Collinsville Coal Operations Pty Limited
[2014] FWC 5628
•18 AUGUST 2014
[2014] FWC 5628
The attached document replaces the document previously issued with the above code on 18 August 2014.
Two changes have been made. The first sentence of paragraph [109], “The following matters arise in the context of my consideration of s.186(2)(c) of the Act.” has been moved to the beginning of paragraph [114].
The second sentence of paragraph [109] “I have set that subsection out earlier in this decision.” has been deleted.
Sophie Bonnette
Associate to Senior Deputy President Harrison
Dated 25 August 2014.
| [2014] FWC 5628 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Collinsville Coal Operations Pty Limited
(AG2014/568)
SENIOR DEPUTY PRESIDENT HARRISON | SYDNEY, 18 AUGUST 2014 |
Application for approval of the Collinsville Coal Operations Enterprise Agreement 2014.
Introduction
[1] Collinsville Coal Operations Pty Limited (Collinsville) has made an application under s.185 of the Fair Work Act 2009 (the Act) for approval of the Collinsville Coal Operations Enterprise Agreement 2014 (Agreement). The Agreement covers Collinsville and employees engaged as mineworkers at its Collinsville mine. The mine is situated in the Central Queensland.
[2] The Construction, Forestry, Mining and Energy Union (CFMEU, the Union) filed a form F18 on the basis it asserted it was a bargaining representative for the Agreement. The form contained a number of grounds upon which it opposed approval of the Agreement. The matter was listed for hearing before me. In the hearings, Collinsville was represented by Mr J Murdoch QC and the CFMEU by Mr B Docking.
[3] The status asserted by the CFMEU of it having been a bargaining representative and the role it was entitled to play in the approval proceedings were contested issues about which I comment later.
The application and forms F16 and F17
[4] Collinsville filed a form F16 and a form F17 together with a copy of the Agreement sought to be approved. A copy of the notice of employee representational rights (NoRR) was also filed.
[5] I refer to the form F16. The form indicates that there were no “employee organisations (unions)” involved in the agreement making process as bargaining representatives. It indicates that there were 21 employee bargaining representatives involved in the agreement making process who had provided instruments of appointment to the employer. The names of each of those employees who had appointed a bargaining representative were listed in the form. All the persons named as bargaining representatives were individuals; no union was nominated.
[6] I refer to the form F17. It was completed by Mr Bernie O'Neill, the General Manager. I should note that this form comprises a statutory declaration of Mr O’Neill being the relevant employer representative. It addresses a number of considerations to which the Act requires consideration be given prior to a member of the Commission deciding whether to approve an enterprise agreement. Each of the questions asked in the form, and relevant to the application, was answered by Mr O'Neill. For present purposes, it is adequate for me to identify only a few of the entries. Other matters are referred to later when I identify the facts upon which I have relied.
[7] The Agreement covers mineworkers who were employed to operate and/or maintain plant and equipment at the mine. It was said that these were employees who would be covered by classifications contained in Schedule A of the Black Coal Mining Industry Award 2010 (Black Coal Mining Award). 1 This is the relevant modern award against which the better off overall test is to be applied, a matter which I address later in this decision. Staff employees engaged in management, technical support and administration are not covered by the Agreement. It was submitted that the group which was covered was operationally and organisationally distinct.
[8] The form next refers to the dates when the NoRR was provided to each of the relevant employees covered by the Agreement, the provision of a copy of the Agreement to those employees and explanation of its terms and their effect on the employees, and advice about the vote on the Agreement that was to be taken. The vote for the Agreement was held on 11 March 2014. On that day, all 21 employees who would be covered by the Agreement cast a valid vote and voted to approve the Agreement.
Notice to the employee bargaining representatives of the hearing
[9] In respect of each of the notices of listing for the hearing days, Collinsville was directed to provide a copy of the notice to all the individual bargaining representatives. I subsequently received advice from solicitors for Collinsville in relation to the actions undertaken to bring the notice of listing of the first day of hearing to employees. An affidavit of Mr Philip Nobes addressed the actions taken by Collinsville to comply with the direction in respect of the second day of hearing. I am satisfied that my directions were properly complied with. None of the 21 employees who voted on the Agreement contacted my chambers, filed any written submission, nor asked for any arrangements be made to allow them to participate in the hearing.
Before the first day of proceedings
[10] A request was forwarded to chambers by solicitors acting on behalf of the CFMEU for the provision of a copy of the forms F16 and F17, a signed copy of the Agreement, and any covering letter which accompanied the filing of these documents. The request was made on the basis that those documents were necessary for the CFMEU to adequately prepare for the hearing on the first day. It was apparent to me that there was an issue about the status of the CFMEU as bargaining representative and whether it would be appropriate for my chambers to release these documents. The CFMEU was asked to direct the request to Collinsville’s solicitors. Those solicitors subsequently indicated they would provide copies of the form F16, with the name of each employee bargaining representatives redacted, the form F17, NoRR, and a copy of the Agreement with employee’s names and signatures redacted. They were not prepared to provide a copy of the letter which accompanied the filing of those documents. Shortly after, my chambers received another request from solicitors for the CFMEU asking that the Commission provide the balance of the documents that had been previously requested including an un-redacted copy of the form F16. My chambers informed the CFMEU’s solicitors those documents would not be provided and the issue concerning access to them could be raised at the hearing.
The hearing, conference, and some procedural matters
[11] The first day of the hearing did not proceed for long by way of a formal hearing. The matter was adjourned into conference when issues about the documentation which had been provided to the CFMEU were discussed as well as the manner in which the numerous contested issues could best be addressed.
[12] I informed the parties of the following matters which had occurred prior to my assuming carriage of the file. These matters were apparent from my perusal of the email and other exchanges on the file and the Commission’s electronic file management system. An email had been sent to the chambers of the member then assigned the application for approval from a person described as "Legal Assistant CFMEU-Mining and Energy Division Qld District" referring to the application for approval of the Agreement which had been filed and asking for "a copy of all of the documents that were lodged with this agreement". On the following day, the documents were provided to the Union. Another follow-up email was sent by the same Legal Assistant indicating that the documents provided did not appear to contain a NoRR and enquired whether one was filed. Shortly after confirmation was given that it had been filed and a copy provided. 2
[13] I informed the parties that, in light of those exchanges, it was apparent that the CFMEU had in its possession the documents which it had been complaining about not having received and which related to its submissions that it had been denied procedural fairness. This did not reflect well on the relevant employees or officers of the Queensland Branch of the CFMEU. I should note that until I raised this matter in conference it appears that neither Mr Docking nor his instructing solicitor was aware that their client had previously received copies of the documents which they had been complaining had been denied them. I should also note that there were two letters from Collinsville’s solicitors which related to the filing of the application. It was unclear if the first letter was given to the Union. The second letter had been given to the Union.
[14] I had perused first the letter which accompanied the filing of the application for approval and indicated that, in my opinion, there was nothing in it that may warrant a copy being given to the CFMEU. The Union continued throughout proceedings to insist it be provided and, on the second day of hearing, I asked Collinsville to do so. Nothing further was said about its content. I note that the letter addressed the manner in which the Agreement had been signed and noted that, at the time of filing, there was an issue about those requirements which had been addressed in proceedings before a Full Bench. The decision at the time had been reserved. That decision, Peabody Moorvale Pty Ltd v Construction, Forestry, Mining and Energy Union (CFMEU) (Peabody Moorvale) 3 was handed down on 2 April 2014. That was well before this matter was listed for hearing before me. It had settled the controversy about signing requirements contained in regulation 2.06A of the Fair Work Regulations 2009 (the Regulations).
