1
Fair Work Act 2009
s.739 - Application to deal with a dispute
Construction, Forestry, Mining and Energy Union
v
North Goonyella Coal Mines Pty Ltd
(C2015/4407), (C2015/4445)
SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 10 JULY 2015
Application to deal with a dispute about matters arising under an enterprise agreement
[s.739]; consultation obligations; selection of employees for redundancy.
Background
[1] On 21 June 2015 the Construction, Forestry, Mining and Energy Union (Mining and
Energy Division) (CFMEU) filed an application for the Commission to deal with a dispute in
accordance with the dispute settlement procedure (DSP) in the North Goonyella Underground
Mine Collective Enterprise Agreement 2012 (the enterprise agreement).
[2] The dispute concerns a restructuring of operations by North Goonyella Coal Mines Pty
Ltd (the employer) involving a reduction in employees and contractors. In its application to
the Commission the applicant submitted that the employer had failed to meet the consultation
obligations under the enterprise agreement.
[3] The dispute was the subject of a conciliation conference before Deputy President
Asbury on 23 June 2015. The dispute was not resolved and was subsequently referred to me
for arbitration.
[4] Following the conciliation conference the CFMEU filed a further application for the
Commission to deal with a dispute. In this application the CFMEU stated that as a result of
the conciliation conference it had become apparent that the parties were also in dispute in
relation to a clause in the enterprise agreement concerning the process for selecting employees
for involuntary redundancy.
[5] This second dispute application was also referred to me. Both applications were heard
together in Sydney on 28 June and 2 July 2015. This decision deals with both applications.
[6] At the 28 June hearing the following gave evidence on behalf of the CFMEU:
Chris Brodsky (District Vice-President of the CFMEU);
Barrie Elliott (mine employee);
Luke Ludlow (North Goonyella Lodge President); and
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DECISION
AUSTRALIA FairWork Commission
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Stephen Woods (Industry Health and Safety Representative).
[7] The following gave evidence on behalf of the employer:
Michael Carter (Site Senior Executive and General Manager); and
Scott Moran (HR Superintendent).
[8] All the witnesses apart from Mr Elliott were cross-examined.
[9] The CFMEU has requested that the Commission make the orders contained in
Attachment A.
The relevant provisions from the enterprise agreement
[10] The DSP in the enterprise agreement provides as follows:
‘41. DISPUTE RESOLUTION PROCEDURE
41.1 In the event of any dispute arising as to the interpretation or application of
this Agreement, including matters in relation to the NES and disputes that
are expressly authorised to be dealt with under this clause by another term of
the Agreement, the following procedure will apply.
41.2 The employee may choose to be represented at any stage in this procedure
by a representative/s of their choosing.
STEP 1 The matter will in the first instance be discussed between the
employee/s and the immediate supervisor involved. The supervisor
and the employee shall make every reasonable effort to resolve
the matter between themselves. An agreed time limit will allow the
immediate supervisor to investigate the grievance and respond. If
an agreement is reached it shall be recorded in writing.
STEP 2 If the matter remains unresolved, it will be referred for discussion
between the employee and/or the employee’s representative/sat
the Mine or CHPP and the relevant Department Manager or their
representative.
STEP 3 If the matter remains unresolved, it will be referred for discussion
between the employee and/or the employee’s representative/sand
senior Company representatives.
STEP 4 If the matter remains unresolved, it will be referred to FWA for
conciliation and, if the dispute remains unresolved, arbitration. In
exercising its powers under this clause FWA may exercise all
powers and functions incidental or associated with the exercise of
conciliation or arbitration.
41.3 By agreement between the respective representatives, any or all of the above
steps may be bypassed in the interest of speedy resolution of the dispute.
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Either party may make an application to FWA for a determination that steps
1 to 3 be bypassed and the matter proceed directly to conciliation and or
arbitration. Such determination will be by reference to what is fair as
between the parties and the extent of any prejudice to a party that will be
caused unless those steps are bypassed and on the basis that ordinarily the
steps should only be bypassed where a failure to do so will sound in
material prejudice to the Company or affected employees.
41.4 While the steps are being followed, work will proceed in accordance with
the reasonable and lawful directions of the Company and in accordance with
the employees’ skills, competence, and training and safe work practices.
[11] Clause 36 deals with contractors and external resources. It provides as follows:
‘ 36. CONTRACTORS AND EXTERNAL RESOURCES
36.1 Subject to this clause, the Company may utilise contractors and other external
resources in accordance with operational requirements as determined by the
Company from time to time.
36.2 It is not the Intent of the Company to permanently substitute or displace the
whole or a part of the Company’s permanent workforce with contractors and
other external resources.
36.3 Where the Company decides to utilise contractors and other external
resources after communication with the affected employees and/or employee
representative at the Mine, the Company must ensure that employees of such
contractors and other external resources will be entitled to a Weekly Base
Rate of pay that is not less than the Weekly Base Rates for the equivalent or
comparable classification in clause 17 or Schedule A.
36.4 Contractors and other external resources may, at the Company’s discretion,
be engaged for:
a) specialised tasks;
b) maintenance or upgrade work during major shutdowns;
c) supplementation of the permanent workforce for longwall moves;
d) peak work loadings;
e) new technology or proprietary technology; or
f)
(i) in situations where a business case demonstrates that the
productivity and efficiency of the Company’s workforce Including
management has failed to meet business plan targets (In terms of
volume or cost); and
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(ii) Such failure is not due to circumstances beyond the control of the
permanent workforce.
36.5 A decision to utilise contractors or external resources to substitute or
displace permanent employees on the basis of the criterion in clause 37.4(1)
must not come as a surprise to the affected portion of the permanent
workforce. To this end the Company will provide notice to the Union of any
emerging concerns that it may need to utilise contractors or external
resources pursuant to clause 37.4(1).
36.6 In the event that the Company determines to utilise contractors on the basis
of the criterion in clause 37.4(1), it will provide to the Union a written
statement of its determination and the reasons for such determination.
36.7 In the event that the Union disputes the bona fides of a determination
notified pursuant to clause 37.6 such dispute will be progressed through the
dispute resolution procedure in clause 42 but subject to the following
modifications:
(i) the dispute will be dealt with on an expedited basis and, as such,
steps 1 to 3 will not apply but there will be a discussion between
the Company and District Level Union Officials;
(ii) It will be for the Union to demonstrate that the Company's decision
to use contractors is not justified by the criterion in clause 37.4(f);
and
(iii) the Company may Implement its decision while the dispute is being
arbitrated although the Union may seek an interim determination
from the independent arbitrator that the decision to use such
contractors or external resources not be implemented until the
dispute has been finally arbitrated.’
