[2010] FWA 14 |
|
DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
COMMISSIONER BLAIR |
MELBOURNE, 7 JANUARY 2010 |
Alleged dispute concerning wages and alleged refusal by the company to allow delegates time to perform their duties..
[1] These two matters came to Fair Work Australia (the Tribunal) following s739 applications firstly in C2009/10805 by the Australian Workers’ Union (AWU) and secondly in C2009/10811 by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) with United Group Resources Pty Ltd being the respondent.
[2] The matters in dispute relate to non-payment of wages. Employees in question are covered by the United Group Resources Pty Ltd Shell Geelong Refinery Agreement. That agreement provides jurisdiction for the Tribunal to settle matters in regards to application of the agreement. Clause 1.8 of the agreement details the dispute settlement process and provides the Tribunal with conciliation and arbitration powers.
[3] The respondent in the matter is a major contractor working on the Shell Geelong refinery refurbishment. The following is a brief summary of the incidents that led to the matter being brought before the Tribunal.
[4] On Thursday 15 October 2009 employees were advised that a suspected asbestos lagging had fallen onto a scaffolding in the prefrack area. This was confirmed by the safety coach from Alliance Scaffolding, the contractor who erected the scaffolding. The asbestos problem was then reported to Western Sheet Metal. Western Sheet Metal is the licensed asbestos remover on the project.
[5] On Friday 16 October the applicants were contacted by employees working for Alliance Scaffolding. They informed the applicants that they believed the material which they assert to be asbestos had fallen onto the scaffolding again. Employees were advised to remain in the sheds until the matter was sorted out. This appeared to have the blessing of Alliance Scaffolding who agreed that the employees should remain in the shed until the job was declared safe.
[6] On Friday 16 October representatives of both applicants attended the site and discussions with employees and the respondent over the asbestos problem occurred. As part of those discussions it was agreed that Western Sheet Metal, the licensed asbestos remover, would conduct a sweep of the entire site on Saturday 17 October.
[7] On Friday night of 16 October the nightshift commenced work at 7pm. It would appear that the nightshift were initially unaware of the arrangement to have Western Sheet Metal sweep the site the next day. Management informed the night shift that they had done a sweep of the site and deemed it safe except for the prefrack area. The company proposed that work commence in all areas except the prefrack. Delegates then met with the night shift and told them of the agreement that Western Sheet Metal would sweep the entire site the next morning. A proposal was put forward that work commence in others areas except for the prefrack area and it would appear that this was rejected by night shift on the basis that United Management who claimed the site was safe were not licensed asbestos removalists. After some further discussions the employees left the site on the night shift at 9.30pm.
[8] On Saturday 17 October, it would appear at the instigation of the applicants, a Work Safe Inspector attended the site at approximately 11.15am and left the site at approximately 5pm. The respondent also appeared to engage a private hygienist known as Bureau Veritas HSE Pty Ltd. This company issued an interim clearance certificate at approximately 2pm on Saturday 17 October. It would appear that neither the applicants nor the OHS delegates were informed of this until approximately 12 noon (as asserted by the applicants) on the following Monday 19 October.
[9] On Monday 19 October representatives of the applicants attended the site (there is some issue as to the amount of time taken for the officials to finally enter the site). Following some discussion it was agreed there would be a site inspection. It is alleged that even after the site had been swept by Western Sheet Metal suspect material was found. Following a site inspection representatives of the applicant left the site believing the matter was resolved and the employees would return to normal duties. This did not occur. At approximately 4pm the day shift employees left the site after being advised that they were not being paid for Monday 19 October. Employees on night shift commenced work as normal on Monday 19 October.
[10] There are two matters in question. Firstly, whether the night shift are entitled to be paid for the shift commencing Friday 16 October, commencing at 7pm. And secondly, whether the employees on day shift who commenced employment on Monday 16 October should be paid for their entire shift.