[15] The CFMEU would also not accept that the NoRR was filed with the application despite having previously been advised it was and a copy of it provided. It would not concede that until I physically showed them the Commission’s file and the place on it where the notice had been placed.
[16] It was apparent in the conference there was little scope to achieve any consensus between the parties or to narrow any of the issues raised by the CFMEU.
[17] Without notice having earlier been given, the CFMEU then sought in the conference to have a number of matters referred to a Full Bench. The application was made under s.615A(2) of the Act for the President to direct a Full Bench to hear and determine those matters. Seven matters were identified by the CFMEU as warranting Full Bench consideration and they are reproduced in paragraph [3] of the President's decision. 4 His Honour was not satisfied it was in the public interest to a direct a Full Bench to hear and determine the application for approval of the Agreement and dismissed the CFMEU’s s.615A application.
[18] I note that the matters the CFMEU wanted a Full Bench to consider did not include the matter which Collinsville and I had identified as being a key issue in this application for approval of the Agreement. That is, whether the CFMEU was a bargaining representative for the Agreement.
[19] The date for the second day of hearing was then set, taking into account the availability of instructing solicitors and counsel. In an attempt to ensure that prior to the next hearing day it was clear which documents Collinsville and the CFMEU would be seeking to rely upon, I issued directions on 3 June 2014. A copy of the directions is contained on the file. In brief, they identified the documents that had earlier been filed or provided to me on the first day of the proceedings. Additionally, they required Collinsville and the CFMEU to confirm that I had identified all of the relevant documents and, if either sought to rely on additional documents, they were to be filed and served by no later than Tuesday, 10 June 2014. What I had intended to be achieved by the directions did not prove to be wholly successful, as I later note.
[20] Before turning to address the documents the CFMEU sought to tender I should note that shortly after the second day of hearing my chambers forwarded an email to solicitors for Collinsville and the CFMEU providing them with a list of the exhibits which had been marked in the hearing. The email referred to the transcript of the proceedings and confirmed that they had been asked to confer in an attempt to reach agreement on documents that should be marked so as to assist any person reading the transcript. They were advised that after receipt of their reply I would identify any additional documents I considered needed to be marked. My chambers received no response to that email from the CFMEU. The solicitors for Collinsville responded requesting that the documents relating to persons identified as Employee 1 and Employee 2, comprising a printout from CFMEU membership records and a page from the Agreement on which the name of the relevant employee was highlighted, together with part of annexure SS21 to the first affidavit of Mr Smyth (which I refer to later), should be marked. The email advised that the solicitors had written to the CFMEU solicitors in relation to this matter and had been advised that the CFMEU had apparently taken the view that, as it had lodged an appeal against a number of interlocutory rulings I had made during the hearings, it was not appropriate for the Union to suggest which additional documents should be marked. It would have been appropriate that advice had also been forwarded to my chambers. I note the email from Collinsville’s solicitors was copied to the solicitors for the CFMEU, accordingly, I proceeded on the basis that with an exception I refer to later, I would not mark any other documents as CFMEU exhibits. 5
The documents filed and sought to be tendered and those which were tendered and marked as exhibits
[21] I marked as an exhibit each of the documents Collinsville sought to tender (some of which I had asked for), as well as those referred to in the email from its solicitors I have addressed in paragraph [20]. I considered each document relevant to the matters I am required to address in relation to this application for approval of the Agreement. For reasons I later address I was not persuaded the CFMEU should be granted any standing or status in this application such as to allow it to oppose my receiving any of these documents. I have annexed a list of those documents to this decision. I do so as not all of them are identified in the transcript of the proceedings.
[22] The CFMEU had provided documents to me which it asked be dealt with on a confidential basis. These relate to employees described in the proceedings as Employee 1 and Employee 2. They comprise an extract of the relevant signature page of the Agreement bearing the employee’s name and signature and an extract from the CFMEU membership records identifying the date the employee joined the Union and their current membership status. As I have identified above, the CFMEU did not seek for me to mark these documents however Collinsville did. I did not think it appropriate to mark them as Collinsville exhibits so I have instead marked them for identification purposes. In the case of Employee 1 they will be MFI 1 and in the case of Employee 2, they will be MFI 2. Each is contained within an envelope on the file and is marked confidential. I doubt that access to them by Collinsville will be required as it was accepted before me, and I assume will continue to be the case, that the documents establish that Employee 1 had not been a member of the Union since 13 December 2013, and Employee 2 was a member from 31 January 2014 onwards. Each of them had signed the Agreement.
[23] I should interpose here to put into context comments I make below about documents the CFMEU sought to tender. A significant issue in the proceedings was whether the CFMEU was a bargaining representative for the Agreement. In my opinion, a ruling about that matter was necessary to be made early in the proceedings. This was so because if the CFMEU was a bargaining representative, that would be relevant to rulings about the role it could properly assume in the proceedings and documents it should be allowed to tender.
[24] Where an employee organisation (union) was a bargaining representative for an enterprise agreement and that union files a form F18 it would be likely the Commission would allow it to participate in any hearings, should such hearings be necessary. Of course, the overwhelming majority of applications for approval of enterprise agreements do not necessitate a formal hearing in the Commission. In a case where a union is not a bargaining representative, in my opinion, it has no right to insist it should be heard. No such right can be identified in the Act. The manner in which it will be heard (including any related considerations such as whether it can call a witness, tender documents, cross-examine any witness called by an employer, and/or require the attendance of any employer witness for the purpose of cross-examination) requires the exercise of the Commission member’s discretion to allow it to participate in any, or all, of these ways. I return to these considerations again later in that part of my decision which addresses s.590 of the Act.
[25] The CFMEU sought to tender two affidavits of Mr Stephen Smyth, the District President of the CFMEU’s Mining and Energy Division, Queensland District Branch.
[26] I refer to the first affidavit. It contains details of Mr Smyth's background within the industry and the Union, a description of the industrial relationship between CFMEU and Thiess Pty Ltd (Thiess) during a period in which it operated the mine, the announcement that Thiess would no longer operate the mine, and negotiations between the Union and Thiess after that date, meetings and exchanges of correspondence with representatives of Glencore/Xstrata and discussions about the enterprise agreement covering Thiess transmitting to the new employer of labour at the mine, meetings and discussions about the terms of a greenfields agreement that was being negotiated and the cessation of those negotiations, comments attributed to representatives of Glencore/Xstrata, extracts from newspapers concerning industrial activity at the Collinsville mine, the role of Open Cut Examiners in Queensland, the adequacy within the industry of the terms of the Agreement, exchanges between Mr Smyth and Employee 1 and Employee 2, and exchanges of documents between Mr Smyth, Mr O'Neill and solicitors for the CFMEU and Collinsville.
[27] The second affidavit of Mr Smyth was forwarded to my chambers after the deadline set in my directions which I have referred to in paragraph [19] and on the last business day before the second day of the hearing. The affidavit was not signed or dated and did not have any of the three exhibits to it which were described as "large documents”. Additionally, my chambers received an affidavit of Mr Tim Whyte, District Secretary of the CFMEU’s Mining and Energy Division, Queensland District Branch. It was not signed or dated. Advice was given that each gentleman would be available for cross-examination at the hearing when the affidavits would be executed and the annexures provided.
[28] The second affidavit of Mr Smyth was a response to an affidavit of Mr William McKinstrey which Collinsville had filed. I note in the hearing the CFMEU said its primary position was that it should be received as an exhibit whether or not the affidavit of Mr McKinstrey was tendered by Collinsville. The affidavit of Mr McKinstrey had been filed within the time limit set by my directions and specifically on the basis that it would be sought to be relied on in the event I was to accept the first affidavit of Mr Smyth.
