Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Anglo Coal (Grasstree Management) Pty Ltd T/A Anglo American Grasstree Mine
[2021] FWC 4297
•21 JULY 2021
| [2021] FWC 4297 |
| FAIR WORK COMMISSION |
REASONS FOR DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Anglo Coal (Grasstree Management) Pty Ltd T/A Anglo American Grasstree Mine
(C2020/7806)
Construction, Forestry, Maritime, Mining and Energy Union (105N)
v
Anglo Coal (Grasstree Management) Pty Ltd T/A Anglo American Grasstree Mine
(C2020/9017)
DEPUTY PRESIDENT ASBURY | BRISBANE, 21 JULY 2021 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]
Overview
[1] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) (the Unions) apply under s. 739 of the Fair Work Act 2009 (FW Act) for the Commission to deal disputes in accordance with the Disputes Resolution Procedure in the Grasstree Mine Operations Enterprise Agreement 2018 (the Agreement). The disputes concern disciplinary action taken by Anglo Coal (Grasstree Management) Pty Ltd (Grasstree/the Respondent) against two employees Mr Richard Knox (a member of the CEPU) and Mr Graeme Nowell (a member of the CFMMEU) (the employees).
[2] Both employees are employed as Maintenance Technicians – Electrical. In short compass, the dispute concerns damage to a distribution control board (DCB) referred to as GDC109 or DCB109. This equipment is a flameproof safety device designed to eliminate the possibility of an electrical ignition or explosion underground. Electricians with relevant training and competencies are required to complete a Code A safety inspection of this equipment as stipulated in their work instructions, with such inspections usually occurring daily. The purpose of the Code A inspection is to ensure the safety of coal mine workers underground by identifying and rectifying any potential concern, damage or other issues. It is not in dispute that a properly conducted Code A inspection would have identified the damage.
[3] Mr Knox and Mr Nowell undertook Code A inspections of DCB109 on 3 and 4 March respectively. On 8 March 2020, when another employee conducted an external statutory inspection of DCB109, a faulty receptacle which compromised its flameproof integrity was found. The incident was classified as a high potential incident as it had the potential to pose a significant and imminent risk to the health and safety of coal mine workers.
[4] After conducting an investigation, Grasstree concluded that the damage was present when Mr Knox and Mr Nowell conducted their Code A inspections and that they had had failed to identify the damage. As a result of these findings, the employees were issued with Level 2 warnings under the Anglo American Disciplinary Procedure. They initiated disputes under the Disputes Resolution Procedure in relation to the issuing of the warnings. The parties agreed that preliminary steps in the Procedure would be bypassed and the matter referred to the Commission. Conferences of the parties were held and the disputes were not resolved by agreement.
[5] It is common ground that the Disputes Resolution Procedure in the Agreement empowers the Commission to arbitrate a dispute arising under the Agreement only with the agreement of both parties. Grasstree does not agree to the Commission arbitrating the disputes. Notwithstanding this, the Unions seek that the Commission make a recommendation in relation to the disputes to the effect that the warnings be removed and not relied on by Grasstree. The Unions contend that the treatment of the employees was unreasonable and unfair. It is also contended that the warnings will have a significant impact on the employees because of the impending closure of the Grasstree Mine, the otherwise unblemished service of the employees and a pending transfer process in relation to employees at the Mine.
[6] Grasstree does not dispute that the Commission has jurisdiction to make a recommendation. However, Grasstree contends that as a matter of discretion the Commission should not do so as this would involve the Commission conducting an “arbitration style inquiry” which is inconsistent with conciliation and the terms of the Agreement and that this process would elevate any recommendations to the status of findings. Grasstree also contends that in circumstances where it does not agree to the Commission making a recommendation, for the Commission to do so would be inconsistent with the Dispute Resolution Procedure. In the alternative, Grasstree contends that its findings in the investigation were established on the balance of probabilities and that the warnings were not unfair or unreasonable and that as a matter of discretion, a recommendation should not be issued.
[7] Directions were issued and submissions and witness statements were filed by the parties. Mr Knox and Mr Nowell provided witness statements on their own behalf. Witness statements were also provided by Mr Grant Hedley, Mechanical Tradesperson and Lodge President of the CFMMEU Grasstree Lodge, Mr Daniel Camp, Mine Technician and Mr Mark Catt, Longwall Fitter and CFMMEU delegate. Witness statements on behalf of Grasstree were provided by Mr Perus Probst, Electrical Engineering Manager and Mr Anthony Johns, Development Superintendent. The parties agreed that a hearing would not be conducted and that the dispute would be determined on the papers.
