1
Fair Work Act 2009
s.739 - Application to deal with a dispute
Construction, Forestry, Mining and Energy Union
v
Mt Arthur Coal Pty Ltd
(C2016/267)
Coal industry
COMMISSIONER SAUNDERS NEWCASTLE, 3 JUNE 2016
Alleged dispute about any matters arising under an enterprise agreement [s186(6)].
[1] Mr Marc Waters is employed by Mt Arthur Coal Pty Ltd (Mt Arthur) as an Operator at
the Mt Arthur open cut mine near Muswellbrook in the Hunter Valley. On 21 December
2015, Mr Waters was issued with a stage 3 – final warning by Mt Arthur for deliberately
driving, on 6 and 9 October 2015, “the trucks you operated during those shifts at a slow-speed
because the Company will not agree to the workforces’ claims in the ongoing enterprise
agreement negotiations”. The warning letter also states that “the Company is required to
deduct the amount you were paid for your shifts on 6 and 9 October 2015 from your
remuneration. The Company will speak to you separately about recovering this payment.”
[2] Mr Waters admits that he drove more slowly than the other drivers of trucks at the
mine on 61 and 9 October 2015, but says that his motivation for doing so was to keep the dust
levels down at the mine, rather than as a response to Mt Arthur not accepting any claims by
the workforce in the enterprise agreement negotiations. As a result, Mr Waters challenges the
stage 3 – final warning given to him and denies that Mt Arthur is entitled to recover from him
the wages he received in respect of his work at the mine on 6 and 9 October 2015.
[3] Mr Waters is covered by the Mt Arthur Coal Enterprise Agreement 2011 (Enterprise
Agreement), which passed its nominal expiry date on 28 April 2014 but remains in operation
pursuant to s.54 of the Fair Work Act 2009 (Cth) (the FW Act). The Enterprise Agreement
also covers the CFMEU, of which Mr Waters is a member.
[4] The CFMEU has applied for the Fair Work Commission (the Commission) to deal
with the dispute concerning the stage 3 – final warning issued to Mr Waters on 21 December
2015 in accordance with s.739 of the FW Act (the Application).
1 Save for the fact that one other driver, Mr Presland, also drove slower than the other truck drivers at the mine on 6 October
2015. Mr Presland was also issued with a written warning.
[2016] FWC 2959
DECISION
E AUSTRALIA FairWork Commission
[2016] FWC 2959
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[5] On 18 February 2016, the parties participated in conciliation of their dispute before the
Commission. The dispute was not resolved in conciliation. As a result, the CFMEU requested
the dispute proceed to arbitration. The arbitration took place before the Commission in
Newcastle on 19 May 2016.
Legal principles concerning the proper characterisation of the dispute
[6] The test under s.739 of the FW Act is whether the dispute settlement procedure in the
enterprise agreement “requires or allows” the Commission to deal with the dispute. It is
therefore necessary to look at the text of the dispute settlement procedure, understood in light
of its industrial context and purpose, to determine whether the dispute, properly characterised,
falls within it.2
[7] The scope of a dispute settlement procedure in an enterprise agreement should not be
narrowly construed; “to do so would be contrary to the notion that certified agreements are
intended to facilitate the harmonious working relationship of the parties during the operation
of the agreement.”3
[8] In characterising the nature of a dispute the Commission is not confined to the
application filed to deal with the dispute.4 The entire factual background is relevant, and may
be ascertained from the submissions advanced by the parties on the question of jurisdiction.5
Further, a dispute may evolve during proceedings in the Commission. It may therefore be
necessary in some cases when ascertaining the character of a dispute to have regard to both
the nature of the dispute alleged in an originating application and the factual circumstances as
they evolve.6
[9] It is also important to note that the character of the dispute is distinguishable from any
relief which may be sought, or granted, following an arbitration of the dispute.7 However, the
relief sought may cast light on the true nature of the dispute in some cases.8
[10] If the Commission has jurisdiction to deal with the dispute, the nature of the relief that
the Commission may grant in such circumstances will depend on the limitation in s.739(5) of
the FW Act9 and the agreement of the parties as recorded in their enterprise agreement,
provided that such relief is reasonably incidental to the application of the Enterprise
Agreement to which the dispute relates.10
2 CEPU v Thiess Pty Ltd (2011) 212 IR 327 (CEPU v Thiess) at [42] & [47]; CFMEU v AIRC [2001] HCA 16
3 SDA v Big W Discount Department Stores PR924554 at [23]
4 AMWU v Holden Limited PR940366 at [47]; MUA v ASP Shipping Management Pty Ltd [2015] FWC 4523 (ASP) at [23]
5 AMWU v Holden Limited PR940366 at [47]; ASP at [23]
6 ASP at [19] & [23]; R v Bain; Ex parte Cadbury Schweppes Australia Ltd (1984) 159 163 at 168; United Firefighters’
Union v Metropolitan Fire and Emergency Services Board PR973884
7 MUA v Australian Plant Services Pty Ltd PR908236; ASP at [21]-[22]
8 United Firefighters’ Union v Metropolitan Fire and Emergency Services Board PR973884 at [20]
9 The Commission must not make a decision that is inconsistent with the FW Act, or a fair work instrument that applies to the
parties.
10 MUA v Australian Plant Services Pty Ltd PR908236 at [63]; Seven Network (Operations) Ltd v CPSU (2003) 122 IR 97 at
[31]-[32]
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What is the scope of disputes which may be dealt with under the dispute settlement
procedure in the Enterprise Agreement?
[11] Clause 20 of the Enterprise Agreement provides as follows:
“20 DISPUTES AND GRIEVANCE PROCEDURES
20.1 DISPUTES PROCEDURE
In the event of any dispute about any matters arising under this Agreement or in
relation to the National Employment Standards or arising in the course of
employment, there shall not be any stoppage of work either by the Company or
employee, and if such dispute is not settled, it shall be processed in accordance with
Clause 20.2 - GRIEVANCE PROCEDURE of this Agreement.
20.2 GRIEVANCE PROCEDURE
a) When a grievance arises the matter shall in the first instance be discussed between
the employee and the immediate supervisor involved. If the matter remains
unresolved;
b) It shall be referred for discussion between the employee's representatives at the
mine and the Department Superintendent or their representative. If the matter remains
unresolved;
c) It shall be referred in writing by the employee(s) raising the grievance for
discussion between the employee's representatives at the mine and the Company's
department Manager or their representative. If the matter remains unresolved;
d) It shall be referred for discussion between the employee's representatives which
may include a district official of the employee's union (if the employee(s) chooses)
and the nominated senior Company officials. If the matter remains unresolved;
e) It shall be referred as a last resort by either party to the appropriate industrial
authority for conciliation and if the matter remains unresolved arbitration. The parties
involved in the dispute or grievance will accept the result.
By agreement between the parties involved in the dispute or grievance any or all of the
Steps above may be by-passed in the interest of speedy resolution of the grievance.”
[12] There is no dispute and I am satisfied on the evidence that the preliminary steps in
clause 20.2 of the dispute resolution procedure of the Enterprise Agreement were complied
with before the dispute was referred to the Commission. I am also satisfied that the
Commission has the power pursuant to clause 20.2 of the Enterprise Agreement to arbitrate
any unresolved disputes that fall within the scope of the dispute resolution procedure.
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What is the proper characterisation of the dispute between Mr Waters and Mt Arthur?