[29] The affidavit of Mr Whyte also referred to the affidavit of Mr McKinstrey. It addressed meetings he had with Mr McKinstrey about the termination of the contract with Thiess to operate the mine and what the owner of the mine was proposing to do at the mine. It addressed meetings that were held in relation to whether there was a transmission of the business operated by Thiess to the new mine operator and any ability for the enterprise agreement covering Thiess to transmit. Negotiations between the CFMEU and Glencore/Xstrata representatives about a greenfields agreement were also addressed.
[30] The CFMEU sought to tender numerous other documents which I refer to later in this decision where I identify the rulings I made about the receipt of CMFEU affidavits and other documents.
The facts
[31] I now set out a number of facts which I am satisfied are established by the evidence and submissions.
[32] Prior to August 2013, the Collinsville mine was operated by Thiess under a contract between Thiess and a Glencore/Xstrata company, the owner of the mine. This arrangement had operated, as I understand it, for many years. It is not clear what the correct name of the corporate entity which owned the mine was from time to time but for present purposes I will identify the owner in 2013 as a Glencore/Xstrata Group company.
[33] Thiess and its employees engaged at the Collinsville mine were covered by an enterprise agreement known as the Thiess Collinsville Coal Mine Enterprise Agreement 2010 (the Thiess Enterprise Agreement). 6 The decision approving that agreement notes that the CFMEU was covered by it.
[34] In early 2013, Thiess was advised that its contract to operate the mine would be terminated later that year. The termination occurred at the end of August 2013. Thereafter, a Glencore/Xstrata Group company assumed management rights over the mine. The mine was placed into care and maintenance mode.
[35] Collinsville, as I understand it, is a company established in 2013 for the particular purpose of engaging employees who would operate the mine. It is a company within the Glencore/Xstrata Group.
[36] 21 employees commenced employment on 28 January 2014. They participated in what was described as an "on-boarding program”. 7 The face-to-face component of this program went for 4 days. Training was given to these new employees in relation to safety and health matters including fatigue management. Each employee was provided with their own computer to access Collinsville's online induction, company policies and fatigue management documents. Employees were also shown how to use touch screens available at the Collinsville mine which allowed them to access documents, including those relating to fatigue management, and how to print any materials they required. Supervisors at Collinsville had access to the intranet and internet from their work computers and could provide any documentation or information to any employees if requested.
[37] A first attempt at bargaining for an enterprise agreement had commenced on 4 February 2014. I accept the submissions of Collinsville that the process had been discontinued as an error was identified in some of Collinsville’s procedural documentation. The error was described as being that the employing company was referred to as "Glencore Collinsville Coal Operations Pty Limited" (Glencore Collinsville Coal). 8 I note that consistent with this submission, employees had been provided with a letter from Mr O'Neill about the "Clarification of Name of Employer”.9 In it, the employee was advised that the name of the company which had employed them from 28 January 2014, and which continued to employ them was “Collinsville Coal Operations Pty Limited”. The letter advised the employee that it was a clarification of the original letter of employment and did not in any way prejudice their employment or commencement date. In the event the employee wished to have an amended offer of employment letter they were advised to contact Mr O'Neill.
[38] On 15 February 2014, bargaining commenced in relation to the Agreement. It was initiated by Collinsville. On that day, as well as 16 and 17 February, employees were provided with a NoRR. The last NoRR was provided on 17 February 2014. The notice complied with the requirements of s.174 of the Act, regulation 2.05, and Schedule 2.1 of the Regulations.
[39] Between the dates of 15, 16 and 17 February 2014 all of the 21 employees completed and signed notices in which they appointed themselves as their bargaining representative. Copies of those notices were given to Collinsville. 10 Each of those notices was provided to me and they are contained in an envelope and marked Exhibit Collinsville 8. I read these notices and took account of the dates on which they were signed and considered the corresponding names of employees contained within the signature pages of the Agreement. On this basis, I advised Collinsville and the CFMEU that I would find the following facts established. Employee 2 was one of the employees who completed and signed a notice appointing himself as a bargaining representative. He did so on 15 February 2014. Employee 2 had been a member of the CFMEU on and from 31 January 2014. Employee 1 who had also completed a notice appointing himself as a bargaining representative, and had signed the Agreement, had ceased to be a member of the CFMEU on 13 December 2013. That date is prior to the commencement of his employment with Collinsville.
[40] On 20 February 2014, a meeting was held with all relevant employees during which a copy of the Agreement was given to them. Employees were informed in a memorandum given to each of them of the date and place at which voting on the Agreement would occur as well as the voting method (secret written ballot). The vote was to take place on 11 March 2014 between 7am and 8am. The vote was to be by way of “secret written ballot”. A presentation was given to employees at the meeting about the terms of the Agreement and the effect of those terms on employees. Employees were invited to ask questions or for any further clarification of the terms of the Agreement. The presentation was undertaken both by way of a power point presentation and oral comments to assist employees understanding of the Agreement. Employees were also invited to contact Mr O’Neill or another identified person at any time prior to the vote for any additional explanation they required to suit their particular needs or circumstances, or to understand how the Agreement applied to them in particular.
[41] On 3 March 2014, a memorandum to all relevant employees advised of “revised” voting details. The vote would now take place between 5pm and 6pm on 11 March 2014. The time was the only amendment to the earlier memorandum dated 20 February 2014.
[42] On 11 March 2014 there were 21 employees who would be covered by the Agreement, those 21 cast a valid vote and all 21 approved the Agreement.
Was the CFMEU a bargaining representative for the Agreement?
[43] The first question I address is whether the CFMEU was a bargaining representativefor the Agreement. Sections 176 and 178 of the Act are relevant to this consideration. I set out the applicable extracts from those sections:
“176 Bargaining representatives for proposed enterprise agreements that are not greenfields agreements
Bargaining representatives
(1) The following paragraphs set out the persons who are bargaining representatives for a proposed enterprise agreement that is not a greenfields agreement:
(a) an employer that will be covered by the agreement is a bargaining representative for the agreement;
(b) an employee organisation is a bargaining representative of an employee who will be covered by the agreement if:
(i) the employee is a member of the organisation; and
(ii) in the case where the agreement is a multi-enterprise agreement in relation to which a low-paid authorisation is in operation—the organisation applied for the authorisation;
unless the employee has appointed another person under paragraph (c) as his or her bargaining representative for the agreement, or has revoked the status of the organisation as his or her bargaining representative for the agreement under subsection 178A(2); or
(c) a person is a bargaining representative of an employee who will be covered by the agreement if the employee appoints, in writing, the person as his or her bargaining representative for the agreement;
(d) a person is a bargaining representative of an employer that will be covered by the agreement if the employer appoints, in writing, the person as his or her bargaining representative for the agreement.
......
(3) Despite subsections (1) and (2):
(a) an employee organisation; or
(b) an official of an employee organisation (whether acting in that capacity or otherwise);
cannot be a bargaining representative of an employee unless the organisation is entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement.
Employee may appoint himself or herself
(4) To avoid doubt and despite subsection (3), an employee who will be covered by the agreement may appoint, under paragraph (1)(c), himself or herself as his or her bargaining representative for the agreement.
Note: Section 228 sets out the good faith bargaining requirements. Applications may be made for bargaining orders that require bargaining representatives to meet the good faith bargaining requirements (see section 229).
178 Appointment of bargaining representatives—other matters
When appointment of a bargaining representative comes into force
(1) An appointment of a bargaining representative comes into force on the day specified in the instrument of appointment.
