Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
[2012] FWA 4812
•8 JUNE 2012
[2012] FWA 4812 |
|
DECISION |
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 10 - Application to vary transitional instrument to remove ambiguity - agreement
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(AG2012/5230)
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union
(AG2012/5225)
Construction, Forestry, Mining and Energy Union
(AG2012/5227)
v
Curragh Queensland Mining Pty Ltd
&
Curragh Queensland Mining Pty Ltd
v
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union; Construction, Forestry, Mining and Energy Union
(B2012/782)
Coal industry | |
COMMISSIONER SPENCER | BRISBANE, 8 JUNE 2012 |
Application to remove Clause 2; ambiguity and uncertainty; application for Good Faith Bargaining orders.
Introduction
[1] This Decision relates to two applications, one by each of the Unions in this matter, to vary a clause for ambiguity or uncertainty, and another by Curragh Mining Pty Ltd (the Employer) seeking Good Faith Bargaining orders. The Unions were first to lodge applications. The Construction, Forestry, Mining and Energy Union (CFMEU), Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (the Unions) filed applications (AG2012/5230; AG2012/5225; AG2012/5227) which sought to have clause 2 of the Curragh Mine Operations Collective Workplace Agreement 2008 (the Agreement) varied (due to ambiguity and uncertainty) pursuant to Schedule 3, item 10 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act).
[2] Clause 2 of the Agreement states:
“2 RELATIONSHIP WITH OTHER AWARDS & AGREEMENTS
This Agreement excludes and replaces in its entirety the Curragh Queensland Mining Limited Award 1999, the Coal Mining Industry (Production and Engineering) Consolidated Award 1997 and all other agreements that may apply to employees employed by Curragh Queensland Mining Pty Ltd (“Curragh” or “Company”).
The parties recognize that this Agreement establishes a comprehensive set of conditions of employment for employees covered by this Agreement.
The parties agree that while this Agreement is in operation, they will not engage in or organise, or attempt to engage in or organise, protected industrial action under the Workplace Relations Act 1996.” 1 (emphasis added).
[3] The issues in dispute arose as a result of a Protected Action Ballot Order being granted and an argument by the Employer that clause 2 prevented protected industrial action. In the circumstances of potential industrial action, the hearing of the matter was brought forward. The Employer sought an urgent decision in order that the matters be determined quickly in relation to any potential protected industrial action.
[4] The Unions sought to have any ambiguity or uncertainty imposed on the parties as per clause 2, above, removed from the Agreement. The Unions submitted that clause 2 of the Agreement, is relied on by the Employer as a restriction against protected industrial action, it should be removed because the restriction is ambiguous or uncertain and inconsistent with Part 3-1 of the Fair Work Act 2009 (the Act). Furthermore, the Unions submitted that such a restriction in clause 2 of the Agreement is prohibited content under the Workplace Relations Act 1996 (WR Act), and is therefore void.
[5] The Employer filed an application (B2012/782) seeking Good Faith Bargaining orders pursuant to s.228(1)(e) in relation to the conduct of the Unions in not recognising the provision of clause 2, operating as a restriction to protected industrial action. The Employer, in summary terms, stated that by clause in the 2008 Agreement, the Unions made a commitment binding in, law that the terms of the negotiations for the next enterprise agreement would be conducted without the Unions resorting to protected industrial action.
[6] The Employer stated that the commitment contained in clause 2 of the 2008 Agreement had force and effect after the nominal expiry date of the Agreement. The nominal expiry date for the 2008 Agreement was 24 January 2012. The Employer contended that the Unions’ applications for protected action ballot orders represented a threat by the Unions to organise or engage in protected industrial action, was conduct in breach of the Unions’ good faith bargaining obligations under s.228 of the Act. Specifically the Employer argued that such threats constituted ‘capricious or unfair conduct that undermines...collective bargaining’ (s.228(1)(e) of the Act).
[7] The Unions were represented by Mr J. Fetter on behalf of the CFMEU, appearing with him was Ms L. Butler of the AMWU, Ms J. Hobson of the CFMEU and Ms K. Inglis of the CEPU. The Employer was represented by Mr H. Dixon SC and Mr J Forbes of Counsel, instructed by Mr M. Coonan of Freehills.
[8] Whilst this decision does not make reference to all of the submissions and evidence, all of such have been considered in the determination of this matter.
Background
[9] As stated, the Unions previously individually filed applications for protected action ballot orders, pursuant to s.437 of the Act. The Employer objected to the applications on the grounds of jurisdiction, based predominantly on to the existence of clause 2 of the Agreement and s.443(1)(b) of the Act. The applications were heard on 2 May 2012 and a decision was published on 3 May 2012 granting the protected action ballot orders. The statutory framework relevant to s.437 applications provides specific tests. Accordingly I stated in that decision (in relation to the material then presented) as follows:
“[14] Predominantly the matter turns on whether the statutory tests in s.443(1)(a) and (b) of the Act for the protected action ballot orders have been met. Section 443 is a directive provision; if the legislative tests in s.443 are met, it is mandatory that FWA make the protected action ballot order.
[15] Clause (2) of the Agreement which the Respondent relies on; is irrelevant to the current applications before FWA. This term of the Agreement does not impinge on the operation of the statutory tests for a secret ballot order, as set out.
[16] The Respondent’s position was that whilst the Agreement is ‘in operation’, the clause acted, to erode the statute. That is, the Respondent submitted that the employees and unions, had knowingly derogated their statutory entitlements, in the Act, to limit the right to take protected industrial action, whilst the Agreement was ‘in operation’.
[17] However, Clause 2 of the Agreement is defunct, in terms of, the required considerations for the orders sought. All that is required, regarding the jurisdiction of the Tribunal, is whether the tests for a secret ballot order only, are met. That is as per s.435; this is simply an order that ‘establishes the process that will allow employees to choose, by means of a fair and democratic ballot, whether to authorise protected industrial action for a proposed enterprise agreement.’ The question of whether protected industrial action is taken, is a later step and a separate matter. The outcome of any resulting ballot, and then whether the employees (against clause 2 of the Agreement) take protected industrial action, may be a matter for a Court of competent jurisdiction.
[18] As set out, the applications for protected action ballot orders must be granted if the tests in s.443(1)(a) and (b) are met. In accordance with s.443(1)(a) the application has been made, in compliance with required provisions.