[13] The relief sought by the CFMEU on behalf of Mr Waters is set out in Part 7 of the
Application. The relief sought can be distilled into two separate parts:
(a) a determination that Mr Waters did not engage in unprotected industrial action and
that the warning issued to Mr Waters be withdrawn (Warning Retraction Order);
and
(b) a determination that Mt Arthur not deduct from Mr Waters’ wages the amounts Mr
Waters was paid in relation to the 6 October 2015 night shift and the 9 October
2015 day shift (Payment Order).
[14] In my view, the proper characterisation of the dispute is a dispute about whether Mr
Waters engaged in the unlawful industrial action alleged against him in the warning letter of
21 December 2015, and, if he did, whether Mt Arthur is entitled to recover from Mr Waters
the wages it paid to him for his work on 6 and 9 October 2015.
Is the dispute between Mr Waters and Mt Arthur, properly characterised, within the
scope of disputes which may be dealt with under clause 20 of the Enterprise Agreement?
[15] A dispute about whether Mr Waters engaged in the unlawful industrial action alleged
against him in the warning letter of 21 December 2015, and whether Mt Arthur is entitled to
recover from Mr Waters the wages it paid to him for his work on 6 and 9 October 2015, is, in
my view, a dispute “arising in the course of employment” within the meaning of clause 20.1
of the Enterprise Agreement.
[16] Both the CFMEU, on behalf of Mr Waters, and Mt Arthur agree with this analysis,
however Mt Arthur makes two points in relation to the jurisdiction and power of the
Commission to arbitrate the dispute and grant the relief sought by Mr Waters:
(a) First, Mt Arthur contends that the Commission does not have jurisdiction to make the
Payment Order because the Commission is, in effect, being asked to make a binding
determination of Mt Arthur’s legal obligations under s.474 of the Act. Mt Arthur
contends that the Commission is being asked to exercise judicial power, which it
cannot do because it is not a Chapter III court; and
(b) Secondly, Mt Arthur contends that the Commission cannot “interfere with” the
warning issued to Mr Waters “in light of subclause 20.3.3” of the Enterprise
Agreement. In oral submissions, Ms Millen, who appeared on behalf of Mt Arthur,
clarified, correctly in my view, that this contention goes to the power of the
Commission to make the Warning Retraction Order, rather than the jurisdiction of the
Commission to deal with the dispute or any part of it.
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Is the Commission being asked to exercise judicial powers, not arbitral powers?
[17] Mt Arthur contends that the Commission does not have jurisdiction to arbitrate the
dispute because it is being asked to exercise judicial powers, not arbitral powers. I reject this
argument, for the following reasons.
[18] When the Commission is arbitrating a dispute pursuant to a dispute settlement clause
in an enterprise agreement it is not exercising judicial power, but is instead exercising a power
of private arbitration.11 As a private arbitrator, the Commission is authorised to make
decisions as to the legal rights and liabilities of parties to whom the enterprise agreement
applies.12 That involves deciding “all questions both of law and of fact”13 that arise in the
dispute, subject to any limitation on power in the dispute settlement clause14 and a
requirement not to make a decision that is inconsistent with the FW Act, or a fair work
instrument that applies to the parties.15
[19] In the present case, the Commission has been asked to arbitrate a dispute in relation to
the question of whether Mr Waters took unlawful industrial action and, if he did, whether, Mt
Arthur is entitled to recover from him the wages it paid him in respect of his work on 6 and 9
October 2015. In answering those questions the Commission will, in its capacity as private
arbitrator, decide “all questions both of law and of fact” that arise in the dispute. In so doing,
the Commission will exercise the powers of private arbitration the parties to the Enterprise
Agreement have agreed to confer on the Commission, not judicial power.
What is the effect of subclause 20.3.3 of the Enterprise Agreement?
[20] Clause 20.3 of the Enterprise Agreement is in the following terms:
“20.3 DISPUTE RESOLUTION AND WORK ARRANGEMENTS
The intent of the Grievance Procedure is to facilitate the resolution of disputes and
grievances in a timely manner and without losing time or production. As such, the
excellent industrial relations record on site can continue to grow for the benefit of all.
20.3.1 Objectives
The main objective of the procedure is to facilitate the resolution of local disputes and
grievances in a timely manner and as far as practicable on the job and without our
employees involved losing time or the Company losing production.
11 CFMEU v AIRC (2001) 203 CLR 645 at [30]-[31]; Linfox Australia Pty Ltd v TWU [2013] FCA 659 at [19]-[24]; AMWU v
ALS Industrial Australia Pty Ltd [2015] FCAFC 123 at [34]-[36]
12 CFMEU v AIRC (2001) 203 CLR 645 at [32]; Linfox Australia Pty Ltd v TWU [2013] FCA 659 at [19]-[24]; AMWU v ALS
Industrial Australia Pty Ltd [2015] FCAFC 123 at [34]-[36]
13 AMWU v ALS Industrial Australia Pty Ltd [2015] FCAFC 123 at [36]
14 s.739(3) of the FW Act
15 s.739(5) of the FW Act
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20.3.2 Work Arrangements
When a dispute occurs, work shall proceed in accordance with the reasonable direction
of the Company, the employee's recognised skills, competence and training and safe
working practices whilst the matter is progressed according to 20.2 - GRIEVANCE
PROCEDURE.
No party to the dispute or grievance shall be prejudiced as to the final outcome when
following the disputes / grievance procedure, and the parties to the dispute will ensure
that resolution of the matter will be addressed as quickly as possible.
20.3.3 Discipline / Work Allocation
The disputes / grievance procedure does not interfere with disciplinary action properly
taken under Clause 6 - CONTRACT OF EMPLOYMENT.”
[21] Clause 6 of the Enterprise Agreement provides that:
“6 CONTRACT OF EMPLOYMENT
6.1 FULL TIME EMPLOYEES
Employment shall be on a weekly basis. An employee must give one week's notice
to terminate employment or forfeit to the Company one week's pay instead of
giving notice.
Should the Company terminate an employee's employment with the Company, the
following period of notice will be given.
The period of notice is increased by 1 week if the employee is over 45 years old and
has completed at least 2 years continuous service with the employer.
This clause does not affect the right of the Company to dismiss an employee
without notice for serious misconduct.
The amount of payment instead of notice will be the amount the employee would
have been paid if the employment had continued to the end of the required period of
notice, inclusive of the employee's rostered hours and any other amount payable in
accordance with this Agreement.
The Company may direct an employee to carry out such duties as are within the
limits of the employee's skills, competence and training provided that the duties are
within safe working practices and statutory requirements.
The parties acknowledge that staff employees of the Company may perform work
of employees covered by this Agreement, however they will not be used to
displace employees, erode job security or reduce overtime.
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In addition employees may perform staff work. Examples include relief supervisor,
OCE, stores person, dispatcher, planner. Whilst working in a staff role, employees
will be paid the relevant step up percentage in accordance with Clause 10.1.5.
Employees must undertake training that the Company reasonably requires. This may
include training to acquire new competencies. All employees with a competency may
be required to demonstrate and familiarise other persons on a day to day or as
required basis in t hat competency.
An employee not attending or not performing such work shall, except as otherwise
provided, lose payment for the actual time of such non-attendance or non-
performance.
