FIFO workers hopes have been quashed in court after the Fair Work Commission ruled recreation leave would not be included in termination notices.
Earlier this year the Electrical Trades Union launched legal proceedings against against Kentz Australia over practices said to avoid paying 150 redundant FIFO workers their final week of employment.
The company employed a standard practice of giving notice to redundant workers on the day before their rostered week of unpaid leave, thereby avoiding paying each worker for a week in lieu of notice.
The union argued it was not permissible for Kentz to either attempt to have the period of notice run concurrently with a period of rest and recreation, or to reduce payment in lieu of notice because of a period of rest and recreation.
It estimated that around 1500 workers at Ichthys were retrenched in a way that avoided their employer paying out the final week of notice.
The workers have won their initial battle as it was found that their Enterprise Bargaining Agreements (EBA) included clauses that stated R&R was a form of leave.
“The workers will be paid the entitlements,” ETU spokesperson Lachlan Williams said.
“This is a legally complex case where there are jurisdictional and technical points at play,” ETU national legal officer Michael Wright added.
“The upshot of today’s decision is that Kentz will be required to pay more than 150 workers the wages they are owed under their agreement.”
However the ETU’s wider case to recognise R&R as a form of leave has been quashed after the FWC upheld the practice itself, despite the initial decision in February which found that Kentz had failed to give redundant workers enough notice when it demobilised them from the Ichthys project.
Williams stated that win was only applicable in instances such as these where there clear delineation of R&R in the EBA, adding that the ETU will fight for workers who have experienced the same demobilisaton practice where their EBA contains similar clauses.
Resource industry employer lobby group, the Australian Mines and Metals Association (AMMA), welcomed the wider R&R decision.
“A Full Bench of the FWC has today upheld the longstanding practice in the resource industry whereby employers can give employees notice of demobilisation that runs concurrently with a period of R&R,” AMMA legal director Amanda Mansini stated.
“Resource employers welcome the FWC confirming on appeal that R&R is akin to weekends and is not a special kind of leave. The erroneous implication of the original decision was that employees should be paid-out for their R&R time if it falls within notice of their demobilisation.”
Mansini went on to state that “any argument that R&R is an entitlement that must be paid-out is fundamentally flawed. It fails to take into account the unique work practices of large-scale remote resource projects and long standing practices when project work comes to an end”.
“The union line being argued here is like expecting to be paid-out for the weekend when your job finishes on a Friday afternoon.
“That logic wouldn’t wash with employees working a standard Monday-Friday job, and thankfully it hasn’t washed with the Full Bench of the Fair Work Commission.”