherson. The Federal Magistrate’s Court is not the place in which to argue a general working hours claim. That is the province of Industrial Tribunals. Whilst the Court is entitled to have regard to evidence of a general nature such as that produced by Ms Murray, that evidence must be looked at in the context of claims being made by this particular applicant.
(h) The operational requirements of the workplace and the enterprise in relation to which the applicant is required to work the additional hours
This is a matter which is required to be considered by s.226(4)(c) and which received some consideration in the Working Hours Case where at [247] the Bench indicated the circumstances of both employee and employer must be looked at:
“We turn now to the 15 factors listed in subclause 1.2. We note, as was pointed out by many opponents of the claim, that the factors all relate to the circumstances of the employee and none to the circumstances of the employer. It is apparent that the formation of a view as to whether hours of work are unreasonable or not requires that the circumstances of both the employee and the employer be considered. The ACTU placed reliance on decisions about reasonable overtime. These decisions, however, make it clear that the circumstances of both employee and employer must be looked at. For instance, in Metal Trades Employers Association v Boilermakers Society of Australia [110] , the Commonwealth Industrial Court (Dunphy and Morgan JJ) said at page 334:
"reasonable overtime is not one way; it must be considered in relation to the worker's conditions and also in relation to the employer's business . . ."
The absence from subclause 1.2 of any factors relating to the circumstances of the employer constitutes, in our view, a serious defect in the subclause. While we note that the ACTU contends that the 15 factors are not exhaustive, a clause specifying 15 factors all related to the employee's circumstances, and none relating to the employer's, may well be interpreted as giving greater weight to the specified factors than to other factors.”
The evidence given by the respondent, and not challenged, was that the intention of the new rosters was to enable the company better to service and utilise the additional equipment that had been bought, to allow an increased focus on “in house” repairs, to reduce the number of consultants and to lower the exposure to safety risks. The company identified these objects in its presentations to the employees and it would be hard to deny that they are legitimate operational requirements. The fact that they spring from extra investment by the company and were aimed at increasing the viability of the permanent work force would tend to have particular appeal in the difficult economic circumstances existing today. Mr Gloster’s evidence is that there are significant efficiencies resulting from the new roster, particularly, the ability to perform all maintenance activities on draglines, loaders and shovels during the course of one shift as opposed to the course of one full 10 hour shift and part of the second eight hour shift. This cuts out the necessity for handovers between one crew and the next, significantly reducing unproductive time. It allows equipment to be returned to service much quicker than under the old roster system.
(i) Notice given by the respondent of the requirement that the applicant work the additional hours
This is a matter required to be considered by s.226(4)(d). It will be seen from the history section of these reasons that the company commenced discussions with the employees about the new rosters and shifts in early September. The actual changes took place in early November, a week or so later than originally planned. There was thus approximately two months notice of the major change from a day/afternoon rotating shift roster to a four day, day only roster. The decision to go with the 44 hour roster was made on 17 October, approximately one month before the shift was introduced. The NSW Office of Industrial Relations website suggests that, ordinarily, seven days is sufficient notice of a change in rostered hours:
“Rosters (starting and finishing times)
Permanent employees are generally entitled to seven days notice of a change in rostered hours. In an emergency, notice may be less than seven days by mutual agreement.”
The Work Cover NSW Health and Safety Guide also recommends that employees are given at least one weeks notice of changes to their roster. It is my view that in the context of the changes that were proposed and, in particular, the beneficial change to an all day shift roster, the period of notice was reasonable. I am supported in this view by the fact that Mr MacPherson has not indicated in his evidence that he thought the notice was too short, nor has he brought any evidence from any witness concerning the effect of the notice being too short.