[19] In relation to s.443(1)(b), FWA must be satisfied that the parties are genuinely trying to reach an agreement. The Respondent, at the hearing, argued that for the Applicants to have agreed to clause 2 (of the Agreement) and to now ignore its relevance, cannot be characterised as ‘Good Faith Bargaining’ (s.228(1) of the Act) and therefore they argued these applications undermined that the Applicants were ‘genuinely trying to reach agreement’ as per s.443(1)(b). The Applicants’ evidence (in relation to s.443(1)(b)); referred to 50 negotiating meetings, held between the parties, and provided detail of the matters discussed. Therefore the Applicants submitted, FWA can be satisfied, on the evidence, that the parties were genuinely trying to reach agreement. The Respondent’s did not challenge this evidence via cross-examination.” 2
[10] Following the granting of the protected action ballot orders, the material (provided by the Unions in the current matter) set out that on 4 May 2012, the Employer corresponded with the Unions advising of its concern that the conduct of the Unions in organising the protected action ballot was a breach of the good faith bargaining requirements of the Act, given their commitment to clause 2 of the Agreement. The Employer sought undertakings from the Unions that they would not proceed to organise the ballot or further organise the protected industrial action. The Unions responded by denying the alleged breach of the good faith bargaining requirements, set out in s.228 of the Act. Further to this, the Unions filed the applications to vary the transitional agreement to remove ambiguity or uncertainty and the Employer filed the application for a good faith bargaining Order.
Summary of the Unions’ submissions.
Ambiguous and uncertain
[11] The Unions’ applications were made pursuant to Schedule 3, Part 3, Item 10 of the Transitional Act, which states:
“10 All kinds of transitional instrument: variation to remove ambiguities etc.
(1) On application by a person covered by a transitional instrument, FWA may make a determination varying the instrument:
(a) to remove an ambiguity or uncertainty in the instrument; or
(b) …..
(c) to remove terms that are inconsistent with part 3-1 of the FW Act (which deals with general protections), or to vary terms to make them consistent with that Part.”
[12] The Unions submitted that the restriction in clause 2 of the Agreement (as set out) is ambiguous or uncertain and inconsistent with part 3-1 of the Act and was prohibited content under the WR Act. The Unions relied on Commissioner Larkin’s decision which adopted the approach of the Full Bench in Tenix Defence Pty Ltd (as set out below) as to the interpretation of whether clause 2 was ambiguous or uncertain. The Unions, in adopting this approach, stated that it is clear that before FWA exercises its discretion to vary an agreement, it must firstly identify the uncertainty or ambiguity; and secondly determine whether the agreement should be varied with regard to the mutual intention of the parties at the time the agreement was made:
“The scope of the power to remove an ambiguity or uncertainty was summarised in Re AGL Retail/ES & M Certified Agreement 2001. [(2002) 119 IR 30.]
Commissioner Larkin at paragraph [46] relevantly states;
The Full Bench in Tenix Defence Pty Limited outlined the approach to be taken by the Commission in relation to matters concerned with an application pursuant to s.170MD(6)(a), as follows:
“Before the Commission exercises its discretion to vary an agreement pursuant to s.170MD(6)(a) it must first identify an ambiguity or uncertainty. Re Victorian Public Transport Enterprise Agreement 1994, Print M2454, 7 June 1995 per Ross VP, Polites SDP and Grimshaw C at 3; and Re CFMEU Appeal, Print R2431, 25 February 1999 per Harrison SDP, Drake DP and Larkin C at paragraph 8. It may then exercise the discretion to remove that ambiguity or uncertainty by varying the agreement.
The first part of the process – identifying an ambiguity or uncertainty – involves an objective assessment of the words used in the provision under examination. Re Victorian Public Transport Enterprise Agreement 1994, Print M2454, 7 June 1995 per Ross VP, Polites SDP and Grimshaw C at 3. The words used are construed having regard to their context, including where appropriate the relevant parts of a related award. As Munro J observed in Re Linfox – CFMEU (CSR Timber) Enterprise Agreement 1997: (emphasis added)
‘The identification of whether or not a provision in an instrument can be said to contain an ‘ambiguity’ requires a judgment to be made of whether, on its proper construction, the wording of the relevant provision is susceptible to more than one meaning. Essentially the task requires that the words used in the provision be construed in their context, including where appropriate the relevant parts of the ‘parent’ award with which a complimentary provision is to be read.’ Print Q2603, 30 June 1998 at paragraph 30.
We agree that context is important. Section 170MD(6)(a) is not confined to the identification of a word or words of a clause which give rise to an ambiguity or uncertainty. A combination of clauses may have that effect. Re CFMEU Appeal, Print R2431, 25 February 1999 Harrison SDPO, Drake DP and Larkin C at para 12.
The Commission will generally err on the side of finding an ambiguity or uncertainty where there are rival contentions advanced and an arguable case is made out for more than one contention. Re: Victorian Public Transport Enterprise Agreement 1994, Print M2454, 7 June 1995 Ross VP, Polites SDP and Grimshaw C at p. 4; Re; CFMEU Appeal, Print R2431, 25 February 1999 per Harrison SDP, Drake DP and Larkin C at para 13.
Once an ambiguity or uncertainty has been identified it is a matter of discretion as to whether or not the agreement should be varied to remove the ambiguity or uncertainty. In exercising such a discretion the Commission is to have regard to the mutual intention of the parties at the time the agreement was made. Re: Victorian Public Transport Enterprise Agreement 1994, Print M2454, 7 June 1995 per Ross VP, Polites SDP and Grimshaw C at 3-4.
We agree with Tenix that the first step in dealing with a s.170MD(6)(a) application – the identification of an ambiguity or uncertainty – requires the determination of a ‘jurisdictional fact’. In Corporation of the City of Enfield v Developmental Assessment Commission the joint judgment of Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ described the term ‘jurisdictional fact’ in these terms:
The term ‘jurisdictional fact’ (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision-maker to exercise a discretion.’ (2000) 199 CLR 135 at 148.
Similarly in Re: CFMEU – Termination of Bargaining Periods, Lee and Madgwick JJ said:
‘…the question presents as one of whether the Commission may have erred as to a ‘jurisdictional fact’, that is, the existence or non-existence of a state of affairs which was a statutory precondition to the Commission acting…’ [2002] FCR 301, 20 March 2002 at para 53.