[8] After considering the material filed by the parties, I determined that it is not appropriate to exercise discretion to issue a Recommendation and dismissed the applications. These are my reasons.
Agreement provisions
[9] Clause 5.2 of the Agreement relevantly provides as follows:
“5.2 Disputes Resolution
5.2.1 In the event of any dispute over matters arising under this Agreement (inclusive of the national employment standards), work shall continue in accordance with the reasonable directions of Grasstree.
5.2.2 Where a dispute over matters under the Agreement arises, it shall be discussed between the employee and the immediate supervisor. This will include:
5.2.2.1 The employee and supervisor meeting and conferring on the matter.
…
5.2.2.5 If the matter remains unresolved, it may be referred by either or both parties to FWC for conciliation. Where the matter is referred to FWC for conciliation, the parties, with the assistance of FWC, will genuinely attempt to reach agreement to the matter is dispute.
5.2.2.6 If the matter in dispute remains unresolved after the above conciliation, and the parties specifically confer the authority to FWC to arbitrate a binding decision pursuant to its powers under the FW Act.
…
5.2.3 If either party is of the view that a dispute at any level is not being progressed in a reasonable time, the dispute may be escalated to the next level above, following giving the other party reasonable notice of their intention.”
[10] Clause 4.2 is in the following terms:
“4.2 Discipline
4.2.1 Each disciplinary matter will be dealt with on its individual merit. The Company will apply its disciplinary procedure in a fair, transparent and measured way with those parties involved in the matter.
4.2.2 While forming part of this agreement, the Grasstree’s current disciplinary procedure is included in ‘Attachment Four’
4.2.3 In the case of an employee being put on a “step”, the employee will stay on the step for 12 months at which point if no other disciplinary action is recorded the step will be dropped. In the case where an employee is on a step other than the first step, only one (1) step will be dropped.”
[11] The Anglo American Disciplinary Procedure is contained in Attachment 4 to the Agreement and relevantly provides for three levels of warning as follows:
“Level 1 – Counselling and Verbal Warning is used for less serious misconduct by an employee who has not been disciplined for misconduct on prior occasions;
Level 2 – Counselling and Written Warning is used for moderately serious misconduct by an employee who has not been disciplined for misconduct previously, or less serious misconduct by an employee who has been disciplined for misconduct on prior occasions;
Level 3 – Termination is used for very serious misconduct, or less serious misconduct by an employee who has been disciplined for misconduct on prior occasions. In any discussions, the Team Leader/Supervisor should have another management representative present (HR representative is recommended) and invite the employee to have a representative present if they wish.”
[12] The Disciplinary Procedure also provides for employees to lodge grievances under the Fair Treatment Policy in relation to warnings.
Evidence
Background
[13] Mr Probst is employed as an Electrical Engineering Manager with Grasstree and has been employed in various roles for approximately 14 years. Mr Probst has held his current role of Electrical Engineering Manager for about 2 years and is appointed to control and manage the Mine’s electrical engineering activities pursuant to section 60(10) of the Coal Mining Safety and Health Act 1999 (Qld) (CMSH Act).
[14] Mr Knox and Mr Nowell were and are, electricians with the relevant training and competencies to perform external statutory inspections of the DCB and were appointed by the Electrical Engineering Manager on 7 July 2017 and 27 June 2017 respectively, to carry out electrical work at the Grasstree Underground Mine. On 3 March 2020, Mr Knox was assigned the task of conducting a Code A inspection of DCB109. On 4 March 2020, Mr Nowell was assigned the task of conducting a Code A inspection of DCB 109.
[15] Mr Knox’s evidence about his work history is as follows. In his previous employment, Mr Knox has never received any written disciplinary action. Mr Knox has been employed at Grasstree since approximately mid-2017. His current role is Maintenance Technician Electrical and his duties include: undertaking statutory electrical inspections; repairing electrical apparatus/breakdowns; HV switching; gas calibrations; and installation maintenance. Mr Knox performs various statutory electrical inspections such as Code A inspections on a daily basis.
[16] Mr Knox also performs daily, weekly and monthly statutory inspections as required by the work order system. At Grasstree there are daily statutory inspections. There can be dozens over a week depending on work orders and task requirements. In his entire employment history, concerns have never been raised in relation to the statutory checks Mr Knox performs.
