DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Construction, Forestry, Mining and Energy Union
v
BHP Coal Pty Ltd
(C2014/3084)

Application to deal with a dispute - Application of clause 32 of the Agreement in relation to redundancy - Obligation to consult - Finding that BHP has not met obligations to consult in relation to redundancies - Order issued.

BACKGROUND

[1] This decision arises from a dispute between the Construction, Forestry, Mining and Energy Union - Mining and Energy Division (CFMEU) and BHP Coal Pty Ltd (BHP) in relation to the implementation of redundancies. The CFMEU has made a number of applications to the Fair Work Commission (the Commission) asserting that BHP has not met its obligations under the Agreement to consult the CFMEU and Employee representatives about the redundancies and their effect. Conferences of the parties have been conducted on 21 February and 6 March 2014. Processes put into place at those conferences for the provision by BHP of further information in relation to the redundancies, have not resolved the dispute.

[2] The application subject of this decision was listed for mention on Thursday 20 March 2014 following correspondence from the CFMEU dated 17 March 2014 stating:

“The Applicant respectfully requests that a listing be set aside for this matter as a matter for conciliation, and if necessary arbitration.

In respect of the urgency of this matter the Applicant notes that the Respondent has provided a notice that it intends to dismiss a large number of employees starting the week of 24 March 2014 (next week). ...

The decision of the Respondent to dismiss the employees by way of voluntary redundancy is contrary to the consultation obligations contained in clause 32 of the Agreement. The Applicant is seeking ... orders by either agreement between the parties or by way of arbitrated determination. The Applicant has today written to the Respondent requesting their agreement in relation to the matters covered in the proposed orders. However, the Applicant respectfully requests that the Commission provide a precautionary listing for later this week.”

[3] The matter was listed for mention on 20 March 2014. The parties tendered a significant amount of material and Directions were issued for further material to be filed and served. BHP indicated that it intended to accept applications for voluntary redundancy on Tuesday 25 March 2014. Given the urgency of the matter, it was listed for hearing on Monday 24 March 2014. Evidence in support of the application was given by Mr Chris Brodsky, District Vice President of the CFMEU. Evidence on behalf of BHP was given by Ms Leonie Anne Carlile, Manager Human Resources at the Saraji Peak Downs Mines.

[4] The hearing concluded at 6.00 pm on that date and an ex tempore decision and Order were issued at 7.30 pm. An edited version of that Decision is set out below. I also indicated that the ex tempore Decision was necessarily brief, and that I would issue a written Decision containing more detailed reasons as soon as possible.

THE DECISION OF 24 MARCH

[5] The CFMEU applies under s.739 of the Fair Work Act 2009 (the Act) for the Commission to deal with a dispute in accordance with the dispute settlement procedure in the BMA Enterprise Agreement 2012 (the Agreement). The dispute relates to the planned implementation by BHP of voluntary redundancies at the Saraji Mine.

[6] On 7 February 2014, BHP announced that it would reduce its workforce at the Saraji Mine by a total of 230 positions. The number of positions included employees covered by the Agreement, staff and employees of contractors. BHP also announced that the mechanism it would use to reduce the numbers of employees covered by the Agreement would be voluntary redundancy. The Company called for Expressions of Interest in Voluntary Redundancy and issued information packs to employees for the purpose of expressing interest in Voluntary Redundancy. A process was put into place whereby employees who had expressed interest were invited to make an application for voluntary redundancy. As at 24 March 2014, BHP has received some 90 applications and intends to accept those applications.

[7] The CFMEU contends that BHP has not complied with the terms of the Agreement. The essence of the CFMEU’s complaint is that BHP has failed to identify the surplus employees with sufficient specificity so that consultation could occur about the means of minimising redundancies and the effect of the redundancies on employees, in accordance with clause 32.1 of the Agreement.

[8] The issue in dispute is whether BHP has complied with the terms of the Agreement in relation to the process it has followed in deciding to invite expressions of interest from Agreement covered employees for voluntary redundancies, and to accept applications from those employees for voluntary redundancy.

[9] The relevant Agreement provisions in relation to Redundancy are found in clause 32. Other clauses relevant to the dispute are:

Clause 7 - Contractors

Clause 15 - Consultation on Major Workplace Change;

Clause 31 - Security of Employment;

Clause 38 - Employee Representatives;

Clause 41 - Functional Work Areas;

Clause 47.1 - Defined terms - “Consult” or “Consultation” and “Employee”.