This clause shall not affect the right of the Company, following consultation with
the employee's representatives, to:
deduct payment for any day or portion thereof during which the employee is
stood down by the Company as a result of refusal of duty, neglect of duty, or
misconduct on the part of the employee; or
deduct payment for any day or portion thereof during which the employee
cannot be usefully employed in the work in which the employee is usually
employed because of any strike or because of a breakdown of machinery
provided that in the case of breakdowns of machinery at the mine, deductions
shall only be made in respect of days which occur after such breakdown has
continued for more than four consecutive working days inclusive of the day of
the breakdown, if such a day be a working day.”
[22] Subclause 20.3.3 of the Enterprise Agreement is a curious provision. No attempt was
made to adduce any evidence of the surrounding circumstances as an aide to the interpretation
of subclause 20.3.3.
[23] In my view, subclause 20.3.3 does not seek to narrow the scope of disputes which may
fall within the scope of the dispute settlement procedure. The scope of such disputes is very
broad, and includes any disputes “arising in the course of employment”. The expression “not
interfere with disciplinary action properly taken under Clause 6” in subclause 20.3.3 is, on its
proper construction, a limitation on the power of the Commission to grant particular relief in a
dispute. That is, in the event that Mt Arthur proposes to properly take, or has properly taken,
disciplinary action under clause 6 of the Enterprise Agreement, then an employee cannot use
the dispute settlement procedure in clause 20 to “interfere with” such action.
[24] For example, clause 6 of the Enterprise Agreement requires Mt Arthur to give an
employee a particular period of notice in the event that Mt Arthur wishes to terminate the
employment of an employee, other than for reasons of serious misconduct. Termination of
employment is a form of disciplinary action which may be taken under clause 6 of the
Enterprise Agreement. A dispute may be notified prior to the termination of an employee’s
employment in relation to a proposed or likely decision to dismiss the employee. Such a
dispute would “arise in the course of employment”. Construing clauses 6 and 20 of the
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Enterprise Agreement as a whole, and in light of their industrial context and purpose,16
subclause 20.3.3 limits the power of the Commission, in the example to which I have referred,
from making an order or granting other relief to “interfere with” a decision properly taken by
Mt Arthur to terminate the employment of an employee and provide the employee with the
notice required under clause 6. This is a limitation of power of the type with which s.739(3)
of the Act is concerned.
[25] Mt Arthur contends that subclause 20.3.3 “operates to prevent clause 20.1 from
conferring on the Commission the capacity to deal with any disciplinary action except that
which is improperly taken (improperly taken in the sense that it was taken for an improper
purpose). Any other construction leaves subclause 20.3.3 with no work to do, particularly in
light of the decision in XPT”17 [emphasis added]. I reject this submission, for the following
reasons:
(a) First, putting to one side the question of whether disciplinary action is “properly
taken”, it is clear from the plain words used in subclause 20.3.3 that it does not extend
to “any disciplinary action”. The words “under clause 6 of the Enterprise Agreement”
cannot be ignored. They operate to narrow the types of disciplinary action to which the
limitation on power in subclause 20.3.3 applies. Disciplinary action taken under clause
6 includes the termination of employment and deducting pay from an employee when
the employee is stood down as a result of refusal of duty or misconduct on the part of
the employee; and
(b) Secondly, the example referred to in paragraph [24] above demonstrates that subclause
20.3.3, on its proper construction, has work to do in particular circumstances.
[26] In the present dispute, subclause 20.3.3 has no application because no disciplinary
action has been taken under clause 6 of the Enterprise Agreement. The disciplinary action Mt
Arthur has taken against Mr Waters is to issue him with a stage 3 – final warning and to seek
to recover from him the wages paid to him in respect of his work on 6 and 9 October 2015.
The stage 3 – final warning was issued to Mr Waters under Mt Arthur’s Disciplinary Policy
and Procedure, not under clause 6 of the Enterprise Agreement, which does not deal with
warnings. In addition, the recovery by Mt Arthur of the wages paid to Mr Waters in respect of
his work on 6 and 9 October 2015 is not disciplinary action taken under clause 6 of the
Enterprise Agreement. Clause 6 deals with the deduction of payments when an employee is
stood down or cannot be usefully employed, but not the recovery of wages paid to an
employee in respect of unlawful industrial action taken by the employee. Clause 10 of the
Enterprise Agreement governs the recovery of overpayment of wages or allowances to an
employee.
Conclusion on jurisdiction and power
[27] The dispute between Mr Waters and Mt Arthur, properly characterised, falls within the
scope of disputes which may be dealt with under clause 20 of the Enterprise Agreement.
16 AMIEU v Golden Cockerel [2014] FWCFB 7447 at [41]
17 Australian Federated Union of Locomotive Enginemen v State Rail Authority of New South Wales (1984) 295 CAR 188 at
191
[2016] FWC 2959
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Further, the Commission has the power, in its role of private arbitrator, to grant the relief
sought by Mr Waters.
Does the Briginshaw standard apply?
[28] The CFMEU contends that the principle in Briginshaw v Briginshaw18 applies to the
allegation that Mr Waters’ motivation for driving slowly on 6 and 9 October 2015 was his
desire to pressure Mt Arthur to accept claims made by the workforce in the enterprise
agreement negotiations. Mt Arthur contends that the Briginshaw standard does not apply, but
even if it does the evidence before the Commission is sufficient to meet that standard. Neither
party relied on any authority in relation to their submissions concerning the applicability of
the Briginshaw standard.
[29] In my view, the approach contended for by the CFMEU as to the application of the
Briginshaw standard is warranted in this case, having regard to both the seriousness of the
allegations made against Mr Waters and the gravity of the consequences that would flow from
making the findings sought, namely the retention of the stage 3 final warning issued to Mr
Waters and the recovery of an overpayment in respect of the wages Mr Waters was paid for
his shifts on 6 and 9 October 2015.
[30] The standard of proof remains the balance of probabilities but "the nature of the issue
necessarily affects the process by which reasonable satisfaction is attained"19 and such
satisfaction "should not be produced by inexact proofs, indefinite testimony, or indirect
inferences"20 or "by slender and exiguous proofs or circumstances pointing with a wavering
finger to an affirmative conclusion".21
[31] Put another way, the application of the Briginshaw standard means that I should not
lightly make a finding that Mr Waters drove slowly for the reason contended for by Mt
Arthur. That is, “a greater clearness of proof may be properly looked for” in this case than in
cases where the consequences of the findings sought are not so serious.22
Proof of motivation by inference
[32] Proof of any fact on the balance of probabilities can be established by circumstantial
evidence;23 that is, by proof of primary, or intermediate, facts from which the court or tribunal
infers a further fact.24 The primary facts can themselves be the product of inference from
other facts.
18 (1938) 60 CLR 336
19 Ibid per Dixon J at p 363
20 Ibid per Dixon J at p 362
21 Ibid per Rich J at p 350
22 Sodeman v The King [1936] HCA 75; (1936) 55 CLR 192 at 216 per Dixon J
23 Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262 (Seltsam) at [90]
24 Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573 at 579
http://www.austlii.edu.au/au/cases/cth/HCA/1990/56.html
http://www.austlii.edu.au/au/cases/nsw/NSWCA/2000/29.html
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[33] A fact may be proved by inference if according to common experience the fact is the
more probable inference from the unexplained primary facts.25 Certainty is never possible,
and is not required.26
[34] In considering whether circumstances have been proven in which it is reasonable to
find a balance of probabilities in favour of the conclusion sought, the court or tribunal must
consider the accumulation of the evidence. This means not only evaluating each of the factual
contentions separately but also forming an appreciation of the overall effect of the whole of
the evidence.27
[35] A court or tribunal may draw an inference from a combination of intermediate facts,
even if none of them in isolation would support the inference.28 It also means that:29
“[a] true picture is to be derived from an accumulation of detail. The overall effect of
the detailed picture can sometimes be best appreciated by standing back and viewing it
from a distance, making an informed, considered, qualitative appreciation of the
whole. The overall effect of the detail is not necessarily the same as the sum total of
the individual details.”
