MacPherson v Coal & Allied Mining Services Pty Ltd (No 2) [2009] FMCA 881 (9 September 2009).

This decision by Federal Magistrate Raphael deals with a couple of sections of the Workplace Relations Act 1996 (Cth) not been previously judicially considered.  The decision will also have ramifications under the Fair Work Act 2009 (Cth). The case involves whether an employer could require an employee to work additional hours based upon a new roster and whether by refusing to do this work, the employee has been stood down contrary to the Act.  The Federal Magistrate’s Court has recently been doing a considerable amount of cases involving industrial matters and has provided sound guidelines for employers and employees as to how to use the new statutory industrial regime.

The company conducts open cut coal mine operations at both Mt Thorley and Warkworth.  The worker, Mr MacPherson, was in a maintenance crew repairing mining equipment on a regular basis and on breakdowns. As a result of an increase in work, the company proposed that rosters be changed so that the previous roster where persons such as Mr MacPherson were averaging 40 hours per week would be increased to, on average, 44 hrs per week.  This new roster would require the workers to work a rotating 2 week cycle of 4 day shifts being 3 x 12 hours shifts and one 8 hour shift. Mr MacPherson and others, when advised of this change, were unhappy and a number of them expressed their displeasure. Prior to the rosters being designed, there had been no relevant consultation with the employees or their families or the Union (at [7]).

A presentation had been made and a date was set for the commencement of the new roster. At least nine members of the crew in which Mr MacPherson worked said they would not be working a full 12 hours and would be leaving work after 8 hours for “personal or family reasons”.  Mr MacPherson was asked what his “personal reasons” were, however he declined to discuss them (at [17]).  The company felt that this group refusal was part of a “collective protest against the new roster, rather than a real response to genuine personal concerns“ (at [17]).

Mr MacPherson was further the subject of enquiry as to his reasons for suggesting he would leave work. Once again, Mr MacPherson said they were personal and said that he would be leaving notwithstanding the direction to remain. A supervisor of Mr MacPherson then told him “I’ve got no choice, I have to stand you down without pay until you are willing to comply with the contract”.  Mr MacPherson did not return to work the next day. However the day afterwards he returned to work and he signed a document indicating that he was working under protest (at [20]). A few days after his return to work, Mr MacPherson was provided with a written warning in relation to his refusal of what was said to be a reasonable direction (at [21]).

This case brings into sharp focus s 226 of the Workplace Relations Act 1996 (now s 62 of the Fair Work Act 2009). This provision says that an employee must not be required or requested by an employer to work more than 38 hours per week except if additional hours are reasonable. What “reasonable additional hours” are is defined generally in s 226(4) of the Workplace Relations Act 1996 (see s 62(3) of the Fair Work Act 2009).  This provision commenced in March 2006 and had not been judicially considered before (at [39]). Both sides called expert evidence in relation to the effect that working hours have upon employees and the popularity or otherwise of certain shift patterns, including 12 hour shifts.

Mr MacPherson was called and identified that he wished to spend more time with his family and that the additional hours would preclude him from being the soccer coach of the team in which his sons played. It was noted that this was a case brought by Mr MacPherson and did not relate to the impact upon his colleagues of the new roster system (at [31]). The expert evidence did not focus upon this particular roster and the effect upon Mr MacPherson (at [31]).

The company’s expert’s evidence noted that “preferences for hours of work are very personal and individual to each employee.  Data from workers shows us that these preferences can change over time as an individual’s personal circumstances change, especially interest in additional pay or time off” (at [36]).  However, the Magistrate found that in order to ascertain in this particular case whether the additional hours were reasonable, one had to take into account more than mere preference for one expert over another. The section requires that all relevant factors must be taken into account (at [38]). The Magistrate then went through each of the factors found in s 226(4) and weighed them up in order to determine whether or not the additional hours were reasonable. The Magistrate found a lack of evidence that an additional 6 hours over the 38 hour norm was not reasonable.  In addition to the personal interests an employee might have, there is also a balance needing to be made against the operational requirements of the workplace and the enterprise (at [48]). In this regard, the circumstances of both employer and employee must be looked at (at [48]).

The Magistrate noted the Applicant’s difficulty was that “[t]he law now requires every individual contract be looked at and the number of hours to be worked over 38 to be assessed as reasonable or not” (at [57]). The Magistrate, having looked at all the factors, said he found that the new rosters provided significant benefit to the employer justifying additional capital investment in machinery with the consequent preservation of jobs for its permanent employees. As a consequence, he did not find the imposition of the hours unreasonable upon the employee (at [61]). He found however that no appropriate consultation had taken place. He found that consultation was no empty term and replaced a responsibility to give those consulted an opportunity to be heard and express their views so that they may be taken into account. He cited the decision of Justice Toohey in TVW Enterprises Limited v Duffy (1985) 60 ALR 687 at 694.

Having so decided, he then dealt with the question as to whether the company had breached ss 691A and 691B in relation to the prohibition of unauthorised stand downs.  He looked at the stand down provision in the relevant industrial instrument which could only be operative in relation to persons not being able to be employed on productive work because of an industrial dispute or machinery breakdown. In all the circumstances, the Magistrate found that Mr MacPherson did not fall within the provisions of the industrial instrument nor within the provisions of s 691. Under the Fair Work Act 2009, the relevant sections are ss 522–524 where stand downs are able to be only used in certain similar circumstances.  The Magistrate found that what happened to Mr MacPherson was in effect an unauthorised penalty imposed upon him by his employer for Mr MacPherson’s refusal to perform work in accordance with the new roster. The Magistrate found that what the company had done in breach of s 691B was in effect a suspension which it was not entitled to do. He relied upon the Federal Court decision in AWU v Stegbar Australia Pty Ltd [2001] FCA 367 at [24] and also PSA v Macquarie Generation re Suspension of PSA Delegate [2003] NSWIRComm 9.  However, the Magistrate said that in relation to the imposition of a penalty which he would hear the parties on, he did not believe it was appropriate to do so, keeping in mind that the company’s direction in relation to the new roster was lawful and Mr MacPherson was wrong in refusing to work a full shift although he said he maintained an open mind on the matter.

This is a useful exploration of these two provisions which will have continued effect under the new Fair Work regime.