(j) Notice given by the applicant
This is a matter required to be considered by s.226(4)(e). It will be recalled that the applicant only informed the respondent that he was unable to work past 2.30 p.m. on 12 November 2008 when he came to work at the commencement of the shift on that day. There will obviously be times when it is difficult for an employee to give sufficient notice to an employer of his unavailability to work, but where possible notice should be given; this allows the employer to make arrangements to accommodate the loss of an important member of the team. In this particular case Mr MacPherson only told the respondent that he could not work past 2.30 p.m. for personal reasons but did not otherwise explain them. In the absence of an explanation it is difficult to assess whether or not the notice was adequate but given all the surrounding circumstances, including the fact that eight other members of the shift also found it inconvenient to work past 2.30 p.m. without providing a full explanation, the respondent argues it was unreasonable. The respondent deals in its submissions with the possibility that the applicant contended that he provided notice by signing the petition to the respondent or by virtue of a dispute notice issued by the CFMEU to the respondent. The applicant does not make these claims and indeed it would be difficult for him to do so because it is his case that the reason he ceased to work at 2.30 p.m. on 12 November 2008 was because of personal reasons and that those reasons were totally unassociated with any other worker’s inability to work on that day. In cross examination, Mr MacPherson said that it was incorrect that he was protesting against the introduction of rosters without proper consultation, it was incorrect that this protest was intended to ensure that he only worked 40 hours that week, it was not correct that he knew the other employees would not be working past 2.30 p.m. and he did not know that there was a protest being co-ordinated by Mr Watkins.
(k) Hours worked by applicant over previous four weeks
This is a matter required to be considered by s.226(4)(g). In the four weeks prior to 12 November 2008 the applicant worked the 40 hour mixed morning and afternoon shift roster. I accept the respondent’s submission that this is not a significant issue when rosters are being changed.
(l) Remuneration received for additional hours
This factor was raised by the ACTU in its claim in the Working Hours Case at [10]. The applicant is paid a work pattern allowance of $11,856.00 for working the four additional hours from 40 hours to 44 hours per week based on the standard overtime rate within the site agreement.
(m) Work patterns permitted under the agreement
The respondent’s submissions in this regard commence with the following paragraph which I accept sets out accurately the situation under the site agreement.
“[39]Under the Agreement, the Respondent was (and is) entitled to introduce new work patterns following consultation with affected employees and employee representatives (see clause 20). The Respondent underwent such consultation with affected employees – it provided three Pre-Shift Presentations (the first from 18-28 September 2008; the second from 2-10 October 2008; the third on 6 November 2008), it participated in group discussions (which handled (and responded to) questions raised by affected employees), it handled individual queries and it sought crew preferences from affected employees. The Respondent also underwent such consultation with the CFMEU – it met with the CFMEU on 27 October 2008, it met with the CFMEU on 6 November 2008 and it responded to correspondence from the CFMEU (including its response to the letter dated 24 September 2008 and its response to the petition sent 8 October 2008). The affected employees raised issues for consideration by the Respondent – through the CFMEU, they provided a list of 39 questions or issues on 30 September 2008 and the Respondent decided to respond to those questions in the Second Pre-Shift Presentation in early October 2008. The Applicant raised a number of comments concerning the New Roster, including his view on the “anti-social nature” of the 44 hour work pattern, at the time of the First Pre-Shift Presentation and the Second Pre-Shift Presentation. Under the Agreement, the Respondent was (and is) entitled to require employees (including the Applicant) to work reasonable overtime (see clause 19), although there was a prohibition on an employee being required to work in excess of 14 continuous hours (in one shift) (see clause 19). In such circumstances, the New Roster is permitted in accordance with the agreement of the parties and does not offend the prohibition agreed between the parties.”
Clause 20.1 of the agreement deals with the ability of the company to require employees to work particular work patterns and to change other work patterns. Clause 20.1 is in the following form:
“20.1. Work Patterns
The Company may require an employee to work on any of the Work Patterns in Appendix 2.
The Work Pattern Allowances for any new rosters introduced during the term of this Agreement will be based on the same principles used for calculating the rosters contained in Appendix 2 of this Agreement.
Other Work Patterns may be implemented by the Company following consultation with the employees affected and employee representatives (which may be Union Representatives if the employee chooses). Consultation will be carried out in accordance with Clause 8 – Consultation.”
There is no restriction in this clause on the total number of hours required to be worked in a work pattern. A rotating shift for seven day 24 coverage is for 42 hours of work per week. In Appendix 1 remuneration rates are set out for the period over which the agreement is to run and work pattern allowances for different shifts are also provided, e.g. a work pattern allowance of $24,221.00 per annum is provided for the rotating shift of 42 hours Monday to Sunday. There is provision for work patterns to include average weekly rostered hours in excess of the hours shown in the appendix by way of payment on an overtime basis which is the basis used for the calculation of the work pattern allowance in Mr MacPherson’s case. I am satisfied that there is no prohibition in the agreement for the company to make the changes to the work pattern and rosters that occurred, including the implementation of a 44 hour per week roster, provided that the extra hours were found to be reasonable.