[17] Daily Code A inspections include the DCB which involves a check of all external flame path gaps and a check of the integrity of the enclosure, mounts and security. It also includes a check of all external earths and bolts. Checks are done in accordance with site procedures and issued work orders. There is a list of items as per the work order that need to be checked. Mr Knox stated that it is a statutory requirement that this is done daily in an ERZl Zone (the zone he worked in). Code A checks are completed by an authorised competent Electrician signed off by the Electrical Engineering Manager (EEM).
[18] Mr Knox said that he was deemed competent at Grasstree within approximately a month of beginning employment. Mr Knox also said that he has a demonstrated history at the Mine of identifying and reporting flame path gaps which are picked up in Code A inspections and gave examples of instances where he had identified a flame gap during inspections.
[19] Mr Nowell’s evidence about his work history is as follows. Prior to commencing at Grasstree Mine, Mr Nowell worked at Cook Colliery for approximately three years in a similar role. Mr Nowell has also worked at Broadmeadows Coal Mine, Moranbah North Mine, and Kestrel Coal Mine performing similar roles. Mr Nowell commenced working in the coal mining industry in approximately 2004, and has a range of qualifications relevant to working at the Mine, including:
• Certificate 4 qualified trade electrician;
• A range of qualifications and competencies relevant to underground coal, including hazardous area training;
• A range of competencies and experience specific to underground coal mining and specifically in relation to policies and procedures at the Mine;
• Completion of an electrical apprenticeship at Queensland Rail prior to working in the industry; and
• Appointed as an electrician at the Mine and performs a range of statutory inspections.
[20] Mr Nowell said that there are different electrical inspections required at the Mine that he is authorised and required to perform. To perform his role, Mr Nowell is provided with a key which allows him to carry out various tasks including accessing electrical locks and performing resets. These keys are not available to other workers, for example production workers who are not qualified to perform electrical inspections.
[21] Mr Nowell has been performing electrical inspections at the Mine since his employment commenced. He was also required to perform such inspections when working at other mines where he had previously been employed. Most work orders are allocated to employees working on the day shifts, as there are more electricians that work those shifts.
[22] Based on his experience at the Mine, Mr Nowell estimates that he performs approximately two or three inspections each roster rotation. Work orders involving electrical inspections are often provided to him when they were not completed by the end of the day shift. Work orders are primarily issued at the start of shift and they are collected from a pigeon hole. There are also work orders from the day shift that have not been completed which are also allocated. Work orders relating to electrical inspections require the electrician to check flame path gaps on any accessible enclosures, bolt tightness, cleanliness, and earth continuity and earth leakage on each outlet (other than auxiliary and ventilation fans). Other items need to be inspected including lighting, ensuring cables are labelled, and other checks.
[23] In Mr Nowell’s experience, if there is an issue with printing work orders (which is not common) work is still performed. Mr Nowell’s understanding is that everything done would be written into the shift report and the work order forms completed once the issue was resolved. Code A inspections are required every 24 hours. These inspections involve using a 0.2mm feeler gauge to ensure electrical components and their flameproof housing are compliant, checking bolts to ensure they are secure, and undertaking other inspection tasks including ensuring relevant components are clean. Mr Nowell said that Code A inspections can vary depending on the type of equipment involved, but many of the same tests are required.
[24] Mr Nowell also gave evidence about Code C inspections, which are 12 monthly inspections that are more comprehensive and involve significant work in relation to internal components of the relevant equipment. On the inspection work order, items of inspection have space. for both comments and for items to be assigned numbers. Numbers are assigned and recorded to identify the status of the various items to be checked. A “1” indicates that the inspection found no issue, a “2” indicates that there was a problem identified but that it was resolved, and a “3” indicates that there was an issue that could not be resolved. These forms are handed to the MTS at the end of shift.
[25] Mr Nowell stated that generally speaking, if any issues are identified, an attempt will be made to rectify them at the time. Should that not be possible, then further steps are taken to address the issue.
Transportation of the DCB to the inspection site
[26] Mr Camp gave evidence about the transportation of DCB109 to the site where it was inspected by Mr Knox and Mr Nowell. Mr Camp said that on approximately 27 February 2020, when working at the Mine, he was tasked with setting up the Eastern Mains panel for production. The tasks included reclaiming/moving resources and equipment from an area known as 809 Maingate to 69 Cut-through F Heading.