[12] Clause 37 provides as follows:
‘37. WORKPLACE CHANGE
37.1 This clause 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;
(b) the change is likely to have a significant effect on employees of the
enterprise; and
(c) there is no consultation mechanism provided for elsewhere in this
Agreement.
37.2 The Company must notify the relevant employees and the employee's
representative of the decision to introduce the major change.
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37.3 As soon as practicable after making its decision, the Company must:
a) discuss with the relevant employees:
(i) the introduction of the change;
(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;
(ii) information about the expected effects of the change on the employees;
and
(iii) any other matters likely to affect the employees.
37.4 The Company is not required to disclose confidential or commercially sensitive
information to the relevant employees.
37.5 The Company must give prompt and genuine consideration to matters raised
about the major change by the relevant employees.
37.6 If a term In this Agreement provides for a major change including a change to
production, program, organisation, structure or technology in relation to the
enterprise of the Company, this clause 38 does not apply (such as clause 39).
37.7 In this clause, a major change is likely to have a significant effect on employees
if it results in:
a) the termination of the employment of employees;
b) major change to the composition. operation or size of the Company’s
workforce or to the skills required of employees:
c) the elimination or diminution of job opportunities (including
opportunities for promotion or tenure);
d) the alteration of hours of work;
e) the need to retrain employees;
f) the need to relocate employees to another workplace; or
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g) the restructuring of jobs.
37.8 Relevant employees mean the employees who may be affected by the major
change.
37.9 Where there is a dispute over the implementation of change, work shall
continue in accordance with the Company's reasonable direction while the
dispute is resolved.’
[13] Clause 38 provides as follows:
‘38. REDUNDANCY
38.1 Employees will be entitled to the severance and redundancy entitlement
provided in the Award. The entitlement shall be based on the Aggregate
wage rate as provided for in Schedule C. (Aggregate Wage) of this
Agreement. All other provisions in the Award which relate to redundancy
shall apply to employees covered by this Agreement.
38.2 Should the Company decide to reduce the number of employees covered by
this Agreement the parties will consult about the proposed terminations,
measures to avoid or minimise the terminations and measures to mitigate
any adverse effects of any terminations on the employees concerned.
38.3 The measures which will be the subject of consultation will include the
removal of contractors (with the exception of contractors performing
specialised tasks), and reductions in supplementary labour and temporary
and fixed term employees.
38.4 Should the Company decide to reduce the number of employees covered by
this Agreement the Company will first attempt to achieve the required
redundancies by volunteers. The Company has the right to refuse individual
applications for voluntary redundancy to ensure that there are sufficient skills
to operate the Mine.
38.5 The Company will consider providing training assistance, financial advice
and/or other employment options to the retrenched employees. Subject to
Peabody's Recruitment Policy, every endeavour will first be made to
redeploy retrenched employees to another Peabody operation at Peabody's
expense. Where relocation to any another location is required the Company
will pay up to $5,000 in relocation costs on production of receipts.
Involuntary redundancies- Selection Criteria
a) Subject to paragraphs (b) and (c), the Company will select employees
for involuntary redundancy on reverse merit utilising selection criteria
reasonably chosen by the Company based on its business needs,
including but not limited to an employee's skills/competencies,
experience and aptitudes. To remove doubt, the Company may utilise
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performance, attitude, absenteeism record and disciplinary history as
selection criteria.
b) In making a selection pursuant to paragraph (a), the Company must also
give material weight to an employee's length of service at the Mine
and/or CHPP to the intent that an employee with a long period of
service should not be selected for redundancy unless they are reasonably
assessed against the other selection criteria as materially worse than
other employees with a materially lesser period of service in the
relevant class or classes of employees from among whom the selection
is being made.
c) To the extent that performance and/or attitude are utilised as selection
criteria, the Company must not make a materially adverse assessment of
an employee against either or both of those criteria as an individual (as
distinct from assessment as part of a group eg. a crew) unless the
employee has been informed (either verbally or in writing) by a
supervisor or manager of relevant concerns about his or her performance
and/or attitude. The intent of this paragraph is that an employee should
not be assessed adversely on the basis of poor performance and/or poor
attitude as an individual unless the employee is aware of management
concerns in that regard and has had a reasonable opportunity to consider
and if necessary address those concerns.
d) To the extent that, as at the time this Agreement commences to operate,
the Company has material concerns about the performance and/or
attitude of an employee it must, within three months of such
commencement, give that employee written notice, expressed to be in
accordance with this paragraph, broadly outlining those concerns and
provide such employee with an opportunity (if the employee so wishes)
to discuss those concerns with a supervisor or manager. No dispute can
be raised over the issuing of a notice under this paragraph. Rather, the
occasion for an employee to dispute the issuing or contents of such a
notice will be if and when a matter adverted to in the notice is sought to
be relied upon by the Company in connection with a process for
involuntary redundancies, disciplinary action or performance
management.
e) In the event of any dispute about a selection process the Disputes Clause
under Sect 42 shall apply.’
Proceedings in relation to the 2013 redundancies
[14] A number of employees of North Goonyella were made redundant between 27 and 29
August 2013. There was a significant amount of disputation and litigation about the
circumstances of those redundancies, including in relation to consultation and selection for
redundancy.
[15] The Federal Court of Australia (the Court) issued a decision on 10 December 2013 in
relation to the redundancy process that occurred that year. 1 The Court found that the
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employer had committed a number of breaches of the general protections provisions of the
Fair Work Act 2009 (FW Act), and the enterprise agreement. As well as imposing pecuniary
penalties on the employer, the Court ordered that three employees be reinstated: Mr Ludlow,
Mr Elliott and Mr Woods. In brief, the Court found that the employer had deliberately
manipulated the selection process for involuntary redundancy to yield a result which saw the
termination of Mr Ludlow, Mr Elliott and Mr Woods. In each case the employer had taken
adverse action against the employees because they had been involved in lawful union activity
and the exercise of workplace rights. The Court also found that the employer had breached
clause 38.5(c) of the enterprise agreement because it had, as part of the redundancy process,
made materially adverse assessments of the three employees in relation to performance and/or
attitude without their having been informed by a supervisor or manager of these concerns.
[16] There have also been two applications to the Commission to deal with disputes in
relation to the 2013 redundancies. One application was made prior to the dismissal of the
relevant employees. This led to a recommendation being made by Asbury DP. The other
application was made after the employees had been dismissed. Both disputes concerned the
way the employer had applied clause 38 of the enterprise agreement. Lewin C issued a
decision on 15 May 2015 which, in brief, found that the Commission had no jurisdiction to
deal with the application made after the dismissal of the employees. The Commissioner has
listed for further hearing whether the earlier application (made before the employees had been
dismissed) remains on foot – or whether it has been settled by Asbury DP’s recommendation.2
The Commissioner has yet to issue a decision in relation to that issue.
Has the employer met its consultation obligations?
