1
Fair Work Act 2009
s.739—Dispute resolution
Construction, Forestry, Maritime, Mining and Energy Union; Peter
Cowan; Darren Sisson; Rod McLean; Dayle Marriott; David Bickhoff
v
Falcon Mining Pty Ltd T/A Falcon Mining
(C2020/4783)
DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 27 JULY 2020
Provision of document relevant to dispute – redaction of various terms of document before it
is inspected by, or provided to, the applicants.
Introduction and background
[1] The CFMMEU is the first applicant in these proceedings. It is also the representative
of the second, third, fourth, fifth and sixth applicants, who were formerly employed by Falcon
Mining Pty Ltd (Falcon Mining).
[2] The second to sixth applicants (Employees) were covered by the Falcon Mining
Enterprise Agreement 2017 (Enterprise Agreement) during their employment with Falcon
Mining.
[3] The Employees’ contracts of employment with Falcon Mining include the following
terms:
“3. Nature and Location of Employment
Your classification is prescribed in Schedule A. Unless terminated earlier in
accordance with the terms of this Contract, you will be employed on a full time fixed
term basis for the maximum commercial term of the Project defined in Schedule A.
Upon completion of the Project, your employment (and this contract) will end without
the need for either party to provide notice or Falcon Mining to provide any termination
payment.
…
Schedule A: Contract Summary
…
Item 5 Name of Project/ Contract Number: NC1705 – Cut and Fit
Location Development Work
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DECISION
E AUSTRALIA FairWork Commission
[2020] FWC 3936
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Narrabri”
[4] Earlier this year, Falcon Mining gave notice to the Employees that their “employment
will come to an end on 26 June 2020, the date that the Contract will reach its maximum
commercial term. You are required to attend site to work your remaining rostered shifts up
until and including 26 June 2020.” Falcon Mining has also informed the Employees that they
are not entitled to notice of termination or redundancy pay.
[5] The Employees claim, inter alia, that they are entitled to notice of termination and
redundancy pay under the terms of the Enterprise Agreement. They say that the Project
reached its maximum commercial term and was completed in late 2019, and they remained
employed by Falcon Mining on a different project or doing different work from late 2019
until their termination in late June 2020.
[6] Falcon Mining contends, inter alia, that the Project came to an end on 26 June 2020.
The Respondent has produced correspondence with its commercial client, Narrabri Coal
Operations Pty Ltd, to support its contention in that regard.
[7] On about 19 June 2020, the CFMMEU filed an application for the Commission to deal
with the dispute between the Applicants and Falcon Mining in accordance with the dispute
settlement procedure in the Enterprise Agreement. That procedure enables a dispute about a
matter under the Enterprise Agreement or a dispute in relation to the NES to be referred to the
Commission once preliminary steps have been undertaken.
[8] I have conducted two conciliation conferences in an effort to resolve the dispute. It
remains unresolved at this stage.
[9] In the conciliation conference on 15 July 2020, I indicated to the parties that I would
issue an order for the production of documents to Falcon Mining, requiring it to produce a
copy of the contract referred to in the Employees’ employment contracts, namely Contract
Number: NC1705 – Cut and Fit Development Work (Narrabri Contract). Falcon Mining
agreed to produce that document to the Commission without the need for an order for
production, and did so.
[10] It is clear that the Narrabri Contract is relevant to at least the following issues in the
dispute:
What was the maximum commercial term of the Project?
When did completion of the Project take place?
Redaction of the Narrabri Contract
[11] Falcon Mining has produced to the Commission both a redacted version of the
Narrabri Contract and an unredacted version. The redacted version has been provided to the
Applicants, but the unredacted version has only been produced to the Commission and Falcon
Mining objects to the unredacted version of the Narrabri Contract being inspected by, or
provided to, the Applicants. Falcon Mining has also filed extensive submissions setting out
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the basis on which it says each provision of the Narrabri Contract which it has redacted
should remain redacted when the document is inspected by, or provided to, the Applicants.
[12] I agree with Falcon Mining that the provisions of the Narrabri Contract which it has
redacted may remain redacted when the Narrabri Contract is inspected by, or provided to, the
Applicants, save for the following provisions which must not be redacted when the Narrabri
Contract is made available to the Applicants:
Provision which should not be redacted Reason for decision
Whole of the Table of Contents on pages
3, 4, 5 and 6
The Table of Contents does not disclose
any the content of any commercially
sensitive information and enables the
provisions of the Narrabri Contract which
are of apparent relevance to the issues in
dispute to be considered and construed in
context.
Definition of “Development Metres” on
page 10
The definition does not disclose any
commercially sensitive information and is
of apparent relevance to when completion
of the Project took place.
Whole of clause 31 (Certificate of Final
Completion) on pages 35 and 36
The definition does not disclose any
commercially sensitive information and is
of apparent relevance to when completion
of the Project took place.
Whole of clause 37 (Variations) on pages
39, 40 and 41
The clause does not disclose any
commercially sensitive information and is
of apparent relevance to when completion
of the Project took place, particularly in
light of Falcon Mining’s submission that
there has been at least one written
variation to the Narrabri Contract and
Falcon Mining is continuing to search for
other potential variations. A copy of the
known executed variation was included as
part of the exhibit to Falcon Mining’s
submissions.
Whole of clause 51.1 (Reporting) on page
52
The clause does not disclose any
commercially sensitive information and is
of apparent relevance to when completion
of the Project took place, particularly
insofar as it concerns the provision of
reports showing the progress and
performance of the Works.
Whole of clause 14.5 (Monthly Reports)
of Schedule 1 - page 71
The clause does not disclose any
commercially sensitive information and is
of apparent relevance to when completion
of the Project took place, particularly
insofar as it concerns the provision of
reports showing the progress and
performance of the Works.
[2020] FWC 3936
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[13] By 4pm on 30 July 2020, Falcon Mining is directed to produce to the Commission and
the Applicants a copy of the Narrabri Contract which has been redacted in accordance with
this decision.
DEPUTY PRESIDENT
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