[36] As Spigelman CJ discussed in Seltsam,30 “causation, like any other fact can be
established by a process of inference which combines primary facts like ‘strands in a cable’
rather than ‘links in a chain’”.
What was Mr Waters’ motivation for driving slowly?
[37] Some of the relevant primary and intermediate facts in this case support the motivation
for which Mt Arthur contends, while other relevant primary and intermediate facts support Mr
Waters’ contention that he drove slowly on 6 and 9 October 2015 because he was concerned
about dust. I will address each class of facts below, before standing back and viewing the
matter from a distance in order to make a finding in relation to Mr Waters’ motivation for
driving slowly on 6 and 9 October 2015.
Facts supporting Mt Arthur’s contention as to Mr Waters’ motivation
[38] First, Mr Waters admits that he engaged in the following conversation with Mr
Presland, another Operator driving a haulage truck at the mine, about half way through their
night shift on 6 October 2015:
“Mr Presland (Speaker 1):
‘Yeah, how ya going with it?’
25 Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 6
26 Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125 at 141
27 Clay v Clay [1999] WASCA 8; (1999) 20 WAR 427 at [55]
28 Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521 at 536
29 Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125 at 141
30 At [91]
http://www.austlii.edu.au/au/cases/cth/HCA/1984/7.html
http://www.austlii.edu.au/au/cases/wa/WASCA/1999/8.html
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Mr Waters (Speaker 2):
‘I still haven’t been over, over 25.’
Mr Presland (Speaker 1):
‘Yeah, I doubt I woulda been over 25 myself. Yeah, we’re only on a short run
now, a bit harder to get a convoy.’
Mr Waters (Speaker 2):
‘Yeah, yeah, I seen that, yeah, yous are going to that 200 dump. The good thing
about mine is I’m going all the way up the top, so I will get a good chance to
drive to conditions.’
Mr Presland (Speaker 1):
‘Ah for sure mate, yep. Is there going to be a bit of fog come in or what?’
Mr Waters (Speaker 2):
‘Nah, I dunno, it’s just bloody dust I think.’
Mr Presland (Speaker 1):
‘Couldn’t be off your tyres.’
Mr Waters (Speaker 2):
‘Haha, definitely not.’
Mr Presland (Speaker 1):
‘Righto then, carry on.’
Mr Waters (Speaker 2):
‘Righto mate.’”
[39] It is clear, in my view, from Mr Waters’ response to the question asked of him by Mr
Presland at the commencement of this conversation that Mr Waters understood what Mr
Presland was talking about when he said “how ya going with it?” [emphasis added]. Mr
Waters immediately responded that he had not driven over 25km/hour.
[40] I accept, as Mr Keenan submitted, that the “it” could have been a reference to a plan,
agreement or discussion between Mr Waters and Mr Presland earlier in the shift to “drive to
conditions” in order to control dust on the mine site. Mr Waters gave evidence, which I
[2016] FWC 2959
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accept, that he travelled with Mr Presland in a light vehicle out to the area of the mine in
which they were working at the commencement of their night shift on 6 October 2015.31 I find
that Mr Waters and Mr Presland did have a discussion early in their shift on 6 October 2015
in which they either agreed, or discussed, driving slowly during their shift on 6 October 2015.
They each drove significantly more slowly than the other truck drivers on night shift on 6
October 2015. The question is why they did so.
[41] The next part of the conversation between Mr Waters and Mr Presland is particularly
revealing as to their true motivation. Mr Presland expressed the view that he was “only on a
short run now”, which meant that it would be “a bit harder to get a convoy”. Mr Waters gave
evidence, which I accept, that although it was Mr Presland (and not Mr Waters) who used the
word “convoy”, Mr Waters understands a “convoy” to be a term commonly used to describe
the build-up of haul trucks, and Mr Waters accepts that a convoy could possibly affect
productivity at the mine. Indeed, the undisputed evidence adduced on behalf of Mt Arthur
establishes that the considerably slower speeds at which Mr Waters and Mr Presland drove,
compared to the other drivers of haul trucks, on 6 October (and 9 October, in Mr Waters’
case), caused other trucks to catch up to, and become stuck behind, the trucks being driven by
Mr Waters and Mr Presland. In fact, Mr Waters made the following comment during the
investigation into his conduct on 6 October 2015:
“The boys were up me that I was too slow but it was hot and dusty. Was driving to
conditions and everyone was up my bum. Copped it at the crib hut for going too slow.”
[emphasis added]
[42] Mr Presland’s comment that he was “only on a short run now, a bit harder to get a
convoy” suggests that he was trying to achieve the objective of getting a convoy. Trying to
achieve a convoy is consistent with a plan to engage in a deliberate “go slow”, as contended
for by Mt Arthur, but there is no reason why Mr Presland would want to achieve a convoy if
he was driving slowly because he wanted to keep dust levels to a minimum. If that were his
objective, he would not care one way or the other whether his slow driving caused a convoy.
[43] Mr Waters responds to Mr Presland’s statement that it would be “a bit harder [for him]
to get a convoy” by saying: “The good thing about mine is I’m going all the way up the top,
so I will get a good chance to drive to conditions.” Mr Waters gave evidence that he decided
at the commencement of the shift that he would “drive to conditions” during the shift, which
he explained to mean that he would drive the haul trucks during his shift at such a speed so as
to ensure that dust did not rise up above the wheel height of his truck.32 However, if Mr
Waters had resolved at the commencement of his shift to drive in that way because he was
concerned about dust, there is no reason why he would need to be going all the way to the top
“to drive to conditions”. Further, Mr Waters would not need a “good chance” to “drive to
conditions” if he had decided to drive in that way throughout the shift because he was
concerned about dust levels.
[44] In my view, notwithstanding Mr Waters’ denials of these matters in cross examination,
the most likely explanation for the statement made by Mr Waters to Mr Presland concerning
31 PN509-10
32 PN460-2
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“going all the way up the top” is that Mr Waters was driving, or about to drive, on a longer
circuit to the top dump site. When read in the context of Mr Presland’s reference to a convoy,
it is likely that Mr Waters was informing Mr Presland that he had a better chance of creating a
build-up of trucks because he was driving on the longer circuit. In my view, Mr Waters’
statement that he had a “good chance to drive to conditions” was likely a facetious reference
by him to Mt Arthur’s policy that Operators should be mindful of the prevailing conditions at
the mine when operating equipment.
[45] It is also of some significance that, up to this point in the conversation between Mr
Waters and Mr Presland on 6 October 2015, there is no mention of dust. The subject of dust
only arises when Mr Presland asks about what might happen later in the night, namely “is
there going to be a bit of fog come in or what?” In answer to that question Mr Waters refers to
dust. Mr Presland then makes the point that any dust “couldn’t be off your tyres”, to which
Mr Waters answers “Haha, definitely not”. This part of the conversation emphasises the
undisputed fact that Mr Waters was driving significantly more slowly during his shift on 6
October 2015 than the other drivers of haulage trucks at the mine, save for Mr Presland.
