Mr Glen Bamford v ABM Resources Nl T/A ABM Resources

[2016] FWC 4625

[2016] FWC 4625

FAIR WORK COMMISSION

OPINION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Mr Glen Bamford & Others
v
ABM Resources NL T/A ABM Resources
(C2016/3361, C2016/3390, C2016/3449, C2016/3450 & C2016/3558)

COMMISSIONER CLOGHAN PERTH, 12 JULY 2016

Dispute about any matters arising under the Mining Industry Award 2010.

[1] This is an application to the Fair Work Commission (Commission) by Mr Glen Bamford and four (4) other employees, pursuant to s.739 of the Fair Work Act 2009 (FW Act), to deal with a dispute pursuant to Clause 9 Dispute Resolution (DSP) of the Mining Industry Award 2010 (Mining Modern Award).

[2] Mr Bamford and the other employees are in dispute with ABM Resources NL trading as ABM Resources (ABM).

[3] The application was the subject of two conciliation conferences but remained unresolved. I now turn to the dispute.

[4] Mr Bamford and the other employees submit:

“Clause 23.3 of the award [Mining Modern Award] was never in dispute. This clause logically sets out how leave is to be taken when working a compressed work cycle on a remote site. The clause is silent on how leave is accounted for which is the essential element of the dispute and therefore this clause is not applicable.” (my emphasis)

[5] Mr Bamford and the employees further submit:

“…the Collective failed to see how this section of the award enables ABM to deduct leave in excess of what was actually taken.” (my emphasis)

[6] Finally, Mr Bamford’s submission concludes with a question and a conclusion, which I consider to be the “nub” of the issue. The submission reads:

“…How does deducting 10.5 days from someone’s leave balance equate to bringing them back in conformity with the roster cycle. This is illogical. Rosters are either 14:7 or 14:14. If a person took 7 days leave then they should be deducted 7 days leave as stated in the contract and employee handbook.” (my emphasis)

RELEVANT PROVISION OF THE MINING MODERN AWARD

[7] The relevant provision is as follows:

“23.3 Arrangements for taking leave

(a) Where an employee works in a remote location or on cycle work made up of working days and non-working days, a period of paid annual leave includes working and non-working days during the period.

(b) Where an employee works in a remote location or on cycle work made up of working days (on-duty period) and non-working days (off-duty period), an employer may reasonably require that:

(i) any period or periods of annual leave taken by the employee must be a multiple of the on-duty period and/or off-duty period under the employee’s work cycle roster; or

(ii) the employee take annual leave in accordance with the roster cycle.”

RELEVANT BACKGROUND AND CONSIDERATION

[8] Mr Bamford and the other employees work in remote mining sites for ABM.

[9] The employees are entitled to five (5) weeks annual leave.

[10] The employees’ compressed work cycle is as follows:

• Roster A - 12 hour shift – 14 days “on” followed by seven (7) days “off”;



• Roster B – 12 hour shift – 14 days “on” followed by 14 days “off”.

[11] Consequently, employees’ average weekly working hours are either:

• Roster A – 56 hours;



• Roster B – 42 hours.

[12] ABM calculate annual leave by dividing the five (5) weeks annual leave by 365 days. This results in an accrual of 0.6712 of a day per week.

[13] Accordingly, for employees, whether rostered “on” or “off” work, he or she receives 0.6712 of a day towards an accrual of five (5) weeks annual leave.

[14] 0.6712 of a day, is 0.6712 of a 12 hour day.

[15] 0.6712 of a 12 hour day is just over eight (8) hours and three (3) minutes.

[16] An employee on Roster A works an average of 56 hours per week. 56 hours is the equivalent of 4.67 times a 12 hour shift.

[17] 4.67 shifts of 12 hour duration equals 56 hours or the average weekly hours on Roster A.

[18] Consequently, a Roster A employee has an entitlement to five (5) weeks annual leave at 56 hours per week (280 hours).

[19] Mr Bamford and the other employees suggest that if the employees take one (1) or two (2) weeks annual leave when rostered to work (that is, 84 or 168 working hours), the amount to be deducted from their entitlement to annual leave is only 56 or 112 hours.

[20] As I have previously stated, an average of 56 working hours per week is the equivalent of 4.67 shifts of 12 hours.

[21] Clearly, when a Roster A employee takes 7 or 14, 12 hour shifts of annual leave, it is in excess of both 56 or 112 average working weekly hours. Likewise, when a Roster A employee takes annual leave of 7 or 14 times a 12 hour shift, it is greater than the 4.67 or 9.34 shifts of 12 hours, accrued for annual leave purposes.

[22] It is for these reasons that ABM recalibrates the 84/168 hours or 7/14 shifts of 12 hours, taken as annual leave into accrued units of 56 hours (84 ÷ 56 equals 1.5 weeks or 10.5 days) or 4.67 shifts of 12 hour duration (7 ÷ 4.67 equals 1.5 weeks or 10.5 days).

[23] As a result, the answer to Mr Bamford’s question in paragraph [6] is that the conversion of 7 shifts of 12 hours duration, is the equivalent of taking an annual leave entitlement of 10.5 shifts of accrued leave.

[24] To illustrate the fairness of the arithmetical equation, ABM observe, in my view correctly, that:

• an employee who worked on Roster A for 12 months and did not take any annual leave would receive, on resignation, an accrued entitlement to annual leave of 5 weeks at 56 hours per week (280 hours); whereas,



• an employee who worked on Roster A for 12 months and took annual leave in the manner suggested by Mr Bamford and the other employees, would receive 5 weeks annual leave of 12 hour shifts or 420 hours.

[25] Clearly, there cannot be such an inequity for employees covered by the same award in which one employee takes annual leave and the other does not.

[26] Should Mr Bamford and the other employees, after reading this Opinion, consider that a hearing is necessary, I will do so on being contacted by Mr Bamford by no later than 19 July 2016. However, from the material provided, the provisions of the Mining Modern Award, the common practice of annualised salaries and the averaging of annual leave arrangement, it appears that ABM is adopting a typical approach of the mining industry.

COMMISSIONER

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