BHP Coal Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union
[2023] FWCFB 215
•20 NOVEMBER 2023
| [2023] FWCFB 215 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
BHP Coal Pty Ltd
v
Construction, Forestry, Maritime, Mining and Energy Union
(C2023/5279)
| JUSTICE HATCHER, PRESIDENT | SYDNEY, 20 NOVEMBER 2023 |
Appeal against decision [2023] FWC 2092 of Vice President Asbury at Brisbane on 21 August 2023 in matter number C2022/4034.
Introduction
BHP Coal Pty Ltd (BHP) has appealed against a decision made by Vice President Asbury on 21 August 2023[1] in respect of an application made by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) pursuant to s 739 of the Fair Work Act 2009 (Cth) (FW Act) for the Commission to deal with a dispute in accordance with the applicable dispute resolution procedure in the BMA Enterprise Agreement 2018[2] (2018 Agreement). The Vice President published reasons for her decision on 13 September 2023.[3]
The dispute the subject of the CFMMEU’s application concerns subsidised accommodation provided by BHP to mineworkers in the ‘single person village’ (SPV) pursuant to the Moranbah Accommodation Agreement 2012 (MAA). The SPV is an accommodation facility in the town of Moranbah in Queensland for BHP employees working in coal mines in the vicinity of the town. The SPV consists of demountable buildings containing individual units of accommodation (with their own bathrooms) and a shared mess hall.
It is not in contest that the provisions of the MAA are incorporated by reference into the 2018 Agreement. Clause 5.2 of the MAA relevantly provides:
5.2 Single Person Village
Employees who live in an SPV under this Agreement will pay a subsidised rate of $60 per week which will be deducted from the Employee's post tax salary. Employees who live in the SPV will be required to comply with the rules of the SPV. Failure to comply may result in the withdrawal of this benefit.
(underlining added)
On 11 November 2021, BHP informed affected employees that, effective from 22 January 2022, it would cease deducting $60 per week from employees’ pay pursuant to clause 5.2 of the MAA. The CFMMEU, on behalf of two of its members, disputed this action on the basis that it would adversely affect the tenancy rights of mineworkers under the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTRA Act) and that it was not permitted under the MAA. The dispute was not resolved at the workplace level or by conciliation by the Commission. The dispute resolution procedure in clause 37 of the 2018 Agreement provides for the Commission to arbitrate the dispute in those circumstances.[4] In addition to the CFMMEU and BHP, two other unions covered by the 2018 Agreement, the Australian Manufacturing Workers’ Union (AMWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), participated as ‘intervenors’ in the arbitration before the Vice President.
The parties agreed that the Commission should determine the dispute by answering the following question:
Can BHP lawfully cease the $60 per week deduction from post-tax salary of all employees residing in the SPV?
In her decision, the Vice President gave the answer ‘No’ to the above question. BHP contends in its appeal that the answer given was incorrect and that the correct answer was ‘Yes’. The parties agree that permission is required for BHP’s appeal under s 604 of the FW Act.
At the outset of the hearing of the appeal, we raised with the parties whether the question which the Vice President had been asked to determine might, in the terms formulated by the parties, extend beyond the Commission’s proper role in arbitrating the dispute. The parties agreed that the true question was whether BHP was permitted to cease the $60 deduction under the terms of the MAA, and that this was what the agreed question was intended to convey and represented the way in which the matter was argued at first instance. Accordingly, we will determine the appeal on the basis that the question which the Vice President answered pursuant to the dispute resolution procedure in the 2018 Agreement was, in substance, as follows:
Is BHP permitted under the terms of the MAA to cease the $60 per week deduction from post-tax salary of all employees residing in the SPV?
For the reasons which follow, we have decided to grant permission to appeal, but to dismiss the appeal on the basis that we consider that the outcome determined in the decision under appeal was correct.
Background
The MAA
The MAA predates the making of the 2018 Agreement and was entered into in association with the predecessor enterprise agreement, the BMA Enterprise Agreement 2012 (2012 Agreement). At the time that bargaining for the 2012 Agreement occurred, there were a range of pre-existing accommodation agreements. It was agreed during the course of bargaining that these accommodation agreements would be reviewed in site-level discussions. Ultimately, with the assistance of mediation conducted by the Commission, agreement was reached as to the terms of four new accommodation agreements, one of which was the MAA. Agreement was also reached as to the terms of the new enterprise agreement, including agreement that the new accommodation agreements be incorporated by reference into the new agreement. The 2012 Agreement was made on 22 October 2012, approved by the Commission on 26 October 2012 and took effect on 2 November 2012. Clause 34 of the 2012 Agreement dealt with ‘Accommodation and Commute Arrangements’, and clause 34.2 incorporated by reference the MAA and the other three new accommodation agreements.
The MAA is an agreement between BHP (and a related company, Broadmeadow Mine Services Pty Ltd) and the CFMMEU, the AMWU and the CEPU (and is executed as such). The cover page contains the following ‘Note for Employees’:
This is the Moranbah Accommodation Agreement 2012 as referred to in clause 34 of the BMA Enterprise Agreement 2012.
The terms of this Accommodation Agreement will be binding on BMA when employees approve the BMA Enterprise Agreement 2012.
BMA proposes that BMA and the union parties sign this Accommodation Agreement when the BMA Enterprise Agreement 2012 is approved by Employees.
The recitals to the MAA state:
1. The Company is the employer of employees at Goonyella Riverside, Peak Downs and Broadmeadow Mines. These Mines are managed by the BHP Billiton Mitsubishi Alliance, a joint venture between the BHP Billiton group and the Mitsubishi group.
2.The CFMEU, AMWU and CEPU (collectively referred to as ‘the Unions’) are entitled to represent the industrial interests of employees at Goonyella Riverside, Peak Downs and Broadmeadow Mines.
3.The Unions were bargaining representatives under s 176 of the Fair Work Act 2009 (Cth) (FW Act) in bargaining for the BMA Enterprise Agreement 2012. The CFMEU was the bargaining representative under s 176 of the FW Act in bargaining for the Broadmeadow Mine Enterprise Agreement 2012.
4.The parties have agreed to incorporate this agreement under s 257(b) of the FW Act in the BMA Enterprise Agreement 2012.
5.It is fundamental to the operation of the accommodation and commute arrangements clause in the BMA Enterprise Agreement 2012 that this Agreement can be amended from time to time by the parties in accordance with the terms of this Agreement and the process specified in the accommodation and commute arrangements clause of the BMA Enterprise Agreement 2012.
Clause 1 of the MAA provides:
1.Purpose
This Accommodation Agreement has been developed by the parties. having regard to the principles in clause 34.1 of the BMA Enterprise Agreement 2012 and for Goonyella Riverside and Peak Downs Employees, is subject to clauses 34.2 and 34.3 of that Enterprise Agreement.
The purpose of this Agreement is to provide eligible Employees with a range of company subsidised accommodation options. Nothing in this Agreement limits an Employee’s ability to enter into alternative arrangements with the Company, pursuant to clause 34.2(c) of the BMA Enterprise Agreement 2012 and where agreed between the Company and an Employee.