In the context of s.170MD(6)(a) the Commission must first identify the existence of an ambiguity or uncertainty before exercising its discretion to vary the agreement. We agree with the Full Bench in Re: CFMEU Appeal which described the existence of an ambiguity or uncertainty as ‘a necessary statutory prerequisite to any variation being made.’ RE CFMEU Appeal, Print R2431, 25 February 199 Harrison SDP, Drake DP and Larkin C at para 6.” 3
[13] The Unions submitted that the operation of the Agreement, via clause 2, is ambiguous and is open to two meanings, as follows:
“The Applicants’ interpretation of the reference to the operation of the Agreement, is a reference to the period of time stated in clause 5 of the Agreement. That being, from 23 January 2009 to 23 January 2012.
The second possible meaning, which is held by the Respondent, is that the operation of the Agreement, is a reference to the period commencing from 23 January 2009 and ceasing at the time that the Agreement ceases to operate by virtue of a replacement enterprise agreement or the termination of the Agreement.” 4
[14] On the basis of the dual meanings, the Unions submitted that the period of the restriction on protected industrial action in clause 2 of the Agreement is ambiguous or uncertain.
[15] The Unions then pointed to the ‘mutual intention’ of the parties at the time the Agreement was made, which is to be considered in any determination as to whether the agreement should be varied. The Unions stated:
“At the time the Agreement was made, the Applicants were of the understanding that the restriction in clause 2 remained enforceable up to the nominal expiry date, being 23 January 2012. At paragraph 8 of the statement of Jeffrey Brotchie it is clear that the SBU did not intend to relinquish their right to take protected industrial action after the nominal expiry date. At paragraph 18 of the statement of Jeffrey Brotchie the Respondent first raised this objection on 15 May 2012. This clause had been in operation since 2004. Since 2004 the Respondents were aware that the Applicants attempted to organize a protected action ballot in 2008. The Respondents raised no objection then. As recently as March 2012, the Respondents considered that it was available to them to take protected industrial action too. This is inconsistent with the Respondent’s contention that all parties agreed not to take protected industrial action after the nominal expiry date.” 5
[16] The Unions submitted that it was their understanding and intention that the restriction in clause 2 would not prohibit the right to organise or engage in protected industrial action under the Act. Furthermore, the Unions submitted that at no point did the Employer advise them of an intention to the contrary. The Unions concluded that it cannot be determined that it was a mutual intention of the parties at the time that the Agreement was made that clause 2 of the Agreement would restrict the right to undertake protected industrial action after the nominal expiry date. Accordingly, the Unions sought for FWA to find that the restriction in clause 2 of the Agreement is ambiguous and uncertain and to remove it entirely. Alternatively the Unions sought that the restriction in clause 2 be varied to insert the following clause:
“The parties agree that while this Agreement is in operation, they will not engage in or organise, or attempt to engage in or organise industrial action under the Workplace Relations Act 1996, prior to the nominal expiry date of the Agreement.” 6
Inconsistent with Part 3-1 of the Act
[17] In addition the Unions argued the Employers interpretation of clause 2 of the Agreement, being a restriction on protected industrial action is inconsistent with part 3-1 of the Act and this therefore also supported its removal. In line with this argument, the Unions referred to various sections of the Part as follows:
“336. Objects of this Part
The objects of this Part are as follows:
(a) to protect workplace rights;
(b) to protect freedom of association by ensuring that persons are:
(i) free to become, or not become, members of industrial associations; and
(ii) free to be represented, or not represented, by industrial associations; and
(iii) free to participate, or not participate, in lawful industrial activities;
(c) to provide protection from workplace discrimination;
(d) to provide effective relief for persons who have been discriminated against, victimised or otherwise adversely affected as a result of contraventions of this Part.” (emphasis added)
[18] The Unions relied on sections 340 and 341 of the Act, in terms of demonstrating the right to take protected industrial action is a workplace right and the potentially related adverse action, in relation to the contravention of this workplace right, based on the interpretation of clause 2 adopted by the Employer:
“340 Protection
(1) A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.
... (emphasis added)
341 Meaning of workplace right
(1) A person has a workplace right if the person:
(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or ...
Meaning of process or proceedings under a workplace law or workplace instrument
(2) Each of the following is a process or proceedings under a workplace law or workplace instrument:
(a) a conference conducted or hearing held by FWA;
(b) court proceedings under a workplace law or workplace instrument;
(c) protected industrial action;
(d) a protected action ballot; ...
(emphasis added)
342 Meaning of adverse action
Adverse action is taken by an employer against an employee if the employer:
(a) dismisses the employee; or
(b) injures the employee in his or her employment; or
(c) alters the position of the employee to the employee’s prejudice; or
(d) discriminates between the employee and other employees of the employer.
...”
[19] The Unions submitted that their members had workplace rights entitling them to obtain a protected action ballot order, pursuant to s.443, and then to engage in protected industrial action, pursuant to Part 3-3 of the Act. The Unions argued that the Employer’s application for good faith bargaining orders and the Employer’s interpretation of clause 2 of the Agreement prevented their members from freely exercising their workplace right to engage in protected industrial action. Furthermore the Unions stated that if bargaining orders were granted the associated undertakings sought by the Employer restricted their members from the taking of protected industrial action and therefore restricted them from exercising a workplace right. In line with these submissions the Unions argued that the bargaining orders would allow adverse action to be taken against their members, in that their members would be adversely affected if the taking of protected industrial action would cause injury to their employment, alter their position to their prejudice and discriminate against them and other employees who are not members of the unions.
[20] The Unions submitted that clause 2 of the Agreement effectively removes the ability of employees to access protected industrial action, which was their right in association with collective bargaining and was consistent with the Objects of the Act, at s.336 of Part 3-1. In addition, the Unions relied on s.356 of the general protections provisions of the Act which they set out:
“The objects of the Act support the removal of clause 2 from the Agreement.
The general protections provisions of the Act provides at s 356;
A term of a workplace instrument, or an agreement or arrangement (whether written or unwritten), has no effect to the extent that it is an objectionable term.” 7
[21] The Unions submissions stated that clause 2 was effectively an Objectionable term in accordance with s.12 of the Act which states:
“12 Objectionable term means a term that:
(a) requires, has the effect of requiring, or purports to require or have the effect of requiring; or
(b) permits, has the effect of permitting, or purports to permit or have the effect of permitting;
either of the following:
(c) a contravention of Part 3-1 (which deals with general protections);
(d) the payment of a bargaining services fee.”