Those clauses are set out in full in Annexure A to this Decision.

[10] The disputed clause 32 must be read in the context of the terms of the Agreement as a whole. The focus of the redundancy provisions is on protecting the position of permanent employees of BHP including those who are to be made redundant and those who are to remain in employment. This is apparent from clauses 31 and 32 of the Agreement, which are directed at ensuring that where there is a surplus of employees, forced redundancies are the last option.

[11] The obligation to consult in clause 32.1 of the Agreement is triggered where a surplus of permanent employees arises at the mine during the life of the Agreement, and that surplus cannot be addressed through natural attrition. There is no requirement for BHP to consult with Employees and their Employee Representatives before forming the view that there is a surplus of employees and that the surplus cannot be addressed by natural attrition. I accept the submission of BHP that those matters are within the prerogative of the Company and are not matters that it is required to consult about or reach agreement in relation to.

[12] The ordinary meaning of the term “surplus” is the amount left over when requirements have been met. Thus, when BHP identifies a surplus and the possibility of the need to reduce that surplus by way of redundancies, the obligation to consult employees is triggered. The term “surplus” relates to permanent Employees as defined in clause 47.1 and means persons employed by BHP who are covered by the Agreement. The term specifically excludes contractor or labour hire employees. The term “surplus” is relevant to both employees who are in the group that is in excess of requirements, and those within the group who are still required to be employed.

[13] Consultation must be about the possible need for redundancies and the means of minimising their effect. Clause 32.1 does not distinguish between voluntary and forced redundancies. The possible need for redundancies and their effect relates to both the circumstances of employees who may volunteer for redundancy and those who will remain in employment. In particular, I accept that the composition of the workforce which will remain after the redundancies are implemented and the units which comprise that workforce is of vital concern to persons who will remain in employment.

[14] In the present case, I do not accept that there was a basis for proper consultation. This is because insufficient detail was provided about the surplus of permanent employees and the structure that will remain after the surplus is removed, to enable consultation to take place in the sense that employees were given a genuine opportunity to influence and inform the decision making process about the significant issue of the composition of the workforce after the redundancies are implemented.

[15] I accept that some information in this regard was provided on 10 March 2014 and thereafter. However, I also accept Mr Brodsky’s evidence that this was not sufficient to enable proper consultation to occur in the sense of the definition in clause 47 of the Agreement. Indeed, the final number of surplus employees was not known until the afternoon of Friday 21 March 2014. I am unable to accept that any proper consultation about the minimisation of redundancies could have occurred in the absence of final numbers of volunteers that would be accepted.

[16] The lack of sufficient detail to inform consultation is a matter that Employee representatives and the CFMEU have raised consistently. BHP has been on notice since at least 17 February 2014, when this dispute was notified to the Commission, that it is proceeding with voluntary redundancies in circumstances where the CFMEU as a party to the Agreement, and Employee Representatives, maintained the position that the process BHP is following is not consistent with the terms of the Agreement and BHP’s obligations under it.

[17] I am satisfied that BHP has not complied with the terms of clause 32.1 with respect to its obligations to consult with Employees and their representatives. I am also of the view that BHP was obligated to consult the CFMEU and has not complied with that obligation.

[18] The making of Orders of the kind sought by the CFMEU is discretionary. Factors in favour of making an Order in the present case are that the terms of the Agreement have not been complied with in relation to consultation and BHP should not be permitted to continue down the path it has adopted, unless and until it has complied with the terms of the Agreement.

[19] In relation to the other matters that BHP submits should result in the Commission deciding not to make an Order, there is no evidence that any volunteer will suffer prejudice as a result of a short delay in the implementation of voluntary redundancies. There is also no evidence that any volunteer has time critical considerations that would necessitate his or her circumstances being given special consideration. If there are such persons then the terms of the Order can be revisited to take account of any special circumstances.

[20] A failure to make an Order will prejudice employees who are to remain in employment. This is because once the volunteers cease employment, any discussion about the composition of crews or work groups will be limited. As a result, there will be no capacity to put employees who are to remain in employment in the position that they would have been in had consultation occurred as required by the terms of the Agreement.