Clause 2.1 provides that the MAA commences operation upon approval of the 2012 Agreement (that is, 26 October 2012) and replaces all previous agreements between the parties. Clause 2.2 provides however that certain existing benefits are protected, including that employees residing in SPV accommodation would continue to pay their current ‘rent/rate’ if less than the ‘rent/rate’ prescribed in the MAA.
Clause 3 sets out definitions of certain terms used in the MAA, relevantly including the following:
Company Controlled Property (CCP): A Unit or House that is owned or directly leased by the Company in Town.
Single Person: A person who does not live in Town together with: (a) another person who he or she is in a relationship with; and/or (b) any Dependent Child.
Town: Within an area of 40km from the town centre of Moranbah.
Unit: A property attached to other properties including apartments or units (medium to high density).
Clause 5.1 provides for the range of accommodation options as follows:
5.1 Accommodation Type
New Employees will be provided information on the range and availability of accommodation options outlined in the table below and the alternative options if their preference is not currently available.
The range of accommodation options (subject to availability) are:
Employee Status Accommodation Type
Single Person SPV or 1-2 Bedroom Unit
Couple 1 or 2 or 3 Bedroom Unit or 3 bedroom House
Single with 1 Dependent Child 2 or 3 Bedroom Unit or 3 Bedroom House
2+ Dependent Children 3+ Bedroom House
All allocation of properties will be determined by the Company, taking into account an Employee’s needs, the number of Dependent Children and other relevant family circumstances. In the event that a dispute arises under this clause, Employees may access the dispute settlement procedure in accordance with clause 8.
We have earlier set out part of clause 5.2. Clause 5.2 in its entirety, and clause 5.3, provide:
5.2 Single Person Village
Employees who live in an SPV under this Agreement will pay a subsidised rate of $60 per week which will be deducted from the Employee's post tax salary. Employees who live in the SPV will be required to comply with the rules of the SPV. Failure to comply may result in the withdrawal of this benefit.
Employees who reside in an SPV and commute from areas outside of the region may be required to travel to and from the SPV at the start and finish of their rostered days in a Company-provided bus.
5.3 CCP
Employees who live in a CCP will pay a subsidised rate of $60 per week, deducted from the Employee's pre-tax salary.
Clause 6 sets out a number of ‘General Terms’ applicable to the provision of accommodation under the MAA. These include clause 6.2, which provides:
6.2 Availability of Accommodation
The Company will supply accommodation according to an Employee's choice under this Agreement, subject to availability. Should the requested accommodation not be immediately available the Employee will be accommodated in an SPV, or other alternative accommodation, until the requested accommodation becomes available.
Whilst all circumstances will be considered, the timing and allocation of accommodation will be determined by the Company.
Clause 6.8 provides for a mechanism by employees who have purchased a home ‘in Town’ pursuant to BHP’s previous Home Ownership Scheme to apply for approval to move into the SPV on the basis that they first offer to sell their home at a specified price. Once this is done, clause 6.8(1)(b) provides that ‘[t]he Employee can then continue the application process to move into the SPV at the subsidised rates as outlined in Clause 5.2’. The clause goes on to provide: ‘Employees that obtain a benefit from this clause may not enter into any other accommodation option (other than the SP[V]) unless approval is granted by the Head of HR or their nominee’. Clause 6.9 provides:
6.9Maintenance
The Company will provide an ongoing maintenance and upgrades program to Company-owned homes to ensure homes are maintained in good repair and remain fit for Employees to live in.
Finally, clauses 7, 8 and 9 provide:
7 Variation of agreement
This Agreement may be amended by agreement between the parties.
Any discussions between the parties to vary this Agreement will include employee representatives from Goonyella Riverside, Peak Downs and Broadmeadow Mines.
A variation to the agreement can be sought by any party where supported by appropriate justification.
It is not intended that the parties will seek to vary this agreement for an individual Employee's particular circumstances. However, this does not prevent the Company from offering alternative benefits to Employees.
No party can unreasonably refuse to participate in discussions to vary this Agreement where a reasonable justification has been presented.
However, variation can only be effected by agreement between the parties.
8 Disputes procedure
In the event a dispute arises pertaining to this Agreement, it will be dealt with in accordance with the dispute settlement procedure in the BMA Enterprise Agreement 2012 (or the Broadmeadow Mine Enterprise Agreement 2011 for Broadmeadow Employees) or any replacement enterprise agreement. Enforcement issues will be dealt with in the appropriate jurisdiction.
9Preservation of benefits
In the event the BMA Enterprise Agreement 2012, the Broadmeadow Mine Enterprise Agreement 2011 or any replacement enterprise agreement is to be terminated and will cease to apply to Employees, the parties agree that:
(a) Employees will continue to be entitled to access benefits under this Agreement;
(b) This Agreement will continue to operate unaffected, subject to any variation made in accordance with clause 7; and
(c) The parties will take whatever prior steps are necessary and appropriate to legally preserve the operation of this Agreement.
Rooming Accommodation Agreements and the RTRA Act
The evidence indicates that some if not all employees of BHP to whom the MAA applies and who were accommodated in the SPV had, before the events engendering this dispute, entered into written Rooming Accommodation Agreements (RAAs) with BHP under the RTRA Act. The Vice President found that this practice was ‘widespread and standard’[5] — a finding which BHP contended in its appeal was not supported by the evidence. As we discuss later, we consider the Vice President’s finding to have been correct. The Vice President also made a finding, not challenged in the appeal, that RAAs had been entered into by BHP before the MAA was made,[6] and it is clear that BHP continued to enter into RAAs after the MAA commenced operation.
One example of a RAA applying to a BHP employee covered by the MAA was put into evidence at first instance. There appears to have been no dispute that this RAA was in the same terms as other RAAs entered into by BHP with employees to whom clause 5.2 of the MAA applied. The example RAA is in a standard form (Form R18) and is in the standard terms prescribed by clause 10 and Schedule 4 of the Residential Tenancies and Rooming Accommodation Regulation 2009 (Qld) (RTRA Regulation). Item 7 of Part 1 of the RAA provides that the term of the agreement is a ‘periodic agreement’ starting on 3 January 2020 with no end date. Item 8 provides for ‘rent’ of $60 per week, the same amount as the ‘subsided rate’ prescribed by clause 5.2 of the MAA. Items 10 and 11 provide that the rental amount is to be paid on ‘payday… via QCoal Payroll’, which we understand to be consistent with the deduction from salary contemplated by clause 5.2 of the MAA. Part 2 of the RAA reproduces the standard terms set out in Part 2 of Schedule 4 to the RTRA Regulation. These standard terms for the most part reproduce or incorporate by reference provisions of the RTRA Act itself, as it was at the time the RAA was made, applicable to RAAs (subject to certain exceptions which are not presently relevant[7]). For example, clause 14 of the RAA, which sets out BHP’s obligations as provider of the accommodation under the RAA, reproduces the obligations provided for in ss 247 and 249 of the RTRA Act. These obligations include that a provider must:
·take reasonable steps to ensure that the resident always has access to the resident’s room and to bathroom and toilet facilities (s 247(1)(b)(i));
·take reasonable steps to ensure the security of the resident’s room and the resident’s personal property in the room (s 247(c));
·take reasonable steps to ensure the resident has quiet enjoyment of the resident’s room and common areas (s 249(1)); and
·not interfere with the reasonable peace, comfort or privacy of the resident in using the resident’s room and common area (s 249(2)).