[22] The Unions submissions were that if the Employers interpretation of clause 2 of the Agreement was accepted and it attempted to permit a contravention of Part 3-1 of the Act, it was therefore an objectionable term. Accordingly it was submitted that clause 2 of the Agreement offended the general protections provisions and therefore should be removed.
Prohibited content
[23] In relation to prohibited content, the Unions argued that the Agreement was made and approved pursuant to s.356 of the WR Act, which in relation to prohibited content sets out:
“Section 356
(1) For the purposes of this Act, each of the following is prohibited content:
(a) a provision that requires or permits any conduct that would contravene Part 16, or that would contravene that Part if Division 2 of that Part were disregarded; ...
(emphasis added)
[24] The Unions submitted that s.792 of the WR Act prohibits an employer from taking specified action against an employee for a prohibited reason, or for reasons that include a prohibited reason. In this regard, “an employer must not do or threaten to do any of the following;
(a) dismiss an employee;
(b) injure an employee in his or her employment;
(c) alter the position of an employee to the employee’s prejudice;
(d) refuse to employ another person as an employee;
(e) discriminate against another person in the terms or conditions on which the employer offers to employ the other person as an employee.” 8
(emphasis added)
[25] The Unions further pointed to s 793(1)(h) of the WR Act as set out below:
“(1) Conduct referred to in subsection 792(1) or (5) is for a prohibited reason if it is carried out because the employee, independent contractor or other person concerned:
...
(h) has participated in, proposes to participate in or has at any time proposed to participate in a secret ballot ordered by an industrial body under an industrial law;” 9
(emphasis added)
[26] The Unions argued that the meaning afforded to clause 2 by the Employer meant that it would be construed as prohibited content in contravention of Part 8, Division 7 of the WR Act. The Unions stated that prohibited content in workplace agreements made under the WR Act were void in accordance with s.358 of the WR Act (as set out below). Accordingly, the Employer’s restriction in clause 2, would void the clause in accordance with s.811(1) and (2) of the WR Act as it would be deemed to be an objectionable term as follows:
“358 Prohibited content in workplace agreement is void
A term of a workplace agreement is void to the extent that it contains prohibited content.
....
811 Objectionable provisions etc. in industrial instruments etc.
(1) A provision of an award is void to the extent that it is an objectionable provision.
(2) A provision of an industrial instrument, or an agreement or arrangement (whether written or unwritten), is void to the extent that it requires or permits, or has the effect of requiring or permitting, any conduct that would contravene this Part.”
[27] The Unions submitted that if the Employers interpretation was accepted clause 2 would be void, and this supported the application for the removal of the clause.
Clause 2
[28] In relation to the Unions’ understanding of clause 2 at the time it was made, Mr Jeffrey Brotchie, a senior delegate of the AMWU employed at the Curragh Mine, stated that he was the Secretary/delegate at the time the current 2008 Agreement was negotiated. He stated that he was not involved in the 2004 negotiations, but that clause 2 of the 2008 agreement was effectively a rollover of clause 2 of the 2004 Agreement. He stated as follows:
“Clause 2 of the 2008 Agreement was discussed very briefly during negotiations. There was no detailed conversation about the impact of the clause. In particular, it was never explained to me that the clause prevented us from taking protected industrial action after the nominal expiry date of the Agreement. The SBU would not have accepted a clause which prevented us from taking protected industrial action after the nominal expiry date, at the time the Agreement was made. We would have sought to renegotiate it or have it removed completely.” 10
[29] He stated that, on 2 April 2008, the Single Bargaining Unit told the company that it (the SBU) put forward a resolution to seek a protected action ballot order and he stated that at no time at that meeting, or at a later stage, did the employer communicate that they were in breach of the Agreement in organising protected industrial action or seeking an Order. Due to ongoing negotiations, the protected action ballot was unnecessary. In relation to the current negotiations, he stated that the Employer’s reliance on clause 2 as a bar to protected industrial action was also not raised, in fact he stated that the Employer referred to their rights to take protected industrial action:
“On or around 29 March 2012 at a bargaining meeting the SBU raised the possibility of us taking protected industrial action. Deb Cheyne, HR Manager then said words to the effect of:
‘We’ve got our own rights to take protected industrial action too.’
And,
‘We could lock the gates.’
Following that meeting the SBU representatives, myself, Brian Cruwys (CFMEU delegate) and Peter Shields (CFMEU delegate) and Michael Doyle (CEPU delegate) discussed Ms Cheyne’s comments and the likelihood of Curragh locking the gates.
At no point during that meeting did Ms Cheyne, or any other representative from Curragh mention that we were allegedly unable to apply to organise or take protected industrial action.
On 15 May 2012 Curragh first raised clause 2 of the Agreement. Curragh told us at a bargaining meeting that we were not allowed to organise or take protected industrial action because of clause 2 of the Agreement. The SBU adamantly denied that we ever agreed to not take protected industrial action after the nominal expiry date. Craig McCabe, Mine Manager, said words to the effect of:
‘You gave up the right to that protection under the last Agreement by negotiating a wage increase of 8, 5 and 5 percent.’
I said: ‘We had no discussions at last agreement about wage increases to give away that protection. That is something we would never do. We would never give away a protection about for a percent. The increases for the wage increase involved backpay and pay parity, it did not concern us giving up our right to take protected action’.
At no stage prior to the negotiation of the 2008 Agreement did the SBU agree to refrain from taking protected industrial action after the nominal expiry date of the Agreement. The right to take protected industrial action is an important right to workers and the SBU would not have relinquished that right.” 11
[30] Mr Fetter for the Unions developed further submissions at the Hearing and sought to introduce additional evidence outside of the Directions issued in the matter, in the form of Exhibit 4. This was presented as Minutes of the Meeting of 22 December 2004, titled ‘Discussions regarding new certified agreement negotiations’. During examination-in-chief, Mr Fetter referred Mr Brian Cruwys, President of the CFMEU Curragh Lodge (a position he has held for 14 years) to the document and questioned Mr Cruwys in relation to the following extract from the Minutes:
(TMc - Tom McAtee of CQMPL
PP - Phillip Pitt of AMWU
RW - Ross Willis of CQMPL)
“TMc Cl 1 - no change
Cl 2 - is this a no extra claims clause
Yes it is - I have put in a clause above it to clarify
PP Why did you put this in
TMc To make it more clear to people
PP This can be interpreted in a couple of ways - prohibit us from taking action
RW No, we checked that
TMc We checked that and the advice I got back was that effectively for the purpose of what is industrial action with a genuine concern for health & safety issues, under the Workplace Relations Act this overrides it. These 3 clauses are regularly used in CA’s and your state officials should be familiar with this.
