DECISION

Fair Work Act 2009
s.739—Dispute resolution

Construction, Forestry, Maritime, Mining and Energy Union; Peter Cowan; Darren Sisson; Rod McLean; Dayle Marriott; David Bickhoff
v
Falcon Mining Pty Ltd T/A Falcon Mining
(C2020/4783)

DEPUTY PRESIDENT SAUNDERS

NEWCASTLE, 27 JULY 2020

Provision of document relevant to dispute – redaction of various terms of document before it is inspected by, or provided to, the applicants.

Introduction and background

[1] The CFMMEU is the first applicant in these proceedings. It is also the representative of the second, third, fourth, fifth and sixth applicants, who were formerly employed by Falcon Mining Pty Ltd (Falcon Mining).

[2] The second to sixth applicants (Employees) were covered by the Falcon Mining Enterprise Agreement 2017 (Enterprise Agreement) during their employment with Falcon Mining.

[3] The Employees’ contracts of employment with Falcon Mining include the following terms:

“3. Nature and Location of Employment

Your classification is prescribed in Schedule A. Unless terminated earlier in accordance with the terms of this Contract, you will be employed on a full time fixed term basis for the maximum commercial term of the Project defined in Schedule A. Upon completion of the Project, your employment (and this contract) will end without the need for either party to provide notice or Falcon Mining to provide any termination payment.

…

Schedule A: Contract Summary

…

Item 5 Name of Project/ Contract Number: NC1705 – Cut and Fit

Location Development Work

Narrabri”

[4] Earlier this year, Falcon Mining gave notice to the Employees that their “employment will come to an end on 26 June 2020, the date that the Contract will reach its maximum commercial term. You are required to attend site to work your remaining rostered shifts up until and including 26 June 2020.” Falcon Mining has also informed the Employees that they are not entitled to notice of termination or redundancy pay.

[5] The Employees claim, inter alia, that they are entitled to notice of termination and redundancy pay under the terms of the Enterprise Agreement. They say that the Project reached its maximum commercial term and was completed in late 2019, and they remained employed by Falcon Mining on a different project or doing different work from late 2019 until their termination in late June 2020.

[6] Falcon Mining contends, inter alia, that the Project came to an end on 26 June 2020. The Respondent has produced correspondence with its commercial client, Narrabri Coal Operations Pty Ltd, to support its contention in that regard.

[7] On about 19 June 2020, the CFMMEU filed an application for the Commission to deal with the dispute between the Applicants and Falcon Mining in accordance with the dispute settlement procedure in the Enterprise Agreement. That procedure enables a dispute about a matter under the Enterprise Agreement or a dispute in relation to the NES to be referred to the Commission once preliminary steps have been undertaken.

[8] I have conducted two conciliation conferences in an effort to resolve the dispute. It remains unresolved at this stage.

[9] In the conciliation conference on 15 July 2020, I indicated to the parties that I would issue an order for the production of documents to Falcon Mining, requiring it to produce a copy of the contract referred to in the Employees’ employment contracts, namely Contract Number: NC1705 – Cut and Fit Development Work (Narrabri Contract). Falcon Mining agreed to produce that document to the Commission without the need for an order for production, and did so.

[10] It is clear that the Narrabri Contract is relevant to at least the following issues in the dispute:

• What was the maximum commercial term of the Project?

• When did completion of the Project take place?

Redaction of the Narrabri Contract

[11] Falcon Mining has produced to the Commission both a redacted version of the Narrabri Contract and an unredacted version. The redacted version has been provided to the Applicants, but the unredacted version has only been produced to the Commission and Falcon Mining objects to the unredacted version of the Narrabri Contract being inspected by, or provided to, the Applicants. Falcon Mining has also filed extensive submissions setting out the basis on which it says each provision of the Narrabri Contract which it has redacted should remain redacted when the document is inspected by, or provided to, the Applicants.

[12] I agree with Falcon Mining that the provisions of the Narrabri Contract which it has redacted may remain redacted when the Narrabri Contract is inspected by, or provided to, the Applicants, save for the following provisions which must not be redacted when the Narrabri Contract is made available to the Applicants:

Provision which should not be redacted		Reason for decision
Whole of the Table of Contents on pages 3, 4, 5 and 6		The Table of Contents does not disclose any the content of any commercially sensitive information and enables the provisions of the Narrabri Contract which are of apparent relevance to the issues in dispute to be considered and construed in context.
Definition of “Development Metres” on page 10		The definition does not disclose any commercially sensitive information and is of apparent relevance to when completion of the Project took place.
Whole of clause 31 (Certificate of Final Completion) on pages 35 and 36		The definition does not disclose any commercially sensitive information and is of apparent relevance to when completion of the Project took place.
Whole of clause 37 (Variations) on pages 39, 40 and 41		The clause does not disclose any commercially sensitive information and is of apparent relevance to when completion of the Project took place, particularly in light of Falcon Mining’s submission that there has been at least one written variation to the Narrabri Contract and Falcon Mining is continuing to search for other potential variations. A copy of the known executed variation was included as part of the exhibit to Falcon Mining’s submissions.
Whole of clause 51.1 (Reporting) on page 52		The clause does not disclose any commercially sensitive information and is of apparent relevance to when completion of the Project took place, particularly insofar as it concerns the provision of reports showing the progress and performance of the Works.
Whole of clause 14.5 (Monthly Reports) of Schedule 1 - page 71		The clause does not disclose any commercially sensitive information and is of apparent relevance to when completion of the Project took place, particularly insofar as it concerns the provision of reports showing the progress and performance of the Works.

[13] By 4pm on 30 July 2020, Falcon Mining is directed to produce to the Commission and the Applicants a copy of the Narrabri Contract which has been redacted in accordance with this decision.

unders C - Signature and Seal

DEPUTY PRESIDENT

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