[21] Balanced against these considerations, is the fact that if the CFMEU had a problem with the detail that was provided by BHP about the composition of the crews after the redundancies were effected, that problem should have been apparent from at least 11 March 2014 or shortly thereafter. I am also conscious that further consultation may be an exercise in futility, as BHP has resolved to accept all volunteers, and there is no requirement that consultation should lead to a change in that position.

[22] However, the right to be consulted is a significant right and in circumstances where the terms of an enterprise agreement have not been fully and properly complied with, I am of the view that on balance, an Order should be made.

REASONS FOR NOT ACCEPTING SOME OF THE SUBMISSIONS OF BHP

The Commission should exercise discretion not to arbitrate and decline to do so

[23] This submission is based on the contention by BHP that the CFMEU has no right under clause 32.1 to be consulted and that only “Employees” and “Employee Representatives” as defined in clause 47 of the Agreement have such a right. BHP also contends that it will not act unilaterally to “dismiss” any volunteer and that a voluntary redundancy is a consensual termination. In such circumstances, BHP contends that the Commission should not arbitrate the dispute because it would frustrate the choice made by the volunteers.

[24] I do not accept this submission. By virtue of clause 1.1(c) and s. 183 of the Act, the Agreement applies to the CFMEU, and other named unions, referred to in clause 1.1 as the Parties to the Agreement. The Dispute Settlement Procedure in clause 37 of the Agreement, under which the present application is brought, states that the intention of the Parties is that disputes arising under the Agreement will be dealt with in accordance with that clause. The Dispute Settlement Procedure contemplates that District Officials of the relevant Union may become involved in the progressing of disputes, and does not preclude the involvement of State officials of the Union Parties (refer clause 37.10). At clauses 37.17 and 37.18 reference is made to the “party” or “parties”, which include the union parties identified in clause 1.1(c) of the Agreement.

[25] The relationship between Employee Representatives and the CFMEU (and other Union Parties) is also explicitly recognised in clause 38.2 which provides that Lodge Officers and Delegates of each Union, upon written notification to BHP, are required to be duly recognised as Employee Representatives at the mine at which they are employed.

[26] In the context of the Agreement, I am satisfied that the rights and obligations in relation to consultation in clause 32 of the Agreement pertain to the CFMEU and its Lodge Officers and Delegates, and that the Union has standing under the Agreement to make the present application.

[27] It is also the case that BHP formally notified the CFMEU of proposed dismissals, in relation to the employees who have accepted voluntary redundancies. Although this notification was said to have been provided out of an abundance of caution, it indicates an acknowledgement that the CFMEU has rights under s.531 of the Act in relation to information about the redundancies. The notice indicates two things. Firstly that BHP acknowledges that the CFMEU has rights to be provided with information about the redundancies, and by extension, the rights that flow from such notification to be consulted, as provided for in Chapter 3, Part 3-6 Division 2 of the Act.

[28] The fact that the redundancies are voluntary does not alter the rights of the CFMEU in relation to those provisions. A voluntary redundancy is a termination of employment at the initiative of the employer, and it is the act of accepting the application for a voluntary redundancy that brings about the termination. Further, those obligations do not operate only in respect of the employees whose employment is terminated. They also operate with respect to the impact on those who will remain in employment.

[29] A construction of the Agreement that gave the CFMEU no right to raise issues of concern to those employees who do not take voluntary redundancies, or to progress those issues through the Dispute Settlement Procedure in the Agreement, would be at odds with the terms of the Agreement and the fact that the CFMEU is a party to it. Such a construction would also be at odds with the historical context of consultation provisions about termination of employment, workplace change and redundancy, from which the terms of the Agreement in relation to redundancy are derived.

[30] While I accept that the interests of the volunteers are of significance, I do not accept that their interests outweigh those of the employees who will remain in employment. In relation to the rights of the volunteers to cease employment on the terms they have agreed with BHP, there is no evidence that any delay in the implementation of the voluntary redundancies will change the terms of that agreement or otherwise adversely impact on volunteers. To the contrary, BHP has given every indication that further consultation will not alter its resolve to accept the applications for voluntary redundancy that have been made.

[31] I also do not accept the submission that there is no possible prejudice to the CFMEU or its members who will remain in employment if the volunteers’ choice to give up their employment and receive redundancy pay is put into effect. Those employees who remain in employment have a vital interest in the numbers of positions that will be removed from the mine and the extent to which the positions occupied by permanent employees are removed compared to the removal of those occupied by employees of contractors. The loss of the right to be consulted about such matters prejudices employees who will remain in employment.