(n) Amount of annual leave
The applicant receives five weeks of annual leave under the new roster. This is the same provision for annual leave as contained in the agreement for a work pattern that does not include weekend work or work on public holidays.
(o) Total working hours
A paper produced by Ms Murray by Gray, Cue, Stanton and Weston (2004) [p 262] revealed that at a general level in 2004 21.8 percent of full time employed fathers in Australia worked between 41 to 48 hours per week, 23.6 percent of full time employed fathers worked between 49 to 59 hours per week and 21.4 percent of full time employed fathers worked 60 hours or more per week. Mr Huemmer gave evidence, based on his surveys of workers in the mining industry, that roster arrangements in the industry provided for average total working hours ranging from 35 to 56 hours per week and in Western Australia the average working hours in the mining industry were 45.6 hours per week for production workers and 45.8 hours per week for maintenance workers. However, just because a particular number of hours is worked in a particular industry does not establish that those hours are reasonable. The fight for the eight hour day established this principle. The difficulty that the applicant has is that the law now requires every individual contract to be looked at and the number of hours to be worked over 38 to be assessed as reasonable or not. Whilst the average number of hours worked in a particular industry may not be an indicator of reasonableness the apparent popularity of a particular number of hours may be. The evidence from Mr Huemmer is that a roster of 44 hours per week is popular.
(p) Length of shifts
Mr Huemmer’s evidence indicates a migration to 12 hour shifts within the mining industry, particularly where seven days per week 24 hours per day production operations are being carried out. His evidence also indicates that such shifts have achieved considerable popularity with the workers.
(q) Working patterns
The respondent notes that in the Hunter Valley in 2008 five open cut mines operated fixed shift rosters and 13 open cut mines operated rotating shift rosters; 20 coal mines in the Hunter Valley operated seven day work rosters. I am satisfied from the evidence of Mr Huemmer, which is not disputed by Ms Murray, that the type of roster proposed here is only unusual because of its more beneficial constituents such as no weekend work and no work past 6.30 p.m. at night.
(r) The Work Cover guide
As noted earlier, the new roster satisfies the safety factors contained in the health and safety guide produced by the Work Cover Authority of New South Wales.
I have considered all of these factors and have attempted to balance the conflicting positions of the employer and the employee. I have already indicated that I take the view that the adoption of the new rosters provided a significant benefit to the employer which justified its additional capital investment in new machinery and at the same time assisted in the preservation of the jobs of its permanent employees. These are important factors but they would not have themselves permitted the imposition of unreasonable hours upon an employee. I am of the view that all the evidence produced and discussed tends towards a determination that the six extra hours over the 38 hours permitted by s.226 are reasonable. The shift itself, being a day shift only, not requiring work past 6.30 p.m. at night and not requiring work at weekends, has few disadvantageous elements. The most significant is the requirement to work three 12 hour shifts in each week. Working for 12 hours at a stretch is clearly not easy, particularly when the work is heavy as it would appear to be in mine maintenance work. There is provision for breaks, although they are nowhere near as generous as those proposed by the ACTU in previous submissions. I accept that having to work until 6.30 p.m. interferes with some of Mr MacPherson’s family commitments and I accept also the importance of such commitments. However, some alleviation of that problem has been found by Mr MacPherson himself and his children are in their mid teens. Mr MacPherson talked about training but there was no reference to actual competition which, I believe it would be reasonable to infer, occurs at the weekend. Mr MacPherson has no problems in that regard. It hardly bears repetition for me to say that this is Mr MacPherson’s case and is not a general plea for a 40 hour week. I am satisfied that the employer did consult appropriately with the employees and with their representatives. I accept that there was a body of men who were unhappy about the new roster and the new extended shifts but the evidence appears to be that this was a small group. It is unfortunate that the 40 hour per week roster proposal was not discussed as thoroughly as it might have been. The company knew that there was a preference amongst some of the men for the 40 hour roster and that this certainly was the policy of the union. The company’s duty was to consult with the work force. The term “consultation” was considered by Toohey J in TVW Enterprises Ltd v Duffy (1985) 60 ALR 687 where his Honour said at [694]:
“Consultation is no empty term: “The requirement of consultation is never to be treated perfunctorily or as a mere formality” (Port Louis Corporation v Attorney-General of Mauritius [1965] AC 1111 at 1124). That decision and others, eg Rollo v Minister of Town Planning [1948] 1 All ER 13 at 17 and Sinfield v London Transport Executive [1970] Ch 550 at 558 make it clear that a responsibility to consult carries a responsibility to give those consulted an opportunity to be heard and express their views so that they may be taken into account.”