[27] DCB109 was located in 67 Cut-through. Mr Camp, together with approximately three other workers, was tasked with relocating the DCB. He said that at all relevant times when moving the DCB, spotters were used appropriately to ensure the task was completed in a safe manner and without causing damage to the DCB or other infrastructure and machinery at the Mine.
[28] Mr Camp said that the DCB was picked up, outlet end first (the right-hand side of the DCB when looking at it front on), and reversed out of 67 Cut-through. This was done using a loader (LHD). A spotter was used during this part of the process and was standing off to the right in the control zone to guide the forks in to pick up the DCB.
[29] At about this time, other operators who had been in the area reclaiming cable rollers, assisted with the move by acting as spotters and to assist with the transportation of the DCB. According to Mr Camp, there were at least three operators assisted. The DCB was driven into D-heading with the LHD on the inbye side. During that stage of the process three spotters were standing in various places to ensure the task was performed safely.
[30] The DCB was then transported down D-Heading and then to 69 Cut-through D-Heading. Mr Camp said that one spotter was located at the 69 Cut-through D/C intersection where there was a brattice wing (brattice is material used to form mine ventilation shafts or to assist air flow) that was ventilating 69 Cut-through. The D/C belt starter was relocated temporarily to allow visibility and to clear a path for the DCB to be transported into 69 Cut-through. The belt starter was replaced as soon as the DCB was moved passed it. That task went without issue.
[31] Mr Camp said that there were two other spotters. At this time, one was located on the outbye side of the DCB (the direction facing the pit shaft from the coal face), and the other on the D/E intersection. Mr Camp submitted that the DCB was transported, LHD first, around the corner from D-Heading 69/70 Cut-through stub. During this part of the process, two spotters were on the outbye side of the DCB and one spotter was located at 69-68 Cut-through F-Heading. Three spotters were used at all relevant times. The DCB was then driven forward and sat into position a few meters off the regulator, just inbye (the direction away from shaft towards the coal face) of the exhaust end of the fan. Spotters were used throughout the whole process.
[32] Mr Camp said he was one hundred percent confident that the process of moving and transporting the DCB was completed without causing damage to it. The task went fairly smoothly and at no time was there any issue that he believed could have caused the damage. Multiple spotters were used throughout the process and no issues were reported. Mr Camp said that he did not believe that any damage was caused to the DCB as a result of the transportation that he was involved with.
The Code A inspections on 3 and 4 March 2020
[33] Mr Knox conducted a Code A inspection on DCB109 on 3 March 2020 in accordance with a work order and completed the check as per order. Mr Knox states that he did a thorough inspection and deemed it fit for purpose after going through the inspection and filling in the appropriate paperwork. Mr Knox also said that there was nothing out of the ordinary and no noted damage that was later discovered on 8 March 2020. The DCB was fit for purpose at the time of inspection.
[34] Mr Knox said that this was the first time that he had worked in that particular work zone and that it is his usual practice to take longer than usual when he works in a new work zone. Although there was brattice to the left side of the DCB, it did not impede Mr Knox’s view and his ability to undertake a thorough inspection.
[35] Mr Nowell conducted a Code A inspection on DCB109 on 4 March 2020. Mr Nowell said that this was the last shift of his roster rotation. At the relevant time he was allocated to Development. According to Mr Nowell, the area in which DCB 109 was located was a development panel, used for driving roadways for the longwall. There was one DCB located in the East Mains, located in cut through, near a T intersection. Mr Nowell said that the DCB was on a corner on the right hand side and that the right-hand side of the DCB was protruding into the T section by approximately one to one and a half meters. Mr Nowell understood that a replacement DCB was put in the position mentioned in an investigation report, which was further into the stub area and did not protrude into the main heading. The DCB was approximately 3 meters long, 1.6 meters in height, and 1m deep.
[36] The DCB was located off the rib (or wall). This meant that Mr Nowell could walk around the DCM and had access behind it. He said he would estimate that there was a gap of at least 1 meter. The left-hand side of the DCB faced inbye of the stub. The right-hand side faced the T intersection. There are two incoming receptacles on the left-hand side of the DCB. There are 6 to 8 outlets on the right-hand side of the DCB.