Clause 22 of the RAA deals with the provider’s right to enter the resident’s room, and requires that such entry may only occur if the provider has complied with ss 257 to 262 of the RTRA Act. Relevantly:
·s 257 allows entry with the resident’s agreement;
·s 258 allows entry not more than once a month for the purpose of an inspection at a reasonable time upon the provision of at least 48 hours’ notice;
·s 259 allows entry at a reasonable time to clean the room, to carry out pest control, undertake routine repairs and maintenance, show the room to a prospective buyer or resident, or allow a valuation of the premises, on at least 24 hours’ notice;
·s 260 allows for entry without notice in an emergency, or if the provider reasonably believes the room has been abandoned, or to carry out urgent repairs; and
·s 261(2) requires that, upon entry, the provider must preserve, as far as practicable, the resident’s privacy and must not remain in the room for longer than is reasonably necessary to carry out the purpose of the entry.
Clause 23 of the RAA deals with when the agreement ends. It reflects s 366 of the RTRA Act, which provides that a RAA may only end at the initiative of the provider, other than by agreement with the resident, where the provider ‘gives the resident a notice under [Part 2 of the RTRA Act] to leave the rental premises and the resident leaves the premises’ (s 366(b)) or (relevantly) ‘the … provider gives a notice under this part terminating the agreement on a stated day’ (s 366(c)). Sections 369 to 374 (also located in Part 2 of the RTRA Act) prescribe specific circumstances in which the provider may give the resident a notice to leave the premises. For example:
·s 369 provides that a notice to leave may be given for a failure to remedy a breach of the rooming accommodation agreement (including nonpayment of rent) after the due date specified in a breach notice; and
·s 374 provides that, subject to ‘an industrial award or agreement or contract of employment’, a notice to leave may be given if the resident occupies the rental premises under the resident’s terms of employment and either the resident’s employment ends or the resident’s entitlement to occupy the rental premises ends under the resident’s terms of employment.
In addition, prior to 1 October 2022, s 372(1) provided that a provider could terminate a periodic RAA by giving at least 30 days’ written notice to the resident. No grounds for termination were required.[8]
Importantly, under the RTRA Act, a RAA does not need to be in the standard terms, or be in writing at all, for the requirements of the RTRA Act applicable to RAAs to apply. Section 16(1) defines a RAA as ‘an agreement under which a provider provides rooming accommodation to a resident in rental premises’, and ss 16(2) and (3) provide that such an agreement may be in writing, oral or implied (either in whole in each case or in part). ‘Rooming accommodation’ is defined in s 15 of the RTRA Act as follows:
15 Rooming accommodation
(1)Rooming accommodation is accommodation occupied or available for occupation by residents, in return for the payment of rent, if each of the residents—
(a) has a right to occupy 1 or more rooms; and
(b) does not have a right to occupy the whole of the premises in which the rooms are situated; and
(c) does not occupy a self-contained unit; and
(d) shares other rooms, or facilities outside of the resident’s room, with 1 or more of the other residents.
Example for paragraph (d)—
a boarding house in which each of the residents occupies a room and shares a bathroom, kitchen, dining room and common room with the other residents.
(2) For subsection (1), it is immaterial whether or not—
(a)the rooms are in the same premises; or
(b)the resident is provided with a food service, personal care service or other service.
(underlining added)
A ‘provider’ is a person who provides rooming accommodation to residents (s 17), and a ‘resident’ is a person who occupies one or more rooms in rental premises as the person’s ‘only or main residence’ and who is not the provider or a relative of the provider (s 14).
The 2018 Agreement
The 2018 Agreement was approved by the Commission on 21 May 2018 and commenced operation on 28 May 2018.[9] It covers the CFMMEU, the AMWU and the CEPU. Clause 34 of the 2018 Agreement is in the same terms as clause 34 of the 2012 Agreement. Clause 34 provides:
34. Accommodation and Commute Arrangements
34.1 Principles
(a)Employees may either:
(1) Access accommodation in accordance with clause 34.2; or
(2) Access a commute arrangement in accordance with clause 34.3.
(b)The objective of these principles is to increase the pool of available housing for Employees and their families. These principles will be included in the development of the Accommodation Agreements referenced at clause 34.2(a).
(c)In the event an Employee elects to change their accommodation arrangements by acceptance of an offer from the Company:
(1) if the Employee owns their home, the Employee will be eligible to move into the single person’s village at the subsidised rate where:
(A)the Employee elects to offer their house/unit to the Company to lease and the Company agrees that the house/unit is at a standard appropriate for such leasing; or
(B)the Company elects to buy the Employee’s house/unit and this is acceptable to the Employee.
(2) if the Employee elects to sell their house/unit on the open market, without first offering it to the Company to purchase at market value, the Employee will be eligible to move into the single person’s village or other suitable accommodation at the subsidised rate, where the Employee vacates the house/unit.
(3) if the Employee resides in a Company-subsidised house and elects to change to commute arrangements, the Employee will be required to vacate the house and will be eligible to move into the single person’s village or other suitable accommodation at a subsidised rate.
(4) if the Employee resides in a house/unit owned by a third party which attracts a Company rental subsidy and they elect to change to commute arrangements and move into the single person’s village or other suitable accommodation, they will be eligible for a subsidised rate.
(d) The availability of each arrangement may be limited by the availability of suitable accommodation and/or transport.
34.2 Accommodation
(a) Employees will be entitled to accommodation in accordance with the following relevant Accommodation Agreement, which may be amended from time to time in accordance with clause 34.4 and consistent with the principles set out in clause 34.1:
(1) Moranbah Accommodation Agreement;
(2) Dysart Accommodation Agreement;
(3) Emerald Accommodation Agreement; and
(4) Blackwater Accommodation Agreement.
(b)The Accommodation Agreements in clause 34.2(a) are incorporated into this Agreement in accordance with section 257(b) of the Act and can be amended separately to this Agreement in accordance with clause 34.4 below.
(c)An Employee may access accommodation which is not regulated by the Accommodation Agreements in clause 34.2(a), and in those circumstances the Employee will receive no less than the same subsidy they would be entitled to under the relevant Accommodation Agreement if living in the single persons village.
(d) Where a Party to this Agreement believes that one of the above Accommodation Agreements at clause 34.2(a) is not being adhered to, a meeting between the Parties may be called. Neither Party may unreasonably refuse to participate in such a meeting.
(e) Any issues arising in relation to the application of the Accommodation Agreements to an individual may be processed through the disputes settlement procedure contained in this Agreement at clause 37.
(f) Access to accommodation, other than in accordance with clause 34.2(c), is subject to the rest of the provisions of this clause 34 (i.e., an Employee will not be entitled to accommodation under clause 34.2 if employed subject to a commute arrangement under clause 34.3).
(g)It is fundamental to the operation of this clause 34 that:
(1) the Accommodation Agreements can be amended from time to time by the parties to those Accommodation Agreements in accordance with the process in clause 34.4; and
(2) the Accommodation Agreements (and any amendments from time to time) take effect separately to this Enterprise Agreement and in their own right as contemplated by the Accommodation Agreements.
34.3 Commute
(a) Commute arrangements will be provided independent of roster, based on operational need.