[46] Mr Presland was also given a written warning by Mt Arthur in relation to his conduct
on 6 October 2015. He initially challenged that warning in these proceedings before the
Commission. The Application filed by the CFMEU related to, and sought relief for the benefit
of, Mr Presland and Mr Waters. Mr Presland agreed to resolve his dispute with Mt Arthur
shortly after the conciliation conference before the Commission. I do not draw any inference,
or make any findings, in relation to the fact that Mr Presland agreed to settle his dispute with
Mt Arthur. However, there is some significance, in my view, to the fact that Mr Presland was
not called by Mr Waters to give evidence in the proceedings and there was no explanation
provided in relation to why he was not called to give evidence. Mr Presland was clearly in Mr
Waters’ “camp”, and Mr Waters was on notice that Mt Arthur was challenging his assertion
that he and Mr Presland were involved in an innocent discussion about dust levels in the
conversation set out in paragraph [38] above. In those circumstances, I draw an inference, in
accordance with the principle in Jones v Dunkel,33 that the uncalled evidence from Mr
Presland would not have assisted Mr Waters’ case as to his true motivation on 6 October
2015.
[47] Secondly, Mr Waters and Mr Presland were the only Operators on 6 October 2015
who drove haulage trucks at a significantly slower speed than the seven other Operators
driving haulage trucks on that day. On 9 October 2015, Mr Waters was the only Operator who
drove haulage trucks at a significantly slower speed than the six other Operators driving
haulage trucks on that day. If dust had been a real issue at the mine on the shifts worked by
Mr Waters on 6 and 9 October 2015, it is likely that other Operators would also have driven
haulage trucks at a significantly slower speed, similar to Mr Waters.
[48] Thirdly, Mr Waters drove the haulage trucks operated by him at a significantly slower
speed than other Operators (save for Mr Presland on 6 October 2015) for the whole of his
shifts on 6 and 9 October 2015, other than as set out in the following paragraph. If Mr Waters
was motivated to drove more slowly because he was concerned about dust levels, it is more
likely, in my view, that he would have slowed down at various times during those two shifts
33 (1959) 101 CLR 298
[2016] FWC 2959
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when he identified dust as a real issue, rather than for the whole of the shifts, particularly in
circumstances where Mt Arthur was, as is usually the case, using water trucks to manage dust
levels at the mine. For example, on 6 October 2015 Mr Waters and other Operators were
delayed by 34 minutes in commencing to drive the haulage trucks assigned to them at the start
of the shift, because the water trucks had been sent out ahead of the haulage trucks to water
the roads. That step was taken in an effort to address dust on the mine site at the
commencement of the night shift on 6 October 2015. In those circumstances, it is unlikely
that Mr Waters needed to drive slowly throughout the first part of his shift to keep dust levels
down because the water trucks had just spent time watering at least some of the circuit on the
mine at the commencement of the shift.
[49] Fourthly, on 6 October 2015 the one cycle during which Mr Waters drove at a similar
speed to other Operators (save for Mr Presland) was on his last cycle of the shift. On 9
October 2015, the only two cycles during which Mr Waters drove at a similar speed to other
Operators was (a) on his last cycle before his second crib break and (b) on his last cycle of the
shift. Mr Waters gave evidence that he drove faster during these cycles because he wanted to
get to his crib break on time and he wanted to be able to leave the mine on time at the end of
his shift. He gave evidence that he could have been delayed by about 10 to 15 minutes, or
perhaps longer, in waiting for a lift out of the mine at the end of his shift if he did not drive
quickly and make it to the departure point on time.34 In my view, if Mr Waters was truly
motivated to drive slowly on 6 and 9 October 2015 because he was frustrated about dust
levels at the mine and he believed that driving slowly was a safety measure that he thought
necessary to implement to deal with dust,35 it is likely that he would also have driven at the
same (slower) speed on his last cycles before his crib breaks and the end of his shifts on those
days.
[50] Fifthly, unchallenged evidence adduced by Mt Arthur establishes that Mr Waters’
performance on ten other shifts during October 2015 revealed no discrepancy between the
speed at which Mr Waters drove haulage trucks and the speeds at which other Operators
drove haulage trucks. In light of there being no dispute on the evidence that October 2015 was
a hot and dry month, with the result that dusty conditions were likely, it is odd that Mr Waters
only drove more slowly than other Operators36 on 6 and 9 October 2015. If Mr Waters was
truly motivated to drive more slowly because of dust at the mine, it is likely, in my view, that
he would have driven more slowly than other Operators on more than two days in October
2015, assuming, as Mr Waters contends, that other Operators at the mine regularly ignore the
requirement to drive haulage trucks at a speed to ensure dust levels do not rise above the
wheel height of a truck. If, on the other hand, he was, as contended for by Mt Arthur,
engaging in a deliberate “go slow” in relation to the enterprise agreement negotiations, he
could not have engaged in such conduct too often without his motivations becoming obvious
to supervisors and managers at Mt Arthur.
[51] Sixthly, Mr Waters did not call for a water cart to attend any part of the mine on 6 or 9
October 2015, other than on 6 October 2015 when Mr Waters requested a water cart attend to
the change out bay, which is an area off the operating circuit used to switch out Operators.
34 PN425-9
35 PN424
36 Save for Mr Presland on 6 October 2015
[2016] FWC 2959
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The change out bay is not part of the operating circuit, is subjected to lower traffic volumes,
and is not routinely covered by the usual patterns of the mine’s water carts. Requests that the
change out bay be watered are not uncommon.
[52] Mr Waters was trained and assessed by Mt Arthur in his obligation to “call a water
cart if [dust] levels are excessive”. Mr Waters gave evidence that he has called up for water
carts in the past when he believed an area of the circuit was particularly dusty. He says he did
not call for a water cart on 6 or 9 October 2015 because “there is generally no point as the
water cart will just get there when it can”.37 In circumstances where the water carts were
obviously functioning and being used at the commencement of the night shift on 6 October
2015 and Mr Waters called for a water cart to attend the change out bay on 6 October 2015, it
is likely, in my view, that if Mr Waters had been truly concerned about dust levels on the
circuit on 6 and/or 9 October 2015 he would have made calls for the water cart to attend
particular parts of the circuit.
[53] Seventhly, Mr Waters did not report any issue of dust on the circuit to his supervisor
on 6 or 9 October 2015. During his training and assessment by Mt Arthur, Mr Waters
correctly answered “(f) All of the above” to the following question:38
“What are some of your responsibilities and requirements with regards to Dust
Management at MAC?
(a) Dust levels must be kept below wheel or track height on all equipment
(b) Call a water cart if levels are excessive
(c) Slow down – drive to conditions
(d) Modify operations
(e) Report to your supervisor
(f) All of the above”
[54] In cross examination, Mr Waters gave evidence that he believed he only had to report
dust issues to his supervisor if the dust was so bad that he had to stop driving a haul truck.
