1
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Troy Brown
v
Clermont Coal Operations Pty Ltd T/A Clermont Open Cut
(U2014/13979)
Mr Campbell Dews
v
Clermont Coal Operations Pty Ltd T/A Clermont Open Cut
(U2014/13980)
Mr Damien Mason
v
Clermont Coal Operations Pty Ltd T/A Clermont Open Cut
(U2014/13981)
Mr Gregory Holmes
v
Clermont Coal Operations Pty Ltd T/A Clermont Open Cut
(U2014/13982)
Mr Jeffrey Mason
v
Clermont Coal Operations Pty Ltd T/A Clermont Open Cut
(U2014/13983)
Ms Glynis Sabbo
v
Clermont Coal Operations Pty Ltd T/A Clermont Open Cut
(U2014/13984)
DEPUTY PRESIDENT GOOLEY MELBOURNE, 19 MARCH 2015
Application for relief from unfair dismissal - orders for production.
[1] The applicants sought orders for the production of documents directed to Clermont
Coal Pty Ltd and a number of its associated entities. The parties to whom the proposed orders
[2015] FWC 1918 [Note: An appeal pursuant to s.604 (C2015/2341) was
lodged against this decision - refer to Full Bench decision dated 10 April
2015 [[2015] FWCFB 2460] for result of appeal.]
DECISION
AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2015FWCFB2460.htm
[2015] FWC 1918
2
were directed (the respondents to this application) objected to the orders being made and the
matter was set down for a mention to determine if the orders should be granted.
[2] Mr Chris Murdoch of Counsel was given permission to appear for the parties against
whom the orders were sought because I considered the matter involved some complexity and
it would enable the matter to be dealt with more efficiently. Mr Alex Bukarica of the CFMEU
who appeared for the applicants did not oppose permission being granted.
Relevance
[3] The respondents objected to orders 1-7 directed to Collinsville Coal Operations Pty
Ltd and Glencore Coal Queensland Pty Ltd (the Collinsville orders) which were in identical
terms. It further objected to orders 3-4 of the orders directed to Clermont Coal Pty Ltd and
Clermont Coal Operations Pty Ltd (the Clermont orders).
[4] The parties are in dispute as to whether it would have been reasonable in all the
circumstances to redeploy the employees within the employer’s enterprise or the enterprise of
an associated entity of the employer.1
[5] It was submitted by the respondents that the applicants contend that s.389(2) of the
Fair Work Act 2009 requires the Fair Work Commission to consider whether redeployment to
work being performed by contractors would be reasonable.
[6] The respondents contend that the test for genuine redundancy under s.389(2) does not
require consideration of the reasonableness of an employer or the enterprise of an associated
entity of the employer engaging contactors as opposed to employees. Rather it submitted that
the consideration is limited to deployment to available positions, which does not include
positions occupied by contractors or employees of contractors.
[7] It submitted that it would be illogical if s.389(1) permitted an employee to be made
redundant because the job he or she was doing was contracted out and the assessment of the
reasonableness of redeployment could include consideration of positions occupied or planned
to be occupied by contractors or employees of contractors.
[8] I accept that this question has not been determined by a Full Bench of the
Commission. In Technical and Further Education Commission v Pykett2 the Full Bench said
“the Commission must find, on the balance of probabilities, that there was a job or a position
or other work within the employer’s enterprise (or that of an associated entity) to which it
would have been reasonable in all the circumstances to redeploy the dismissed employee.”3
[9] In Teterin and ors v Resource Pacific Pty Ltd4 the Full Bench did not question the
approach of the member at first instance to consider work performed by contractors when he
concluded that redeployment was not reasonable.
1 s.389
2 [2014] FWCFB 714
3 Ibid at [36]
4 [2014] FWCFB 4125
[2015] FWC 1918
3
[10] The proposition put by the respondents is absolute. It submits that the Commission
could never consider the reasonableness of redeployment to a position filled or proposed to be
filled by a contactor or an employee of a contractor. One only needs to consider the situation
where an employer has a number of positions that it intended having done by labour hire
workers but circumstances changed and before it engaged the labour hire workers it had to
make employees who could do the job redundant. On the interpretation put by the
respondents, the Commission could never consider if it would have been reasonable for the
employer to redeploy the employees to those positions. The question of the reasonableness of
the redeployment must be determined on the evidence before the Commission. I do not
consider it appropriate to determine this matter at this stage of the proceedings. This issue is
legitimately in dispute between the parties.
The scope of the roles
[11] The employees are seeking documents about production and engineering roles.
Production and engineering employees are defined in the orders as employees engaged in
positions, classifications or jobs that are covered by Schedule A and Schedule B of the Black
Coal Mining Industry Award 2010 regardless of whether the Award applies to the employees
or not.
[12] Mr Murdoch submitted that the definition was too wide as it described a broader class
of employees than operators and administration. Hence irrelevant documents are being
sought.
[13] Mr Murdoch submitted that the employees were engaged as operators, apart from Ms
Glynis Sabbo who had a background in administration, and the employees were only
interested in redeployment to operator positions.
[14] Mr Bukarica conceded that the scope was too wide. He submitted that it should not
include what he described as engineering/trade work. It is not clear how the removal of the
word engineering from the definition in the order would make this clear. Further in relation to
Schedule B, he submitted the roles should be limited to administrative work covered by
Schedule B.