[17] The first issue to be considered, in dealing with the disputes before me, is whether the
employer has met its consultation obligations under the enterprise agreement.
[18] On 3 June 2015 Peabody Energy (the employer’s owner) announced that it was
reducing metallurgical coal production by approximately 1.5 million tons per year from the
North Goonyella Mine. The press release it issued at the time stated that:
‘The modified production plan is designed to lower costs, improve cash flows and
increase productivity, while preserving high-quality hard-coking coal reserves for
sales when markets improve… over the next month, the mine is expected to transition
to one production shift per day, with associated employee or contractor reductions of
35 to 40 per cent.’3
[19] Over the course of 3 and 4 June 2015 a document entitled ‘North Goonyella Mine
information for employees, June 2015’ was distributed to employees at the mine. The
document stated that ‘At current and forecast coal prices the existing operational
arrangements at North Goonyella are unsustainable…To respond to these challenges,
Peabody will transition to a single-production focused shift at North Goonyella….
…
During the consultation process, Peabody will discuss its preference to operate a 7 on,
7 off roster running 10-12 hour production/maintenance shifts with maintenance
focused on the non-production shift. This would be supported by a non-production
shift which is ‘skilled’ to meet daily production target, as required.
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…
Peabody will work closely with employees throughout the transition process.
The process will meet EA requirements and will involve:
Ongoing consultation including in relation to options to avoid or minimise
involuntary redundancies
A review of existing contractor resources and requirements
A call for expressions of interest for voluntary redundancies
If required, involuntary redundancies based on a merit based selection process
Notification of employees (approved VRS and forced redundancies) …
…
Redeployment
During the consultation phase, Peabody will attempt to identify redeployment
opportunities both at NGC and at its other operations in Australia. Please notify the
HR Superintendent if you are interested in other opportunities.
…
Next Steps
The Company will provide you with regular updates in relation to the process, as well
as an opportunity to consult either individually or via your employee representative.
Please take advantage of this opportunity to ensure that any ideas or suggestions that
you have can be taken into consideration…’4
[20] Mr Moran emailed this document to Mr Brodsky and Mr Ludlow on 4 June 2015.
[21] A meeting was held on 9 June 2015 which involved, amongst others, Mr Carter, Mr
Moran, Mr Ludlow, Mr Elliott and two other CFMEU representatives.
[22] No formal minutes were taken of the meeting, though Mr Moran took notes which he
later typed up. While these notes are far from a verbatim record of what took place, I am
satisfied that they broadly reflect what was said in the meeting. (Similar notes were taken at
later meetings, and I am similarly satisfied in relation to those meetings.)
[23] A range of issues were discussed at the meeting, including:
The voluntary redundancy process, including the timetable and the provision of
information to employees about how much they would receive;
The process for forced redundancies (including the selection process and the
timetable);
Proposed changes to the shift structure;
Proposed reductions in the number of contractors to be used on site;
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apprentices; and
the proposed reduction in the number of staff employees.
[24] After the meeting Mr Ludlow sent an email to Mr Moran, which included the
following:
‘As discussed, the CFMEU requests the following documents to be provided to allow
for genuine consultation around the redundancies and mine restructure to take place.
The requested documents are as follows:
The complete list of all contractors and sub-contractors on site, including the CHPP,
and their scopes of work and areas they work within.
The complete list of all employees on site whose employment is covered by the
Enterprise Agreement, including the CHPP, and their scopes of work and areas they
work within.
The proposed planned structure and manning levels going forward for Enterprise
Agreement employees after the restructure.
The proposed planned structure and manning levels going forward for contractors
and subcontractors after the restructure.
The proposed Selection Criteria and any related documents for the use in the
Involuntary Redundancy process if needed including the proposed plan for who will
undertake any employee rating and proposed weighting that will be given by each.
The proposed plan to transition to the new structure, how long the new structure
would be in place for, and the proposed plan to transition back to the current
structure and the triggers that would dictate when this would happen.
We request that all employees are given the most up-to-date copy of their
competences on site to be able to check against and rectified where needed.’5
[25] Mr Moran responded to this email on 9 June 2015. In relation to points one, four, and
six, he indicated that Mr Carter would address them at the meeting scheduled for the
following day (10 June 2015). In relation to point two, Mr Moran said he would bring a hard
copy with a list of names to the meeting. In relation to point three, he attached an
organisational chart for the relevant employees. In relation to point five, he attached a
document that included 10 criteria together with guidance on how to score employees against
each criterion. In relation to point seven he indicated that the information was being
distributed to employees and he would bring hard copies to the meeting.
[26] The organisational chart attached by Mr Moran indicated that the current number of
wages staff was 168, and the proposed number in the new structure would be 102.
[27] The selection criteria attached by Mr Moran were safety and environment,
accountability, reliability, respect, work output, teamwork, communication, skills, ability to
learn and application of knowledge, self-knowledge and personal commitments. They appear
to have been the criteria used to conduct employee performance reviews at the mine for the
January to June 2015 ‘performance period’. The document attached by Mr Moran envisaged
that employees would be rated either ‘needs development’ (1-4), competent (5-6) or
commendable (7-10).
[28] Mr Ludlow sent Mr Moran a further email on 13 June 2015. This included the
following:
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‘Please see below a list of actions and requests for both parties going forward
regarding the redundancy consultation meetings to date. This is essentially the same
as the list you took a picture of on Thursday with anything already completed
removed. Thank you.
The CFMEU has requested that the company provide via email to the CFMEU a
copy of the EOI letter for employees.
The CFMEU has requested that the company provide a stronger more definitive
position regarding the number of contractors, the contract companies and their work
on site under the new proposed structure.
The CFMEU has proposed using the selection criteria scoring sheet that was used in
the 2013 redundancy process for forced redundancy with changes made to reflect
the current process. The CFMEU will bring a proposed sheet to the next
consultation meeting and the company will consider using this format and sheet.
The CFMEU has asked the company to provide in all aspects what flexibility they
continue to refer to and seek for the mine going forward at the next meeting.
The CFMEU has requested that the company provide a stronger more definitive
position regarding the operation of the CHPP and all associated work under the
proposed new structure.
The CFMEU has requested that the company provide a new org chart with the
deputy's role included.
The company and the CFMEU discussed having auscoal on site to provide financial
advice to people taking a redundancy. The company will advise if this is possible to
do.
The CFMEU has requested that the company look at the option of providing notice
on Friday, 12 June to employees on the maintenance shift who wish to transition
across to a production shift straightaway. The CFMEU has requested that the
company advise on whether this is possible and if it has occurred.
Both parties to look at possible ways for employees who may be made in voluntary
redundant to be notified of this decision by the company. To be discussed at
consultation meetings going forward.
The CFMEU has made proposals and suggestions on ways to possibly mitigate any
forced redundancies to the company. The company to consider and come back to
the CFMEU at the next meeting.