(b) Where the Company offers commute arrangements, as amended from time to time, the following principles will apply:
(1) Subject to 34.3(b)(2) and availability of housing, all Employees will have the option to choose whether to access commute or residential options. This is a choice to be exercised by individual Employees.
(2) Where particular circumstances require, the Company may make commute arrangements a precondition of employment for new Employees. For example, this includes in-sourcing of currently outsourced/contracted operations. However, where an Employee’s circumstances change, they may apply to access other residential arrangements in accordance with the applicable Accommodation Agreement under clause 34.2(a).
(c) For Employees who commute, the Company will provide village accommodation or other suitable accommodation at a subsidised rate, as nominated by the Company and subject to availability, in accordance with clause 34.1(b).
(d) Appropriate travel arrangements will be put in place for commuting Employees as follows:
(1) at its discretion, the Company will provide bus or air transportation to the Mine from Brisbane, Rockhampton, Mackay, Emerald or other locations. It may be necessary to reach a critical mass of Employees on particular rosters before it becomes viable for transportation to be provided.
(2) Employees who choose to commute are encouraged to utilise such transport that may be provided by the Company. However, provided that the Employee submits a travel plan to their manager and adheres to their applicable fatigue management policy, they may elect to drive to and from their commute location.
(3) the Company will periodically review the provision of transport arrangements and may discontinue or change these arrangements with not less than 3 months[’] notice. The Company will consider an individual Employee’s circumstances where discontinuation of transport arrangements would result in significant disadvantage to the Employee.
(4) the Company will offer these travel arrangements to Employees living in local townships, at its discretion and subject to capacity, routes taken, timetabling and usage patterns.
34.4 Process to vary Accommodation Agreements
(a) The Parties acknowledge that the Accommodation Agreements may be replaced or amended from time to time by agreement between the parties to the Accommodation Agreements, in accordance with the variation procedure prescribed under the relevant Accommodation Agreement.
(b) Discussions between the Company and the Unions to vary the terms of each of the above Accommodation Agreements will include Employee Representatives from each applicable Mine.
(c) A variation to an Accommodation Agreement can be sought by either party where supported by appropriate justification.
(d) It is not intended that the Parties will seek to vary an Accommodation Agreement for an individual Employee’s particular circumstances.
(e) Neither party can unreasonably refuse to participate in discussions where a reasonable justification has been presented.
The dispute
On 11 November 2021, BHP issued a document entitled ‘Communications and engagement plan – BMA removal of RAA’. The document identified the purpose of the communication as follows:
A Notice to Leave (Form R12) will be issued to impacted residents across Moranbah Single Person Village SPV, Dysart SPV, Eureka Village & Village on Blain (approx. 1,000 pax) and the Rooming Accommodation Agreement (RAA) between the BMA employee and BHP Coal Ply Ltd will be terminated, effective 18 January 2022.
It is important to note that impacted employees will no longer be charged for their rooms (which will save impacted employees approximately $3,000 per annum) and, at this stage the workforce will maintain their current accommodation rooms.
Residents are not being evicted from their accommodation and will keep their current room.
On removal of the RAA (from 18 Jan 2022), Entry Notice (Form 9) will no longer be issued for cleaning of rooms or maintenance.
The reference to ‘Dysart SPV, Eureka Village & Village on Blain’ appears to indicate that the purpose of the document extended beyond the SPV residents under the MAA and extended to persons covered by the other Accommodation Agreements referred to in clause 34.2(a) of the 2018 Agreement. The document explains the references to forms used in the above passage as follows:
Form R12- Notice to leave – Rooming accommodation
This RTA (Residential Tenancies Authority) form is issued to Residents to cancel the Rooming Accommodation Agreement.
Form R18 - Rooming accommodation agreement
This RTA form is the agreement between BHP Coal Ply Ltd and the Resident
Form 9-Entry Notice
This RTA form is currently issued to a resident when entry is required to a room for cleaning or maintenance purposes This will no longer be required once RAA (Form 18) is removed.
The document contains a section headed ‘Frequently Asked Questions’ (FAQs) which includes the following:
Questions Answers What is changing? The Rooming Accommodation Agreement (RAA) between the resident and BHP Coal Pty Ltd will be terminated on 18 January 2022.
This will apply to residents of Moranbah SPV, Dysart SPV, Eureka Village & Village on Blain.Importantly, this administrative change does not mean that you are required to vacate, and you will not be required to move from your current room on this date.
Impacted residents will no longer be charged for their rooms (which will save impacted employees approximately $3,000 per annum)When are the changes happening? 18-19 NOV 2021
Notices issued to all impacted employees1 JAN 202[2]
Payroll deductions cease for NON-EA & EA employees18 JAN 202[2]
RAA terminatedWho does this change apply to? All EA and non-EA employees currently residing at Moranbah SPV, Dysart SPV, Eureka Village & Village on Blain. Am I being forced to leave my accommodation/change rooms? Importantly, this administrative change does not mean that you are required to vacate, and you will not be required to move from your current room on this date.
The R12 Notice to Leave is a required procedural step in terminating the RAA. Residents are not evicted from their accommodation or required to change rooms as part of this change.
Why is this change being made? This change will align BMA with other MinAus accommodation arrangements. BMA is the only area in MinAus that has RAAs in place. Olympic Dam recently undertook a similar process. What action do I need to take? You DO NOT need to vacate or change rooms.
On removal of the TAA, Entry Notice (Form 9) will no longer be issued for cleaning or maintenance of rooms. To enable access without disruption to your stay, please confirm your roster is accurate in the SAM – Accommodation Booking System
Please also to continue to check in & out at the administration areas per the usual process.
Do I need to pay for my accommodation? From 1 January 2022 impacted residents will no longer be charged for their rooms (which will save impacted employees approximately $3,000 per annum). Will people be entering my room? Cleaning or maintenance of rooms will continue. On removal of the RAA, an Entry Notice (Form 9) will no longer be issued for cleaning or maintenance of your rooms. To enable access without disruption to your stay, please confirm your roster is accurate in the SAM – Accommodation Booking System
Consistent with the above document, BHP sent letters to residents of the affected SPVs on or about 18 November 2021 advising them of the changes explained in the document. The letters included:
Enclosed is a notice (Form F12) issued under section 372 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) terminating the RAA between you and BHP Coal Ltd.
The enclosed Form F12 stated that it was issued ‘without grounds’, that ‘Resident/s must vacate the property by midnight on … 18/1/22’ and that ‘If you do not leave by this date, it may be lawful for the agent or manager/provider, and anyone helping them, to use necessary and reasonable force to remove you and your property from the residence, in the presence of a police officer’.
The CFMMEU initiated a dispute pursuant to clause 37 of the 2018 Agreement. After this was not resolved at the workplace level, the CFMMEU filed its application for the Commission to deal with the dispute pursuant to s 739 of the FW Act on 12 July 2022. The CFMMEU’s application contained the following contentions:
1. As part of the Moranbah accommodation agreement, attached, employees accessing SPV accommodation, in accordance with clause 5.2 are required to pay $60 per week, to be deducted from employee’s salary.
2. The deduction of $60 per week creates a ‘rooming accommodation agreement’ between the employee and the respondent, as provider of accommodation as per s.15 of the Residential Tenancies and Rooming Accommodation Act 2008 (QLD) (‘the RTRA Act’).