Whilst the meeting that was intended to take place with Mr Watkins concerning the 40 hour roster did not take place and the company proceeded on the basis that it had no formal indication of a preference from the maintenance group involved, it could not be said it was not aware of the feeling, at least among this particular work group, which continued through the other processes such as the risk assessment process. Whilst the company was obliged to take the employee’s concerns into account and consider them it was not obliged to make a decision in accordance with the employee’s wishes. I do not think that the consultation carried out with the employees was perfunctory. I think that the company made a genuine attempt to deal with the concerns raised by employees. I note the response given to me by those representing the company that this matter was not conciliated by the Industrial Relations Commission because proceedings had already been commenced in this Court. I do not think that the manner in which the decision was made or implemented has a negative impact on the consideration of reasonableness.
I have considered and compared the evidence of the two experts. I note that whilst Mr Huemmer’s evidence indicates satisfaction with, even a preference for, both the length of shift and the number of hours in the roster from the men working in the industry, Ms Murray’s research concentrates on the views of the families and partners of the employees with the notable exception of the miner “Wilma” referred to in the Peetz and Murray report. This Court does not consider that the views expressed by partners and families have any less significance than the views expressed by the workers themselves. However, no evidence was brought by the partner or family of Mr MacPherson and so I am not persuaded that the affect of the new roster on his family responsibilities is sufficient for me to determine that the extra hours are unreasonable. I note that not only was there no evidence called from Mrs MacPherson or Mr MacPherson’s children, but also that none was called from any other member of the maintenance crew or those member’s families. In my view the benefits to the employer of the new rosters outweighs the detriment to Mr MacPherson which I believe is adequately compensated for by the work pattern allowance and by the extra rostered days off arising out of the new shifts. I am satisfied that the extra rostered hours over the statutory 38 hours are, as they affect Mr MacPherson, reasonable.
The stand down
The relevant provision for stand downs contained in the Act at s.691A and the prohibition of unauthorised stand downs found in s.691B have been extracted at [25] of these reasons. Those provisions apply where there is no contract of employment and no industrial instrument that contains provisions for stand downs. In this case there is such an industrial instrument and at paragraph 10.4 there is a stand down provision in the following form:
“10.4 Standdown
The Company may stand down an employee for any day or shift the employee cannot be usefully employed in productive work because of an industrial dispute, or because of machinery breakdown. In the case of machinery breakdown, employees will only be stood down if the breakdown has continued for four consecutive days (including the day of the breakdown if it is a workday). An employee is not entitled to payment when stood down.”
I am satisfied that the stand down of Mr MacPherson did not fall within the provisions of Clause 10.4 nor within the provisions of s.691A(1). Mr MacPherson was not stood down because of the existence of an industrial dispute, he was stood down because he would not accept a direction from his employer to work the shift to which he had been assigned. The employer argues that this was a disciplinary measure which it was entitled to take in all the circumstances of the case. Mr MacPherson says that the action constituted an unauthorised stand down because it did not fall within the provisions of the agreement or the Act. I am satisfied that when it took action against Mr MacPherson the employer, through Mr Gloster, used the words “stand down” but I am also satisfied that he made it clear to Mr MacPherson that he was not exercising any purported power under the industrial agreement but was disciplining Mr MacPherson for what he considered was a breach of Mr MacPherson’s contract of employment. I do not think that it particularly matters what choice of words was made. If Mr Gloster had the right to discipline Mr MacPherson in this way then the fact that he used the words “stand down” would not detract from that right. If he did not have the right to discipline Mr MacPherson then his action would, to my mind, constitute an unauthorised stand down as not being authorised by s.691A(2) or any provision of the contract of employment.