The above list is not a final list of actions or requests for this consultation process and
the CFMEU reserves its rights to request further information and have other actions
put in place throughout this consultative process to allow for genuine consultation to
be undertaken.
We look forward to discussing the above items and matters with the company going
forward throughout this process. Thank you.’6
[29] A second meeting between representatives of the employer and the CFMEU was held
on 16 June 2015. I am satisfied that the meeting discussed the employer’s proposed timeline
for employees to express interest in voluntary redundancy, and a number of queries Mr
Ludlow had about the new structure. Mr Brodsky asked why the employer could not just
terminate those employees seeking a voluntary redundancy and reallocate the work to the
remaining workforce. Mr Carter responded that the employer was getting to a situation where
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it needed to reduce costs immediately. The meeting also discussed the issues that had been
identified by Mr Ludlow in his email of 13 June 2015. During this discussion the employer
agreed that the numbers in the proposed organisational restructure would be adjusted to
include the adult apprentice, along with a Deputy’s position covered by the enterprise
agreement. This would take the number up to 102 from 104.7
[30] Later that evening Mr Ludlow wrote to Mr Moran putting forward two proposals to
deal with the involuntary redundancy process. The first (which was preferred by the CFMEU)
was to:
- ‘Identify all of the skills and competencies required to operate the mine safely
and efficiently for each classification under the proposed new structure.
- Once identified, reference the skills and competencies of employees with a
current start date length of service list and starting from the most senior
employee, work down the list until all available positions have been filled with
required skills and competencies.
- All other employees who have not been selected to fill the available positions
would then be made involuntarily redundant.’
[31] The second proposal was contained in an attached ‘Selection Criteria Sheet’ was
described as being based on the sheet discussed in 2013, modified for the current process.
This contained the following criteria: safety focus, teamwork, communication, reliability,
length of service, technical competency (machine skills), and technical competency
(application and productivity). The rating scale was from one to five, with one being below
requirement and five being exceptional. The scores for each section were to be added
together to give the employees overall score. All scores would be given in whole numbers
from one to five except for the length of service score which would be scored closest to the
nearest two decimal points. In practice, one point was to be allocated for each year of
service.8
[32] Mr Ludlow sent a further email on 16 June 2015 with a proposed new structure and a
document ‘containing all of the work currently undertaken and that will need to be undertaken
at the mine for its safe and efficient operation.’ The CFMEU’s proposed new structure had
168 positions.9
[33] A third meeting was held on 17 June 2015 between the representatives of the employer
and the CFMEU. The meeting discussed the timeline and the process for both voluntary and
involuntary redundancies. Mr Carter indicated that it was the employer’s intention to conclude
the redundancy process on 9-10 July 2015. The cut-off for expressions of interest for
voluntary redundancy would be 29 June 2015.10 The meeting also discussed the use of
contractors. Mr Brodsky expressed a concern that the employer’s production target could not
be reached with the planned number of permanent employees. The result would be that
supplementary labour would be used to achieve targets.11
[34] In a follow up email later that day Mr Brodsky indicated that the CFMEU’s position
was that it would commit to continue working with the company if the number of employees
was reduced by voluntary redundancy (while by implication, all other employees would stay
on).12
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[35] The same day, Mr Moran sent a written response to Mr Ludlow’s email of 13 June
2015. This provided a copy of the EOI letter for voluntary redundancies that the employer
was proposing to send to employees, more details on the proposed reduction in the use of
contractors, a revised document to be used for selecting employees for involuntary
redundancy (based on the criteria used in 2013) and a revised organisational structure
showing a reduction in staff numbers from 168 to 104.13
[36] On 18 June 2015 Mr Carter sent Mr Ludlow a revised list of contractors, indicating
both current and planned numbers.14 This indicated a reduction in contractor numbers from
203 to around 70.15
[37] A fourth meeting was held on 18 June 2013. Topics discussed included contractors,
the timeline for redundancies, the selection criteria for involuntary redundancies and the new
structure. There was substantial agreement about the criteria to be used (reflecting the
CFMEU’s preference for using the 2013 criteria), with the main difference being the weight
to be given to seniority.16 Overall numbers at the mine were discussed, and the employer
offered to increase the head-count by a further two preparation plant roles.17
[38] Later that day Mr Ludlow wrote to the employer asking for the review of the mine’s
operations that had been conducted prior to the consultation process. He also asked for a
response to the CFMEU's proposal.18
[39] On 18 June 2015 Mr Brodsky wrote to Mr Moran. His letter included the following:
‘The CFMEU has concerns that the consultation requirements contained in clause 39
of the Agreement have not been met. The CFMEU specifically refers to the following:
1. Clause 39.2 and 39.3 require the Company to consult in relation to any
proposed terminations, including in relation to the removal of contractors.
2. Genuine consultation has not yet taken place in relation to the proposed
terminations. I note specifically that the Company continues to offer voluntary
redundancies prior to genuine consultation and a meaningful opportunity for
the CFMEU to put forward and have alternatives considered.
3. Clause 39.4 requires the Company to first attempt to achieve the required
redundancies by way of volunteers. Until such time as genuine consultation
has taken place the offering of voluntary redundancies is premature.
4. For the sake of clarity, it is clear from clause 38 of the Agreement that
consultation as to the proposed terminations, measures to avoid or minimise
terminations, measures to mitigate any adverse effects of termination, and
reducing contractor numbers must take place prior to the process continuing.
5. In order to be in a position to consult, including by putting forward
alternatives, the CFMEU must be provided with all relevant information. This
process is still ongoing.
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6. The ability of the CFMEU and employees to put forward alternatives and
engaging consultation is undermined by the continuation of a voluntary process
prior to all other alternatives being considered…
As of the date of this correspondence, there has been no confirmation from
North Goonyella as to the overall structure of the mine into the future and these
employees have not been provided with a breakdown of their potential
redundancy payment.
This means that the employees will have less than one week to make a decision
about whether or not to accept redundancy from North Goonyella. The Union
believes that this is unacceptable.
I request that the Company provides an undertaking that the voluntary process
be suspended immediately and not be closed off for at least two weeks after
both the financial breakdowns of their payments are released and a clear
picture of the future of the mine be decided….’19
[40] On 19 June 2015, Mr Brodsky wrote to Mr Moran, and said that as the employer had
not agreed to suspend the process the CFMEU intended to file a dispute with the Fair Work
Commission alleging that the employer had failed to comply with its obligation under clause
39 of the enterprise agreement. Mr Moran wrote back asserting that that consultation had been
undertaken in the proper manner. He foreshadowed that a formal response to the CFMEU's
proposal would be sent by 22 June 2015.