[11] Both the night shift and day shift argued that there were genuine concerns regarding occupation, health and safety (asbestos problem) and therefore are entitled to be paid for their shifts.
[12] The respondent alleges that the night shift who ceased work on Friday night 16 October should not be paid as suitable alternative duties were available to be performed away from the prefrack area. The employees in failing to take up the offer of alternative duties and by ceasing work at 9.30pm were taking unprotected industrial action. The argument is also said of the day shift who did not commence work on Monday 19 October and ceased work at approximately 4pm Monday 19 October. The respondent also says that those employees took unprotected industrial action.
[13] Industrial action is defined in s 19 of the Fair Work Act 2009 (the Act) as:
(a) the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;
(b) a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee;
(c) a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work;
(d) the lockout of employees from their employment by the employer of the employees.
[14] In s 19(2) exceptions to the meaning of industrial action state the following:
(a) action by employees that is authorised or agreed to by the employer of the employees;
(b) action by an employer that is authorised or agreed to by, or on behalf of, employees of the employer;
(c) action by an employee if:
(i) the action was based on a reasonable concern of the employee about an imminent risk to his or her health or safety; and
(ii) the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.
[15] Section 474 – Payments not to be made relating to certain periods of industrial action – states:
(1) If an employee engaged, or engages, in industrial action that is not protected industrial action against an employer on a day, the employer must not make a payment to an employee in relation to:
(a) if the total duration of the industrial action on that day is at least 4 hours — the total duration of the industrial action on that day; or
(b) otherwise — 4 hours of that day.
[16] Section 475 – Accepting or seeking payments relating to periods of industrial action - states the following:
(1) An employee must not:
(a) accept a payment from an employer if the employer would contravene section 474 by making the payment; or
(b) ask the employer to make such a payment.
[17] The applicants argue that employees should be paid, firstly night shift for all that shift, and the day shift for Monday 19 October should be paid because they state it falls under the heading of s 19(2)(c) – action by an employee if (i) the action was based on a reasonable concern of the employee about an imminent risk to his or her health or safety, and (ii) the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.
[18] Having considered the material before the Tribunal, the Tribunal is satisfied that firstly the night shift on Friday 16 October ceased work unnecessarily and left the premises at approximately 9.30pm when suitable alternative work was available to them which would have enabled them to complete their shifts. Therefore, looking at s 474(1)(a) that the total duration of the industrial action on that day is at least four hours, the total duration of the industrial action on that day. In reading that, the Tribunal understands that the employees on night shift should be paid for the two and a half hours they were on the premises for the tribunal is satisfied for that first two and a half hours there is a reasonable concern of the employees about an imminent risk to their health or safety and that imminent risk related to the finding of asbestos. However, given what the Tribunal has stated above, after two and a half hours there was suitable alternative work available and having failed to do that work they should not be paid for the balance of the shift.
[19] In regards to the day shift who left the premises at approximately 4pm on Monday 19 October again the Tribunal is satisfied that up to 4pm the employees in accordance with s 19(2)(c)(i) held a reasonable concern about an imminent risk to their health or safety resulting from further findings over the weekend of suspect material mainly relating to the finding of asbestos. However, at approximately 4pm when the employees were advised that they were not being paid for Monday 19 October they decided to leave the premises for the remainder of the shift. The Tribunal is satisfied that from 4pm the employees took unprotected industrial action. The Tribunal understands that the shift consists of eight hours plus two hours of overtime. Therefore in accordance with s 474(1)(b) the employer is entitled not to make payment for four hours of that day – that day consisting of eight hours normal shift, two hours overtime which the tribunal understands is standard on that site which would mean that employees on day shift would cease work at approximately 6pm.
[20] The Tribunal therefore understands that the employees on day shift on Monday 19 October are entitled to be paid due to a reasonable concern regarding occupational health and safety for six hours of Monday 19 October.
[21] Therefore the Tribunal would determine that the nightshift be paid for two and a half hours for Friday 16 October and the day shift be paid for six hours for Monday 19 October.
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