[37] Mr Nowell stated that in the stub was a ventilation door or similar which separates the area from the return ventilation area. At the time of his inspection, the miner was getting fixed and the areas being prepared for development activities. Mr Nowell said that to his best recollection, there was some brattice that was tied to the roof and rib. The brattice covered some of the left-hand side of the DCB. During his inspection, he accessed the relevant left-hand side of the machine to check the receptacles. He said that there was no damage to that area at the time of his inspection. Had there been any damage, he said he would have dealt with it appropriately.
[38] It was Mr Nowell’s evidence that at the time of his inspection and also at the time he attended a Code C inspection two days earlier, there was some brattice hanging over the left side of the DCB. The brattice was easily lifted in order to access various parts of the DCB and that is what he did when performing the Code A inspection. The presence of the brattice was not particularly unusual and when carrying out inspections similar items need to be moved from time to time.
[39] During the inspection, Mr Nowell said that he tested the outlets, earth continuity and leakage. His recollection is that three outlets were not working. He recalled looking at these with the MTS two days before, when the Code C inspection was being done. All receptacles, both incoming (left side) and outgoing (right side) need to be checked to ensure they flameproof. During the inspection he checked all outlets.
[40] Mr Nowell said that he took some parts to the MTS (between the Development Electrical Coordinator and the electricians) and assisted them for a relatively short period of time, approximately 30 minutes. Mr Nowell helped test the outlets and three on the right side could not be made to work. His recollection was that he left before them as he had to go back to Maingate 910 and that Daniel Leech (MTS - staff) and Matthew O’Connor were doing the Code C inspection and trying to repair the outlets.
[41] Mr Nowell said everything is required to be checked including the receptacles during a code C inspection. If damage was present as a result of the DCB being transported, he believed that it would have been identified during the Code C inspection. Mr Nowell is adamant that the damage was not present during his inspection on 4 March 2020.
Investigation
[42] On 8 March 2020, Mr Probst was verbally informed that the daily Code A inspection at 69F Hdg which was conducted by another Grasstree employee on that date, had identified a faulty receptacle to the DCB, which compromised its flameproof integrity (the Incident). Mr Probst stated that the Incident was classified by Grasstree as a “high potential incident” under the CMSH Act, as it had the potential to cause a significant adverse effect on the safety or health of a person at the coal mine. In particular, the fact that Grasstree Underground Mine is one of the gassiest underground pits in the Bowen Basin and the DCB was in an explosion risk zone, increased the seriousness of the health and safety risk posed by the Incident.
[43] On 8 March 2020, Mr Probst reported the Incident to the relevant Mine Inspector, the Industry Safety and Health Representative, the relevant Site Safety and Health Representatives and the mine’s Site Senior Executive. Grasstree then commenced an investigation into the Incident in accordance with its safety and health management system.
[44] On 13 March 2020, Mr Probst and Mr Johns conducted meetings with Mr Knox and Mr Nowell to discuss their inspections which according to Mr Probst and Mr Johns, should have identified the damage to the DCB. Mr Probst said that during the discussion at the meetings he asked questions and the employees answered as follows:
Mr Knox:
(a) If the area where the damage was found was inspected adequately by him on 3 March 2020. He said yes;
(b) If there was any reason why he would not have found the damage to the DCB. Mr Knox said that he was “not sure”;
(c) Whether the damaged area was obscured. Mr Knox said there was a bit of brattice in the area but it did not affect his inspection; and
(d) Whether the damage could have occurred in situ (based on the location of the DCB), and whether a machine could have accessed the area in which the damage was found. Mr Knox said no.
Mr Nowell
(a) If the area where the damage was found was inspected adequately by him on 4 March 2020. He said yes;
(b) If there was any reason why he would not have found the damage. Mr Nowell said “I must have missed it”;
(c) Whether the damaged area was obscured. Mr Nowell said that the area was easily accessible (despite brattice being in the area of inspection); and
(d) Whether the damage could have occurred in situ based on the location of the DCB, and whether a machine could have accessed the area in which the damage was found. Mr Nowell said no.
[45] Mr Johns generally agreed with Mr Probst’s evidence about the questions asked at the meetings and the answers given, except that Mr Johns said that both employees agreed that the damage had probably occurred during transport of the DCB.
[46] Mr Probst said that the meetings were not disciplinary in nature and were simply to assist in the investigation about how the Incident may have occurred. This involved gathering Mr Knox and Mr Nowell's versions of events regarding their inspections. Mr Probst also said that Mr Knox and Mr Nowell had an opportunity to provide their responses to the questions put to them, and neither of them requested the attendance of a support person.