The correct answer to the assessment question did not include any such limitation on the
circumstances in which a report must be made to a supervisor. However, the question and
correct answer in the assessment could not sensibly be construed, in my view, to require an
Operator to report dust to his or her supervisor every time they slowed down by, say,
5km/hour to keep dust levels below wheel height. In my opinion, an Operator in Mr Waters’
position would be likely to construe the assessment question and correct answer as requiring,
as a minimum, an Operator to report dust to their supervisor if dust remained a problem and
caused them to drive significantly slower than they otherwise would drive for the whole, or a
significant proportion, of their shift. That Mr Waters did not report excessive dust on the
37 Ex A3 at [29]
38 Ex R2, slide 30
[2016] FWC 2959
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circuit to his supervisor on 6 or 9 October 2015 provides some support for Mt Arthur’s
contention that he was not truly motivated by dust issues to drive slowly on those dates.
[55] Further, the fact that Mr Waters contacted Mr Leggett, an Open Cut Examiner (OCE)
employed by Mt Arthur, on 6 October 2015 to complain about dust levels at a crib hut where
Mr Waters was having a crib break demonstrates that he is a man who is not afraid to speak
up when he identifies an issue that he believes needs to be dealt with. It is significant, in my
view, that Mr Waters complained to an OCE about dust levels at a crib hut during his night
shift on 6 October 2015, but did not report to his supervisor or the OCE the excessive dust
levels on the circuit he says he was addressing by driving significantly slowly than the other
Operators39 on 6 and 9 October 2015. I address in paragraphs [64] to [66] below the contested
evidence in relation to the conversation between Mr Waters and Mr Leggett on 6 October
2015 concerning dust levels at the crib hut.
[56] Eighthly, the following events provide context in relation to Mt Arthur’s assertion that
Mr Waters was motivated to engage in a “go slow” on 6 and 9 October 2015 in support of the
negotiation for a new enterprise agreement at the mine:
(a) the Enterprise Agreement passed its nominal expiry date on 28 April 2014;
(b) Mt Arthur and the CFMEU have been negotiating the terms of a new enterprise
agreement since 2014;
(c) Mt Arthur put a proposed enterprise agreement to employees for a vote in June 2014,
but that proposed agreement was rejected by about 97% of the workforce, including
Mr Waters;
(d) the following statements were uploaded to the Facebook page of the “CFMEU
Bayswater Lodge”, which is the sub-division of the CFMEU responsible for
representing members employed at the Mt Arthur mine:
(i) On 2 July 2015:
“Your representatives today met with the company for the 20th time.
The company continue to try and remove tolerance time. They will not
give a guarantee as to how this will be compensated.
The company have confirmed they will not entertain a contractor clause
within the agreement.
The company proposed fortnightly pays and tried to disguise it calling it
a salary.
The company’s position on tool allowance is that it stays as per current
EA.
39 Save for Mr Presland on 6 October 2015
[2016] FWC 2959
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The CFMEU have indicated during discussions about the recent
seniority decision that we are not prepared to make any changes to this
clause.
The CFMEU informed the company in response to their proposal there
will be no changes to the weekend roster clause as it is currently in the
EA.
The company’s position has remained one that is not negotiable and
does not seem to be heading towards any resolution soon. Meetings
with members in regards to these discussions will occur soon for the
bargaining team to gain some direction in progressing the matters.”
(ii) On 25 August 2015:
“Your representatives today met with the company for the 23rd time.
Today your EA team met with the company. A revised offer reads as
follows:
…
After accepting that this is the case the pay rise increases are as follows:
Yr1 – 0%
Yr2 – 1%
Yr3 – 1%
These rises would represent a 0.4% rise per year for the period from the
expiry from the last agreement to the expiry of this offer. This is what
the company believe is to be a reasonable offer for the way you have
conducted yourselves during what has been a long process for which
the company themselves are responsible. Your shift and site Delegates
will give a detailed report at organised pre shift meetings.
The negotiating team has continually put forward the position of the
Lodge. It is now time for the Lodge to show their disappointment in
response to the way they are continually being treated.” [emphasis
added]
(e) in early October 2015, Mr Waters readily admits that he was “pissed off” with Mt
Arthur. The reason he was annoyed with Mt Arthur is in dispute. Mr Waters claims he
was upset with Mt Arthur in October 2015 because they were not taking the issue of
dust management at the Mt Arthur mine seriously. For example, on 6 October 2015
Mr Waters gave evidence that he “had the shits” about a comment made by the OCE
at the commencement of the night shift for Operators to “drive to conditions”, which
Mr Waters considered to be “just lip service” to the obligation to keep dust levels
down at the Mt Arthur mine;
[2016] FWC 2959
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(f) on about 3 November 2015, Mr Peter Legge, Acting Overburden Manager, informed
Mr Parton, a Production Services Superintendent, and other Superintendents that Mt
Arthur believed particular employees had been engaging in “go slows” at the mine in
an attempt to influence the enterprise agreement negotiations. No evidence was
adduced as to the basis of Mr Legge’s belief in that regard, nor was Mr Legge called
to give evidence. As a result, I do not give that evidence any weight. However, on
about 12 November 2015, Mr Legge informed Mr Parton and others that a stage 2
written warning had been issued to an Operator, Mr Wayne Goodwin, for the
following comments made by Mr Goodwin over the two way radio in October 2015:
(i) “We’re trying to slow things down and make these pricks get to the
table”;
(ii) “We are trying to slow this place down so we can get an EA signed”;
and
(iii) “I’m going to still block all the trucks until we get an EA signed”
(g) Mr Goodwin did not give evidence in these proceedings, but a letter setting out his
response to the allegations made against him by Mt Arthur was tendered by Mr
Waters. In that response, Mr Goodwin denies engaging in a “go slow” or any
unprotected industrial action. In light of the comments made by Mr Goodwin over the
two way radio, as set out in subparagraph (f) above, and on the basis of the evidence
before me in these proceedings concerning the allegations against Mr Goodwin, I do
not accept Mr Goodwin’s denials. Putting Mr Waters and Mr Presland to one side, I
find that at least one employee (Mr Goodwin) engaged in “go slows” at the mine in
October 2015 in an attempt to influence the enterprise agreement negotiations. That is
a relevant contextual matter in relation to the assertion that Mr Waters engaged in
similar conduct in October 2015; and
(h) in light of the comments made by Mr Goodwin over the two way radio in October
2015, as set out in subparagraph (f) above, Mt Arthur undertook a general review of
recorded radio transmissions to identify other Operators who may have been engaging
in conduct similar to Mr Goodwin. That review resulted in the discovery of the
conversation between Mr Waters and Mr Presland on 6 October 2015 (set out in
paragraph [38] above).
[57] I do not give any weight to the evidence given by Mr Parton of the conversations he
says he had with individual Operators in relation to meetings conducted by the CFMEU with
its members at the Mt Arthur mine concerning the status of enterprise agreement negotiations.
I do not give that evidence any weight because Mr Parson was not willing to disclose the
names of any of the Operators to whom he has spoken, with the result that Mr Waters could
not test the veracity of such evidence.
[58] Mr Waters gave evidence that copies of extracts from the Facebook page of the
“CFMEU Bayswater Lodge” were usually “floating around” at work, such as on the table, or
pinned up, in crib huts at the Mt Arthur mine and Mr Waters could not “remember a hundred
[2016] FWC 2959
19
per cent”40 whether or not he saw the Facebook post from 25 August 2015 in relation to the
Lodge showing “their disappointment in response to the way they are continually being
treated”. On the basis of this evidence, I find, on the balance of probabilities, that Mr Waters
did see the 25 August 2015 Facebook post at about that time.
