Mine worker questioned over time spent in ute
WAS he asleep or just bludging?
That's what the Fair Work Commission has to decide when considering whether BHP has unfairly punished a central Queensland mine worker.
Brice Little was sanctioned for allegedly sleeping during a shift, which he denies, and which is also a breach of the company's fatigue management policies.
But if it's found he was awake and just not working, the decision to sanction him could be ruled as unfair.
Mr Little and the Australian Manufacturing Workers' Union have approached the Fair Work Commission to deal with the dispute, which revolves around a night shift at a BMA mine on April 21.
During the night "it was all hands on deck" to fix a dragline, as deputy president Ingrid Asbury stated at the subsequent Fair Work Commission hearing on November 14.
While the breakdown crew of eight tried to fix the dragline before the shift ended, Mr Little was reclined at 45 degrees in the passenger seat of his ute, in a dark spot away from the floodlights, listening to the radio, the hearing was told.
He had taken his 30-minute crib break in his ute at 3.50am but had stayed there until he was found by his supervisor, Robert Schluter, at 4.45am.
Mr Schluter said Mr Little was asleep. Mr Little said he wasn't.
Mr Little was given a Step 3 final warning and a 14-day unpaid suspension.
It was that penalty that prompted the challenge by Mr Little and the union through the Fair Work Commission.
During the hearing Mr Little was asked no fewer than five times by BHP's legal representative if he was asleep. He denied it each time.
However, during the hearing, Mr Little admitted to being found in the same position in his ute in August 2015 by his then supervisor Louis Elson.
Mr Elson claimed Mr Little was asleep at the time. Mr Little denied it, but he was given a Step 2 warning.
Mr Little explained that he would sit in his ute waiting until a job was given to him through his two-way radio and that was what he was doing on April 21.
"Whenever I don't have any work on, I sit in the car and wait for a call," he told the Fair Work Commission hearing.
"That's what I do day to day - every shift. If there's no work on, that's what I do, I sit in the car and wait for a call."
His supervisor, Mr Schluter agreed Mr Little did that but said on shifts where it was busy, Mr Little shouldn't need jobs to be radioed through.
"I didn't give a specific task, but he's a good fitter..." he said.
"Even outside, I walked around outside afterwards, got guys to get the cranes, get the bins, because technically it was scheduled to finish on our shift.
"So, yes, there was plenty of work for a guy with Brice's experience to help out."
The AMWU's legal representative asked why Mr Schluter had sent Mr Little back to work if Mr Little was fatigued.
"You don't have to be fatigued to sleep, no," Mr Schluter said.
He was asked why, if Mr Little wasn't fatigued, he was being punished for not following the fatigue policy.
"I suppose to clarify, I haven't been involved in the decision making process. I gathered the evidence. I found Brice asleep, in my statement, and we went through our process from there," Mr Schulter said.
In the AMWU representative's closing statement he said "Mr Little was not asleep or suffering from fatigue during the shift on 21 April 2016. The evidence of Mr Little is clear, that he was alert and responsive when Mr Schluter approached. This clearly indicates that Mr Little was awake and not suffering from fatigue. It is also acknowledged by Mr Schluter that it is normal for Mr Little to have his break in the vehicle. Nothing should be read into that."
While the BHP representative closed by saying "the crux of my submission is that you would conclude based on the changes in Mr Little's evidence, the circumstances in which he was in in the ute, plus his previous history, to form the conclusion that you would accept Mr Schluter's evidence over that of Mr Little in relation to the sleeping aspect. Once you have got through that step, you need to decide whether being asleep in the car was a breach of the fatigue management policy and I have already made submissions about why I say you would draw the inference that he was fatigued because he was sleeping off break when no one is around in a darkened area when everyone else is working."
Ms Asbury questioned why fatigue was the main issue.
"If the show cause letter said, on the one hand, 'Here's our fatigue policy and if you were asleep in that ute, you've breached it because you didn't report you were fatigued and you didn't, you know, assess the risk that your performance could be adversely affected'," she said.
"Or in the alternative, you were having a bludge in the ute when you should have been on the job fixing the dragline and in these circumstances it was completely unreasonable for you to be sitting in the ute when everybody else was down there all hands on deck.
"While I accept that there may be some substance in the conduct, the difficulty I'm having is the show cause doesn't seem to be consistent with what the real complaint is."
"Well, if you weren't fatigued, then the disciplinary issue is not the breach of the fatigue policy. The disciplinary issue is you should have been down working on the dragline."
Ms Asbury reserved her decision for the future and adjourned the matter indefinitely.