The Construction of the Agreement

[32] The principles of construction relevant to enterprise agreements can be summarised as follows:

● If the terms of an industrial instrument are clear and unambiguous, then the industrial instrument must be interpreted in accordance with that clear and unambiguous meaning; 1

● The words used in an industrial instrument should not be interpreted in a strict technical fashion, because those who framed the industrial instrument are often non-lawyers drafting words in the context of custom and practice in an industry or particular enterprise; 2

● The words used in an industrial instrument should be interpreted within its context, that is, the meaning of particular words should be read in the context of the industrial instrument as a whole 3 and in the context of the clause/section in which they fall;4

•  The court or tribunal should strive to give effect to the intention of the parties provided that the words appearing in the instrument can reasonably be interpreted to mean that which the authority/tribunal/parties intended them to mean. 5

● The primary task of the Commission in any case involving the construction of the Agreement is to give effect to the language of the Agreement. 6 ‘Interpretation is always a text-based activity’.7

● The question is not what the parties subjectively believe but ‘what each party by words and conduct would have led a reasonable person in the position of the other party to believe. 8

● The parties’ intention ‘can manifest itself not only from words used but from words considered in light of the circumstances surrounding the transaction’. 9

[33] As Senior Counsel for BHP submitted when construing an agreement made and approved under the Act, the following principles are important:

● The task is exclusively to ascertain the actual meaning of the agreement, not to assign a meaning that the Commission thinks is appropriate. 10

● A ‘purposive’ approach should be adopted, as opposed to a narrow or pedantic one.

● In Amcor Limited v Construction, Forestry, Mining and Energy Union 11, the High Court emphasised the need to use context to strive to find the “industrial purpose” behind the disputed provision.

● The second and third principles are closely related, and together indicate that an available construction should be preferred if it ‘contributes to a sensible industrial outcome such as should be attributed to the parties who negotiated and executed the Agreement’. 12 In SDAEA v Woolworths,13 the Full Court of the Federal Court followed this approach and rejected an interpretation of a certified agreement because the result was so industrially incongruous.

[34] It is also important to keep in mind the desirability of a construction, if it is reasonably available, that will operate fairly towards both parties’. 14

[35] The construction I have adopted in this decision is consistent with those principles. It places the disputed clause 32.1 in the context of the Agreement as a whole. As previously noted, the term “surplus” means that there is an amount left over. The quantification of that surplus is of relevance to those who form part of it and those who do not. Given that clause 32 has as its purpose the prescription of a mechanism to deal with any surplus of permanent employees, the rights and obligations found in the clause require a quantification of the surplus that provides sufficient specificity to enable meaningful consultation to occur. I do not accept that there can be meaningful consultation about the means of minimising the number of redundancies and their effect, unless the CFMEU is provided with sufficient detail about the numbers of applications by permanent employees for voluntary redundancies which the Company is contemplating accepting.

[36] While the numbers of such applications may change as consultation progresses and the Company firms up its thinking, clause 32.1 is directed at the possibility of redundancies. In my view the use of the term “possibility” connotes that the number may change. Notwithstanding that, BHP is required to consult and to provide sufficient information about the possibility of redundancies so that the consultation is meaningful. At very least, this requires identification of the possible number of permanent employees whose redundancy is in contemplation and the areas or crews in which those employees work.

[37] As Justice Logan observed in CEPU v QR Limited 15 in relation to the term “to be implemented” there is an element of futurity, not finality. The same observation could be made about the term “possibility”. His Honour’s decision in that case extensively dealt with the history and context of consultation provisions in industrial instruments in circumstances where workplace change is in contemplation. Essentially, consultation in this context has a long history. While it is not appropriate to construe every clause relating to consultation about workplace change as if its wording is the same as that introduced in the Termination Change and Redundancy Cases16, the term “consult” used in that context should not have an idiosyncratic meaning, and the origin of such provisions provides a compelling rationale in relation to the importance of consultation.17

[38] Justice Logan also dealt at length in that case with the content of the obligation to consult, and distilled the cases about that obligation as follows:

● A key element is that the party to be consulted is given notice of the subject upon which views are being sought before any final decision is made or course of action is embarked upon.
● There is a consequential requirement for the affording of a meaningful opportunity to present those views although what will constitute such an opportunity will vary according to the nature and circumstances of the case.
● A right to be consulted is a valuable right but is not a right of veto. 18

[39] In my view, meaningful consultation as required by clause 32.1 of the Agreement includes consultation about the composition of the workforce after the possible redundancies are implemented. Without the identification of the numbers of permanent employees whose redundancy is in contemplation, there is no capacity for meaningful consultation because the CFMEU and Employee Representatives have no basis to assess the potential impact of the redundancies on those who will remain in employment.