[59] I accept Mr Waters’ evidence that he does not know Mr Goodwin. I also accept Mr
Waters’ evidence that he has not been actively involved in discussions between the employee
bargaining representatives (the CFMEU and its delegates) and Mt Arthur for a replacement
enterprise agreement, and he has not, since about mid-2015, attended a paid site CFMEU
Lodge members’ meetings where reports of how the bargaining is progressing are given and
the last report he recalls receiving, in about mid-2015, was that negotiations were ongoing and
no protected industrial action was planned. However, I am satisfied on the basis of the
evidence summarised in paragraphs [56] and [58] above that in October 2015 Mr Waters was
aware that (a) enterprise bargaining negotiations had commenced in 2014, (b) a proposed
enterprise agreement was put to the workforce for a vote in 2014 and it was rejected by an
overwhelming majority of employees, and (c) no agreement had been reached by October
2015 for a new enterprise agreement. That was because the employees were not willing to
accept the proposals put by Mt Arthur and Mt Arthur was not willing to accept the position
being put by the employees in bargaining.
[60] Ninthly, where possible, Mt Arthur relied on objective data, rather than subjective
views or memories, to make its findings in relation to Mr Waters’ true motivation on 6 and 9
October 2015. The CFMEU, on behalf of Mr Waters, criticised Mt Arthur for not asking
supervisors, other Operators or OCEs during their investigation whether they recalled it being
dusty on 6 or 9 October 2015. Given that the investigation did not commence until about 5
weeks after the days in question (6 and 9 October 2015), it was appropriate, in my view, for
Mt Arthur to rely on the available objective evidence to assess Mr Waters’ statement that he
drove slowly because of dust, rather than ask a range of employees for their recollection of
weather events on two particular shifts many weeks beforehand.
Facts supporting Mr Waters’ alleged motivation
[61] First, during Mt Arthur’s investigation into the events of 6 and 9 October 2015 and
throughout in his evidence in these proceedings Mr Waters consistently denied that he was
motivated to drive slowly for the reason alleged by Mt Arthur and maintained that he drove
slowly because he was concerned about dust levels at the mine. Mr Waters also denies that he
is, or was in October 2015, concerned about the progress of negotiations for a new enterprise
agreement because he is happy to remain on his existing terms and conditions of employment
under the current Enterprise Agreement.
[62] Secondly, there is no dispute that heat and dry weather, in addition to wind speeds, are
some of the most significant environmental factors contributing to dust generation at an open
cut mine. Mr Parton agreed in cross examination that October 2015 was a “super-hot” and dry
month.41 Similarly, Mr Leggett gave evidence, which I accept, that October 2015 was a hot,
40 PN561-9
41 PN1158; PN1191-8
[2016] FWC 2959
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dry and dusty time of the year.42 Mr Waters gave evidence, which I accept, that he was told at
the start of the shift on 6 October 2015 that it was hot and dusty.43 His evidence in this regard
is consistent with the fact that Mr Waters and other Operators had been delayed by 34 minutes
in commencing to drive the haulage trucks assigned to them at the start of the shift, because
the water trucks had been sent out ahead of the haulage trucks to water the roads. That step
was taken in an effort to address dust on the mine site.
[63] Both parties adduced a significant amount of circumstantial evidence concerning the
period around 6 to 9 October 2015 in relation to matters such as temperatures, wind speeds,
wind directions, regional dust events, complaints to Mt Arthur concerning dust and the
responses thereto, and operational data. Mt Arthur submits that this evidence demonstrates
there was no dust problem warranting Mr Waters slowing down to the speeds at which he
drove on 6 and 9 October 2015. Mr Waters submits that this evidence establishes dust was a
problem on those shifts and it supports his contention that he drove more slowly than other
Operators because he was motivated by dust levels. I have found this circumstantial evidence
to be of little assistance and I do not need to resolve the contests between the parties about it.
That is because I prefer the undisputed direct evidence given by both parties to the effect that,
as is often the case in an open cut coal mine, there were dust issues that needed to be
addressed at the mine during various parts of Mr Waters’ shifts on 6 and 9 October 2015. In
particular, there is no dispute on the evidence that October 2015 was a hot and dry month, and
Mt Arthur was, at various times during Mr Waters’ shifts on 6 and 9 October 2015, putting in
place measures to deal with dust at the mine, such as sending the water trucks out onto the
mine 34 minutes before the haulage trucks at the commencement of the night shift on 6
October 2015. This evidence adds weight to, but is not determinative of, Mr Waters’ assertion
that he drove slowly on 6 and 9 October 2015 because he wanted to keep dust levels to an
acceptable level.
[64] Thirdly, there is a contest on the evidence as to whether Mr Waters contacted Mr
Leggett during his night shift on 6 October 2015 to complain about dust at a crib hut at which
Mr Waters was having a break during his shift. Mr Waters gave evidence that he had such a
conversation with Mr Leggett over the two way radio. In particular, Mr Waters recalls he said
to Mr Leggett words to the effect: “It is ridiculous how dusty it is at 9/12 [crib hut 9/12]. You
can’t go outside. If you do you just get dusted out. You need to do something about it”. Mr
Leggett gave evidence that “the call from memory was that there was a lot of dust coming
back over the crib hut from a dump that we had been tipping out to the south of the crib hut
and that someone needed to come and have a look at it as it was approaching crib time”.44 Mt
Arthur contends that no such conversation took place. In making that submission it relies on
the fact that Mr Parton reviewed all of the relevant two way radio recordings from the night
shift on 6 October 2015 and could not find any evidence of such a discussion between Mr
Waters and Mr Leggett. However, Mr Parton initially understood that Mr Waters was
claiming that he made his call to Mr Leggett from a haulage truck. As a result, Mr Parton
initially reviewed all the two way radio recordings from the haulage trucks operated by Mr
Waters during his night shift on 6 October 2015. In his witness statement in reply, Mr Waters
made it clear that he made the call to Mr Leggett over the two way radio from the crib hut,
42 PN675
43 PN464
44 PN666
[2016] FWC 2959
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rather than from a haulage truck. As a result, a few days prior to the hearing Mr Parton
obtained and reviewed all the radio recordings from the crib huts and all radio recordings
involving Mr Leggett during the night shift of 6 October 2015. Again, Mr Parton did not find
any evidence of a conversation between Mr Waters and Mr Leggett concerning dust.
[65] I prefer the evidence given by Mr Waters and Mr Leggett in relation to this contested
conversation over the fact that Mr Parton could not find evidence of such a conversation in
the radio recordings. I do so for the following reasons:
(a) Both Mr Waters and Mr Leggett had a good recollection of the conversation. Their
recollections are similar;
(b) Mr Leggett is an OCE employed at Mt Arthur. He was called by Mr Waters to give
evidence at the hearing pursuant to an order that he attend the Commission and give
evidence. There is no reason of which I am aware for Mr Leggett to give other than
truthful evidence. I found him to be a credible and reliable witness; and
(c) Because of the significant amount of time since the events in early October 2015 and
the time at which Mr Parton reviewed a number of the two way radio recordings (mid-
May 2016), there is a reasonable likelihood that some of the relevant recordings were
not available to be reviewed by Mr Parton in mid-May 2016. For example, a recording
might not have been kept, might have been stored in a different place, might have been
misplaced, or might have not been properly identified as a potentially relevant
recording by the person who collated the recordings for Mr Parton’s review shortly
before the hearing.
