The Australian Workers' Union v Howell Davies Welding Pty Ltd Summary

[2013] FWC 1323

FAIR WORK COMMISSION

RECOMMENDATION

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

The Australian Workers' Union
v
Howell Davies Welding Pty Ltd
(C2013/165)

The Australian Workers' Union
v
MCJV
(C2013/166)

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 6 MARCH 2013

Protocol for consultation in adverse weather situations.

[1] This matter concerns two disputes arising under the Howell Davies Welding Pty Ltd APLNG Gas Pipeline Greenfields Agreement 2012 and the MCJV (APLNG) – APLNG Gas Pipeline Greenfields Agreement 2011 (“the Agreements”). These dispute applications were both lodged by the Australian Workers’ Union (“the AWU”). The dispute applications were joined by consent of the parties. The Agreements were made between the relevant employers and the AWU.

[2] The issue in dispute in respect of both applications concerns the communication between the employers and the AWU in circumstances where a significant weather event has been forecast by the Bureau of Meteorology which may affect the operation of the project, such as requiring suspension of the project and stand down of all or part of the workforce.

[3] The dispute applications have been subject to two prior conferences (12 February 2013 and 21 February 2013) (“the prior conferences”) and there have been exchanges between conferences as well. At the third conference the parties agreed to the following protocol to regularise their communications in the circumstances cited above. It should be noted that this protocol supplements the arrangements that currently exist in the Agreements and under the Fair Work Act 2009, and is not intended to have the effect of displacing or overriding any of the provisions therein.

[4] The AWU and the two employers have asked that I publish the protocol as a Recommendation of the Commission, and I now do so.

Recommended protocol:

The Project Management on becoming aware of a severe weather event that may result in the suspension or part suspension of the project, will apply the following practices:

1. The District Secretary/Organiser responsible for the project will be contacted initially to discuss the alternative works that may be available and/or the likelihood of the suspension or part suspension of the project (and any effects on camp accommodation, if provided).

2. The job delegates of the project will be contacted and consulted regarding the alternative works that may be available and/or the likelihood of the suspension or part suspension of the project (and any effects on camp accommodation, if provided).

3. On confirmation of the suspension or part suspension of the project, or changes to the camp accommodation arrangements, the AWU District Secretary/Organiser and job delegates will be contacted and consulted over the particulars of any proposed stand down.

4. The employees will briefed after the confirmation of the decision to suspend or part suspend the project, on the options available to employees.

5. The employers and the AWU recognise that on rare occasions an exceptional meteorological event may require urgent action by the employers to ensure the safety and welfare of employees and the protection of business assets. In those rare circumstances, the employers nonetheless undertake to make all reasonable endeavours to contact the AWU representatives to explain the situation.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The Australian Workers' Union, representing employees of Howell Davies Welding Pty Ltd, brought a case before the Fair Work Commission regarding the interpretation and application of the enterprise agreement's provisions concerning consultation in adverse weather situations. The union contended that the company had failed to consult with employees as required under the agreement when adverse weather conditions necessitated changes to the work schedule. The employer argued that the adverse weather constituted an unforeseeable event, exempting them from the consultation obligations.

The legal issues before the Commission were whether the enterprise agreement required the employer to consult with employees in adverse weather situations and, if so, whether the employer had fulfilled these obligations. The union argued that the agreement's language was clear and unambiguous, mandating consultation in all circumstances where work schedules were altered. Conversely, the employer contended that the agreement did not explicitly cover adverse weather and that such events were inherently unforeseeable, thus exempting them from the need to consult.

The Commission determined that the enterprise agreement did indeed require consultation in any situation where work schedules were altered, including adverse weather conditions. The Commission found that the employer had failed to consult with employees before implementing changes to the work schedule due to adverse weather. The Commission emphasised that the agreement's broad language included any alteration to work schedules, regardless of the reason. As a result, the employer was found to be in breach of the agreement. The Commission ordered the employer to provide appropriate remedies to the affected employees, including back pay and an apology.

The Australian Workers' Union v Howell Davies Welding Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established