[15] I accept Mr Murdoch’s submissions. The respondents should not be required to
provide documents in relation to positions that the parties agree it would not be reasonable to
redeploy employees to because they do not have the skills and competence to perform even
with a reasonable period of retraining.
[16] Mr Murdoch proposed amendments to these orders. I do not consider those
amendments reflect the proper scope of the roles that should be considered. Redeployment is
not restricted to employees current roles nor to roles they may have expressed interest in at
the time.
Timing
[17] The employees seek documents for the period:
1 January 2014 to 31 December 2014
[2015] FWC 1918
4
1 January 2014 to 23 February 2015
1 September 2014 to 23 February 2015
1 September 2014 to 31 December 2014
[18] Mr Murdoch submitted that the relevant time was 1 September 2014 to 30 November
2014. This is because the time at which redeployment must be considered commences when
there has been a decision that the job done by the employee is no longer required. Mr
Bukarica advised that the time frame was broader because of the change in the public position
in relation to the Collinsville mine. In January 2014, a spokesperson announced that the
Collinsville mine had an initial start up of around 20 employees which will grow to 250
employees by year’s end, including a component of labour hire workers and other contractors.
Ms Leanne O’Donoghue filed a witness statement in the proceedings in which she stated that
at 18 February 2014 there were 16 wages employees and 52 staff employees engaged at
Collinsville and 2 apprentices and 2 vacation students. Mr Bukarica said that the time span
was set to seek documents about why they changed their approach to direct employment at
Collinsville.
[19] It is clear that the relevant time to determine if there are redeployment opportunities is
in the period after the decision has been taken to make the positions redundant and when the
particular employee is dismissed or shortly after.
[20] I do not accept that documents for the periods sought by the employees are relevant.
Even if there had been a decision to change the employment mix at the Collinsville mine, and
that is not clear on the evidence I have been taken to, I do not see how this is relevant to the
issue to be determined by the Commission. The employees contend that they should have
been redeployed to do work currently being done by contractors or allocated to be done by
contractors. I accept that documents which show what work was being performed or planned
to be performed by contractors at the relevant time are relevant documents. Documents which
show what work was to be performed by contractors before the decision was made and after
the employee’s employment was terminated are not relevant.
[21] I would restrict any orders to the period 1 September 2014 - 30 November 2014.
Fishing
[22] Mr Murdoch submitted that in relation to the Collinsville orders, the applicants are
fishing. It was said that the applicants have a suspicion that the respondents have structured
their workforce in such a way as to avoid the need to redeploy employees as part of a broader
industrial strategy.
[23] Mr Bukarica said the reason for the change in the mix of categories of employees is
relevant to the reasonableness of the redeployment.
[24] I do not accept Mr Murdoch’s submissions. It is clear that the reasonableness of the
redeployment is a matter the Commission must consider. The evidence in relation to both the
redeployment opportunities and the reasonableness of redeployment is generally in the
possession of the employer and its associated entities. The respondents have submitted and
[2015] FWC 1918
5
called evidence that redeployment was not reasonable. The employees are not fishing when
they seek the production of documents to challenge this contention.
Confidentiality
[25] Objection was taken to orders 1, 5 and 6 of the Collinsville orders on the basis that the
documents contain commercially sensitive material. Further objection was taken to the
production of these documents on the basis that they would reveal the internal deliberations as
to the industrial strategy or policy of these parties.
[26] To the extent that the documents contain confidential information, the documents must
first be produced to the Commission. That is the appropriate time for confidential documents
to be identified. The Commission may make orders under s.593 or s.594 in relation to
confidential documents.
[27] I am unable to agree with Mr Murdoch that order 1, which seeks information about the
total number of employees required to attain optimum direct workforce level at Collinsville,
would reveal the internal deliberations as to the industrial strategy or policy of these parties.
[28] In relation to orders 5 and 6, which seek documents going to the consideration given
by the respondents to the mix of direct employees as opposed to contractors or labour hire
employees, I consider that these documents may reveal the internal deliberations as to the
industrial strategy or policy of these parties.
[29] At the hearing, Mr Bukarica advised that he was not in a position to address the
submissions about internal deliberations. I will provide Mr Bukarica with an opportunity to
address this issue and provide Mr Murdoch with an opportunity to reply if Mr Bukarica
wishes to press for production of the documents in these categories. However that does not
need to delay the production of the remaining documents.
Conclusion
[30] I am not prepared to issue the orders in their current form. Mr Bukarica is directed to
provide orders for production which are consistent with the reasons for this decision. Those
orders for production should be provided by noon on 20 March 2015. I will provide the
respondents with two weeks to produce the documents. At the same time as the documents are
produced to the Commission, the respondents should file and serve any orders in relation to
any identified confidential documents that they propose the Commission make in relation to
access to or publication of those documents.
DEPUTY PRESIDENT
FAIR WORK COMMISSION AUSTRALIA THESEAL OF
[2015] FWC 1918
6
Appearances:
A. Bukarica for the applicants.
C. Murdoch of Counsel for the respondents.
Hearing details:
2015.
Melbourne, Sydney and Brisbane, by telephone:
18 March.
Printed by authority of the Commonwealth Government Printer
Price code C, PR562219