[66] Accordingly, I find that Mr Waters spoke to Mr Leggett from a two way radio in a crib
hut during night shift on 6 October 2015, complained to Mr Leggett about the amount of dust
at the crib hut, and asked for something to be done about it. Mr Leggett responded to Mr
Waters’ concerns by directing trucks to dump their loads at a dump on a lower level in the
mine.
[67] Fourthly, Mr Waters moved to live in Muswellbrook in late 2014 or early 2015; he
previously lived in Scone. Since moving to Muswellbrook, Mr Waters has observed dust at
his residence to be a real issue, including in his swimming pool. In addition, Mr Waters’ son
is four years old and suffers from asthma. His asthma has been worse since moving to
Muswellbrook and Mr Waters believes that is related to the additional levels of dust in the
atmosphere in Muswellbrook. The mines closest to Muswellbrook are the Mt Arthur and
Bengalla mines.
[68] Fifthly, Mr Drayton gave unchallenged evidence, which I accept, that no decision has
been made by the Mt Arthur site CFMEU Lodge or the CFMEU itself to take protected or
unprotected industrial action to press for a new enterprise agreement at the Mt Arthur mine. I
also accept Mr Drayton’s unchallenged evidence that there were no enterprise bargaining
negotiations held in relation to a new enterprise agreement at the Mt Arthur mine in the period
from about 25 August 2015 to 16 December 2015.
[2016] FWC 2959
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[69] Sixthly, other than being issued with a final written warning in connection with his
conduct on 6 and 9 October 2015, Mr Waters has not, at any time since the commencement of
his employment with Mt Arthur on 3 January 2012, received any warnings or been counselled
about any aspect of his employment.
Conclusion as to Mr Waters’ motivation
[70] There is a proper foundation, in my view, from which to conclude that Mr Waters’
decision to drive slowly on 6 and 9 October 2015 was because Mt Arthur would not agree to
the workforces’ claims in the ongoing enterprise agreement negotiations, not because he was
concerned about dust. When the primary facts set in in paragraph [38] to [69] are examined as
a whole, as the principles discussed in paragraph [32] to [36] above require, the most probable
inference is that in driving slowly on 6 and 9 October 2015 Mr Waters was motivated by Mt
Arthur’s position in the ongoing enterprise agreement negotiations. Applying the Briginshaw
principle, I do not lightly make this finding, thereby rejecting Mr Waters’ evidence that he
drove slowly because he was concerned about dust and he was not concerned about the
enterprise agreement negotiations. The facts to which I have referred permit me to
comfortably conclude that Mr Waters was motivated to drive slowly for the reason asserted
by Mt Arthur. I have been particularly (but not exclusively) persuaded by the following
matters:
(a) the conversation between Mr Waters and Mr Presland on 6 October 2015, as set out in
paragraph [38] above;
(b) the fact that only Mr Waters and Mr Presland slowed down on 6 October 2015 and
only Mr Waters slowed down on 9 October 2015;
(c) the fact that Mr Waters only drove at a significantly slower speed than other Operators
of haulage trucks for two shifts in October 2015;
(d) the fact that Mr Waters sped up on his last cycle of the day and before a crib break on
the shifts in question;
(e) the fact that Mr Waters did not call for a water cart to attend any part of the circuit on
6 or 9 October 2015; and
(f) the contextual matters set out in paragraphs [56] and [58] to [59] above.
Did Mr Waters engage in unprotected industrial action?
[71] Mr Waters accepts that if I find he deliberately drove the trucks he operated during his
shifts on 6 and 9 October 2015 at slow speed because Mt Arthur would not agree to claims by
the workforce in the ongoing enterprise agreement negotiations then his conduct on 6 and 9
October 2015 was unprotected industrial action and accordingly it is open to Mt Arthur under
clause 10 of the Enterprise Agreement to deduct the monies from his future wages over a
[2016] FWC 2959
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period of time agreed with Mr Waters or, in the absence of such an agreement, in accordance
with the formula set out in clause 10.45
[72] On the basis of the findings I have made above, I agree that Mr Waters engaged in
industrial action as defined in s.19 of the FW Act during his shifts on 6 and 9 October 2015,
for the following reasons:
(a) By driving at a significantly lower speed than other Operators of haul trucks, Mr
Waters:
i) performed work in a manner different from that in which it is
customarily performed, the result of which was a restriction or
limitation on, or a delay in, the performance of the work (paragraph
19(1)(a) of the FW Act); and
ii) in effect, imposed a limitation or restriction on the performance of his
work for Mt Arthur (paragraph 19(1)(b) of the FW Act)
(b) Mr Waters’ action in driving slowly was not authorised or agreed to by Mt Arthur,
nor was it based on a reasonable concern of Mr Waters about an imminent risk to
his health or safety (paragraphs 19(2)(a) and (c) of the FW Act); and
(c) Mr Waters’ action in driving slowly was industrial in character because it was
motivated by the fact that Mt Arthur would not agree to the workforces’ claims in
the ongoing enterprise agreement negotiations.46
[73] There is no dispute and I am satisfied on the evidence that the notice requirements set
out in s.414 of the FW Act were not met in relation to the industrial action taken by Mr
Waters on 6 and 9 October 2015. It follows that Mr Waters’ industrial action was not
protected industrial action (s.413(4) of the FW Act).
Can Mt Arthur recover from Mr Waters the wages paid to him in relation to his work
on 6 & 9 October 2015?
[74] Section 474 of the FW Act imposes on Mt Arthur a mandatory obligation not to make
any payment to Mr Waters for the unprotected industrial action taken by him on 6 and 9
October 2015.
[75] Mt Arthur did pay Mr Waters his normal wages for his work on 6 and 9 October 2015.
Those payments were made because Mt Arthur was not aware of the fact that Mr Waters had
taken unprotected industrial action at the time it paid Mr Waters his wages for the period
including 6 and 9 October 2015.
[76] Mt Arthur is entitled to recover from Mr Waters the wages it paid to him in respect of
his work on 6 and 9 October 2015. In the event that there is a dispute in the future about how
45 Applicant’s Outline of Submissions in Chief at [10]
46 AMWU v The Age Company Ltd PR946290; [2004] AIRC 445; Secretary, Department of Education & Early Childhood
Development (Victoria) v Australian Education Union [2010] FWA 3775 per Kaufman SDP at [8]-[24]
[2016] FWC 2959
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or when Mr Waters will repay those monies to Mt Arthur, that dispute could be the subject of
a further s.739 application to the Commission.
Conclusion
[77] Mr Waters was motivated to drive slowly on 6 and 9 October 2015 because Mt Arthur
would not agree to the workforces’ claims in the ongoing enterprise agreement negotiations.
His conduct in that regard constituted unlawful industrial action. There was a proper basis for
the stage 3 – final warning issued by Mt Arthur to Mr Waters on 21 December 2015. Mt
Arthur is entitled to recover from Mr Waters the wages it paid to him in respect of his work
on 6 and 9 October 2015. It follows that I decline to grant any of the relief sought by Mr
Waters in the Application. The Application is therefore dismissed.
COMMISSIONER
Appearances:
Mr K Endacott, on behalf of the CFMEU;
Ms S Millen, solicitor, along with Mr J McLean, solicitor, for the respondent.
Hearing details:
2016.
Newcastle;
May, 19.
Printed by authority of the Commonwealth Government Printer
Price code C, AE885861 PR580246
THE FAIR WORK AIR NORK C OMMISSION KLIA SEX THE SEAL OF THE
