Association of Professional Engineers, Scientists and Managers, Australia v Dendrobium Coal Pty Ltd

The Association of Professional Engineers, Scientists and Managers, Australia (APESMA) brought proceedings against Dendrobium Coal Pty Ltd, asserting that Dendrobium had contravened their enterprise agreement by failing to take steps to mitigate the effects of redundancy on an employee. The dispute was heard in the Fair Work Commission, which was tasked with interpreting the enterprise agreement and determining whether Dendrobium had breached it. The central legal issue was whether Dendrobium had failed to comply with the agreement by not exploring alternative employment opportunities for the redundant employee within Illawarra Coal, despite such positions being available.

In examining the agreement, the Commission considered the plain meaning of the term "available" as used in the enterprise agreement's clause regarding redundancy. The Commission rejected APESMA’s arguments that positions occupied by contractors or "Step Up" employees should be considered available. It held that "available" in the context of the agreement likely meant "ready for use" rather than merely "suitable for use". Consequently, the Commission found that Dendrobium had not contravened the agreement, as no positions were actually available for immediate use at the time the redundancy was implemented.

Given this interpretation, the Commission dismissed APESMA's application. It noted that unless Dendrobium applied for costs within seven days, no order would be made regarding costs. If such an application was made, APESMA would have an opportunity to respond within seven days. The Commission's decision was based on the plain language of the agreement and the uncontradicted evidence presented. The final orders included dismissing the application and setting out the procedure for any potential application for costs.