Copies of instruments of appointment must be given
(2) A copy of an instrument of appointment of a bargaining representative for a proposed enterprise agreement must:
(a) for an appointment made by an employee who will be covered by the agreement—be given to the employee’s employer; and
(b) for an appointment made by an employer that will be covered by a proposed enterprise agreement that is not a greenfields agreement—be given, on request, to a bargaining representative of an employee who will be covered by the agreement.
Regulations may prescribe matters relating to qualifications and appointment
(3) The regulations may prescribe matters relating to the qualifications or appointment of bargaining representatives.”
[44] I have earlier found that the only employee who was a member of the CFMEU at any relevant time was Employee 2. He appointed himself as a bargaining representative on 15 February 2014 and gave the notice of appointment to Collinsville. Under s.178, the appointment came into effect on 15 February. I find that at no time did the CFMEU assume the status of being a default bargaining representative as described in s.176(1)(b).
[45] The CFMEU asserted it was a bargaining representative between 31 January 2014 until 15 February 2014 or even after that date. 11 I have no evidence upon which I can find the CFMEU was a default bargaining representative at any time during that span of dates. Assuming it was at some time earlier in 2014 that status would not have arisen in respect to the Agreement. It appears that any earlier bargaining for a proposed enterprise agreement was one between Glencore Collinsville Coal and its employees. Any status the CFMEU may have assumed in respect of an agreement with that company, and its employees, did not survive the cessation of bargaining for that agreement and the initiation of bargaining for the Agreement.
The s.183 notice filed by the CFMEU
[46] The CFMEU filed a notice pursuant to s.183 of the Act stating that if the Agreement was to be approved it wanted to be covered by it. Section 183 is in the following terms:
“183 Entitlement of an employee organisation to have an enterprise agreement cover it
(1) After an enterprise agreement that is not a greenfields agreement is made, an employee organisation that was a bargaining representative for the proposed enterprise agreement concerned may give the FWC a written notice stating that the organisation wants the enterprise agreement to cover it.
(2) The notice must be given to the FWC, and a copy given to each employer covered by the enterprise agreement, before the FWC approves the agreement.
Note: The FWC must note in its decision to approve the enterprise agreement that the agreement covers the employee organisation (see subsection 201(2)).”
[47] In my opinion, as the CFMEU was not a bargaining representative for the Agreement, it has no standing to file a notice under s.183 of the Act. It did not have that status at any time from 15 February 2014 and did not have it on the date the Agreement was made. As a consequence of this finding I have decided that the form F18 filed by the CFMEU is not valid and should not be taken into account in my consideration about whether the Agreement should be approved. If it be necessary, I would also rule that the CFMEU had no standing under rule 24(3) of the Fair Work Commission Rules 2013 (the Rules) to file the form F18.
Procedural rulings - affidavits of union witnesses, request that I require Mr O’Neill to attend to be cross-examined, and reliance on rulings made in Peabody Moorvale
[48] I refused to allow the tender of the two affidavits of Mr Smyth and the affidavit of Mr Whyte. This ruling is allied to, and consequential upon, my ruling that the CFMEU was not a bargaining representative for the Agreement and also my ruling under s.590 of the Act. This ruling was about the matters which I allowed the CFMEU to make submissions and provide documentation or information. I was not persuaded it should be given a role akin to a party, respondent or intervener to, or in respect of an application, such as may entitle it to call a witness and make submissions. I was not persuaded, in the circumstances of this matter, it should be allowed to tender any evidence. I address my reasons later in this decision in that part which deals with s.590 of the Act.
[49] For present purposes, I will here identify other reasons why I was not persuaded that the affidavits the CFMEU sought to tender should be received.
[50] In the case of Mr Smyth’s first affidavit, Collinsville described it as largely containing irrelevant and hearsay material. I agree. The only potential relevance may have been that attributed to Employee 1 and Employee 2.
[51] Mr Smyth referred to what the two employees had said to him and/or had been contained in text messages. The CFMEU opposed the release of the names of these employees to Collinsville and did not intend to call either of them to give evidence. It follows that Collinsville would be unable to test the truth of any of the comments attributed to the employees. There was no suggestion that either of the employees was unavailable to give evidence.
[52] To allow Mr Smyth's affidavit or extracts of exchanges with Employee 1 and Employee 2 would be unfairly prejudicial to Collinsville. The value of the evidence, such as it is, does not outweigh that prejudice. I also noted Mr Smyth’s evidence of what he said and what had been said to him was qualified by “words to the effect...”. I was not persuaded the extracts from Mr Smyth’s affidavit which attribute oral comments and mobile phone text messages to the two employees was of such probative value I should seriously consider it outweighed the prejudice to Collinsville by it being received. I also note that both employees said they knew they were entitled to have the CFMEU as their bargaining representative. This may not have accurately represented the legal position of Employee 1, but I do not need to consider that further here. The right of Employee 2 to be represented by the CFMEU was also made clear from the terms of the NoRR. Both employees signed the notice appointing themselves as a bargaining representative; both voted in favour of the Agreement and signed it. Neither sought to put anything to me for consideration. There is nothing to suggest either of these employees (or any other employee) has asked the CFMEU to oppose approval of the Agreement.
[53] I next refer to the request made in Mr Smyth’s first affidavit for me to require Collinsville to provide the CFMEU’s solicitors with material identified in the draft form F52 titled “Order requiring production of documents etc. to the Fair Work Commission” (draft order). A schedule to the draft order listed a broad range of documents that were sought. They included documents relating to the offer of employment and acceptance by each of the 21 employees who voted for the Agreement, their start date, classification and letter of engagement. Records were also sought which related to the provision to those employees of the NoRR, any meetings held both at the time of provision of the notice and subsequently including any script, notes, memoranda, power point presentations, slides and questions asked and answered. Also requested were records of any communications between Collinsville and any related entities (that term was defined by way of the identification of a number of Glencore/Xstrata Group companies) in relation to the exclusion of the CFMEU or the limitation of its influence at the mine.
[54] The CFMEU submitted that I should require Collinsville to produce these documents and not proceed to hear the application for approval the Agreement until they were produced. It submitted that I had the power to do so under s.590(2)(c) of the Act. I note that section provides that the Commission may inform itself in relation to any matter before it in such manner as it considers appropriate. I accept that if I was persuaded it appropriate to do so I would have power to require the production of documents of the nature of those sought by the CFMEU. In this case, I was not persuaded that I should do so. In an application for approval of an enterprise agreement, and where the request for documents to be produced is not made by a bargaining representative, or any employee covered by the agreement, it is a question of whether, in the exercise of my discretion, the documents sought should be provided.
[55] The scope of the material sought is very broad. The relevance of many of the documents is doubtful. It is not unfair to describe it, as did Collinsville, as reflecting a general fishing expedition in a desperate attempt to build a case. 12 There is no evidence of any employee support for CFMEU doing whatever it can to ensure approval of the Agreement is refused.
[56] I was also concerned about the breadth of documents that were sought in relation to employees who were not CFMEU members. It would not be appropriate for those documents to be released in the absence of an opportunity being given to those employees to be heard as to whether they opposed the release.
[57] I was not persuaded that it was necessary for the purposes of informing me in relation to the statutory considerations in Part 2-4 of the Act about which I am required to be satisfied, that I should require Collinsville to produce the documents requested. The forms F16 and F17, and submissions made by Collinsville, adequately addressed each of the considerations the Act requires me to give attention in deciding whether or not to approve the Agreement.
[58] Further, I note that any documents or records produced under s.590(2)(c) are to be provided to the Commission. The request here made by the CFMEU’s solicitors was to require production of the documents to those solicitors at an address which appears to be their Brisbane office.
[59] Next, I note the terms of rule 54(1) of the Rules refers to "a party in a matter before the Commission" being able to lodge a draft order for documents to be produced and to request the Commission make such an order. The rule, consistent with s.590(2)(c) of the Act, envisages that the documents that are required to be produced are to be provided to the Commission.