RW The main point for safety issues, you cannot limit people ability on safety. It has taken us some time to get our heads around the law and these clauses. Action taken in relation to industrial action does not have a term.
TMc The No Disadvantage clause comes out of the M West case. In Cl 2 - this agreement substitutes for the P&E Award. This is a stand alone agreement and we have spoke about this being a whole package.” 12
[31] The following extract is the transcript relating to Mr Cruwys being shown the document:
“Can I show you this document, Mr Cruwys. Can you tell the tribunal what this document is?---Yes. It's a copy of the minutes that was taken on - it's dated Wednesday, 22 September 2004.
Have you seen this document before?
MR DIXON: I object. We don't know who the author of this document is. It has not been identified.
MR FETTER: Your Honour, that was going to be my next question.
THE COMMISSIONER: All right.
MR FETTER: Do you know who the author of the document was?---The scribe for the document?
Yes?---It's Ann Johnson.
Who is Ann Johnson?---At the time she was - I don't know what her official role was in the HR department but she did the minutes. She did the minutes for us, typed them, and sent them out to us once they were done, for both parties.
All right.
THE COMMISSIONER: So Ms Johnson - - -?---Ann - - -
- - - she's employed by?---She was employed by Curragh Wesfarmer - Curragh Queensland Mining.
MR FETTER: Can you see, Mr Cruwys, at the bottom of the page, there's a reference to clause 2?---Yes.
Next to TMC, Tom McAtee. It says, "Clause 2. Is this the no extra claims clause"?---Yes.
Would you just read for the tribunal the exchange that follows, just the next few lines?---"Yes, it is. I put in a clause above it to clarify." "PP," which was an AMWU member, on the negotiating team, is Phillip Pitt, "Why did you put this in?" TMC, which is Tom McAtee, "To make it more clear to people." "PP, this can be interpreted in a couple of ways." That was from PP. "Prohibit us from taking action." And then RW replied, which was Ross - - -
Sorry, Mr Cruwys, who is RW?---Ross Willis.
What's his role in the company?---At that time he was manager of mining and mechanical.
Yes. Keep going, please. RW replied, "No, we checked that."
Just over the page?---Then it's Tom McAtee said, "We checked that the advice I got back was effectively for the purpose of what is industrial action and with genuine concern for health and safety issues under the Workplace Relations Act. This overrides it. These three clauses are regularly used in CAs and your state officials should be familiar with this."
Is that an accurate transcript of what you remember the exchange to be? ---Yes, it is.” 13
[32] Mr Cruwys’ evidence of the negotiations of the clause at the time of those minutes, does not reflect a clause negotiated as an impairment to protected industrial action at any time the Agreement was on foot.
[33] For convenience clauses 2 and 4 of the 2004 Agreement (Curragh Mine Operations Certified Agreement 2004) are extracted below and the various terms used underlined.
“2. Relationship with other Awards and Agreements
This Agreement excludes and replaces in its entirety the Curragh Queensland Mining Limited Award 1999, the Coal Mining Industry (Production and Engineering) Consolidated Award 1997 and all other agreements that may apply to employees employed by Curragh Queensland Mining Pty Ltd ("Curragh").
The parties recognise that this Agreement establishes a comprehensive set of conditions of employment for employees covered by this Agreement.
It is a term of this Agreement that no further claims of wages, salaries or other terms or conditions of employment, either award or over award, will be pursued by the union, the employees or the Company for the duration of the Agreement.
The parties agree that while this agreement is in operation, they will not engage in or organise, or attempt to engage in or organise, protected industrial action under the Workplace Relations Act 1996.
During the period of operation of this Agreement, Curragh may enter into an Australian Workplace Agreement ("AWA'') with an employee covered by this Agreement provided that prospective employees who if employed would be subject to this Agreement shall be offered a choice between this Agreement and an AWA. An AWA will operate to exclude this Agreement.
Where this Agreement does not apply to an employee because the employee is a party to an AWA, the employee can advise Curragh that the employee wishes to terminate the existing AWA. Curragh will then enter into a written agreement to terminate the AWA. On termination of the AWA, this Agreement will apply to that employee.
...
4. Term of Agreement
This Agreement shall operate from the first full pay period on or after the date approved by the Australian Industrial Relations Commission (AIRC) and will remain in force for a period of three (3) years.”
[34] The relevant clauses in the 2008 Agreement are set out below:
“2 Relationship with other Awards and Agreements
This Agreement excludes and replaces in its entirety the Curragh Queensland Mining Limited Award 1999, the Coal Mining Industry (Production and Engineering) Consolidated Award 1997 and all other agreements that may apply to employees employed by Curragh Queensland Mining Pty Ltd ("Curragh" or "Company").
The parties recognise that this Agreement establishes a comprehensive set of conditions of employment for employees covered by this Agreement.
The parties agree that while this Agreement is in operation, they will not engage in or organise, or attempt to engage in or organise, protected industrial action under the Workplace Relations Act 1996.
...
5 Duration of Agreement
This Agreement shall commence operating 7 days after the date of approval by the Workplace Authority and will nominally expire three (3) years from this date.”
Summary of Employer Submissions
[35] The Employer referred to the terms of the 2004 Agreement, approved by a majority of employees. Paragraph 4 of clause 2 of the 2004 Agreement relevantly stated:
“The parties agree that while this agreement is in operation, they will not engage in or organise, or attempt to engage in or organise, protected industrial action under the Workplace Relations Act 1996.”
[36] The 2008 Agreement was approved by the employees in January 2009, and approved by the Workplace Authority Director on 17 January 2009. The Agreement commenced 7 days later, on 24 January 2009 and the nominal expiry date was set as 3 years from the date of approval. The Employer emphasised that no protected industrial action was taken in negotiations for the 2008 Agreement.
[37] The Employer stated that in the course of negotiations for the 2008 Agreement all parties presented versions of that document which contained the bargaining commitment in its current form. The Employer argued the bargaining commitment is a substantive provision in the 2008 Agreement, as it was in the 2004 Agreement. The making of the commitment by the parties to the 2008 Agreement was part of the consideration for concessions made by the Employer in bargaining for that agreement and the package of employee benefits agreed to buy it.
