T8240
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Goldamere Pty Ltd trading as Australian Bulk Minerals and The Australian Workers' Union, Tasmania Branch
Industrial dispute - conditions of employment - day workers - pay variations - recommendation made REASONS FOR DECISION This was an application for a dispute hearing made under section 29(1) of the Industrial Relations Act 1984 (the Act) by the Australian Mines and Metals Association (Incorporated) (the Association) on behalf of Goldamere Pty Ltd trading as Australian Bulk Minerals (the Company) which mined and concentrated iron ore at Savage River and made pellets from the concentrates at Port Latta. The Company was in dispute with the Australian Workers' Union, Tasmania Branch (the Union) over pay variations which had occurred for some employees of the Company over a period of about four to five weeks in late 1998 and early 1999. Previously the Company had contracted with another Company, Henry Walker Contracting Pty Ltd (Henry Walker), to carry out all the operations on its behalf at Savage River and Port Latta. In November/December 1998 the Company ended its contract with Henry Walker for some of the operations and itself took over responsibility for those operations. It was at about the time of this changeover that certain employees' wages were unilaterally increased and then 4-5 weeks later they were unilaterally reduced back to the original amount. In essence the Union claimed that once the increase had occurred the Company was bound to continue paying the higher rate. The Union also claimed and indeed produced in evidence copies of forms of appointment, in which the Company had nominated the higher wage to the employees concerned when it took over responsibility for their employment from Henry Walker. The Association said the payment of the higher wage had been a mistake and when this was realised the higher payment had been stopped. The Union would not accept that a mistake had been made. The Association advised the Commission and confirmed with the Union that the extra monies paid would not be claimed back, but, submitted that legally because of the genuine mistake the Company was not bound to pay the higher wage and it could have recovered the amounts overpaid. The Commission was advised that for the purpose of this dispute there were two groups of workers at the Company's operations in Savage River and Port Latta where the employees concerned worked; there were continuous shift workers on day shifts only and continuous shift workers rotating on day and night shifts, the latter group, because of the day and night rotating factor, were paid a higher rate. The alleged mistake occurred when the changeover of employer companies took place and the day only shift workers were paid at the higher (rotating day and night) shift workers rate for some weeks. The Union also pointed out that, when the employer companies changed over in December 1998, the formal agreement between the parties, registered with the Commission in Matter T8101 of 1998 (the changeover agreement) which preserved the status quo in so far as the wages and conditions of the employees were concerned did not differentiate between the two kinds of shift workers and therefore, the Union submitted, the payment of the higher rate should continue. Prior to the hearing the parties agreed to accept a recommendation from the Commission in settlement of the dispute. It will be noted that there are a number of factors in this dispute which I have chosen to disregard, this is because I do not consider they have any bearing on the main factors or industrial principles to be decided upon. For example, at the time the alleged overpayments were made, Henry Walker, being no longer the employer, was still administering the payroll for the Company. Also, when the employees transferred from Henry Walker to the Company the intention and the spirit of the changeover agreement was for all the employees concerned to do so without any loss in benefits and entitlements whatsoever. DECISION I accept that a mistake was made by the Company and in such circumstances it is well established that the Company is not bound to perpetuate the mistake. I am satisfied also that, apart from the mistake, it was the accepted practice at Savage River and Port Latta for the rotating day and night shift workers to be paid a higher rate than the day only shift workers. It is true that when the changeover of the employer companies took place the Company confirmed with the employees concerned by letter that they would be paid at the higher rate, but, I accept that also was a mistake and should not be held against the Company. It is also true that the changeover agreement made no differentiation between the two types of shift workers, however as mentioned before, I am satisfied there was a difference recognised on site and reflected in the higher pay rate for rotating day and night shift workers. It is obvious that the dispute was exacerbated firstly by the failure of the parties to ensure that the changeover agreement correctly described the two different shift worker categories and secondly by the unfortunate mistake of the Company in wrongly advising some of its employees of their continuing pay rates. I recommend that both failures be rectified: in this context it may be as well that the Company (certainly within its discretion) chose not to seek to recover the monies it overpaid. For these reasons I recommend to the parties that the differentiation between the rotating day and night shift workers and the day only shift workers be maintained and reflected in the pay rates as it was prior to the changeover of employers.
P A Imlach Appearances: Date and place of hearing: |