The unions are gearing up to reclaim millions of dollars’ worth of benefits lost in redundancy loopholes, with a new precedent set by the Fair Work Commission.
Last week the ETU lodged a complaint with the Fair Work Commission on behalf of 150 retrenched FIFO workers from the INPEX Ichthys project, who were denied their final week of pay by principal contractor Kentz.
On Wednesday the FWC upheld the complaint, finding in favour of the ETU and stating that in providing payment in lieu of notice, an employer cannot give notice that runs concurrently with a period R&R, with the effect of the worker’s final week being unpaid.
The Commission has ordered Kentz Australia to pay the full period of notice to workers, a decision worth more than $1 million.
Commissioner Bissett said that R&R is a benefit provided under the Agreement as part of the bargain between the parties to the Agreement.
“That benefit would be lost without recompense if notice, a different benefit, could override it,” Bissett said.
“Certainly the Agreement does not say notice cannot be served concurrent with a period of R&R but there are many other things the Agreement does not say – this cannot mean they are permissible.”
Chamber of Commerce and Industry of Western Australia (CCI) CEO Deidre Willmott spoke against the Fair Work Commission decision.
“This decision will have significant ramifications for the industry,” Ms Willmott said.
“When major resource and construction projects are completed some roles are no longer required.
“This was a case of the union fomenting trouble at one workplace at the expense of Australia's reputation as a place to do business."
ETU secretary Les McLaughlan said the precedent would be used not only to claim wages for ETU members on the Ichthys project, but also for thousands of other workers from other resource projects over the past six years who had been fired under similar circumstances, as it was the standard practice to run notice and R&R concurrently.
It’s understood the AMWU and CFMEU are also planning to use the ruling to seek payment for their members.
CFMEU secretary Mick Buchan said the union has written to every major project.
“We will be working over the coming weeks and months to make sure that every cent owed to workers is paid,” he said.
“This victory will not only see these 150 electricians receive additional payment, but it now opens the door for thousands of other FIFO workers who have been denied notice pay in breach of minimum conditions on resource projects in WA,” he said.
“The FWC’s decision puts resource companies and their contractors on notice that they can’t disregard the legal entitlements of FIFO workers.
“Rest and recreation leave is a hard-earned entitlement and the purpose of a notice period is to give workers the chance to look for a new job.
“Thousands of WA employees have been denied this right and had thousands of dollars stripped from their pay at the very time they need it the most.”
Kentz Australia is now considering its options, with 28 days from Wednesday to appeal the decision.