[47] In his witness statement, Mr Nowell said that the Code A inspection on 4 March 2020 was on the last night of his roster rotation. In relation to the meeting on 13 March 2020, Mr Nowell said that the following week, after his first night shift, he was asked to exit underground a little earlier than usual. He stated that he cannot recall who advised him to do that, but his recollection is that it was a Deputy. He left underground approximately 30 minutes earlier than usual.
[48] Mr Nowell attended the Superintendent’s office as directed. Mr Probst, Mr Blake, Mr Woldhuise, and Mr Johns were present, and he had a meeting with them. Mr Nowell said that at the meeting, he was told of damage to the DCB and was asked about whether he had inspected the DCB, whether it was damaged when he inspected it, and was told it was a very serious matter. Mr Nowell said that he agreed that the damage was a very serious matter.
[49] When asked about his inspection of the DCB at that meeting, Mr Nowell said he responded with words to the effect of “it wasn't damaged, and I would be very surprised and disappointed in that if it had been missed”. At the end of the meeting, Mr Nowell was advised that there was an investigation that was ongoing and that they would get back to him. Mr Nowell said he was asked to provide a written statement and did this straight after the meeting, before leaving the Mine. Mr Nowell was not stood down and continued to perform his usual duties in accordance with his roster.
[50] Mr Knox said that on 12 March 2020, at the start of shift around 6:00pm, he was informed by his supervisor that he was required to attend an interview at 5:30am the next day with Mr Probst, Electrical Engineering Manager. Mr Knox’s usual finish time was 6:30am. Mr Knox said he was told that the meeting would be to discuss the Code A incident and to gather his version of events. Mr Knox said that he did not understand at this stage that there was going to be any accusation that he had played a role in the damage discovered on 8 March 2020.
[51] Mr Knox said that he did not have an opportunity to organise a support person and was not told that he should bring someone with him. He attended the meeting at 5:30am with Mr Probst and Mr Johns, Development Superintendent. He said that Mr Probst started off the meeting by producing the work order that Mr Knox signed on 3 March 2020
[52] Mr Knox said that he was then provided photographs from the investigation and pointed out that there was a 0.02 gap at the bottom of the receptacle. Mr Probst then referenced the piece of plant to where it was situated and pointed out that there was no access for any mobile equipment to cause damage.
[53] According to Mr Knox, Mr Probst then stated that it was his belief that the DCB could only have been damaged in transit and that he should have picked up the damage when he did his Code A inspection on 3 March 2020. Mr Knox said that during the interview he said words to the effect of “I don't know what happened to the DCB and I am unaware of any damage to the DCB”, and “I don't know how it happened. There was no noted damage to the DCB.”
[54] Mr Knox also said that he informed Mr Probst that if there was any damage, he would have found it and reported it as he was the one who finds this during inspections. Further, Mr Knox said that he told Mr Probst that he did not miss out on identifying anything as he was the person who “finds this stuff.”
[55] Mr Knox said that Mr Probst asked him if he checked the bolts during his inspections and he said yes. Mr Johns also asked if there was anything obstructing noted in the inspection. Mr Knox said that he said to him there was brattice but that did not affect his inspection. At the end of the meeting, Mr Knox said he was asked to write a statement.
[56] Apart from the meeting on 13 March 2020 where he provided his account of the events on 3 March 2020, Mr Knox said that he was not involved further in the investigation process. Mr Knox was aware that Grasstree was investigating further over the next couple of weeks. Mr Knox said that he held the view at that time that once Grasstree looked further into the event that any fault attributed to him would hold no weight. Mr Knox said that at no time did he consider that there would be any repercussions as he had not done anything wrong.
[57] Mr Camp said that at some time after he was involved in transporting the DCB, he was approached by Mr Woldhuise (Development Electrical Coordinator), who showed him a number of photographs of damage said to have been caused to the DCB. Mr Woldhuise stated that the damage had been caused to the DCB during the transportation Mr Camp was involved in. Mr Camp said he told Mr Woldhuise in no uncertain terms that there was no damage to the DCB during the transportation he was involved in. Mr Camp said that aside from the discussion with Mr Woldhuise, he was not approached again by the Company in relation to the damage or the transportation of the DCB.