[38] The Employer submitted that the relevant provisions of the 2008 Agreement, including the bargaining commitment, were not prohibited content under Regulation 8.5 of the Workplace Relations Regulations 2006. The nominal expiry date for the 2008 Agreement was 24 January 2012. Under the Transitional Act the 2008 Agreement became a collective agreement-based transitional instrument from 1 July 2009. It noted that under the transitional provisions a collective agreement-based transitional instrument continues to operate until: (a) it is replaced by a new FW Act Agreement; or (b) it is terminated. The Employer noted that there have been no applications to either terminate the 2008 Agreement or to have a new enterprise agreement replace the Agreement.
[39] The Employer emphasised that there is nothing in the change of the legislative scheme from the WR Act to the FW Act which deprives the parties of the benefits of the 2008 Agreement, including the bargaining commitment. All rights and obligations under the 2008 Agreement continue in full force and effect.
[40] The Employer submitted:
“The Acts Interpretation Act 1901 (Cth) provides that an Act that has the effect of repealing another Act does not affect the previous operation of the repealed Act (see section 7(2)(b)).
The repeal of an Act does not ‘affect any right, privilege, obligation of liability acquired, accrued or incurred’ under the repealed Act (see section 7(2)(c)).
The bargaining commitment in clause 2 continues to operate so as to protect the Curragh’s ‘right’ of protection from protected industrial action for the period that the Agreement continues in operation.
Further, insofar as the 2008 EBA imposes ‘obligations’ on the employees and the Unions to not engage in/organise protected industrial action, and for the Respondent to pay its employees in accordance with the agreement, those obligations are enforceable.
In September 2011 the unions began their negotiations for a new agreement to replace the 2008 EBA.
The evidence will show that the unions entered those negotiations with undertakings consistent with that bargaining commitment.
The unions now seek to depart from those undertakings.” 14
[41] The Employer contended that the bargaining commitment is clear and unequivocal in its terms. It submitted that it is an enforceable term of the Agreement. In addition it contended that the Unions remain bound, both legally and morally, to observe the commitment until a new agreement is made.
[42] The Employer submitted that:
“A threat to organise or engage in protected industrial action by the unions is conduct in breach of the unions’ good faith bargaining obligations under section 228 of the Fair Work Act 2009 (the FW Act). In particular, such threats constitute “capricious or unfair conduct that undermines ...collective bargaining” (s.228(1)(e))
Curragh submits for the reasons set out below the Tribunal should make appropriate orders under section 230 of the FW Act to restrain such conduct.
By the terms of the 2008 EBA the unions have made a commitment, binding in law, that negotiations for the next agreement will be conducted without the unions resorting to protected industrial action.
The bargaining commitment is crystal clear in its terms. It reveals no ambiguity and uncertainty. It is capable of one meaning only.
The commitment contained in clause 2 of the 2008 Agreement only has force and effect after the nominal expiry date of the Agreement. The expression “protected industrial action” has a well understood meaning in the context of the current legislation and the predecessor legislation back to the mid-1990’s.” 15
[43] The Employer emphasised that there can be no misunderstanding about the meaning of the words that the Unions committed to and their intended effect in clause 2 of the 2008 Agreement. The Employer explained that protected industrial action is industrial action of a particular character and it is industrial action that can only be taken in the context of bargaining and not taken prior to the nominal expiry date of the agreement and therefore the Employer relied on the ‘carefully chosen’ language of clause 2.
[44] The Employer pointed to Clause 3 which referred to ‘duration of the agreement’ and limits the making of new claims within that duration. The Employer stated that the use of the word ‘duration’ in the 2008 Agreement is the period referred to in clause 5, namely 3 years from the approval of the agreement by the Workplace Authority. These are set out again below for convenience.
“2 Relationship with other Awards and Agreements
This Agreement excludes and replaces in its entirety the Curragh Queensland Mining Limited Award 1999, the Coal Mining Industry (Production and Engineering) Consolidated Award 1997 and all other agreements that may apply to employees employed by Curragh Queensland Mining Pty Ltd ("Curragh" or "Company").
The parties recognise that this Agreement establishes a comprehensive set of conditions of employment for employees covered by this Agreement.
The parties agree that while this Agreement is in operation, they will not engage in or organise, or attempt to engage in or organise, protected industrial action under the Workplace Relations Act 1996.
3 No Extra Claims
It is a term of this Agreement that no further claims of wages, salaries or other terms or conditions of employment, either award or over award, will be pursued by the parties to this Agreement for the duration of the Agreement.
....
5 Duration of the Agreement
This Agreement shall commence operating 7 days after the date of approval by the Workplace Authority and will nominally expire three (3) years from this date.”
[45] The Employer stated that the contrast in wording of clause 3 with the wording chosen in clause 2, rather than the same usage of the words ‘duration of the agreement’ indicated that parties had chosen to restrain from taking protected industrial action while the agreement is ‘in operation’. Accordingly, the Employer stated that beyond the expiry date of the 2008 Agreement, the Unions committed to no longer being restrained from making further claims in relation to the wages, salaries and other conditions of employment but they committed to be restrained by their own commitment in this clause 2 from taking protected industrial action to advance those claims.16
[46] In terms of the interpretation of clause 2 of the enterprise agreement, the Employer relied on the well established principles under the general law for construction of contracts and that these were generally applicable to the construction of certified agreements. The Employer stated that certified agreements contained clear words which were not susceptible to ambiguity and that the Tribunal should afford these words their ordinary plain meaning and that an alternative meaning should not be sought when the words are clear. The Employer stipulated that it is not necessary to look to the evidence of the parties’ ‘objective mutual intention’ or of the circumstances surrounding the making of the Agreement in the instance where the words are clear. The Employer stated that to do so would be in contradiction of the language of the Agreement if the words are capable of only a single meaning.
[47] The Employer referred to the judgment of the High Court in Codelfa Construction Pty Ltd v State Rail Authority of NSW, 17 which established widely accepted principles for resolving ambiguity in contracts. Mason J stated the rule:
“The true rule is that evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning. Generally speaking facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties, although, as we have seen, if the facts are notorious knowledge of them will be presumed’
[48] The Employer submitted that having regard to the above, there is no evidence before the Tribunal which would suggest a meaning other than that contended by it and that if the Unions argue a different meaning they must establish that the words in the 2008 Agreement are ambiguous and that the parties had a different intention in mind.
