Fair Work Commission overturns ruling, employers will not have to pay R&R for FIFO construction workers
Fly-in fly-out (FIFO) construction workers have lost their bid to have some of their rest and recreation (R&R) leave paid as annual leave.
The ruling by the full bench of the Fair Work Commission (FWC) has been welcomed by industry and employer groups.
But the Construction, Forestry, Mining and Energy Union (CFMEU) says it will pursue the issue through the Federal Court.
It’s effectively like a normal salaried person who works five days a week and then takes two days off that are not paid.
Dedidre Willmott, CEO, Chamber Commerce Industry, WA
The full bench of the FWC overturned a recent finding by lone commissioner Michelle Bissett that FIFO workers, given notice when on their time off, should have that period paid out as annual leave.
The ruling was in relation to an incident on the Ichthys LNG project in Darwin when construction workers were told the job had finished a day before they went on R&R.
The full bench upheld the finding which dealt specifically with that case, which was in response to a complaint brought by the Electrical Trade Union, against Kentz Australia.
But it found that on other existing and new projects, employers are able to give notice of the end of a building contract that runs concurrently with a period of R&R.
Industry employer body AMMA and the Chamber of Commerce and Industry of Western Australia lodged the successful appeal.
Chamber CEO Deidre Willmott described the outcome as a common-sense ruling that supported a long standing industry practice.
Diedre Wilmott, Chamber Commerce Industry WA. Mick Buchan, CFMEU. Fair Work Commission over rules previous finding on FIFO construction worker rec leave pay
“Rather than have an annualised salary paid per week during the time that a (FIFO) worker is employed, it’s compressed into the four week period when that person works,” she said.
“So they get paid for the four weeks they work, including any penalties and overtime that might apply during that period for working on weekends and the like, and then get one week of leave which is unpaid.
“It’s effectively like a normal salaried person who works five days a week and then takes two days (weekend) that are not paid.”
CFMEU to pursue back payments for FIFO construction workers
When the original ruling by Commissioner Bissett was handed down, unions wrote to employers on major construction projects in the resources sector to say they would be seeking back-pay for workers.
Although the FWC has now ruled R&R not be treated as an annual leave entitlement when construction contracts come to an end, the CFMEU plans to continue to push for those payments.
Western Australian State Secretary Mick Buchan says conditions for FIFO workers on major construction projects means they should be treated as an exceptional case.
“Those workers are away from their families for one month at a time and then they end up with one week R&R,” he said.
The (FWC) finding betrays the whole spirit of the wording of the Fair Work Act legislation.
Mick Buchan, WA state secretary, CFMEU
“Well, it takes two or three days for them to recover and get back into their community, then they have a few days off before they head back.
“It’s a very hard work cycle, and the finding (that employers are entitled to give those workers notice of retrenchment when they’re going on, or are already on R&R) betrays the whole spirit of the wording of the Fair Work Act legislation.
Mick Buchan said the CFMEU will ‘leave no stone unturned’ in pursuing payments for FIFO construction workers.
“We’ve got other options we’re looking at,” he said.
“We’re in the process of obtaining legal advice within the Federal Court, to run a case there and get that opinion.
“And we believe that we’ve got evidence to give us a favourable outcome.”