3.On 11 November 2021, the respondent made a decision to end the rooming accommodation agreements between themselves and employees of the SPV, commencing 22 January 2022 by discontinuing to deduct the $60 per week fee, as per clause 5.2. A copy of this communication is attached.
4. Since cancelling the rooming accommodation agreements, the respondent has implemented a number of changes to the SPV accommodation curtailing the rights of SPV residents, including their rights to the quiet enjoyment of their rooming accommodation. The residents of the SPV no longer have any rights in relation to their rooming accommodation.
5. Two members of the Applicant, Mr James Leigh and Barry Borellini, have disputed this decision.
6. The applicant’s submission, on behalf of Messrs Leigh and Borellini, is that the company has an obligation under clause 5.2 to deduct the payment from SPV employees in order to create the rights under the RTRA Act that allow residents rights when rooming in the SPV accommodation.
7. The respondent cannot unilaterally refuse to accept payment for the SPV accommodation and must continue to deduct the $60 from employees accessing SPV accommodation.
BHP’s response to the application filed on 19 July 2022 contended that:
1.Neither the EA nor the Accommodation Agreement incorporated into it, create agreement, under the Residential Tenancies and Rooming Accommodation Agreement (RTA).
2. Nor does either require the Respondent to create or continue any agreement under the RTA.
3. Neither the EA nor the Accommodation Agreement compel the Respondent to deduct payment of $60 per week.
4. Neither the EA nor the Accommodation Agreement specify that any deduction is a deduction for accommodation.
The decision under appeal
The primary conclusion reached by the Vice President was that, on its plain meaning, clause 5.2 of the MAA imposed a requirement upon BHP to deduct the subsidised rate of $60 per week from the post-tax salaries of employees living in SPVs.[10] The Vice President reached this conclusion on the basis that the use of the word ‘will’ in the first sentence of clause 5.2 indicated a mandatory provision and contrasted this with the use of the word ‘may’ to signify a discretion in other parts of clause 5.2.[11] She also concluded that the MAA was not contractual in nature nor intended to operate of its own force but was rather intended to be incorporated in the 2012 Agreement and subsequent enterprise agreements, its provisions were not amenable to waiver by BHP, and BHP’s cessation of rental payments amounted to a purported unilateral variation of the MAA.[12] The Vice President concluded that, prior to the making of the MAA, BHP’s standard practice was to enter into RAAs under the RTRA Act with employees living in the SPVs, and the intention of the parties was that this practice would continue when the MAA was made.[13]
Appeal grounds and submissions
BHP
BHP’s notice of appeal, as amended, contained the following single ground of appeal supported by particulars:
1. The Vice President erred by not answering ‘Yes’ to the question for arbitration: ‘Can [the Appellant] lawfully cease the $60 per week deduction from post-salary tax of all employees residing in the SPV?’
Particulars
(a) The use of the word ‘will’ in the first sentence of clause 5.2 of the Moranbah Accommodation Agreement authorises the doing of the things to which it refers, but does not require that it be done. Where ‘will’ is first used in that sentence, it does not create a legal obligation on the part of employees to make a payment to BHP Coal which BHP Coal is not capable of waiving. The second use of ‘will’ does not create a legally enforceable obligation to make a deduction.
(b) The authority to make deductions given by clause 5.2 was a benefit that could be – and in this case had been – waived by the Appellant.
(c)The provision of accommodation under the Moranbah Accommodation Agreement does not, in and of itself, give rise to a Rooming Accommodation Agreement (RAA) under the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTRA Act), in circumstances where:
i. this was not discussed in negotiations preceding the making of the Moranbah Accommodation Agreement;
ii. the Moranbah Accommodation Agreement is neutral as to the character of any individual posterior agreements that BHP Coal may enter into with employees provided with SPV accommodation – in particular, whether or not they will or must be RAAs under the RTRA Act;
iii. the Moranbah Accommodation Agreement does not confer on any employee the right of occupation of any room;
iv. while the evidence established that BHP Coal entered into such individual posterior agreements with at least some employees, it was these agreements that were explicitly characterised and referred to as an RAA, and the characterisation of those posterior agreements is irrelevant to the construction of the Moranbah Accommodation Agreement;
v. the evidence does not establish that any employee covered by the Moranbah Accommodation Agreement is a ‘resident’ for the purposes of the RTRA Act;
vi. the characterisation of the payment referred to in clause 5.2 as ‘rent’ is not determinative of whether there is or must be a RAA under the RTRA Act.
BHP submitted that it was the common intention of the parties to the 2018 EA and the MAA that the latter would also operate of its own force, as a contract between the employer parties and the unions, because:
(1)clause 9(a) of the MAA provides that the instrument will operate notwithstanding the termination of the 2012 Agreement or any replacement enterprise agreements; and
(2)clause 34.2(g)(2) of the 2018 Agreement provides that it is ‘fundamental’ to that provision that, relevantly, the MAA takes effect separately to the 2018 EA and ‘in [its] own right’.
It was therefore submitted that the Vice President’s conclusion that the MAA is not contractual in nature was incorrect since it was inconsistent with the clear and unambiguous language used by the parties, and the MAA was accordingly to be construed and applied in accordance with the general principles of contractual interpretation and the common law of contract. As to the proper construction of the MAA on this basis, BHP submitted that:
·whether the use of the word ‘will’ in the first sentence of clause 5.2 connotes an obligation depends upon context;
·the language of the first sentence in clause 5.2 is distinguishable from more mandatory language, for example that BHP Coal ‘must’ deduct the $60 payment from employees’ post-tax salary;
·the first sentence in clause 5.2 is not intended to, and does not, create an obligation on either employees or BHP Coal since employees provided with SPV accommodation are not themselves parties to the MAA and therefore are not bound by its terms;
·the first sentence of clause 5.2 permits but does not require that BHP Coal and relevant employees enter into individual posterior agreements in which payments may be owed and collected by deduction;
·the better construction, therefore, is that the use of the word ‘will’ in the first sentence of clause 5.2 is permissive and not mandatory, such that it authorises the payment of the amount to BHP Coal, and the facilitative deduction of the amount, but does not require that either thing be done.
BHP submitted that the general principles of contract law include that a party to a contract is entitled to waive compliance with a condition that is solely for its benefit and is not inextricably mixed with other parts of the transaction such that it cannot be severed. That the other party has an ‘interest’ in the condition does not prevent the condition from being for the exclusive benefit of the waiving party. It submitted that clause 5.2 of the MAA creates a condition solely for the benefit of BHP, in that the only purpose of the payment that is manifest in the text of the MAA is to defray some of the costs to BHP of providing the SPV accommodation. Further, the second sentence requires employees to comply with SPV rules – that is, it ensures that employees provided with SPV accommodation maintain certain standards of behaviour. Thus, BHP was entitled, and did, waive compliance with the condition in the first sentence when it notified employees that they would no longer be charged for SPV accommodation. There is therefore no longer any amount owed by the employees to BHP Coal and, consequently, nothing for BHP Coal to deduct.
BHP sought to refute the argument that clause 5.2 of the MAA imports an obligation on BHP to deduct the payment from employees provided with SPV accommodation in order to create, or otherwise give rise to, an RAA under the RTRA Act, submitting that:
·The parties did not discuss or otherwise contemplate during negotiations that the RTRA Act or the MAA would give rise to an RAA. The only express purpose of the MAA is, pursuant to clause 1, to ‘provide eligible Employees with a range of company subsidised accommodation options.’