[60] In light of my earlier findings about the request for documents, it is not necessary for me to make any final ruling about whether the CFMEU is, in terms of the rule, a “party”. Collinsville and the CFMEU made submissions as to whether I should consider the CFMEU to be, in terms of rule 54(1), a "party". I accept that the word is not defined in the Rules or the Act and note that the power in s.590(2) refers not to a “party” but to a "person".
[61] I return to Mr Smyth’s first affidavit. I have earlier indicated the CFMEU did not respond to my request made at the conclusion of the hearing to identify any documents the parties agreed should marked. This puts me in a difficult position in relation to marking as a CFMEU exhibit any part of Mr Smyth’s affidavit which might assist in the application of the better off overall test. Annexure SS21 to the first affidavit of Mr Smyth addressed that consideration. I have decided to mark that annexure as MFI 3. I return to this annexure when I address the better off overall test.
[62] I have also decided that despite the position taken by the CFMEU, I can and should mark the written submissions it filed. Strictly speaking, they are not exhibits however I did mark the submissions of Collinsville and in order to understand the transcript, and these reasons, I have decided to do likewise in case of the CFMEU. I have marked the first submissions filed on 30 April 2014 as CFMEU 1 and those titled “Amended CFMEU Outline of Submissions” filed on 10 June 2014, as CFMEU 2.
[63] It is not necessary for me to refer in any detail to the content of Mr Smyth's second affidavit. Even if the CFMEU was permitted to call witness evidence in this application the affidavit did not contain matters which, in my opinion, would assist me in the application of the statutory tests I am required to apply in relation to the approval of the Agreement. For similar reasons I was not persuaded to accept any part of the affidavit of Mr Whyte.
[64] Finally, I should note that as I did not allow the tender of Mr Smyth's first affidavit the tender of Mr McKinstrey’s affidavit was not pressed by Collinsville.
[65] I should here record that I also declined to receive and mark a chronology and extracts from the Australian Securities and Investment Commission’s database concerning Collinsville and a number of companies described as being within the Glencore/Xstrata Group. I also declined to accept extracts from the website of Xstrata Coal. I also declined to mark documents the CFMEU indicated it had only served on Collinsville on the morning of the second hearing day. They comprised an extract from the annual report of the Department of Natural Resources, “ABC News summaries” concerning a Thiess and CFMEU industrial dispute in 2010, and an order made by Justice Logan in August 2010. I was not persuaded that any of these documents would assist me in my application of the relevant statutory tests which I am obliged to apply in relation to deciding whether to approve the Agreement.
[66] The CFMEU requested that I require Mr O'Neill to be called so that it could cross examine him. Collinsville did not intend to call Mr O'Neill and relied on the content of the forms F16 and F17 which he had completed. I accept that if I had formed the view I would be assisted by his being called to give evidence, or that the CFMEU should be able to cross examine him, s.590 of the Act would appear to be sufficiently broad to enable me to so rule. However, I declined to exercise my discretion to require Mr O’Neill to give evidence and be cross-examined by the CFMEU.
[67] In support of its request that Mr O’Neill be called the CFMEU submitted that a similar request had been made and granted in Peabody Moorvale. 13 These proceedings were before a Full Bench and concerned two discrete issues that had arisen in an application for approval of an enterprise agreement titled the Peabody Energy Australia Moorvale Enterprise Agreement 2013. The application for approval of that agreement was referred to a Full Bench as it appeared a number of first instance decisions may be challenged and warranted consideration at a Full Bench level. The reasons for decision address two key issues. The first was the validity of the NoRR there provided by the employer to its employees and the second was about compliance with the requirements in the Regulations for signing of an enterprise agreement. The CFMEU referred to procedural rulings it submitted were made in that case in support of the same, or a comparable ruling, being made by me in this matter. The reasons for decision of the Full Bench do not address any procedural rulings made by it. There was no need for it to do so. As I understand it, there was no contest about the rulings that were made. The matter proceeded by way of a test case and, consistent with this, the employer, the CFMEU, the Minister for Employment, and Ai Group made submissions. It is not apparent to me that there was any opposition to each of these persons or entities being heard or the attendance of an employer witness to give evidence.
[68] In light of my ruling that the CFMEU was not a bargaining representative for the Agreement, and that it would be limited to assisting me with the better off overall test, there was no basis established which persuaded me that the CFMEU was entitled to demand the attendance of a witness so as to give it an opportunity to cross-examine that person. No sufficient discretionary grounds were made out to persuade me to require Mr O'Neill to give oral evidence.
[69] The CFMEU also indicated that it wished to cross examine Mr Olive. Nothing more was said as to why I should require him to give oral evidence. There was no suggestion anything addressed by him in his affidavit was inaccurate or required clarification. In the exercise of my discretion I was not persuaded that any ground was made out to warrant Collinsville being required to call Mr Olive so as to enable the CFMEU to cross examine him.
[70] I should also note that on the second day of the hearing the CFMEU asked me to adjourn the proceedings so as to allow it to file an appeal against several of the procedural rulings I had made. I was not persuaded to grant the adjournment. The CFMEU was not a bargaining representative for the Agreement and both Collinsville and the employees who voted for it were entitled to know the fate of the application for its approval as soon as practicable.
[71] I also decided it was better that I publish my decision so that both Collinsville and the CFMEU were aware of the final outcome of the hearing together with my reasons for certain procedural rulings that I made in the course of the hearing. Each could then consider whether to pursue an appeal. Matters which one or the other may contest could be heard at the same time rather than running the risk that there might be more than one round of appeals.
Section 590 - basis upon which the CFMEU may be heard
[72] Section 590(1) of the Act provides that the Commission may, except as provided by the Act, inform itself in relation to any matter before it in such manner as it considers appropriate. 14 Section 590(2) identifies a number of ways in which the Commission may inform itself. They relevantly include inviting, subject to terms and conditions determined by the Commission, oral or written submissions and requiring a person to provide documents.
[73] The CFMEU submits that it should be able to participate in these proceedings on the basis it is to be treated as being a “person aggrieved” as that term is interpreted in appeal proceedings. It submits that it is "absurd, capricious and irrational" to suggest that the CFMEU could be a person aggrieved for the purposes of an appeal but not at first instance. 15
[74] The CFMEU submitted it is the key or major union in the black coal mining industry and also a key or major union in respect of the Black Coal Mining Award. It submits that it is concerned with obtaining and maintaining reasonable terms and conditions of employment in the industry. It had participated in discussions with a Glencore/Xstrata Group company in relation to an enterprise agreement that might be made upon the termination of the Thiess contract to operate the mine. When Thiess operated the mine the CFMEU had a large number of members who were employed there and it was likely it would have members at the mine in the future. It had participated in these proceedings for approval of the Agreement and had been required by me to file submissions. Finally, it relied on its having been a default bargaining representative for the Agreement.
[75] I was not persuaded by the submissions to allow the CFMEU to have the role it sought in these proceedings. My reasons for this decision are largely those relied upon by Collinsville and contained within Collinsville 11 at paragraphs 6 to 27, and 32 to 34. I say largely, as Collinsville's primary position was, that the CFMEU should not be heard at all, however, I was prepared to invite the Union to make submissions in relation to one matter, the better off overall test. It will be sufficient for me to summarise the grounds contained in Collinsville’s submissions which persuaded me that the CFMEU should be granted only that limited role.
[76] Firstly, the scheme of the Act in respect to bargaining and making enterprise agreements is detailed and comprehensive. The Act provides a detailed regime for pre-approval steps and considerations which the Commission must give to the content of an agreement prior to approving it. I must do so regardless of whether a union, an employee or employer addresses any of the relevant provisions of the Act.