[41] On 21 June 2015, Mr Moran sent the CFMEU a formal response to its proposed
organisational structure. This included an additional six roles beyond those included in its
original proposal (increasing the number of positions in the new structure to 110). The
employer also agreed not to make any change to the current roster as set out in the enterprise
agreement and would therefore make no change to wages until further consultation with the
CFMEU. The response also included a description of the various scenarios that had been
considered by the employer as part of its review of the mine’s operations. It indicated that a
move to a single production shift combined with a single maintenance shift daily had been
determined through financial analysis to provide the greatest sustainability of also being the
optical roster for financial risk management. This roster would also limit the negative effect
on employees. It also outlined some proposed methods for mitigating the effect of the
redundancies.20
[42] As previously noted, the dispute was subject to a conciliation conference before
Asbury DP on 23 June 2015. The employer put further proposals at the conference to the
CFMEU about the selection criteria.21
[43] While clause 37 imposes consultation obligations on the employer in relation to
workplace change, sub-clause 37.1 in effect provides that the clause does not apply where
there is a consultation mechanism provided for elsewhere in the enterprise agreement. Clause
38 provides a specific consultation mechanism in cases where the employer has decided to
reduce the number of employees covered by the agreement. I am satisfied therefore that the
relevant consultation obligations in the circumstances of this dispute are those to be found in
clause 38.
[2015] FWC 4405
15
[44] Under clause 38 of the enterprise agreement if the employer decides to reduce the
number of employees covered by the enterprise agreement it is obliged to consult its
employees and their representative ‘about the proposed terminations, measures to avoid or
minimise the terminations and measures to mitigate any adverse effects of any terminations
on the employees concerned.’ Measures that must be discussed include the removal of
contractors (with the exception of contractors performing specialised tasks), and reductions in
supplementary labour and temporary and fixed term employees.
[45] The meaning of a somewhat similar consultation clause was considered by a Full
Bench of the Australian Industrial Relations Commission in Telstra v CEPU22:
‘[21] At the outset it is useful to give some consideration to the meaning of the term
“consult.” In this case the Commissioner referred to the obligation to provide an
opportunity to consult in these terms:
“There does not seem to be much between the parties in relation to the
underlying principles about consultation; namely, that it must be genuine with
an opportunity to influence the decision maker but not be a frustrating barrier.”
[22] The New Shorter Oxford English Dictionary gives as the primary meaning of
the verb “consult”: “deliberate, take counsel, confer (with someone; about, upon a
matter)”. The Macquarie Concise Dictionary defines “consult” as “to seek counsel
from, ask advice of”. While dictionary definitions can shed some light on the term, it
must be seen in context. The context of cl.7.3(b) is an obligation to provide an
opportunity to consult about measures to avert proposed redundancies and to mitigate
the adverse effects of proposed retrenchments. It is clear from cl.7.2 that it is only
once decisions to close a site and to retrench employees have been made that an
obligation arises under cl.7.3(b). Nevertheless Telstra must give the unions an
opportunity to persuade it that the relevant decisions should be modified or revoked. In
some cases it may not be so much a question of reviewing a decision but of
preparedness to consider actions which might assist employees to better manage the
effects of the termination on themselves and their families or to find alternative
employment. Such issues do not appear to arise in the present case which, as will be
shown, was more concerned with attempts by the union to persuade Telstra to
redeploy certain employees who were facing retrenchment.
[23] There is no obligation, however, to do other than provide an opportunity to
consult. A refusal to modify or revoke a decision of itself could not be regarded as
establishing that the obligation had not been discharged. If, on the other hand, it is
clear that while agreeing to meet the union Telstra never contemplated a review of the
relevant decision or decisions, it must follow that no opportunity to consult was in fact
provided.’
[46] Key points to note from the Full Bench decision (in the context of the particular clause
here under consideration) are that:
consultation must provide a genuine opportunity to influence the decision maker
(without being a ‘frustrating barrier’);
consultation in cases such as this involves giving those being consulted an
opportunity to put forward measures to avoid or minimise the proposed
[2015] FWC 4405
16
redundancies and measures to mitigate any adverse effects on the employees
concerned; and
the employer must give the union an opportunity to persuade it that the relevant
decisions should be modified or revoked.
[47] I am satisfied that the employer has met the consultation obligations in clause 38. It
indicated clearly to the union what it intended to do. It outlined the proposed new structure,
how many employees it intended to make redundant, and what reductions it intended to make
in its use of contractors and supplementary labour. It also advised the CFMEU of its proposed
redundancy process. It held a number of meetings with the CFMEU to discuss all of these
issues, and gave the CFMEU an opportunity to put forward its preferred approach in relation
to each issue. It responded positively to various requests for information by the CFMEU
(even if it did not always provide all the information sought). It clearly, in my opinion, gave
the CFMEU an opportunity to persuade it to modify or revoke its decisions. Indeed, the
consultation process led the employer to modify its decisions in a number of ways. For
example, in its response to the CFMEU’s proposed structure it agreed to increase the number
of permanent employees that would be retained to operate the mine (from 104 to 110)23. It
also agreed to use the 2013 criteria for the process of selecting employees for involuntary
redundancy, rather than the mid-year performance appraisals.24
[48] There is no doubt that the CFMEU remains deeply unhappy with the outcome of the
consultation process. In particular, it would prefer that there are no involuntary redundancies,
and wishes to see further reductions in the use of contractors. It also remains unhappy with the
proposed process for selecting employees for involuntary redundancy. However it is not
necessary for the parties to reach agreement for one to be able to conclude that a consultation
process has been genuine. For a process to be genuine there must be a real opportunity to
influence the decision maker. I am satisfied that the CFMEU has had this opportunity.
Has the employer met its obligations with regard to the use of contractors?
[49] I have already found that the employer has met its consultation obligations under
clause 38, including with regard to the removal of subcontractors and reductions in
supplementary labour. However clause 36 imposes separate obligations with regard to the use
of contractors and other external resources.
[50] Clause 36 gives a fairly broad discretion for the employer to use contractors and other
external resources (while providing that the employees of contractors must be paid at least the
Weekly Base Rate of Pay for the equivalent classification in the enterprise agreement). In
particular, clause 36.4 provides that contractors and other external resources may, at the
employer’s discretion, be engaged for:
a) ‘specialised tasks;
b) maintenance or upgrade work during major shutdowns;
c) supplementation of the permanent workforce for longwall moves;
d) peak work loadings;
e) new technology or propriety technology; or
f)
(i) in situations where a business case demonstrates that the productivity and
efficiency of the Company’s workforce including management has failed to meet
business plan targets (in terms of volume or cost); and
[2015] FWC 4405
17
(ii) such failure is not due to circumstances beyond the control of the permanent
workforce.’