[40] The obligation to consult in a meaningful way, and to provide information that allows such consultation to occur, is not satisfied by the provision of a composite number that includes permanent employees, managers and employees of contractors. It is also no answer to that obligation, to assert that the precise number of permanent employees whose applications will be accepted cannot be identified until expressions of interest have been fully assessed.

[41] What is required for meaningful consultation is that at the point the number of volunteers crystallises, BHP consults with the CFMEU and Employee Representatives in relation to minimising the number of redundancies and the effects on those who have volunteered for redundancy and those who will remain in employment.

[42] I accept that BHP is entitled to call for expressions of interest during the consultation process. What BHP is not entitled to do is to make a decision about the numbers that will be accepted and to move to accept the volunteers, before it has met its obligations to consult and provided the necessary information to make that consultation meaningful.

[43] In my view BHP has failed to satisfy the obligation to consult by virtue of its consistent refusal to provide sufficient information to enable the CFMEU and the Employee Representatives to have a meaningful opportunity to be consulted about and have input into the composition of the workforce after the redundancies are implemented.

[44] This much is apparent from the evidence of Ms Carlile. Notwithstanding the significant number of documents appended to her witness statement, and which were provided to employees and their Representatives, at no point prior to 11 March 2014 did BHP provide sufficient information to enable the CFMEU to identify the likely composition of the workforce after the redundancies had been implemented. Even at that point, Mr Brodsky was required to extrapolate the number of permanent employees whose applications were to be accepted from composite figures provided by BHP’s managers. It is also the case that the total number of volunteers to be accepted was not finally revealed until these proceedings had commenced and within a few days of BHP’s stated time frame for informing the volunteers that their applications had been accepted.

[45] BHP cannot complain that few meaningful suggestions were made by Employee Representatives in relation to minimising redundancies in circumstances where it has provided insufficient information for those Representatives to exercise their rights to be consulted. Neither can BHP assert that there has been express agreement from the CFMEU or the Employee Representatives to the voluntary redundancy process. To the contrary, the CFMEU and the Employee Representatives have consistently sought more detailed information about the composition of the workforce after the redundancies are implemented and the composition of the group of employees whose employment is to cease.

[46] BHP has consistently failed or refused to provide this information, and when it has provided information that information has been insufficient to meet its obligations to consult or has been provided at a point when consultation was meaningless because the decision to accept volunteers had already been made.

The Commission’s power to make the orders sought by the CFMEU

[47] The CFMEU sought Orders in these proceedings which can be categorised as determinations about the extent of the obligations of BHP under the Agreement to consult and that those obligations had not been met. The CFMEU also sought orders requiring further consultation, the provision of certain information and prohibiting BHP from implementing the voluntary redundancies until consultation over a defined period had been undertaken.

[48] BHP conceded that the Commission had the power to make the determinations sought by the CFMEU, but maintained that the Commission was not authorised by the Dispute Settlement Procedure in the Agreement or s.739 of the Act or any other provision of the Agreement or the Act, to make the Orders requiring further consultation and the provision of information or to restrain BHP from implementing the voluntary redundancies.

[49] BHP submits that:

● s.532(1) of the Act does not apply to these proceedings;
● there is no equivalent of s.531 in clause 37 of the Agreement and s.739 of the Act;
● the orders sought by the CFMEU would operate in effect as an injunction requiring that in mandatory terms that something be done or in prohibitive terms that something not be done; and
● for the Commission to make such orders would be an impermissible exercise of judicial power.

[50] I do not accept that submission. In exercising power pursuant to s.739 and the terms of an enterprise agreement, the Commission is not exercising judicial power, but a power of private arbitration. 19 The terms of an enterprise agreement in conjunction with s.739 may authorise the Commission to make decisions about the legal rights and liabilities of parties to an enterprise agreement and to exercise all of its powers under the Act in connection with arbitration.