[77] The present application does not warrant or require the CFMEU’s participation. The Commission does not need the assistance of the CFMEU to ensure that it properly applies the statutory considerations required by the Act.
[78] Other than in the case of a greenfields agreement, enterprise agreements are made between an employer and its employees. The CFMEU is not a bargaining representative for the Agreement and is not entitled to insist on it being treated in the same manner in which a union, which was a bargaining representative, might properly be treated in the context of an application for approval of an agreement. There is nothing in the Act that suggests that it should be given an equivalent status.
[79] The CFMEU should not be allowed to be heard to oppose the Agreement. It does not do so as a representative of any of the employees who voted in favour of the Agreement. The one member it had appointed himself as his bargaining representative and voted in favour of the Agreement. He voted together with his other colleagues in favour of the Agreement. The CFMEU has not established it has a relevant interest in the application nor any ground which warrants its participation.
[80] In all the circumstances, and other than in respect to the better off overall test, I was not persuaded that it would be appropriate to allow the CFMEU to participate in the hearing by making submissions or leading evidence with a view to persuading me that I should refuse to approve the Agreement.
[81] In respect to my ruling to allow the CFMEU to make submissions about the better off overall test I note the reference in s.590(2)(b) to the Commission inviting oral or written submissions, subject to any terms and conditions. This makes it clear, in my opinion, that I was entitled to confine the issue or matter upon which I would hear the CFMEU.
[82] Furthermore, my allowing the Union to be heard on the discrete issue about the application of the better off overall test did not result in its status thereby turning into something akin to a party or a respondent to the application for approval. It assumes no rights, standing or other privileges as a result of that ruling. Nor did it assume any such status because I directed it to file its submissions and evidence as to the grounds upon which it asserted it was, or should be, entitled to be heard. In this context, it was also demanding Collinsville produce documents to it and volunteer information it sought. It was not apparent what entitlement the CFMEU had to make these various demands. I decided that as Collinsville had filed forms F16 and F17 and the Agreement, it had done, at that stage, all required of it by the Rules. It was appropriate to require the CFMEU to provide its argument in response to the matters addressed in those forms and the Agreement. Requiring the Union to do so did not, in my opinion, elevate its standing to be heard in the hearing or bestow any right or entitlement upon it.
Considerations under ss186, 187 and 188
[83] I turn first to section 188 of the Act. It is in these terms:
“188 When employees have genuinely agreed to an enterprise agreement
An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that:
(a) the employer, or each of the employers, covered by the agreement complied with the following provisions in relation to the agreement:
(i) subsections 180(2), (3) and (5) (which deal with pre-approval steps);
(ii) subsection 181(2) (which requires that employees not be requested to approve an enterprise agreement until 21 days after the last notice of employee representational rights is given); and
(b) the agreement was made in accordance with whichever of subsection 182(1) or (2) applies (those subsections deal with the making of different kinds of enterprise agreements by employee vote); and
(c) there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees.”
Access to documents and incorporation considerations
[84] I refer first to the requirement in s.188(a)(i) that subsection 180(2) of the Act has been complied with. Section 180(2) is in these terms:
“180 Employees must be given a copy of a proposed enterprise agreement etc.
...
Employees must be given copy of the agreement etc.
(2) The employer must take all reasonable steps to ensure that:
(a) during the access period for the agreement, the employees (the relevant employees) employed at the time who will be covered by the agreement are given a copy of the following materials:
(i) the written text of the agreement;
(ii) any other material incorporated by reference in the agreement; or
(b) the relevant employees have access, throughout the access period for the agreement, to a copy of those materials.”
[85] I now set out those clauses of the Agreement that I have considered in coming to my conclusion about whether s.180(2) was complied with. I first refer to clause 3. It provides:
"3. RELATIONSHIP WITH NES, AWARDS, AGREEMENTS ETC
This Agreement overrides and replaces in its entirety the Black Coal Mining Industry Award 2010 and any successor award or other awards, orders and decisions that may have otherwise applied.
This Agreement does not exclude the National Employment Standards (“NES”) or any provision of the NES which shall have effect in accordance with the Fair Work Act 2009 (“Act”).”
[86] Next I refer to clause 14.2. It deals with the topic of long service leave. It provides for the rate at which employees are to accrue long service leave, eligibility to take such leave, and the manner in which the payment for that leave will be made. It also provides for entitlements, after a certain period of qualifying service, to payments upon termination of employment.
[87] The following sentence then appears within the clause:
"Any other entitlements will be subject to approval by the industry fund. This clause does not exclude any entitlements provided for in the Coal Mining Industry (Long Service Leave Funding) Act 1992 or other superseding Act."
(Long Service Leave Funding Act)
[88] I have given consideration to whether the wording of these two clauses is such as to incorporate the NES, the Black Coal Mining Award or the Long Service Leave Funding Act into the Agreement and, if so, whether I am satisfied reasonable steps were taken by Collinsville to give a copy of those documents to employees or to allow access to them.
[89] I am not persuaded that the terms of either of these clauses are such as to incorporate the identified documents into the Agreement.
[90] Clause 3 is not drafted in a way so as to incorporate the terms of the Black Coal Mining Award. The manner in which the clause is drafted suggests that the terms of that modern award stand outside of, and separate to the Agreement. It is not intended to be part of the Agreement.
[91] For similar reasons, I am not persuaded that either the NES or the Long Service Leave Funding Act are incorporated into the Agreement. Furthermore, the reference in clause 3 to the NES is consistent with provisions of the Act which deal with the manner in which the NES and modern awards interact. That wording does not incorporate any of the terms of the NES into the Agreement.
[92] If I am wrong in my finding that neither the Black Coal Mining Award or Long Service Leave Funding Act are incorporated into the Agreement then I consider, consistent with s.180(2) of the Act, Collinsville has taken all reasonable steps to ensure that relevant employees had access to a copy of the materials referred to in these clauses. In this respect, I would consider myself obliged to apply the reasons given by a Full Bench; McDonald's Australia Pty Ltd v Shop, Distributive and Allied Employees’ Association (McDonald’s). 16 That Full Bench decision found that a South Australian Long Service Leave Act was incorporated into the enterprise agreement there being considered. The Full Bench commented that:
“We have reviewed the terms of the Agreement and agree with that submission. References in the Agreement to the NES do not incorporate the terms of the NES into the Agreement. The South Australian Long Service Leave Act 1987 is however incorporated because the terms of the agreement provide for its application in Broken Hill - which is beyond its legislative effect. The benefits are greater than those provided by New South Wales legislation. The laws of the land are available to Australian citizens in a variety of ways. We find that the employer was not required to take any further steps to ensure that the relevant employees had access to the South Australian legislation. Because the legislation is freely available in the public domain, no further steps were required.” 17
[93] Before leaving this issue I should note that in a Full Bench decision in which I participated being National Tertiary Education Industry Union v University of New South Wales, we said that we had not been persuaded by the submissions put to us that they established a proper basis for us to revisit the approach taken in McDonald's. We went on to make the following comment:
"We do acknowledge however that there may be cases where the characteristics of the workplace and the composition of the workforce may require more than what that Full Bench indicated was adequate. This is not such a case." 18
[94] If it was necessary I would have made the same comments in relation to this matter. In this consideration the evidence given in the affidavit of Mr Olive would have also been relevant.
The fatigue management issue
[95] Clause 14.6 deals with the topic of Community Service Leave. It provides for payments an employee, who is a member of a recognised emergency management body and called out to engage in any emergency management activity, is to receive. One sentence in the clause should be reproduced. It is in the following terms:
“Where an employee attends such an incident during working hours or pre and post shift hours, their attendance for work will be governed by the Company's Fatigue Management Policy".