It will be recalled that the circumstances in which the stand down occurred were that the company had determined that the new roster would operate from 11 November 2008 as far as Mr MacPherson was concerned. Mr MacPherson worked the first 12 hour shift. On 6 November 2008 at the third pre shift presentation the employees were reminded that the roster commenced at 6.30 a.m. on 11 November 2008 for Crew 2 and:
“[o]ur expectation is that those persons rostered on to work will attend work for the full hours of the rostered shifts in accordance with the roster pattern.”
I infer from the evidence that I have heard concerning the activity of the CFMEU (all of which was quite legal and beyond criticism) that the company anticipated some problems from this particular maintenance group. It therefore took steps to ensure that its position was made abundantly clear. On 12 November, at a fourth pre shift presentation, Mr Rabe said words to the effect:
“The company requires you to work the full hours under the new roster. You will be in breach of your contract of employment if you do not.”
In the face of this notification from the company Mr MacPherson and some eight others informed Mr Rabe that they would be unable to work the full 12 hour shift on 12 November. They all claimed personal reasons for so doing. Mr MacPherson said his personal reasons were personal family commitments. I accept Mr Rabe’s evidence that he asked Mr MacPherson whether Mr MacPherson wished to tell him what those personal reasons were and that Mr MacPherson responded that they were personal and that he did not wish to discuss them with Mr Rabe. Mr Rabe then referred the matter up to Mr Gloster. Mr Watkins from the CFMEU was in attendance. I accept Mr Gloster’s evidence that he said words to the effect set out in paragraphs 70 -77 of his affidavit of 26 February 2009:
“At approximately 1.21pm, I attended Mr Rabe’s office with Mr Macpherson and Mr Watkins. I said to Mr Macpherson words to the effect of:
“Your superintendent has informed me that for personal reasons, you intend to leave early. He has also told me that you do not wish to explain what these personal reasons are. If you leave early, you will not be acting in accordance with your contract of employment. Do you intend to work the full duration of your shift?”
Mr Macpherson replied:
“No.”
I said:
“Do you want to discuss your reasons for leaving early?”
Mr Macpherson replied:
“No.”
I was concerned to ensure that Mr Macpherson worked his full shift under the new roster. I did not want Mr Macpherson to work part of the shift.
I said to Mr Macpherson:
“Then you leave me no choice but to stand you down indefinitely and without pay until you are prepared to work in accordance with your contract of employment.”
Mr Watkins asked:
“Under what part of the certified agreement are you standing Allan down under”
I said:
“I am not standing him down under any clause of the certified agreement. I am standing him down because he is in breach of his contract of employment.”
I am satisfied that the effect of these conversations was to suspend Mr MacPherson’s contract of employment until such time as he indicated that he would work in accordance with it. Mr MacPherson did not attend for employment on 13 November but did so on 14 November when he signed an undertaking acceptable to the company whereby, after reserving his rights, he agreed to work in accordance with the new roster.
Although Mr MacPherson and Mr Watkins denied under cross examination that there was any co-ordinated arrangement by which nine of the men on this shift would inform their employer that they could not work past 2.30 p.m. for personal reasons, I think the evidence indicates that some such understanding did exist. It arose out of the members of this particular group’s opposition to the new roster. It was an opposition that they had expressed, which the company were aware of and which was the subject of dispute notices and dispute resolution activity. When Mr Gloster interviewed Mr MacPherson he was aware that Mr MacPherson was only one of nine people who sought relief from work for personal reasons. I am of the view that in ordinary circumstances where mutual trust and confidence exists between employer and employee that an employee should not need to be asked to justify a request for permitted time off for family reasons. Many circumstances come easily to mind that one would accept an employee would not wish to discuss with his employer. However, there are also circumstances in which it is reasonable for at least some enquiry to be made. One of them being when the employer has a reasonable suspicion that the request being made is not being made for the purposes put forward. In this particular case I think the words used by Mr Rabe and Mr Gloster were entirely appropriate. Mr MacPherson was not asked outright what the personal circumstances or family reasons were but whether he wished to inform his employer of them. Mr MacPherson declined. This left the employer with no information and with what I infer to be a strong suspicion that in the context of the moment the ground might not be genuine. The evidence is that all of the maintenance workers who had informed the company that they could not work past 2.30 p.m. did so for the same reason. Some did give grounds that the company accepted as constituting valid family or personal reasons. I am satisfied that Mr MacPherson was given an opportunity to work his full shift on 12 November but declined to do so. I am satisfied that in all the circumstances the company was within its rights not to accept Mr MacPherson’s bald statement that he had family reasons for not completing the shift that day.
