Reduce Rest Breaks
Reduce Rest Breaks
An employer has been refused permission to amend its fatigue management procedures to reduce the number of rest breaks per shift, because it failed to obtain unanimous agreement from a cross-section of workers.
Queensland Supreme Court Justice Ann Lyons rejected the mine employer’s application for the Court to declare that a majority agreement was sufficient, and said it was particularly important that provisions relating to fatigue “will not change without the express and unanimous agreement of the mine workers”.
In 2014, Anglo Coal started reviewing the personal fatigue procedures at its Capcoal Surface Operations Coal Mine, and sought to reduce the number of workers’ rest breaks from three to two per 12.5-hour shift.
The decision was supported by a majority of workers in a ballot, and a draft update of the personal fatigue procedures was approved by all but two members of a cross-section of 19 workers.
The mine’s site senior executive (SSE) implemented the changes, but after a health and safety representative complained to a mines inspector, the issue was put to a further cross-section of 30 workers, and six disagreed with reducing the number of rest breaks.
The inspector informed Anglo Coal that it needed unanimous support from the cross-section before amending the policy, and the employer applied to the Supreme Court to declare that an agreement had been reached with its workers.
Under s42 of the State Coal Mining Safety and Health Regulation 2001, fatigue management procedures must be developed and implemented through consultation with workers, and must comply with s10 of the Regulations, which states that an SSE can’t implement a draft standard procedure unless a cross-section of workers agrees with it.
The employer argued the objectives of the provisions didn’t require unanimous agreement, and that if unanimity was obligatory then the Regulations would “require the SSE to consult with all the workers and not simply a cross-section”.
It submitted it was “absurd and unreasonable” for unanimity to be required because it could lead to an “unending loop” if a “minority of the cross-section will not agree”.
The SSE would be “continuously obliged” to obtain further information, consult with workers and update drafts, which would “frustrate the statutory objects of the Act”, it said.
But Justice Lyons said this submission was based on the presumption that “there will be no change of position as a result of consultation and negotiation, whereas that is the very process the regime encourages”.
She said the consultation requirements were meant to “deliberately exclude the powers of the SSE to overrule any disagreement coal mine workers have in relation to provisions about personal fatigue management because of the paramountcy of safety”.
“Whilst s10(1)(d)(ii)(C) allows the SSE to effectively override disagreements in some circumstances with respect to standard operating procedures, there is no doubt that s42(6) limits that ability by clear words with respect to fitness provisions,” she said.
Justice Lyons added that the need for unanimous agreement was clear “given that it is only a cross-section of workers who are required to be consulted, and not all workers”.
“Put simply, the process needs to continue, more than once if necessary, until agreement is reached,” she said in rejecting the employer’s application.