PR937826 AG812145 PR937826 Download Word Document AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Workplace Relations Act 1996 s.170LW application for settlement of dispute The Australasian Meat Industry Employees Union and Oakey Abattoir Pty Ltd (C2003/5254) Meat industry COMMISSIONER BACON BRISBANE, 12 SEPTEMBER 2003 Payment of lost wages. DECISION [1] This matter relates to an application made pursuant to s.170LW of the Workplace Relations Act 1996 (the Act). The applicant is The Australasian Meat Industry Employees Union (AMIEU) and the respondent is Oakey Abattoir Pty Ltd (Oakey). The application seeks a recommendation from the Commission that certain employees be paid for the 26 minutes that such employees "stood back from their workstations" on 28 July 2003. [2] Much of the factual background to this application is not contested. Oakey is an abattoir that operates two chains. A number of employees (Boners, Slicers, etc) are paid by piecework arrangements. The Oakey Abattoir and AMIEU Certified Agreement 2001 (the certified agreement) contains a provision that there will be a balance of work between the two chains. [3] On 28 July 2003 the employees felt that there was an imbalance of work between the two chains. It was the employees' perception that larger sides of beef were constantly being sent down one chain. [4] This complaint was raised with a Supervisor who referred the relevant employee's representative to another more senior (in length of years in the position) Supervisor. The employee's representative suggested that whilst the matter was investigated the chains should be slowed (or stopped). At the end of this conversation the employee's representative gained the impression that the employees' complaint had been dismissed by Oakey. This is contested by Oakey, who contends that the Supervisor went to the Tally Clerk in order to investigate whether or not there was an imbalance between the sides of beef being sent down each of the chains. [5] At about the time the conversation between the employee's representative and the Supervisor was ending, the employees, believing that Oakey had dismissed their complaint, or on the ground that they believed Oakey was not taking appropriate steps (of stopping or slowing the chains) stood back from their workstations and ceased processing the carcasses. This caused meat to back up and resulted in the stopping of the chain (or chains). Twenty six minutes of production time was lost. [6] It is said by the AMIEU that in subsequent discussions with senior management an undertaking was given that the chains would not be operated in the way that they were on 28 July. When the chains were restarted on 28 July the chains were operated in the way contended for by the AMIEU. Oakey does not concede that there was an imbalance of work between the two chains in the morning in question. Oakey contends that its records reveal that the difference between the two chains was about an average of 11kg per carcass and that this was well within the normal parameters and would not activate or require Oakey to have taken any action. [7] AMIEU is of the view that it was correct to raise the issue with Oakey and that ultimately Oakey agreed with the AMIEU's position and that Oakey could have and should have (at least) slowed the chain until the employees' grievance was resolved. Further, the AMIEU believe that it was Oakey's refusal to take the appropriate step to slow the chain quickly enough that provoked the employees to step back from their work stations. Accordingly, the fault for the loss of production lies at Oakey's feet and not the employees' and therefore the employees should be paid "waiting time" for the period during which production ceased. [8] There is no doubt that the employees were entitled to raise their grievance regarding the perceived imbalance between the work of the two chains on the day concerned. Having raised that matter the employees were entitled to have that grievance properly investigated and responded to in a timely manner. The issue here is whether Oakey acted improperly in refusing to slow the chain immediately the grievance was raised or whether Oakey took too long to investigate the grievance without first (at least) slowing the chain. It is claimed by the AMIEU that Oakey deliberately delayed acting on the grievance as the run of bodies that were the subject of the "imbalance" grievance would have been completed before the grievance had been resolved as this would have been detrimental to the employees. [9] Oakey contends that the employees should not have "stood back" from their workstations whilst the grievance was investigated. It is said that the employees' actions constituted industrial action and this industrial action was taken to apply pressure to Oakey to concede to the employees' claims. It is said that the industrial action was taken in breach of the disputes procedure in the certified agreement. [10] The Commission has considered the circumstances of this matter and concluded that it would be inappropriate to make a recommendation that the employees be paid for the 26 minutes that they stood back for their work stations. Such an action is industrial action within the meaning of that term contained at s.4 of the Act. True it is that the employees became frustrated at what they believed to be Oakey's inaction in approving a slowing of the chain pending a decision in relation to their grievance. There is no agreement regarding the speed at which the chain should operate when such a grievance is raised. [11] Given Oakey's decision, the employees were left with no option but to continue to work at the normal chain speed until the grievance was resolved. The employees decided that this was unfair and ceased work. There is no legal basis on which they can rely to support the cessation of work. Rather the employees rely on an equity argument that it was unfair to them to continue work at the normal chain speed whilst the grievance was investigated. [12] There is no legal obligation on Oakey to stop or slow the chain whilst the grievance was investigated. Oakey acted within its legal rights. For the reasons previously outlined, the employees thought Oakey's decision to be unfair. In response to Oakey's decision the employees took industrial action. A decision to take industrial action in such circumstances carries a consequence that wages and production are lost for the period of the industrial action. In this case there is no compelling reason to interfere with that outcome. Indeed it is my view that to recommend payment for the employees would produce an unfair result to Oakey. It did nothing that is inconsistent with its obligations under the certified agreement and/or the award. The employees wanted a different outcome and took industrial action to impose their outcome on Oakey. Both sides lost as a result. As far as the Commission is concerned that result should remain. [13] It seems appropriate that the parties should agree the rules for dealing with similar circumstances should they occur in the future. Any such agreement should by way of amendment to the certified agreement. BY THE COMMISSION: COMMISSIONER Printed by authority of the Commonwealth Government Printer <Price code B>