In R v Darling Island Stevedoring and Lighterage Co Limited; Ex Parte Halliday & Sullivan (1938) 60 CLR 601 at [621 – 622] Dixon J opined:
“If a command relates to the subject matter of the employment and involves no illegality the obligation of the servant to obey it depends at common law upon its being reasonable. In other words, the lawful commands of an employer which an employee must obey are those which fall within the scope of the contract of service and are reasonable.”
In that case the requirement to comply with the employer’s reasonable instructions was a specific condition of the award under which the stevedores worked. In the instant contract there is no such specificity although it does provide in paragraph 10:
“The company may direct employees to carry out any work that is within their skills, training, experience and knowledge subject to safety and statutory requirements.”
In my view that sentence is intended to be protective of the employer against a demarcation claim rather than expressing the common law obligation, referred to by Dixon J. But it does not exclude the common law obligation, which I would find is maintained and implied within the agreement.
I am satisfied that the instruction of the company to its employees to work the full 44 hour roster was both reasonable and lawful. It is reasonable because I have found that the company was entitled to ask the maintenance workers to work the extra hours comprised in the new roster by way of the 12 hour shifts that were contained within it. There was no breach of s.226. The command was also lawful. The contract of service had been altered in accordance with its provisions and the employees were now required to work the new rosters and shifts that had been determined by the employer. I have found that the company did not breach the provisions in the agreement referring to consultation which were preconditions to any alterations in the hours of work. Mr MacPherson refused to work those hours on 12 November, he intended to leave at 2.30 p.m. He did leave at 2.30 p.m. He did not leave because he was suspended, he was suspended because he would not work.
On 13 November Mr MacPherson did not appear for work. He argues that it was because he was “stood down”. There was no prohibition upon him returning to work provided that he was returning to work to perform his full duties.
Mr MacPherson asked the Court to order that in addition to the declarations he seeks that he is paid for the hours during which he was absent from work on 12 and 13 November. As I understand his argument, what occurred to him was a de facto suspension which was covered by the “no unlawful stand down” provisions of the Act and in conformity with the views expressed by the Full Court of the Federal Court in Gapes v Commercial Bank of Australia Limited (1980) 41 FLR 27 (“Gapes”):
“The obligation [to remunerate] persists while the relevant state of employment exists.”
Gapes and a number of other important cases on the question of suspension and payment were analysed by Rogers J in Csomore & Anor v Public Service Board (NSW) (1986) 10 NSWLR 587 (“Csomore”). His Honour notes that Gapes was in fact a case where the applicant was performing some work, just not all the work that he was required to perform. The same situation applied in Welbourn v Australian Postal Commission [1984] VR 257; (1984) 52 ALR 669, and his Honour pointed to the views expressed by Deane J in Gapes where his Honour said:
“If, when the appellant refused to perform a significant part of his duties, the bank had simply directed him to refrain altogether from working in his job I would have been of the view that the appellant was not entitled to be paid his salary during any period in which he was absent from his duties in accordance with that direction or in which he performed some of his duties in defiance of the bank’s continuing direction to abstain from working altogether. An employer is entitled to decline the services of an employee who refuses to perform significant parts of the job which he is employed to do at least so long as that refusal of the employee persists.”
It seems to me that this dicta perfectly describes the situation with which Mr MacPherson faced his employers. He decided that he would not work after 2.30 p.m. on 12 November. The reasons he gave for doing so were not sufficient to enable him to avoid breaching his contract of service. He could have come back and performed his contract but he did not. My interpretation of his actions on 13 November was that he was still not prepared to comply with his contract of service. He refused to perform a significant part of his job, namely the extra six hours over the 38 hours referred to in s.226(1)(a)(i). Csomore is authority for the “no work no pay proposition” which Rogers J distilled from the decision of the English High Court in Cresswell v Board of Inland Revenue (1984) ICR 508; (1984) 2 All ER 713, I have not been provided with any authority which indicates that Csomore was wrongly decided and I would propose to follow it in relation to the claim for unpaid wages.