Investigation outcome
[58] On about 7 April 2020, the Incident investigation report was issued. The report concluded that the damage to the DCB occurred in transportation, not in situ at 69F Hdg. Mr Probst said that based on his previous experience as a qualified electrician, his lengthy experience dealing with similar matters at the mine and his observations of the photographs depicting the physical damage to the DCB, he believed the damage occurred in transportation, not in situ, because:
• The DCB is a large piece of equipment with delicate electrical components, which may come into contact with other equipment and/or the loader during transportation (particularly along the bumpy roads). As a result, it is not unusual for equipment to be damaged during transportation, even if care and skill is taken with its movement.
• The damage marks on the DCB were consistent with the dummy plug making contact with the backing plate of the forks of the loader during transportation;
• The significance of the damage to the bolts (which hold the receptacle to the DCB) meant that only a substantial force could have caused the damage, such as a loader or other machine; and
• At it’s final location, a machine would not have been able to access the back of the DCB to cause damage to the relevant area.
[59] Mr Johns also gave evidence of his belief that the damage to the DCB occurred in transportation, not in situ. Based on his previous experience as a qualified electrician, and his observations of the physical damage to the DCB when he inspected it at 69F Hdg, Mr Johns said he formed this belief because:
(a) The damage caused to the DCB looked like it had been caused by the tines (forks) of the loader. In particular, the damage to the dummy plug lined up with the fork lines of the loader, which was used to transport the DCB;
(b) The damage was substantial enough that a machine is most likely to have caused it, and the damage occurred from the bottom up. This is consistent with the damage occurring in transportation by a loader; and
(c) Given that no machine could have accessed the area where the damage was caused on the DCB, the damage could not have occurred whilst it was situated in 69F Hdg.
Level 2 Counselling and Written Warning
[60] It was determined by Grasstree management to issue Mr Knox and Mr Nowell with Level 2 Counselling and Written Warnings. Mr Nowell attended a meeting with Mr Probst and Mr Woldhuise, on 9 April 2020. Mr Nowell was accompanied by the CFMMEU Delegate, Mr Catt. At that meeting, Mr Nowell was issued with a Level 2 Counselling and Written Warning. Mr Nowell said that the letter had been prepared prior to the meeting and was handed to him. When Mr Nowell read the letter (or when it was read to him) Mr Nowell understood it was being suggested that he had previously admitted that he could have missed the damage when carrying out his inspection on 4 March 2020.
[61] Mr Nowell said that he explained at the meeting that it was not what he had said and that it was not an admission of guilt. Mr Nowell also recalled telling those present at the meeting that he had not made that statement, and he was quite upset that it had been misused against him. Mr Nowell said that the Company representatives did not want to discuss the letter, and indicated that the warning “was what it was”.
[62] Mr Catt confirmed that he attended the meeting on 9 April 2020, at the request of Mr Nowell. Mr Catt said that Mr Nowell was provided a letter dated 9 April 2020, advising that Mr Nowell was being issued a Level 2 Warning in relation to an alleged incident on 4 March 2020.
[63] Mr Catt said that upon reviewing that letter, it became clear that it contained a misrepresentation of comments alleged to have been said by Mr Nowell at a meeting Mr Nowell attended on 13 March 2020. Mr Catt did not attend that earlier meeting. Mr Catt confirmed that at the meeting on 9 April 2020, after reading the letter, Mr Nowell immediately took issue with the “misleading” statement and told the Company representatives that he had not made the statement. According to Mr Catt, Mr Nowell stated that he had not said at the earlier meeting: “I must have missed it”. Mr Catt also said that Mr Nowell advised Mr Johns and Probst that he had not said the words attributed to him and that what he actually said were words to the effect of "if I had missed it, I would be very surprised".
[64] Mr Catt said that the Company representatives did not change their position in relation to the alleged comment or the warning issued. Mr Camp did not attend any further meetings and was not otherwise involved in the dispute.
[65] Mr Knox attended a meeting with Mr Probst, Ms Van Itallie (HR Superintendent), Mr Richard Harris (SSHR/Support Person), and Mr Woldhuise, on 15 April 2020. Mr Knox said that he thought that the meeting was going to provide an update on the outcome of the investigation.
[66] Mr Knox said that during the meeting Mr Probst stated words to the effect of “Knoxy is a good electrician.”Mr Knox also said thatMs Van Itallie read out the contents of a letter informing Mr Knox that he was to be issued with a Level 2 Counselling and Written Warning. The letter, appended to Mr Knox’s witness statement, said that he had been assigned to undertake the Code A inspection and had failed to execute the task to the appropriate standard expected from a trained, competent and appointed electrician at the Mine. The letter, dated 9 April 2021, under the signature of Mr Probst also stated that:
“You attended a meeting with Anthony Johns, Development Superintendent and myself to discuss the incident and our relevant concerns with your working behaviours on 13 March 2020. In this meeting you advised that you were not sure what happened, unaware of the damage and missed identifying the damage in your inspection.”