[51] As part of the restructure, the employer is proposing a very substantial reduction in the
use of contractors. Attached to Mr Carter’s statement was a document summarising the
employer’s contractor usage prior to the restructure decision together with its proposal for
reduction of contractor labour utilised on the site. While precise contractor numbers may
fluctuate from time to time, Mr Carter’s estimate is that the reduction in average contractor
numbers would be close to 100.25
[52] In particular, all labour hire personnel who were previously working side by side with
permanent employees would be removed. According to Mr Carter’s evidence, all of the
contractors that the employer intends to continue to use (apart from WDS) carry out
specialised functions, or functions utilising licensed products or designs, which NGC
employees would not be competent to carry out.26 The clause specifically allows the employer
to use contractors for specialised tasks and proprietary technology.
[53] The work done by WDS is rock bolting and ancillary tasks. The employer proposes
that WDS continue to do this work, although with only about half the personnel as a
consequence of the overall reduction in the operation. According to Mr Carter, rock bolting is
a task which would be familiar to many underground miners, including many NGC
employees. However he contended that there are particular features of the way that the
employer requires WDS to carry out rock bolting which would make it commercially and
operationally inappropriate for the employer to further reduce its reliance on WDS or any
other contractor that would win a competitive tender. WDS had been carrying out this work
for at least 15 years. The employer had attempted to carry out this work internally previously
but had found it was economically not viable.27 The continued use of WDS in these
circumstances is consistent with clause 36.4 (f) (i).
[54] The CFMEU believes that while there is a role for some work to be done by
contractors, some of this work should be performed by permanent employees. While Mr
Brodsky acknowledged that the employer was planning a significant reduction in contractor
numbers and the elimination of labour hire personnel, he said that this ‘was also agreed and
proposed in in 2013 in which we saw 58 contractors re-employed within two weeks.’28
[55] During his cross-examination Mr Ludlow expressed some scepticism about the
employer’s intentions, partly because no change in contractor numbers has yet occurred and
partly because, from his ‘knowledge of the coal mine and what takes place on different crews,
the number seems to be incorrect’.29 He though there was a significant under-estimate of the
current number of contractors.30 He agreed, in relation to supplementary labour, that if the
employer did what it said it would do, his concern about that issue would disappear.
[56] I am satisfied, based on the evidence, that the employer’s proposals with regards to
contractors are consistent with its obligations under clause 36. The CFMEU is clearly
concerned that once the restructure is put in place, the employer will re-engage additional
contractors. However that is at this stage only speculation. If the employer were to do so, and
the CFMEU was concerned that such a move was inconsistent with the enterprise agreement,
it would be open for it to file a dispute application.
[2015] FWC 4405
18
Workplace Health and Safety
[57] Mr Woods gave evidence that on or about 22 June 2015 he received a number of
complaints from concerned coal mine workers about the proposed restructure. On the basis of
these complaints he issued a Mine Record Entry (MRE) to Mr Carter. The MRE outlined that
on the basis of the complaints he had received he had concerns about the safety of workers at
the mine under the proposed changes and requested that Mr Carter provide him with copies of
the risk management process used to determine if the proposed changes allowed the operation
to be at an acceptable level of risk after the changes had taken place.31
[58] Mr Carter responded that he would forward copies of the requested documents as the
mine worked through its processes. Mr Woods’s response was as follows:
‘ as I understand from the complaints the changes are set to take place this Friday the
26th and as such the reviews of the current procedures and plans would have already
been done to ensure the changes are not going to expose the (coal mine workers) that
are left to an unacceptable level of risk.’32
[59] During his cross-examination Mr Woods confirmed that he had thought that the
changes were to be implemented by 26 June 2015.33 This was based on the complaints he had
received.34 He agreed that if some of the reviews were already under way at the time he issued
his MRE, and the changes were not to be implemented before 9 and 10 July 2015, this might
allow enough time for the reviews to be properly completed in an appropriate timeframe.35
[60] Mr Carter, during his oral evidence, indicated that there was a risk-assessment process
under way at the mine. This process would involve reviewing the changes to take place in the
mine, highlight any potential risks that might come about from that and then examine some of
the more specific areas where risk may be introduced or might need to be reviewed. The
timeframe for completing the risk assessment was the middle of the week (that is,
presumably, by 2 July 2015).36
[61] Mr Carter gave evidence that the employer was in communication with the Mines
Inspectorate about the proposed changes and that an inspector was coming to the site that
week to oversee the employer's processes.37 He said that he was confident that all of the risk
assessments would be completed by 9 and 10 July 2015.
[62] I am not satisfied that the issues the CFMEU has raised about risks to workplace
health and safety at the mine come within the ambit of the DSP. The DSP is concerned with
disputes arising in relation to the interpretation or application of the enterprise agreement
(including matters in relation to the NES and disputes that are expressly authorised to be dealt
with under the DSP or another term of the agreement). The enterprise agreement does not deal
with the types of workplace health and safety matters about which the CFMEU has raised
concerns.
[63] In any case, I am not satisfied, based on the evidence, that the CFMEU’s concerns
about workplace health are justified. The employer has certain obligations under the Coal
Mining Safety and Health Regulation 2001. The evidence suggests that the employer is well
aware of those obligations and is taking the appropriate actions to ensure the restructure will
be implemented in a manner consistent with those obligations.
[2015] FWC 4405
19
Is the employer meeting its obligations in relation to the selection criteria for
involuntary redundancies?
[64] I have already found that the employer has met its consultation obligations with regard
to the selection criteria to be used for involuntary redundancies. However clause 38 of the
enterprise agreement imposes other obligations in addition to the requirement to consult.
[65] Clause 38.5(a) provides that the employer will select employees for involuntary
redundancy on ‘reverse merit utilising selection criteria reasonably chosen by the Company
based on its business needs, including but not limited to an employee’s skills/competencies,
experience and aptitude. To remove doubt, the Company may utilise performance, attitude,
absenteeism record and disciplinary history as selection criteria.’