[96] In the case of the terms of this policy I would agree with the submissions of Collinsville, which in turn rely on the affidavit of Mr Olive. Each of the 21 employee bargaining representatives was shown a copy of the policy and how to access it on Collinsville’s intranet. Computer access was freely available to all employees at the mine such as to enable employees access to any policies or operating procedures. There is nothing to suggest that access was not freely available during the access period. I accept Collinsville’s statement in its form F17 that it was.
[97] I am satisfied Collinsville took all reasonable steps to ensure that during the access period employees had access to a copy of the fatigue management policy.
[98] I rely on the form F17 and Collinsville’s submissions in respect to compliance with all other requirements contained in s.188(a) and (b).
[99] I turn now to s.188(c). I am not persuaded there are any other reasonable grounds for believing that the Agreement has not been genuinely agreed to by the employees. In this respect I adopt the submissions of Collinsville at paragraphs 61 to 63 of its first written submissions, 19 and submissions made by Collinsville at the hearing.
[100] I should note that in reference to s.188(c), the CFMEU sought to make submissions about what it described as the “Glencore strategy” to remove, or at least limit the role of the CFMEU could play at its work sites. I must observe that it is not readily apparent how the course of negotiations with the CFMEU for a greenfields agreement to cover the Collinsville mine reflects any such strategy however, more importantly, I was not inclined to allow the submission to be developed in the context of this application for approval of the Agreement. As I have earlier indicated, all relevant considerations under the Act have been addressed by Collinsville. There was no evidence of any application being made by the CFMEU for good faith bargaining orders (assuming the CFMEU could establish it had the standing to apply for such orders). This is not the occasion to consider the existence, or the details, of any strategy the CFMEU asserts, nor whether its pursuit or implementation would be consistent with the Act.
Section 186(2)(d) and 193 - the better off overall test
[101] As I had earlier indicated, I ruled that I would allow the CFMEU to make submissions about whether the Agreement passed the better off overall test. I did so as I had assumed that in this matter the CFMEU may be of assistance in identifying any provisions of the relevant modern award, the Black Coal Mining Award, to which particular attention should be given in the process of deciding whether or not I was satisfied, as required by section 186(2)(d), that the Agreement passes the better off overall test. The manner in which that test is to be applied is contained in s.193 of the Act. I reproduce that section:
“193 Passing the better off overall test
When a non-greenfields agreement passes the better off overall test
(1) An enterprise agreement that is not a greenfields agreement passes the better off overall test under this section if the FWC is satisfied, as at the test time, that each award covered employee, and each prospective award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee.
FWC must disregard individual flexibility arrangement
(2) If, under the flexibility term in the relevant modern award, an individual flexibility arrangement has been agreed to by an award covered employee and his or her employer, the FWC must disregard the individual flexibility arrangement for the purposes of determining whether the agreement passes the better off overall test.
When a greenfields agreement passes the better off overall test
(3) A greenfields agreement passes the better off overall test under this section if the FWC is satisfied, as at the test time, that each prospective award covered employee for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee.
Award covered employee
(4) An award covered employee for an enterprise agreement is an employee who:
(a) is covered by the agreement; and
(b) at the test time, is covered by a modern award (the relevant modern award) that:
(i) is in operation; and
(ii) covers the employee in relation to the work that he or she is to perform under the agreement; and
(iii) covers his or her employer.
Prospective award covered employee
(5) A prospective award covered employee for an enterprise agreement is a person who, if he or she were an employee at the test time of an employer covered by the agreement:
(a) would be covered by the agreement; and
(b) would be covered by a modern award (the relevant modern award) that:
(i) is in operation; and
(ii) would cover the person in relation to the work that he or she would perform under the agreement; and
(iii) covers the employer.
Test time
(6) The test time is the time the application for approval of the agreement by the FWC was made under section 185.
FWC may assume employee better off overall in certain circumstances
(7) For the purposes of determining whether an enterprise agreement passes the better off overall test, if a class of employees to which a particular employee belongs would be better off if the agreement applied to that class than if the relevant modern award applied to that class, the FWC is entitled to assume, in the absence of evidence to the contrary, that the employee would be better off overall if the agreement applied to the employee.”
[102] In respect of the better off overall test the CFMEU indicated that it relied on annexure SS21 to Mr Smyth’s first affidavit. I have earlier indicated I have marked this MFI 3. That document is in the form of a chart which sets out clauses of the Agreement and what is submitted to be corresponding or comparable clauses in the Black Coal Mining Award, the Glencore Collinsville Mining Pty Ltd Greenfields Enterprise Agreement 2013 (the Glencore Greenfields Agreement) and the Thiess Enterprise Agreement.
[103] The Glencore Greenfields Agreement, as the name suggests, is the draft agreement which a company then referred to as Glencore Collinsville Mining Pty Ltd and the CFMEU had been negotiating in 2013 when it was known that the mine was no longer to be operated by Thiess. It was proposed at that time a Glencore/Xstrata Group company would operate the mine with its own directly engaged employees.
[104] The Thiess Enterprise Agreement is, as I have earlier noted, the relevant enterprise agreement which covered Thiess and its employees who were engaged at the Collinsville mine when Thiess operated the mine.
[105] I observed in the hearing that I would not have considered either the Glencore Greenfields Agreement or the Thiess Enterprise Agreement relevant to the better off overall test. The CFMEU submitted that they were pressed but that it did not want to be heard further. 20 It is difficult to understand this submission in light of the terms of s.186(2)(d) and s.193. In my opinion, a proper application of the requirements of those sections necessitates my consideration of the terms of the Agreement with the Black Coal Mining Award only. It does not necessitate a comparison with the other two agreements referred to above.
[106] I have considered the analysis undertaken by Collinsville directed to persuading me that the Agreement passes the better off overall test. 21 In this respect, I also note the monetary calculations that are reflected in Appendix 1 to that document. They reflect payments that would be required under that Black Coal Mining Award with those which will be payable under the Agreement in respect of the various shifts undertaken by employees. In each case the payments under the Agreement reflect an amount significantly in excess of that payable under the Black Coal Mining Award. Additionally, I also rely on the document tendered by Collinsville which addresses comments that were made in annexure SS21 to the affidavit of Mr Stephen Smyth which I have referred to above.22
[107] Having considered those documents I accept, as Collinsville submitted, that considering all of the provisions of the Agreement, and the remuneration components in particular, each class of employee covered by the Agreement will be better off overall under it than under the Black Coal Mining Award.
Other s.186, 187 and mandatory requirements
[108] Subject to the matters I address next, and undertakings relating to them, in respect to all other relevant considerations to which I must give attention, as required by ss.186 and 187, I adopt the submissions of Collinsville. I am satisfied both the general requirements in s.186 and the additional requirement in s.187 have been met. In relation to the mandatory terms which ss.202 to 205 of the Act require be contained in an enterprise agreement I am satisfied the Agreement contains such terms.
Undertakings sought
[109] I have given consideration to the terms of clause 20 of the Agreement which is the dispute resolution procedure clause. Such a clause must comply with s.186(6) of the Act, which is in the following terms:
“186 When the FWC must approve an enterprise agreement—general requirements
...
Requirement for a term about settling disputes
(6) The FWC must be satisfied that the agreement includes a term:
(a) that provides a procedure that requires or allows the FWC, or another person who is independent of the employers, employees or employee organisations covered by the agreement, to settle disputes:
(i) about any matters arising under the agreement; and
(ii) in relation to the National Employment Standards; and
(b) that allows for the representation of employees covered by the agreement for the purposes of that procedure.”