[49] The Employer referred to the decision of Williams SDP in S J Higgins Pty Ltd and others v CFMEU: 18
“In my view, it is not enough that there are or may be rival contentions as to the proper construction of the terms of an award or agreement. Nor is it enough that claims may have been made in the field for the application of a particular provision in circumstances and its applicability of the provision is disputed. Such contentions and claims may well be self serving. The correct approach, as applied by the Full Bench, requires the making of an objective judgment as to whether, on the proper construction of the relevant provision of an agreement, the wording of that provision is susceptible to more than one meaning.”
[50] The Employer also relied on Kucks v CSR Limited 19 where Madgwick J held:
“It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.
But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.” (emphasis added by Employer)
[51] The Employer submitted that it is not a matter for the Tribunal to consider whether the words of the 2008 Agreement give rise to a “fair” or “just” outcome. It referred to Amcor Limited v Construction, Forestry, Mining and Energy Union where observations were made about the limits to the court’s interpretive function:
“there comes a point when a court of construction must resist the temptation of forcing a meaning to a bargain which the parties did not intend and to substitute for the arrangements actually made, an arrangement which the court believes is a better one.” 20
[52] The Employer reiterated that it did not accept that, as claimed by the Unions, the bargaining commitment breaches the workplace rights provisions of the Act. It submitted that that proposition is in any event irrelevant to the Good Faith Bargaining application. 21
Good Faith Bargaining Orders
[53] The Employer set out its case in relation to the Good Faith Bargaining Orders pursuant to s.228 of the Act. Section 228 prescribes the good faith bargaining requirements a bargaining representative for a proposed enterprise agreement must meet. These provisions describe the conduct accepted. The Employer said they do not refer to the content of agreements which are being negotiated or the negotiating positions adopted by the parties in relation to the content of proposed agreements.22
[54] The Employer summarised its case for good faith bargaining orders as follows:
“Acting in breach of a term of an enterprise agreement during its operation must by definition undermine collective bargaining as it strikes at the core of the bargaining process.
A party cannot effectively bargain with another if that other party has by its conduct demonstrated that it has no regard for the binding force of an agreement which is itself the product of bargaining.
By the terms of the enterprise agreement made in 2007 the unions have made a commitment, binding in law, that negotiations for the next agreement will be conducted without resort to protected industrial action.
The employer is equally bound by that commitment.
The promise made by the parties frames the parameters of future bargaining between them.
The undertaking not to engage in protected industrial action only comes into its own when the current agreement reaches its nominal expiry date. That promise was part of the consideration for the enterprise agreement and the concessions made by the employer which led to the making of that agreement.
The union parties to the agreement have enjoyed the benefits of the enterprise agreement and continue to do so. The agreement in all its terms continues to have force and effect by virtue of the FW Act. That will continue to be the case until the agreement is terminated or superseded by a new agreement.
Importantly, an enterprise agreement has both legal force, and in the context of bargaining, moral force.
A party cannot make a promise or representation about bargaining, entice another party to rely upon it and then abandon that promise when it considers it expedient to do so. Such conduct is by any measure capricious and unfair and undermines the bargaining process.
Furthermore, it is not enough to contend, as the unions do now, that clause 2 is either not enforceable or is inconsistent with the FW Act. This too is an act of bad faith.
The reference point for the moral promise is the time at which it was made. At the time parties agreed to clause 2 they must have had in mind their next round of bargaining – otherwise they would not have used the words they did.
The promise is not conditional. It is not expressed as being subject to changes in the legislative framework. It is a cast iron guarantee about the parameters within which the next agreement may be negotiated.
It is submitted that orders should be made to restrain the unions’ breach of their good faith bargaining obligations.” 23
[55] The Employer sought Good Faith Bargaining Orders in the following form:
“3. Protect Industrial Action to Not Occur and Not be Organised
3.1 From the date of this Order and for the period the 2008 Agreement remains in operation, the Unions through their respective officers, employees, agents and any persons for whom they are bargaining agents must not:
(a) organise or attempt to organise, protected industrial action including but not limited to, serving any notice of intention to take protected industrial action; or
(b) take or attempt to take protected industrial action.”
Conclusion
[56] The Unions indicated that the strategy of the Employer in making an application for good faith bargaining orders was effectively an injunction against taking protected industrial action. The Unions indicated that other applications were open to the Employer but in the current instance it had sought good faith bargaining orders because it was barred from moving to the Federal Court. In this regard, Mr Fetter argued as follows:
“What I am suggesting is that, what is happening here is that the mine has taken a forensic decision, that instead of applying to the proper place to resolve these issues, which they well know is the Federal Court, or the Federal Magistrates Court of Australia, they have come here to seek orders which are simply not available to them. Now, that is the ulterior purpose. It’s not a question of evidence that would be needed to be led to demonstrate that. It’s a question of what construction you put on the choice of litigation strategy that the respondents have taken in this case. So what we say is that the abuse comes from really, two separate sources.” 24
[57] Both parties referred to a series of authorities in relation to the approved process of assessment of ambiguity or uncertainty in a clause. The Employer also referred to the approach taken in the recent Full Bench decision in Master Builders Australia Limited; Housing Industry Association Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; The Australian Workers’ Union; “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU). 25
[58] Drawing upon the approach to the identification of ambiguity or uncertainty as stated in that decision 26; in the current matter there are, as in that case, rival contentions advanced by the Unions and the Employer.
[59] On consideration of the parties’ alternative arguments, there are competing interpretations of the clause. The wording of the clause is susceptible to more than one meaning, this is having immediate ramifications. Both parties confirmed that up until the point the application for a protected action ballot was made, they were genuinely trying to reach agreement.
[60] Having made a determination that the proper construction of the words in clause 2 of the Agreement is a provision susceptible to more than 1 meaning. It is appropriate to look to the mutual intentions of the parties and the context of the negotiations of the clause.
[61] The relevant provisions of the Statute at the time of the negotiations of the 2008 Agreement are set out below. These have been considered against clause 2 and the parties submissions:
“Section 170MN Industrial Action etc. Must not be taken until after nominal expiry date of certain agreements and awards
170MN(1) [No industrial action during term of agreement] from the time when:
(a) a certified agreement; or
(b) an award under subsection 170MX(3) (which deals with the exercise of arbitration powers on termination of a bargaining period);
comes into operation until its nominal expiry date has passed, an employee, organisation or officer covered by subsection (2) must not, for the purpose of supporting or advancing claims against the employer in respect of the employment of employees whose employment is subject to the agreement or award, engage in industrial action.