[66] The selection process for involuntary redundancies to be used by the employer was
outlined by Mr Moran. Each employee will be assessed against five criteria: safety,
teamwork, communication, reliability and technical competency (machine skills and
application and productivity). Assessments are to be conducted by supervisors (50%
weighting), co-ordinators/superintendents (25% weighting) and departmental managers (25%
weighting). A moderation process will be applied to ensure that employees are not
disadvantaged by having a supervisor who is a ‘hard marker.’38
[67] I am satisfied that these proposed selection criteria are consistent with the employer’s
obligations under clause 38.5(a). However 38.5(a) is subject to the obligations in 38.5(b) and
(c) (and while it is not expressly stated those in (d) as well). Those sub-clauses provide as
follows:
‘b) In making a selection pursuant to paragraph (a), the Company must also give
material weight to an employee's length of service at the Mine and/or CHPP to
the intent that an employee with a long period of service should not be selected
for redundancy unless they are reasonably assessed against the other selection
criteria as materially worse than other employees with a materially lesser period
of service in the relevant class or classes of employees from among whom the
selection is being made.
c) To the extent that performance and/or attitude are utilised as selection criteria,
the Company must not make a materially adverse assessment of an employee
against either or both of those criteria as an individual (as distinct from
assessment as part of a group eg. a crew) unless the employee has been informed
(either verbally or in writing) by a supervisor or manager of relevant concerns
about his or her performance and/or attitude. The intent of this paragraph is that
an employee should not be assessed adversely on the basis of poor performance
and/or poor attitude as an individual unless the employee is aware of
management concerns in that regard and has had a reasonable opportunity to
consider and if necessary address those concerns.
d) To the extent that, as at the time this Agreement commences to operate, the
Company has material concerns about the performance and/or attitude of an
employee it must, within three months of such commencement, give that
employee written notice, expressed to be in accordance with this paragraph,
broadly outlining those concerns and provide such employee with an opportunity
[2015] FWC 4405
20
(if the employee so wishes) to discuss those concerns with a supervisor or
manager. No dispute can be raised over the issuing of a notice under this
paragraph. Rather, the occasion for an employee to dispute the issuing or
contents of such a notice will be if and when a matter adverted to in the notice is
sought to be relied upon by the Company in connection with a process for
involuntary redundancies, disciplinary action or performance management.’
[68] Paragraph (b) requires the employer to give ‘material weight’ to an employee’s length
of service. The obligation is expressed in very general terms and compliance could be
achieved in a number of ways. I consider that ‘material’ in this context means something like
‘significant’. The employer proposes that all employees first be rated against the selection
criteria already mentioned. Once it knows how many employees will need to be made
involuntarily redundant the length of service of the five employees above or below the
‘selection line’ will be applied. In other words, length of service will be used to split
employees with similar scores on the other criteria who might be considered for involuntary
redundancy. The effect of this should be that an employee with a long period of service will
not be selected for redundancy unless they are reasonably assessed against the other selection
criteria as worse than other employees with a lesser period of service. This in my opinion
would meet the employer’s obligations under paragraph (b).
[69] There is no evidence that the employer has put in place any arrangements to ensure
compliance with its obligations under 38.5(c) and (d).39 For example, assessors have not been
given guidance about what would constitute an adverse assessment on the basis of poor
performance and/or poor attitude. Nor is there any evidence of arrangements to ensure that
assessors only make such adverse assessments where the employee in question has been made
aware of management concerns in that regard and has had a reasonable opportunity to
consider and if necessary address those concerns. This is somewhat troubling given that the
employer was found by the Federal Court to have breached these obligations in 2013.
Consideration of the proposed orders
[70] The CFMEU has sought that the Commission order the employer to refrain from
terminating the employment of any employees covered by the enterprise agreement on the
basis of involuntary redundancy until the Commission arbitrates and determines the ‘extant
dispute’ in C2013/5463 (the matter currently being considered by Lewin C.)
[71] I note that Lewin C has yet to determine the jurisdictional issue of whether the
application in C2013/5463 has been resolved – or whether there is any ‘residue’ left to be
determined. That dispute relates to the redundancy process in 2013. The relationship between
the two matters. I am not satisfied that it would be appropriate to make the order sought by
the CFMEU.
[72] Indeed, given that I have found that the employer has generally met its obligations
with regard to the enterprise agreement, I do not consider that it would be appropriate to make
any of the orders proposed by the CFMEU. I do not therefore propose to do so.
[2015] FWC 4405
21
[73] I have expressed a concern at the lack of evidence that the employer has put in place
any arrangements to ensure compliance with its obligations under clause 38.5 (c) and (d).
Equally there is no evidence that the employer has failed to meet those obligations. I draw
them to the employer’s attention.
SENIOR DEPUTY PRESIDENT
Appearances:
B Docking Counsel with C Newman for the applicant
D Williams Solicitor with T Walthall Solicitor for the respondent
Hearing details:
2015
29 June
2 July
Sydney
Printed by authority of the Commonwealth Government Printer
Price code C PR568897
FAIR WORK COMMISSION J. M AUSTRAL THE SEAL OF
[2015] FWC 4405
22
ATTACHMENT A
1. North Goonyella Coal Mines Pty Ltd (the Company) refrain from terminating
the employment of any employees covered by the North Goonyella
Underground Mine Collective Enterprise Agreement 2012 (the 2012
Enterprise Agreement) to work at the North Goonyella Underground Mine
on the basis of redundancy, voluntary, involuntary or otherwise, until three (3)
weeks from the date of these Orders or such further order of the Fair Work
Commission.
2. The Company provide to the Construction, Forestry, Mining and Energy Union
(CFMEU) and the accredited representatives of the CFMEU within the
meaning of clause 40 of the 2012 Enterprise Agreement (the CFMEU’s
accredited representatives) the following information:
(a) A copy of the financial analysis that led to determining that there should
be a Single Production Shift Daily combined with a Single Maintenance
Shift Daily;
(b) A copy of any risk reviews and change management documents in
connection with the North Goonyella Underground Mine and the
Company’s proposed restructuring to a coal mining operation of a Single
Production Shift Daily combined with a Single Maintenance Shift Daily,
including but not limited to:
(i) Any document recording the Site Senior Executive considering
whether or not such an operation could operate at an acceptable
level of risk within the meaning of section 42 of the Coal Mining
Safety and Health Act 1999 (Qld) (CMSH Act);
(ii) Any document recording the safety and health management
system for the mine within the meaning of section 62(3)(g) of the
CMSH Act that contains a plan reviewing the safety and health
management system so that risk to persons is at an acceptable
level;
(iii) Any document recording the Site Senior Executive reviewing the
principal hazard management plans and standard operating
[2015] FWC 4405
23
procedures in consultation with coal mine workers affected by
the plans and operating procedures, before the change happens,
within the meaning of section 64 of the CMSH Act;
(iv) Any document recording any risk assessment carried out by the
underground mine manager for the proposed change within the
meaning of sections 318 and/or 319 of the Coal Mining Safety
and Health Regulation 2001 (Qld).
