An interview with Victorian RTBU Secretary Luba Grigorovitch by Tom Elliott raised some very interesting issues, and did a wonderful job of muddying the waters. Keep listening to the end for Tom Elliott’s entirely unprofessional “parting shot” at Luba in reference to “Talking over people” (Never mind his disrespectful and rude interruption at 4:11)
A lot of confusing language was being used such as ‘Work Stoppages’, ‘Partial Work Bans’ etc.
See our article What the Victorian Railways Industrial Action Could Mean For You for a list of the applied for Industrial Actions.
Tom Elliott read out a statement from Metro Trains Melbourne stating: “We are required by law to deduct pay from employees in accordance with subsection 470 and 471 of the Fair Work Act 2009 when employees participate in Industrial Action the amount of pay docked depends upon the portion of the employees role that is not being performed by the action being taken, this is not a threat this is a matter of complying with the law.”
“We are required by law to deduct pay from employees”
(1) If an employee engaged, or engages, in protected industrial action against an employer on a day, the employer must not make a payment to an employee in relation to the total duration of the industrial action on that day
(2) However, this section does not apply to a partial work ban.
(3) A partial work ban is industrial action that is not:
(a) a failure or refusal by an employee to attend for work; or
(b) a failure or refusal by an employee who attends for work to perform any work at all; or
(c) an overtime ban.
So… Under Section 470 the Employer is REQUIRED to deduct pay for Industrial Action taken on a day, HOWEVER it does not apply to “Partial Work Bans”.
So long as an employee attends work and performs work (and it is not an overtime ban) then it is a Partial Work Ban.
Most of the RTBU’s proposed actions come under the broad heading of a Partial Work Ban.
Non uniform, refusal to issue Report of Non-Compliance, etc are Partial Work Bans.
Therefor Section 471 applies:
Section 471 of the Fair Work Act 2009 has provisions for an employee not to be paid provided that the employer issues notice stating the percentage of work that is not being performed and the percentage of wages deducted.
NOWHERE in Section 471 does it state that the Employer MUST deduct wages.
Metro’s statement that they are “Required by law to deduct payment” is a blatant and outright lie and they should be held accountable for that
(1) A person must not knowingly or recklessly make a false or misleading representation about:
(a) the workplace rights of another person; or
(b) the exercise, or the effect of the exercise, of a workplace right by another person.
For Metro Trains Melbourne to issue this statement publicly is a blatant middle finger salute at the Rule of Law in Victoria and the duties and power of the Fair Work Commissioners.