170MN(2) [Persons covered by sec 170MN(1)] For the purposes of subsection (1), the following are covered by this subsection:
(a) any employee whose employment is subject to the agreement or award;
(b) an organisation of employees that is bound by the agreement or award;
(c) an officer or employee of such an organisation acting in that capacity.
170MN(3) [Section 170MN(1) contravened] If the employee, organisation or officer contravenes subsection (1), the action concerned is not protected action.
170MN(4) [No lockout during term of agreement] From the time when:
(a) a certified agreement; or
(b) an award under subsection 170MX(3);
comes into operation until its nominal expiry date has passed, the employer must not, for the purpose of supporting or advancing claims in respect of the employment of employees whose employment is subject to the agreement or award, lock out such an employee from his or her employment.
...”
[62] The Employer contends that the Union negotiated and argued for the removal of a fundamental statutory entitlement (to take protected industrial action after the nominal expiry date of the agreement.) If that was the case, it would be reasonable to expect, given the abrogation of a statutory entitlement that this would have been the subject of well-recalled, specific discussions and documentation. This was not the case. There was from both parties, an absence of evidence supporting a mutual intention of the parties; that the course to be taken was that both parties for the period after the nominal expiry date, would not engage in or organise, or attempt to engage in or organise, protected industrial action.
[63] The submissions in relation to various meanings being attributed to the particular terms (such as ‘operation’, ‘duration’ and ‘period’ of the Agreement) used in the clauses in the 2004 and 2008 Agreement were not persuasive. The Unions relied on prior conduct, to counter the Employer’s contention that it was the mutual intention of the parties not to engage in protected industrial action during the ‘operation’ of the Agreement, relevantly after the nominal expiry date. In this regard the Unions made reference to a previous resolution by the SBU in April 2008 for a protected action ballot application 27 and that there was lack of an objection by the Employer.
[64] In addition, Mr Brotchie provided evidence of the SBU (in the current round of negotiations) raising the possibility of taking protected industrial action. The Unions submitted that there was no objection by the Employer to this course. In fact, they stated that in response the HR Manager stipulated the Employees rights to also take protected industrial action.
[65] If clause 2 was intended to be a prohibition on the parties’ legislative entitlements to take protected industrial action; there is no evidence of the mutual intention of such. Considering the awareness of both parties have of the implications of negotiating away such this entitlement in regard to their potential effectiveness in future negotiations distinct recollection of the participation in these negotiations or the ‘minuting’ of such a conclusion would have been distinctive.
[66] The extract of the minutes referred to by the Unions is vague and does not support an interpretation of clause 2 as being mutually decided as a term against taking of protected industrial action.
[67] In construing the mutual intention; I have not imposed a consideration of whether the outcome of the Employer’s interpretation of clause 2 is just and fair, but whether the parties both intended the clause to operate in the manner contended for by the Unions. If clause 2 were to have the effect as intended by the Employer, it would be highly unusual for the Unions to give up such a specific right. It is therefore more probable that the wording is the product of careless language than aimed at a deliberate, mutually intended prohibition to remove the rights to protected industrial action when the right became available to the parties.
[68] For the aforementioned reasons, the interpretation of Clause 2, is determined to be that as the Agreement has passed its nominal expiry date, and subject to otherwise complying with the requirement in the Act, the parties are able to take protected industrial action until such time as the Agreement is terminated or replaced by another Agreement.
[69] To correct the ambiguity I have decided to vary the Agreement by removing the last paragraph of clause 2.
[70] The Good Faith Bargaining Orders in the terms sought are refused. However I am conscious in this matter that both applications were advanced after an impasse in negotiations had been reached after a significant number of meetings between the parties.
[71] Therefore, given the current circumstances a bargaining Order pursuant to s.230 of the Act, will issue directing parties to attend a conciliation conference before FWA in relation to the finalisation of an agreement. This matter will be referred to the Panel Head for further listing on an urgent basis.
[72] Separate Orders will issue.
COMMISSIONER
Appearances:
For the Unions:
Mr J. Fetter of the CFMEU
(appearing with him, Ms L. Butler of the AMWU; Ms J. Hobson of the CFMEU and; Ms K. Inglis of the CEPU)
For the Employer:
Mr H. Dixon, SC
Mr J Forbes of Counsel
(instructed by Mr M. Coonan of Freehills)
Hearing details:
Brisbane
31 May 2012
Final written submissions:
Employer - 29 May 2012
Unions - 29 May 2012
Additional Union submission - 6 June 2012
1 Curragh Mine Operations Collective Workplace Agreement 2008.
2 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (B2012/725); Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (B2012/726); Construction, Forestry, Mining and Energy Union (B2012/727) v Curragh Queensland Mining Pty Ltd [2012] FWA 3783 at [14] - [19].
3 Submissions of the Unions, at [27] - [28].
4 Submissions of the Unions, at [32] - [33].
5 Submissions of the Unions, at [36].
6 Submissions of the Unions, at [42].
7 Submissions of the Unions, at [55]-[56].
8 Submissions of the Unions at [64].
9 Submissions of the Unions at [65].
10 Exhibit 5, Witness Statement of Mr J. Brotchie, at [8].
11 Exhibit 5, Witness Statement of Mr J. Brotchie, at [15] to [19].
12 Exhibit 4, Record of discussions regarding new certified agreement negotiations - Wednesday 22 September 2004.
13 Transcript 31 May 2012 at PN213-231.
14 Submissions of the Employer at [16]-[22].
15 Submissions of the Employer at [25]-[29].
16 Submissions of the Employer at [34].
17 (1982) 149 CLR 337 at [352].
18 PR903843
19 (1996) 66 IR 182 at [184].
20 [2002] FCA 61.
21 Submissions of the Employer at [45]-[46].
22 Submissions of the Employer at [48].
23 Submissions of the Employer at [49]-[61].
24 Transcript 31 May 2012 at PN841.
25 [2012] FWAFB 3210, [16].
26 Master Builders Australia Limited; Housing Industry Association Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; The Australian Workers’ Union; “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) [2012] FWAFB 3210, [39].
27 Submissions of the Unions, at [36].
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