[51] In the present case, the terms of clause 37 of the Agreement empower the Commission to arbitrate in relation to a dispute provided that relevant steps in the Dispute Settlement Procedure have been exhausted or where there is agreement to bypass those steps. It is not in issue that the necessary steps under the Dispute Settlement Procedure that are the pre-condition for arbitration have been met, or have been bypassed by agreement.

[52] Clause 37 of the Agreement does not contain any limitation on the power of the Commission to arbitrate in relation to the matter. If the Commission is empowered to arbitrate in relation to a dispute under a procedure entitled “Dispute Settlement Procedure” then it is also empowered to exercise powers incidental to arbitration, unless those powers are expressly limited. Powers incidental to arbitration include the power to make an Order in settlement of the dispute. Were the Commission only empowered to make a determination such as one to the effect that the Agreement had not been complied with, arbitration would be futile.

CONCLUSION

[53] For the reasons given orally on 24 March 2014, and those set out above, I determined to make an Order in relation to the dispute and issued it on that date. That Order is attached at Appendix B.

DEPUTY PRESIDENT

Appearances:

Mr B. Docking of Counsel, R. Anderson and C. Brodsky on behalf of the Construction, Forestry, Mining and Energy Union.

Mr I.M. Neil SC with A.W. Duffy of Counsel on behalf of BHP Coal Pty Ltd

Hearing details:

2014.

Brisbane:

March 24.

Annexure A - RELEVANT AGREEMENT PROVISIONS

7 Contractors

The Company shall have free and unfettered access to contractors.

15 Consultation on major workplace change

15.1 For the purposes of section 205 of the Act, the model consultation clause, as defined in the Fair Work Regulations 2009 (Cth), as amended from time to time, applies to any “major workplace changes that are likely to have a significant effect on Employees”.

15.2 The model consultation clause does not apply to any major workplace changes implemented under this Agreement for which other consultation obligations are prescribed in this Agreement. In all circumstances, only a single consultation process will apply.

MODEL CONSULTATION CLAUSE:

(1) This term applies if:

(a) the Company has made a definite decision to introduce a major change to production, program, organisation, structure, or technology in relation to its enterprise; and

(b) the change is likely to have a significant effect on Employees.

(2) The Company must notify the relevant Employees of the decision to introduce the major change.

(3) The relevant Employees may appoint a representative for the purposes of the procedures in this term.

(4) If:

(a) a relevant Employee appoints, or relevant Employees appoint, a representative for the purposes of consultation; and

(b) the Employee or Employees advise the Company of the identity of the representative;the Company must recognise the representative.

(5) As soon as practicable after making its decision, the Company must:

(a) discuss with the relevant Employees:

(i) the introduction of the change; and

(ii) the effect the change is likely to have on the Employees; and

(iii) measures the Company is taking to avert or mitigate the adverse effect of the change on the employees; and

(b) for the purposes of the discussion — provide, in writing, to the relevant Employees:

(i) all relevant information about the change including the nature of the change proposed; and

(ii) information about the expected effects of the change on the Employees; and

(iii) any other matters likely to affect the Employees.

(6) However, the Company is not required to disclose confidential or commercially sensitive information to the relevant Employees.

(7) The Company must give prompt and genuine consideration to matters raised about the major change by the relevant Employees.

(8) If a term in this Agreement provides for a major change to production, program, organisation, structure or technology in relation to the enterprise of the Company, the requirements set out in subclauses (2), (3) and (5) are taken not to apply.

(9) In this term, a major change is likely to have a significant effect on Employees if it results in:

(a) the termination of the employment of Employees; or

(b) major change to the composition, operation or size of the Company’s workforce or to the skills required of Employees; or

(c) the elimination or diminution of job opportunities (including opportunities for promotion or tenure); or

(d) the alteration of hours of work; or

(e) the need to retrain Employees; or

(f) the need to relocate Employees to another workplace; or

(g) the restructuring of jobs.

(10) In this term, relevant Employees means the Employees who may be affected by the major change.

31 Security of Employment

31.1 The Company is committed to efficiently and effectively utilising the skills and competencies of all of its Employees. Likewise, it is the Parties’ intention that Employees will efficiently and effectively utilise all their skills and competencies to achieve the goals of the business.