·Clause 5.2 is neutral as to the character of any individual posterior agreement that may be entered into between BHP Coal and employees provided with SPV accommodation and does not expressly or by necessary implication provide that such individual posterior agreements must take the form of an RAA. There is no reference to RAAs or the RTRA Act in clause 5.2 or anywhere else in the MAA.
·The MAA does not confer a right of occupation of any room on any individual employee and, indeed, clauses 5.1 and 6.2 negative the existence of such a right. It follows that the MAA denies the condition of a right to occupation for ‘rooming accommodation’ in s 15(1)(a) of the RTRA Act.
·The RAA in evidence does not refer to, and is considerably more detailed than, the MAA, and is manifestly a ‘stand alone’ agreement. Reliance by the Vice President on any such individual posterior agreements or other post-contractual conduct as relevant to the interpretation of the MAA was in error.
·The evidence also does not establish that the employees provided with SPV accommodation are ‘residents’ within the meaning of s 14 of the RTRA Act, as the evidence of Mr Borellini or Mr Piper did not establish that a room within the SPV is their only, or even main, residence.
·The characterisation of the payment referred to in clause 5.2 as ‘rent’ — a label not actually used in clause 5.2 — is not dispositive of whether there is an RAA under the RTRA Act. An amount is only ‘rent’ as defined in Schedule 2 to the RTRA Act if it is payable under an agreement that otherwise meets the requirement for a RAA. An amount labelled ‘rent’ may just as well be payable under a common law agreement outside the RTRA Act, as under an agreement under the RTRA Act.
BHP submitted that it is in the public interest to grant permission to appeal, and that the appeal should be upheld and the answer ‘yes’ substituted for the answer given by the Vice President to the agreed question for arbitration.
CFMMEU
The CFMMEU submitted that, having regard to the acceptance by all parties that the MAA was incorporated by reference into the 2012 and 2018 Agreements, the terms of the MAA are to be taken as terms of those agreements and interpreted consistently with the established principles for interpreting enterprise agreements. That the MAA may survive the respective enterprise agreements does not make it a contract.
It was submitted that it is significant that the MAA is identified in clause 34.2(a)(1) of the 2018 Agreement as an ‘Accommodation Agreement’, since it is evident that the agreement regards employees residing in accommodation provided by the MAA as ‘residents’ rather than ‘commuters’. It was also submitted that the Vice President’s finding that the MAA provides a benefit to employees in the form of subsidised housing was undoubtedly correct.
The CFMMEU submitted that the first sentence of clause 5.2 concerns an employee who lives in an SPV, reinforcing that a person provided with accommodation is a resident and not a commuter. The description of the monetary amount payable as a subsidised ‘rate’ is interchangeable with the word ‘rent’, as clause 2.2 of the MAA makes clear, and that the payment to be made is rent was plainly intended to enliven the protections of the RTRA Act. It was submitted that BHP’s cessation of the deduction of the rental amount from salary and the termination of the RAAs was done to deprive residents living in the SPV of the protections of the RTRA Act. Until this occurred, the residents of the SPV enjoyed the rights associated with a relationship between resident and provider under the RTRA Act, namely notification before entry, exclusive use of the room and the like. BHP’s actions have given rise to a concern that BHP may attempt to implement ‘hot-bedding’, a frequent cause of disputation in the resources industry which, by its very nature, requires the performance of work considerable distance from major population centres.
Specifically in relation to particular (a) of BHP’s ground of appeal, the CFMMEU submitted that the Vice President was correct in construing ‘will’ as mandatory in nature. As demonstrated by the context in the relevant sentence, BHP’s submission that the employees provided with SPV accommodation are not bound by the MAA’s terms is incorrect, since such employees are required to comply with the terms of the 2018 Agreement of which the MAA, by its incorporation, forms a part.
In relation to particular (b), the CFMMEU submitted that BHP’s premise that the MAA is a contract is erroneous because:
·clause 9(c) of the MAA, which records that ‘the parties will take whatever prior steps are necessary and appropriate to legally preserve the operation of this Agreement’, demonstrates that the MAA was not considered by the parties to be a contract enforceable as such;
·clause 34.2(g)(2) does not, contrary to BHP’s submissions, produce the result that the MAA as a separate document constitutes a contract;
·the MAA cannot be a contract between BHP and the employees to whom it applies since it was not an agreement made with such employees; and
·the requisite consideration necessary to establish a legally effective contract is lacking.
In any event, it was submitted, the conduct of BHP amounted to a purported unilateral variation of the MAA which was not permitted by clause 34.4 of the 2018 Agreement or clause 7 of the MAA.
As to particular (c), the CFMMEU submitted that the matters raised by this particular and dealt with in paragraphs [166]-[169] of the decision under appeal need not be considered given that clause 5.2 has a plain meaning and that the context and purpose of clause 5.2 disclose no ambiguity.
AMWU and CEPU
The AMWU and the CEPU submitted, first, that the word ‘will’ in the first sentence of clause 5.2 is, on its ordinary meaning, mandatory, and this meaning is not displaced by any contextual factors. It is unlikely that a payment in the nature of rent was intended to be optional or that ‘will’ was intended to have a different meaning in the first sentence that in the sentence of the clause.
Second, they submitted that BHP’s submission that it is entitled to ‘waive’ payment by simply refusing to collect it is simply a different way of saying that the provision is discretionary. The MAA is not legally binding in its own right, as recognised at clause 9.3(c), and involves no consideration flowing from the union parties. It is rather a protocol governing the manner in which accommodation will be offered to individual employees, as agreed between BHP and the unions, which by virtue of its incorporation into the 2018 Agreement and s 50 of the FW Act, obliges BHP to comply with its terms. Because the obligations are statutory in nature, they cannot be waived in the same way as contracts even if beneficial in nature. Alternatively, it was submitted, even at common law the obligations in the first sentence of clause 5.2 could not be waived because:
·the ‘transaction’ is the provision of residential rooming accommodation by BHP, the landlord, to employees as tenants;
·an obligation to pay rent is inextricable with that relationship, in the sense that it is not protected otherwise; and
·BHP’s ‘waiver’ has facilitated its (purported) fundamental alteration to the legal relationship between it and its tenants, to their detriment.
Third, the AMWU and the CEPU submitted that the determination of the appeal did not require consideration of whether the MAA created or gave rise to an RAA under the RTRA Act. The essential point is that the MAA restricts the terms on which BHP can enter into accommodation agreements with employees and relevantly requires BHP to charge and accept rent for SPV accommodation. In any event, it was submitted, if this issue needs to be considered, it may be concluded that the arrangements required by the MAA are RAAs for the purposes of the RTRA Act because:
·the basal requirement in s 15(1) of the RTRA Act that accommodation be provided in return for the payment of rent is satisfied here;
·the only rational way to provide occupation at the SPV is via the provision of a room and the right to occupy it, and this satisfies s 15(1)(a);
·the requirements of s 16(1)(b)-(d) are not challenged by BHP and are manifestly satisfied in that the employees in the SPV do not occupy self-contained units and share facilities;
·the employees are ‘residents’ within the meaning of s 14(1)(a), in that employees’ rooms in the SPV are their only main residence when they occupy them.