I am of the view that the decision in Csomore is helpful in one other respect. His Honour came to the conclusion that what occurred in that case constituted a suspension. The employees had declined to process cheques received in government offices but they were otherwise prepared to carry out their duties. They were instructed to cease performance of all duties and their salary was withheld. His Honour found that that constituted a suspension. In Mr MacPherson’s case he effectively walked off the job at 2.30 p.m. on 12 November. He may have been told that he was being “stood down” or in reality “suspended” but it was at all times Mr MacPherson’s decision not to continue working on that day. He had also been told that he could not come back to work until he was prepared to work the full hours of the roster, which I would construe as a suspension. The company argues that this suspension is not a stand down in breach of s.691B because it argues that a stand down for those purposes is:
“a suspension of the contract of employment at the initiative of the employer in circumstances where the employee cannot be usefully engaged due to actions which it is unable to control (see for example 691A of the Workplace Relations Act).”
I am afraid that I cannot construe the Act in this way. I am of the view that what s.691A and B do is to provide for legal stand downs in what I would describe as “force majeure” situations and prohibit all others, which, paradoxically, would include a suspension or stand down for disciplinary reasons that is not specifically permitted by the contract. The Act makes it clear that if the contract of employment provides for disciplinary or other forms of stand down then the provisions of s.691B will not apply; s.691B(1)(b). This contract of employment sets out in Clause 9 a system for avoiding and resolving disputes which provides for an unresolved dispute to be referred to the appropriate industrial authority. It makes no reference to the right to suspend other than the stand down right in Clause 10.4 previously extracted.
It seems to me that I am therefore forced to come to a conclusion that in the particular circumstances of this case the company acted in breach of s.691B in standing Mr MacPherson down in so far as he was suspended pending him making a decision to return to work under the terms of his contract. This analysis seems to me to be consistent with the decision of the Federal Court in Australian Workers’ Union v Stegbar Australia Pty Ltd [2001] FCA 367 (“Stegbar”) at [24]:
“This provision will protect Stegbar if it has the right to stand down an employee who indicates he will not work in accordance with his contract of employment. However, under the common law, in the case of threatened misconduct, an employer has no right to suspend an employee without pay. The employer may dismiss the employee, or it must permit the employee to carry out his duties, albeit otherwise than in performance of his obligations. In Hanley v Pease & Partners Ltd [1915] 1 KB 698 at 705 Lush J said:
"[a]fter declining to dismiss the workman - after electing to treat the contract as a continuing one - the employers took upon themselves to suspend him for one day; in other words to deprive the workman of his wages for one day, thereby assessing their own damages for the servant's misconduct at the sum which would be represented by one day's wages. They have no possible right to do that. Having elected to treat the contract as continuing it was continuing. They might have had a right to claim damages against their servant, but they could not justify their act in suspending the workman for one day and refusing to let him work and earn wages."
The decision in Stegbar has been approved in Foong v The Norfolk Island Hospital Enterprise [2002] NFSC 4 and Public Service Association and Professional Officers Association Amalgamated Union of New South Wales v Macquarie Generation re Suspension of PSA delegate [2003] NSWIRComm 9.
There does appear to be some perversity in this situation. What is an employer whose employee declines to work the full hours required of him expected to do? It would be argued by Mr MacPherson that the employer was expected to go through the disputes procedure. But this takes time. The employer is then placed in the position of having either to dismiss Mr MacPherson, a long time employee, or suffer the consequences of him working shorter hours than other members of his shift with the consequent inconvenience to the company and possible danger to his fellow employees. It would have been a hard decision to dismiss Mr MacPherson. The action taken alleviated the necessity for it. At the request of the parties I agreed that if I was to come to the view that any breach of the Act had occurred I would provide them with an opportunity to have a hearing on penalty. I will adhere to that arrangement but feel it only fair to the applicant to make it clear that to my mind, as things stand, this would not be an appropriate case for the imposition of a penalty bearing in mind my finding that the company was entitled to alter the contract of employment in the manner in which it did and therefore Mr MacPherson was wrong in refusing to work a full shift on 13 November. His suspension lasted only that one day. As I have said, the decision not to continue working after 2.30 p.m. on 12 November was Mr MacPherson’s and not as a result of the suspension. However, I retain an open mind on the matter and will appoint a hearing date. In case it is not entirely clear already I propose to follow the decision of Rogers J in Csomore and decline to award Mr MacPherson any pay after 1.20 p.m. on 12 November when he walked off the job or for 13 November when he declined to work his full shift.
I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 9 September 2009
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