31.2 The Parties agree that the optimum means by which security of employment can be achieved is by operating safe, productive and profitable mines of world class standard.

31.3 Despite these commitments, it is acknowledged that because of changing economic circumstances, market downturn/ forces or introduction of new technology, there may be occasions during the life of the Agreement which require that a surplus of Employees be addressed.

31.4 The Company must use its best endeavours to avoid the necessity for forced retrenchments, which will include the removal of contractors and labour hire as a first step as provided for in clause 32.3 below.

38 Employee Representatives

38.1 Definitions

“Employee Representative” in this Agreement means an Employee who is employed at the same Mine as the Employee.

“per year” means calendar year (1 January-31 December).

“off site” means any time the Employee Representative spends away from site.

“person day” means an Employee’s shift.

38.2 Lodge Officers and Delegates of each Union will, upon written notification to the HR Manager at their relevant Mine, be duly recognised as an Employee Representative at the Mine at which they are employed.

38.3 An Employee may nominate an Employee Representative to represent them in relation to matters arising under this Agreement or in the course of their employment including for purposes of providing assistance in workers’ compensation / rehabilitation matters.

Due to the nature of a matter and/or the availability of an Employee Representative, the person nominated as Employee Representative may change from time to time. Except as outlined under clause 38.13, for the avoidance of doubt, an Employee is only entitled to one Employee Representative at any particular point in time.

38.4 Where the Company calls a meeting requiring the attendance of a particular Employee (other than for the purposes of an Individual Development and Performance Review under clause 36), the Company will advise the Employee of the purpose of the meeting to allow the Employee to nominate an Employee Representative. The Company will consult the Employee and their Employee Representative as early as possible to attempt to identify a mutually convenient time. The Employee Representative will then make every reasonable effort to attend the meeting.

Where the Employee’s nominated Employee Representative is unable to attend, the Employee will be required to nominate an alternative Employee Representative who is available to attend.

38.5 The role of Employee Representative will not detract from an Employee’s primary responsibility which is to do the job they are employed to do at the Mine.

38.6 Employee Representatives will not be permitted time away from the job on issues where there has not been a genuine attempt to resolve the issue at the workgroup level in accordance with the dispute settlement procedure.

38.7 Employee Representatives will be released from normal duties without loss of pay (ie as if the Employee Representative had worked in accordance with their roster, including RDO swaps) to discuss with Employees and site management matters affecting the employment of Employees covered by this Agreement, where to do so does not interfere with the safe and productive operation of the Mine and prior approval has been obtained from the departmental manager or their nominated representative (which will not be unreasonably withheld).

38.8 Employees and Employee Representatives agree that they will not hold any meetings during normal hours of work without the prior approval of the departmental manager or their nominated representative. Any meetings held on site will be at a place designated by management.

38.9 Employee Representatives will be allowed unpaid leave from a site pool of total person days which does not exceed 25 person days per year off site, on the basis that at least 14 days notice is provided and that site operations will not be adversely affected. Failure to provide adequate notice may result in the Company refusing leave applications under this provision.

38.10 The 25 person days per year will not include appearances by Employees or Employee Representatives if an application is made to FWA through the dispute settlement procedure or to another court.

38.11 An Employee Representative who under the rules of the relevant Union holds elected office on the Union’s Board of Management or Central Council will, subject to a minimum of 14 days notice (or where a special Board of Management meeting is called at short notice, immediately) and subject to business operational requirements, be entitled to unpaid leave to attend the relevant Board or Council meetings.

38.12 The Company will respond to an Employee Representative’s request for leave under clause 38.11 within seven days of receiving such requests or shorter notice subject to business operational requirements. Such absences will not count towards the 25 person day pool of unpaid leave allowable at their mine. Failure to provide adequate notice may result in the Company refusing leave applications under this provision.

38.13 The Company will pay on a “without loss of pay” basis (ie as if the Employee Representative had attended work in accordance with their roster, including RDO swaps) for up to two Employee Representatives’ attendance at proceedings (other than directions hearings) together with reasonable travel and accommodation costs and reasonable cost of meals, not including alcohol, provided that the two Employee Representatives are nominated at the time that the application to FWA is made. The Company will not pay for attendance, travel, accommodation or meals for or in relation to any union/Employee appeals against a decision of FWA. Where a nominated Employee Representative is unable to attend due to exceptional circumstances (eg personal sickness), a substitute Employee Representative will be allowed to attend where:

(a) more than 48 hours notice is provided to the Company; and

(b) the substitute Employee Representative has been previously involved in the matter.