Consideration
It is important to recognise at the outset that the dispute the subject of the proceedings below, and this appeal, has come before the Commission as one concerned with clause 34.2(b) of the 2018 Agreement. As earlier stated, this was the provision of the 2018 Agreement which was identified in the CFMMEU’s application as that which the dispute related to. The matter has proceeded on that basis.
Clause 34.2(b) incorporates the Accommodation Agreements specified in clause 34.2(a) ‘in accordance with s 257(b) of the FW Act’, one of which is the MAA. Section 257(b) provides that an enterprise agreement may incorporate material contained in an instrument or other writing as in force from time to time. Clause 34.2(a) provides that employees ‘will be entitled to accommodation in accordance with’ those specified Accommodation Agreements. Clause 34.2(b) also provides that the Accommodation Agreements made be varied in accordance with clause 34.4 of the 2018 Agreement. Clause 34.2(e) provides that issues about the application of the Accommodation Agreements to an individual are to be processed through the disputes settlement procedure in clause 37 of the 2018 Agreement.
These matters are fundamental to the resolution of the dispute because they make it clear that the MAA arises for consideration as to its meaning on the basis of its incorporation into the 2018 Agreement. Clause 34.2(a) establishes the provision of accommodation in accordance with, relevantly, the MAA as an entitlement of employees under the 2018 Agreement. It follows that, where accommodation has not been provided to an employee in accordance with the MAA, this constitutes a contravention of clause 34.2(a) of the 2018 Agreement.
As explained by the Federal Court Full Court in Toyota Motor Corporation Australia Limited v Marmara,[14] an enterprise agreement in operation under the FW Act ‘is an agreement in name only’ and is rather a ‘statutory artefact’ which is enforceable under the FW Act and not otherwise.[15] Section 50 of the FW Act, which is a civil remedy provision, prohibits contravention of an enterprise agreement. Under item 4 in the table set out in s 539 of the FW Act, s 50 may be enforced at the suit of an employee, an employer, an employee organisation to which the enterprise agreement concerned applies, or a Fair Work Inspector. In respect of any contravention found to have occurred, a relevant court is empowered to make a wide range of remedial orders under s 545 of the FW Act and may impose pecuniary penalties upon the contravenor under s 546.
Although clause 34.2(g) of the 2018 Agreement (and the 2012 Agreement before it) may be read as suggesting an intention for the Accommodation Agreements to retain an independent legal existence of an unspecified character, the title note, the recitals and clauses 1 and 2 of the MAA itself make clear that it would only operate upon the making of the 2012 Agreement, that its terms were incorporated into the 2012 Agreement, and that it operated in conjunction with clause 34 of the 2012 Agreement. Thus, the intended status of the MAA was as a document incorporated into, and interdependent with, an enterprise agreement in operation under the FW Act. This position remained unaltered after the 2018 Agreement commenced operation in replacement to the 2012 Agreement. Therefore, to the extent that the determination of the dispute before the Commission requires consideration of the proper construction of clause 5.2 of the MAA, that consideration must proceed on the premise that clause 5.2 is an incorporated provision of the 2018 Agreement, being an instrument given force and effect by the FW Act.
In those circumstances, legal principles applicable to the waiver of an entitlement in a contract by a party to the contract are inapplicable. Because clause 5.2 takes effect as an incorporated provision of a statutory instrument, and may be enforced under s 539 by persons lacking any analogy with contracting parties, we do not consider that a person to whom the 2018 Agreement applies can ‘waive’ any part of the clause such as to deprive it of its legal effect under the FW Act. Having regard to the features of the statutory scheme for enterprise agreements to which we have earlier referred, and the public policy considerations evident in the object of the FW Act in s 3, we consider that the scheme is to be construed as not permitting the waiver or contracting out of any of the entitlements or obligations for which an enterprise agreement provides.[16] Certainly, no provision in the FW Act authorises this. Accordingly, BHP is not entitled to waive any benefit or obligation under clause 5.2 of the MAA as incorporated into the 2018 Agreement.
The task of construing clause 5.2 of the MAA is, as submitted by the CFMMEU, relatively straightforward. It is readily apparent that the first sentence of the clause uses the word ‘will’ in a mandatory sense. Although the context may sometimes dictate otherwise, ‘will’ is usually used to convey obligation.[17] The sentence deals with two matters: the payment of the subsidised rate of $60 per week by employees living in the SPV, and the deduction of that amount from such employees’ post-tax salaries. By necessary implication, the deduction of the amount is something to be done by BHP. In respect of both matters, the word ‘will’ is used. It could hardly have been intended that the payment of the subsidised rate by employees was voluntary, and so the first ‘will’ can only be read as mandatory. That by itself makes it inherently unlikely that the second use of ‘will’ in the same sentence is to be read as discretionary. Additionally, it is clear that the two matters dealt with in first sentence of clause 5.2 are inextricably interrelated: employees are required to pay $60 per week, and the deduction of that amount from their salary by BHP is the means by which that payment is both facilitated and enforced. This means that the deduction must also be read as mandatory since, if it is not, the contemplated means by which the mandatory payment of the subsidised rate is made may be vitiated, leaving the employee with no prescribed means of complying with his or her payment obligation. As a result, the provision cannot be characterised as one solely for the benefit of BHP, contrary to its submissions.
In the context of clause 5.2 as a whole, it is apparent that ‘will’ is used to describe obligations and ‘may’ is used to describe discretionary rights or circumstances. In the second sentence, which uses the word ‘will’, it is evident that compliance with the SPV rules by resident employees is intended to be obligatory. BHP did not contend otherwise. By contrast, the third sentence, which identifies a potential sanction should the employee not comply with the SPV rules, uses ‘may’ to convey that BHP has a discretion as to whether to withdraw the ‘benefit’ of SPV accommodation in the event of non-compliance. Likewise, the second paragraph of clause 5.2 uses ‘may’ to convey a requirement concerning travel to and from SPV which BHP may apply, or not apply, at its discretion.
The same distinct usage of ‘will’ and ‘may’ is evident across the MAA as a whole. ‘Will’ is consistently used to convey obligation, or entitlement, in clauses 2.2, 5.3, 5.5, 5.6, 6.1, 6.2, 6.3, 6.4, 6.5, 6.8, 8 and 9 (in apparent preference to ‘shall’ or ‘must’, except for clauses 6.6 and 6.8(1)(A)). By contrast, ‘may’ is used to refer to discretionary or contingent rights, powers or circumstances in clauses 5.4, 5.6, 6.1, 6.7, 6.8 and 7. The wider context therefore supports our preferred construction of clause 5.2 of the MAA. In summary, employees living in the SPV must pay the subsidised rate of $60 per week, BHP must deduct that amount from employees’ post-tax salaries, and there is no capacity to waive (or contract out of) these obligations.