(c) Details of any changes in the performance of work, or changes in the
allocation of work, to employees, contractors and labour hire workers,
including which roles will be performed by each of those categories of
workers following the proposed voluntary and involuntary redundancies;
(d) A complete breakdown of each contract company that will be remaining
on site, including each sub-contractor and any labour hire companies,
what area/s of the mine they will be working in (including the CHPP and
all surface area's), the work they will be performing, how many
employee's they will have on site and in what roles (e.g. Supervisors,
tradesmen and operators), what hours of work they will be undertaking
and what rosters they will be working;
(e) A complete breakdown of how the CHPP is to be operated and maintained
under the proposed new structure including the rosters to be worked, the
hours to be worked, the wages employees manning levels and structure
and a manning structure overall that includes all roles to be performed in
the CHPP department (e.g. managers, supervisors, leading hands,
operators, contractors and all other roles);
(f) A complete breakdown of how the Surface Operations of the mine are to
be operated and maintained under the proposed new structure including
the rosters to be worked, the hours to be worked, the wages employees
manning levels and structure and a manning structure overall that
includes all roles to be performed in the Surface Department (e.g.
managers, supervisors, engineers, operators, tradespersons, contractors
and all other roles);
24
(g) A complete breakdown of how the Surface Workshop is to be operated and
maintained under the proposed new structure including the rosters to be
worked, the hours to be worked, the wages employees manning levels and
structure and a manning structure overall that includes all roles to be
performed in the Workshop Department (e.g. managers, supervisors, leading
hands/engineers, tradespersons, contractors and all other roles);
(h) A complete breakdown of how the Outbye Areas of the mine and associated
work are to be performed and maintained under the proposed new structure
including the rosters to be worked, the hours to be worked, the wages
employees manning levels and structure and a manning structure overall that
includes all roles to be performed in the Outbye Department (e.g. managers,
supervisors, operators, leading hands/engineers, tradespersons, contractors and
all other roles);
(i) A complete breakdown of how the Development and Mains Panels are to be
operated and maintained under the proposed new structure including the
rosters to be worked, the hours to be worked, the wages employees manning
levels and structure and a manning structure overall that includes all roles to be
performed in the Development Department (e.g. managers, supervisors,
tradespersons, operators, contractors and all other roles);
(j) A complete breakdown of how the Longwall Panel is to be operated and
maintained under the proposed new structure including the rosters to be
worked, the hours to be worked, the wages employees manning levels and
structure and a manning structure overall that includes all roles to be performed
in the Longwall Department (e.g. managers, supervisors, tradespersons,
operators, contractors and all other roles);
(k) The overall structure and plan of the mine under the proposed new structure
including all surface areas and the CHPP reflected as a complete manning and
organisation structure chart;
(l) The structure and plan for employee’s on the non-production shift to be
trained and skilled to be able to produce if required and what the triggers will
be that dictate when production is required;
[2015] FWC 4405
25
3. The CFMEU and the CFMEU’s accredited representatives give the Company an
enforceable undertaking not to disclose any information provided under Order
2(a) that is confidential or commercially sensitive.
4. The representatives of the Company make themselves available to meet with the
representatives of the CFMEU and the CFMEU’s accredited representatives at
reasonable times for the purpose of consultation regarding the information referred to
in Order 2 until three (3) weeks from the date of these Orders or such further order of
the Fair Work Commission.
5. That during the meetings referred to in Order 4 the Company will provide to the
CFMEU and the CFMEU’s accredited representatives a genuine opportunity to make
suggestions on any of the following:
(a) Measures to avoid and minimise the terminations;
(b) Measures to mitigate any adverse effects of any terminations on the
employees concerned;
(c) Directly employing employees;
(d) The removal of contractors and reductions in supplementary labour; (e)
Redeploying employees to be engaged by contractors at the mine.
6. The Company must provide an opportunity, three (3) weeks from the date of these
Orders or until such further order of the Fair Work Commission, for employees
covered by the 2012 Enterprise Agreement to obtain financial and investment
advice and to consult with their family before such employees decide whether or
not to apply for voluntary redundancy.
7. The Company’s proposed selection criteria for selecting employees for
involuntary redundancy are not reasonably chosen within the meaning of
paragraph 38.5(a) of the 2012 Enterprise Agreement.
8. In making a selection pursuant to paragraph 38.5(a) of the 2012 Enterprise
Agreement, the Company pursuant to paragraph 38.5(b) of that Agreement must give
material weight to an employee’s length of service at the mine and/or CHPP, in that
the Company must allow for length of service to be included in the selection criteria
[2015] FWC 4405
26
score sheet as its own individual criterion in addition to the maximum of 60 points
proposed by the Company in the Company’s selection criteria, with there being one
(1) point for each year of service at the mine and/or CHPP added into the overall
calculation by the relevant manager on site for all employees once all other scoring
has been compiled and completed to give an overall whole number score.
9. If the Company selects an employee for involuntary redundancy and so that such an
individual employee is able to elect to put in dispute that selection process as
provided for in paragraph 38.5(e) of the 2012 Enterprise Agreement, the Company
must follow the following procedure:
(a) Provide written notice to the selected employee of all points, scores, reasons
and comments relied on by the Company in the selection process applied to
that individual employee;
(b) Permit clause 41 Dispute Resolution Procedure of the 2012 Enterprise
Agreement to then be applied and followed by or on behalf of that
individual employee;
(c) Refrain from terminating such an individual employee until the procedure in
this Order, including clause 41 Dispute Resolution Procedure of the 2012
Enterprise Agreement, has been followed and exhausted.
10. Any dispute arising from the application of these Orders shall be referred to the
Fair Work Commission for determination.
1 Construction, Forestry, Mining and Energy Union v North Goonyella Coal Mine Pty Ltd [2013] FCA 1444
2 Construction, Forestry, Mining and Energy Union v North Goonyella Coal Mine Pty Ltd [2015] FWC 1138
3 Exhibit CFMEU5, attachment A
4 Exhibit NGC2, attachment SM-1
5 Exhibit NGC2, attachment SM-4
6 Exhibit NGC2, attachment SM-16
7 Exhibit NGC2, paragraph 28
8 Exhibit NGC2, attachment SM-26
9 Exhibit NGC2, attachment SM-27
10 Exhibit CFMEU2
11 Exhibit NGC2, attachment SM-29, CFMEU2
12 Exhibit NGC2, attachment SM-30
[2015] FWC 4405
27
13 Exhibit NGC2, attachment SM-32
14 Exhibit NGC2, attachment SM-31
15 Exhibit NGC2, attachment SM-34
16 PN322
17 Exhibit NGC2, paragraph 42, SM-35
18 Exhibit NGC2, attachment SM-37
19 Exhibit NGC2, attachment SM-39
20 Exhibit NGC2, attachment SM-44
21 PN150-152, 1647-1653
22 Telstra Corporation Limited v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied
Services Union of Australia [2007] AIRCFB 374
23 PN628
24 PN619-622
25 Exhibit NGC1, paragraph 13
26 Exhibit NGC1, paragraph 15
27 Exhibit NGC1, paragraph 20
28 PN356
29 PN602
30 PN607
31 Exhibit CFMEU7, paragraphs 8-10
32 Exhibit CFMEU, paragraph 13
33 PN875
34 PN876
35 PN880
36 PN985-987
37 PN9879
38 Exhibit NGC2, paragraph 52, attachment SM-47
39 See PN1551-1566, 1710-1732