[110] The concern I have is whether clause 20 allows for representation in accordance with s.186(6)(b). The issue is whether the entitlement to be represented under the Agreement need only be available when a dispute reaches Step 2.
[111] I do not agree with the submissions of Collinsville that a dispute under its procedure only arises after Step 1 has been completed. The grievance or dispute envisaged in the opening words to the clause has already arisen prior to Step 1 being invoked by an employee. In this respect, I see no reason to distinguish either Steps 1 or 2. In my opinion, the entitlement to be represented arises at the same time the grievance or dispute arises.
[112] This concern is one which can be addressed by an undertaking. Section 190 of the Act envisages that if the Commission has any concern that an agreement does not meet any of the requirements as set out in ss.186 and 187, an undertaking may be given to meet that concern. In this case, I seek an undertaking from Collinsville that an employee will be entitled to be represented at each of the steps in the dispute resolution procedure. Under s.190(4) I am not able to accept an undertaking unless I have sought the views of each person who I know is a bargaining representative for the Agreement. In this case I know that there were 21 employees who were bargaining representatives.
[113] Collinsville should provide an undertaking to me consistent with the concerns I have expressed in the previous paragraph and, at the same time, a copy of it should be provided to each of the 21 bargaining representatives. Upon receipt of the undertaking I will take any other steps I consider may be necessary to be satisfied the undertaking was brought to the relevant employees’ attention and they have had an opportunity to express any view about it. I observe that in light of the nature of the undertaking I seek it is unlikely that any employee would oppose it as it provides an additional entitlement to the employee. Nonetheless, I am required by the Act to seek the views of those employees. Further, the following two undertakings I seek should also be dealt with in this same manner.
[114] The following matters arise in the context of my consideration of s.186(2)(c) of the Act. I seek an undertaking about the clause 14.1 which deals with annual leave. The first sentence of that clause provides that:
“Employees are entitled to 5 weeks (175 ordinary hours) annual leave per annum.”
[115] I do note the reference in clause 3 to the Agreement that it is not to be read as excluding the NES, however I have concerns that any person reading the first sentence of clause 14.1 may not readily understand that the entitlement there referred to will accrue progressively, in accordance with s.87(2) of the Act. That section, which forms part of the NES, provides that:
“87 Entitlement to annual leave
...
Accrual of leave
(2) An employee’s entitlement to paid annual leave accrues progressively during a year of service according to the employee’s ordinary hours of work, and accumulates from year to year.
Note: If an employee’s employment ends during what would otherwise have been a year of service, the employee accrues paid annual leave up to when the employment ends.”
[116] Collinsville should provide an undertaking that clause 14.1 will be applied in a manner consistent with s.87(2) of the Act.
[117] I next refer to clause 14.3.1. It deals with Personal/Carer’s leave. The first sentence provides that:
“Employees will accrue 105 ordinary hours of personal/carer’s leave per year without limitation.”
[118] Section 96(2) of the Act provides:
“96 Entitlement to paid personal/carer’s leave
...
Accrual of leave
(2) An employee’s entitlement to paid personal/carer’s leave accrues progressively during a year of service according to the employee’s ordinary hours of work, and accumulates from year to year.”
[119] I have similar concerns about this clause to those I expressed about clause 14.1. Collinsville should provide an undertaking that clause 14.3.1 will be applied in a manner consistent with s.96(2) of the Act.
Appeal and decision of Vice President Hatcher
[120] I have earlier referred to an appeal lodged by the CFMEU against a number of rulings I made in the course of the hearings of this application for approval of the Agreement. A stay order was sought in that appeal. A hearing in respect to that application was undertaken by Vice President Hatcher. His Honour decided that the balance of convenience favoured the refusal of the stay. In light of that ruling he was not required to consider whether the CFMEU’s appeal was arguable and with some reasonable prospects of success. The CFMEU’s application for a stay order was dismissed. 23
Conclusion
[121]
Subject to receipt of the undertakings I have sought, and my being satisfied the employee bargaining representatives have had an opportunity to express their views about the undertakings, I intend to approve the Agreement.
SENIOR DEPUTY PRESIDENT
Appearances
J Murdoch QC with I Humphreys for the applicant
B Docking of Counsel with E Thornton for the CFMEU
Hearing details:
2014.
Brisbane:
May 2;
June 16.
Annexure A
Index of Exhibits
Collinsville | |
Collinsville 1 | Affidavit of service of Mr Phillip Justin Nobes affirmed on 16 June 2014 |
Collinsville 2 | Memo of Voting Method, Time and Place dated 3 March 2014 |
Collinsville 3 | Memo of Voting Method, Time and Place dated 20 February 2014 |
Collinsville 4 | Letter clarifying the company name of the employer to employee dated 15 February 2014 |
Collinsville 5 | Form 16 - Application for approval of the Collinsville Coal Operations Enterprise Agreement 2014 filed on 13 March 2014 |
Collinsville 6 | Form 17 - Employer’s statutory declaration in support of an application for approval of an enterprise agreement filed on 13 March 2014 |
Collinsville 7 | Notice of Employee Representational Rights filed on 13 March 2014 |
Collinsville 8 | Appointment of Employee Bargaining Representative Forms (21)(confidential) |
Collinsville 9 | Collinsville Coal Operations Enterprise Agreement 2014 filed on 13 March 2014 |
Collinsville 10 | Outline of submissions by the applicant filed on 1 May 2014 |
Collinsville 11 | Further outline of submissions filed on 10 June 2014 |
Collinsville 12 | Affidavit of Mr David Olive affirmed on 1 May 2014 |
Collinsville 13 | Collinsville Coal Operations Enterprise Agreement 2014 - BOOT Analysis filed on 1 May 2014 |
Collinsville 14 | Collinsville Coal’s comments regarding Annexure SS21 of the affidavit of Mr Stephen Smyth filed on 10 June 2014 |
Marked for Identification | |
MFI 1 | Contents of the envelope for Employee 1 (confidential) |
MFI 2 | Contents of the envelope for Employee 2 (confidential) |
MFI 3 | SS21 Annexure to the Affidavit of Mr Stephen Smyth affirmed on 30 April 2014 (but only that part which refers to the Black Coal Mining Industry Award 2010) |
Construction, Forestry, Mining and Energy Union | |
CFMEU 1 | CFMEU’s Outline of Submissions filed on 30 April 2014 |
CFMEU 2 | Amended CFMEU Outline of Submissions filed on 10 June 2014 |
1 MA000001.
2 I note that the relevant Commission member was on leave at this time.
3 [2014] FWCFB 2042.
4 [2014] FWC 3129.
5 I later note I decided to mark the two written submissions filed by the CFMEU.
6 [2010] FWAA 6985.
7 Exhibit Collinsville 12.
8 Exhibit Collinsville 10; Transcript of Proceedings PN301.
9 Exhibit Collinsville 4.
10 The last notice of an employee appointing himself as a bargaining representative was given to Collinsville on 18 February 2014.
11 Transcript of Proceedings PN276-277.
12 Exhibit Collinsville 10, paragraph 97.
13 [2014] FWCFB 2042.
14 No statutory exception was identified as being relevant to this matter.
15 Exhibit CFMEU 2, paragraph 10.
16 [2010] FWAFB 4602.
17 ibid, paragraph [43].
18 [2011] FWAFB 5163, paragraph [24].
19 Exhibit Collinsville 10.
20 Transcript of Proceedings PN530.
21 Exhibit Collinsville 13.
22 Exhibit Collinsville 14.
23 [2014] FWC 4276.
Printed by authority of the Commonwealth Government Printer
<Price code G, PR554387>
5
3
0