It is apparent that BHP’s cessation of the deduction of the subsidised rate from salaries has resulted in employees living in the SPV no longer being entitled to accommodation in accordance with the MAA, contrary to clause 34.2(a) of the 2018 Agreement. BHP declined to explain its reasons for terminating the deduction of the subsidised rate in clause 5.2 from the salaries of employees living in the SPV,[18] but it is apparent that this was not intended to constitute an act of gratuitous generosity towards its employees living in the SPV. The primary purpose of BHP’s communication and engagement plan of 11 November 2021 and its subsequent correspondence to individual employees was to terminate the written RAAs which existed between BHP and employees living in the SPV. We agree with the Vice President’s finding that there was a ‘widespread and standard’ practice on the part of BHP of entering into written RAAs at the time the MAA was negotiated and thereafter. In addition to the matters identified by the Vice President to support this finding in paragraph [167] of her decision, we note that the 11 November 2021 communication and engagement plan referred to a Notice to Leave being issued to ‘impacted residents’ at four named SPV locations with ‘approx. 1,000 pax’ (in parentheses). ‘Pax’ is a term used in relation to maximum occupancy in hotel or rental accommodation. While the ‘1,000 pax’ reference cannot be necessarily equated to the number of ‘impacted residents’ to be issued with a Notice to Leave, the purpose of the reference appears to be to indicate that the number of ‘impacted residents’ was considered to be substantial. Because Notices to Leave were issued to those employees subject to a written RAA, this supports the Vice President’s conclusion as to the scale of the practice of entering into RAAs.
It is reasonably apparent, we consider, that the legal result which BHP sought to achieve by terminating the RAAs and issuing Notices to Leave under the RTRA Act was to escape the burden of the obligations upon BHP as the provider of accommodation, and the rights of employees living in the SPV as residents of such accommodation, under the RTRA Act. BHP’s cessation of the deduction of the subsidised rate appears to have been incidental to this primary purpose. BHP accepted that the inference is available that its cessation of the deductions was connected to the termination of the RAAs but, as stated, provided no explanation beyond this.[19] The explanation provided in the FAQs section of the communication and engagement plan that the termination of the RAAs was to achieve alignment with other mine site accommodation arrangements clearly does not extend to the cessation of the deduction for payment of the subsidised rate since, even under the MAA, the deductions of the subsidised rate for employees living in a CCP pursuant to clause 5.3 have continued. The only reasonably available inference is that BHP, by not requiring any payment for accommodation under clause 5.2 which might be characterisable as a ‘payment of rent’ for the purpose of the definition of ‘rooming accommodation’ in s 15 of the RTRA Act, intended to foreclose any outcome whereby implied RAAs under s 16 of the RTRA Act attracting all the requirements pertaining to RAAs under the RTRA Act might continue in existence notwithstanding the termination of the written RAAs. Whether this would have been the actual legal result if the deductions had not been stopped does not require determination. The key point is that BHP’s purpose was to ensure that employees living in the SPV did not in future have rooming accommodation rights under the RTRA Act.
The existence of the statutory framework of the RTRA Act applying to rooming accommodation provided in return for rental payments, and the existence of written RAAs entered into pursuant to the RTRA Act between BHP and employees living in the SPV, were objective background facts known to BHP and the unions at the time the MAA was made, and also applied at the time that the 2012 Agreement, which incorporated the MAA, was made. They were also objective background facts applying when the 2018 Agreement, which continued the incorporation of the MAA, was made. They point to a common understanding that the $60 per week subsidised rate required to be paid by way of deduction from salary under clause 5.2 of the MAA was the same thing as the $60 per week rental amount payable on ‘payday … via QCoal Payroll’ under the RAAs — a payment which constitutes the ‘payment of rent’ required by the definition of ‘rooming accommodation’ in s 15 of the RTRA Act in order for the rights and obligations attaching to the provision of rooming accommodation under the RTRA Act to apply. At the time of the making of the 2018 Agreement, the entitlement to accommodation in accordance with the MAA provided for in clause 34.2(a) was, for employees living in the SPV, known to be rooming accommodation subject to written RAAs in most if not all cases which attracted the operation of the RTRA Act by virtue of the payment of the $60 per week ‘subsidised rate’ (referred to as ‘rent/rate’ interchangeably in clause 2.2 of the MAA). Once BHP ceased deductions of the ‘subsidised rate’, the accommodation being provided was not of the character for which clause 5.2 of the MAA provided and thus was not accommodation in accordance with the MAA. In essence, BHP has transformed an arrangement by which employees paid for the accommodation they were provided, and held legal rights pertaining to that accommodation as a result, to a ‘grace and favour’ arrangement pursuant to which BHP may dictate the terms on which the accommodation is provided.
We consider that permission to appeal should be granted because the appeal raises a novel and important question concerning the provision of accommodation to mining workers in regional and remote areas. We conclude that the answer to the agreed question (as reformulated) given by the Vice President was correct, and the appeal will therefore be dismissed.
Orders
We order as follows:
(1)Permission to appeal is granted.
(2)The appeal is dismissed.
PRESIDENT
Appearances:
I Neil SC with R Kumar, counsel, for BHP Coal Pty Ltd.
A Walkaden, solicitor, for the Construction, Forestry, Maritime, Mining and Energy Union.
L Saunders, counsel, for the intervenors (Australian Manufacturing Workers’ Union and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia).
Hearing details:
2023.
Sydney:
19 October.
[1] [2023] FWC 2092.
[2] AE428443.
[3] [2023] FWC 2347.
[4] The 2018 Agreement ceased to operate on 19 January 2023 when the BMA Enterprise Agreement 2022 took effect, prior to the hearing before the Vice President on 2 March 2023. No party contended at first instance or on appeal that the Vice President could not continue to arbitrate the dispute raised under the 2018 Agreement pursuant to s 739(4) of the FW Act (see CFMMEU v Falcon Mining Pty Ltd [2022] FWCFB 93). We note that the relevant provisions of the 2018 Agreement are in any event reproduced in identical terms in the BMA Enterprise Agreement 2022.
[5] [2023] FWC 2347 at [167].
[6] Ibid at [167]-[168].
[7] As explained in the decision under appeal: ibid at [28]-[29].
[8] The Housing Legislation Amendment Act 2021 (Qld) amended s 372, effective from 1 October 2022, to remove the capacity to terminate a RAA without grounds.
[9] [2018] FWCA 2869.
[10] [2023] FWC 2347 at [128].
[11] Ibid at [129].
[12] Ibid at [132], [145]-[146].
[13] Ibid at [168]-[170].
[14] [2014] FCAFC 84, 222 FCR 152.
[15] Ibid at [88]-[90].
[16] See Commonwealth v Verwayen [1990] HCA 38, 170 CLR 394 at 404-405 per Mason CJ; Metropolitan Health Service Board v Australian Nursing Federation [2000] FCA 784, 99 FCR 95 at [20] per French J.
[17] National Tertiary Education Industry Union v La Trobe University [2015] FCAFC 142, 254 IR 238 at [69]-[70] per Bromberg J; United Voice v Valspar (WPC) Pty Ltd [2015] FCCA 1139 at [216]; Construction, Forestry, Maritime Mining and Energy Union v DP World (Fremantle) Ltd [2019] FCCA 2879 at [57]-[59]; Coastal Ecology Protection Group Inc v City of Charles Sturt [2017] SASC 136, 227 LGERA 1 at [391]-[392]; Fuller v Field SM (1995) 180 LSJS 38, (1995) 16 ACSR 361, (1995) 78 A Crim R 211, C9503105 at 7.
[18] Transcript, 19 October 2023 PNs 82-86.
[19] Ibid PNs 84-86.
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