Providing they are nominated prior to a directions hearing or directions being agreed between the parties (whichever occurs first), necessary witnesses may, in accordance with the arrangements above, attend any matters being arbitrated by FWA.

This clause 38.13 does not apply to alleged unfair dismissal proceedings or matters not covered by the dispute settlement procedure at clause 37.

38.14 The payment of reasonable travel and accommodation costs by the Company in clause 38.13 in respect of Employee Representatives and witnesses agreed prior to any proceedings and who are Employees of the Company will be subject to:

(a) Those Employee Representatives and witnesses travelling on flights which minimise their time spent away from work and the impact on operations; and

(b) The Company’s fatigue management and fitness for work requirements.

A travel plan must be submitted by each Employee Representative and witness at least 14 days prior to the proceedings and approved by the Company before the commencement of travel. If proceedings are brought on more quickly by FWA, the travel plan must be submitted immediately upon the listing of the matter by FWA and before travel commences.

38.15 Employee Representatives must comply with the notice requirements under this clause 38 for leave to be authorised by the Company prior to taking leave.

41 Functional Work Areas

41.1 Functional Work Areas are identifiable segments of the Mines which have their own specific skills requirements. For example, in Truck/ Shovel, a mix of skills would include shovel, truck, grader, etc. The Company is responsible for determining the actual skills required and the necessary number of such skills in each functional work area.

41.2 Functional Work Areas are relevant to the circumstances outlined in clauses 5.1(b) and 32.5(b) of this Agreement and clause 5.2 (a) of Schedule 1.

41.3 As at the commencement of operation of this Agreement, the functional work areas in each mine are:

Open Cut	Crinum
Production Pre-strip	Development
Production Mining (inclusive ofDRE, Drill & Blast, Truck/shovel, Pumps & Earthworks, & others)	Production
Production Processing	Development maintenance
Maintenance (inclusive of Field, Mobile and Processing maintenance)	Production maintenance
	Engineering

The Company may vary or add to these Functional Work Areas from time to time in the event the Company makes organisational structural changes.

47 Definitions and Interpretation

“Consult” or “Consultation” means providing Employees with a genuine opportunity to influence and inform the decision making process over a significant or important issue. Consultation does not mean or imply that agreement must be sought or reached.

“Employee” means a person employed by BHP Coal Pty Ltd who is covered by this Agreement. It does not include a contractor employee or labour hire employee.

 1   Re Clothing Trades Award (1950) 68 CAR 597.

 2   Bond & Co Ltd (in liquidation) v McKenzie (1929) 28 AR 499.

 3   Australian Workers’ Union v Abbey (1939) 40 CAR 494.

 4   Avondale Motors (Parts) Pty Ltd v Federal Commissioner of Taxation (1971) 45 ALJR 280 at 283.

 5   Australian Timber Workers’ Union v W Angliss and Co Pty Ltd (1924) 19 CAR 172.

 6   Oceanic Coal Australia Pty Ltd v Parker (2010) 198 IR 455 at [44].

 7   Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at [65]; see also [77].

 8   Oceanic Coal Australia Pty Ltd v Parker (2010) 198 IR 455 at [41] - [43].

 9   Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Skilled Engineering Ltd [2003] FCA 260 at [18].

 10   Oceanic Coal Australia Pty Ltd v Parker (2010) 198 IR 455 at [44] - [46].

 11   Amcor Limited v Construction, Forestry, Mining and Energy Union 92005) 222 CLR 241 at [2], [13], [30], [93] and [96], [130] - [131].

 12   Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at [69], see also [131].

 13   Shop, Distributive and Allied Employees Association v Woolworths SA Pty Ltd (2011) FCAFC 67 at [18].

 14   Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at [131].

 15   [2010] FCA 591, 11 June 2010.

 16   (1984) 294 CAR 175 and (1984) 295 CAR 673.

 17   Op. cit. at 21 and 23.

 18   Ibid at 16-17.

 19   CFMEU v AIRC (2001) 203 CLR 645 at 658.

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