[67] The letter went on to inform Mr Knox that Mr Probst expectations were that he would improve his working behaviours and ensure all inspections and tasks were carried out to an acceptable standard and that further instances of non-compliance may result in the termination of his employment. Mr Knox said that the meeting took approximately 10 minutes and at the completion of the meeting he stated that he was placing the matter into dispute, and then left the meeting.
[68] Mr Probst said that in his view the Level 2 Counselling and Written Warnings (Warnings) issued to Mr Knox and Mr Nowell on 9 April 2020 were appropriate. He said that Mr Knox’s and Mr Nowell's failure to identify the damage to the DCB during their inspections on 3 March and 4 March 2020 respectively, put the health and safety of coal mine workers at an unacceptable level of risk.
[69] Mr Probst also said that the Warnings were consistent with the Respondent's response to comparable incidents. In particular, he was aware that a similar incident occurred a few weeks later, in which four electricians received a Level 2 Counselling and Written Warning.
[70] In relation to paragraph 55 of Mr Nowell's statement, which states that only two other workers received disciplinary action (being Mr Knox and Mr Nowell) and not Mr Daniel Leitch or Mr Matthew O'Connor, Mr Probst is aware that:
• Mr Leitch failed to ensure the Code A inspection of the DCB was undertaken on 2 March 2020. Mr Leitch received a Level 2 Counselling and Written Warning based on his employment history and particular circumstances. His warning was a “First and Final Warning”, whereas Mr Knox’s and Mr Nowell's Warnings were not;
• Mr O'Connor was not required to perform a Code A inspection of the DCB, but was instead required to undertake different tasks pursuant to his work orders, which he performed. Given there were no issues with Mr O'Connor's work performance, he was not disciplined; and
• Given the Code A inspection of the DCB was not undertaken on 2 March 2020, Mr Knox and Mr Nowell were the first electricians to undertake a Code A inspection since the DCB had been transported on 27 February 2020. Accordingly, Mr Knox and Mr Nowell should have identified the damage during their inspections.
[71] Mr Johns said that he was aware that a Level 2 Counselling and Written Warning was issued to both Mr Knox and Mr Nowell on 9 April 2020. While the level of discipline was ultimately a matter for Mr Probst, Mr Johns said he was of the view that the Warnings were appropriate, proportionate and consistent with the Respondent's approach to similar incidents.
[72] Mr Johns said that the failure to identify the damage to the DCB was serious. Mr Knox and Mr Nowell were properly trained and qualified to identify the damage to the DCB, but failed to do so, which caused a significant risk to the safety of workers. Mr Johns said he is aware that a similar incident arose a few weeks later in which the workers all received the same level of discipline to Mr Knox and Mr Nowell, being a Level 2 Counselling and Written Warning.
[73] Mr Johns also said that Mr Leitch received a First and Final Level 2 Counselling and Written Warning, based on his particular employment history and circumstances. Mr Johns also confirmed that Mr O'Connor was not required to complete a Code A inspection of the DCB and instead was required to undertake work according to his work orders, which he did. Given there was no issue with Mr O'Connor's work performance, he was not disciplined.
Disputes in relation to the warnings
Mr Knox
[74] After 15 April 2020, Mr Knox said that he undertook discussions with people who were involved with moving and statutory checks of DCB109. Mr Knox spoke to Mr Camp who moved DCB109 on 27 February 2020 to and Mr Nowell who did a Code A inspection on 4 March 2020. Mr Knox said that both Mr Camp and Mr Nowell assured him that there was no damage done whilst they were there.
[75] Mr Knox submitted that he also noticed some eye bolts near where DCB109 was at the time the damage was discovered on 8 March 2020. Mr Knox said his theory was that the bolts were in a position so close to DCB109 that they could have been used to move it after he had done his Code A inspection on 3 March 2020 and after Mr Nowell had done his Code A inspection on 4 March 2020. Mr Knox said that he asked the Deputy Richard Harris (SSHR) if he had noticed the eye bolts near the DCB109 when he had done his last inspection after the damage was discovered on 8 March 2020, and he confirmed he had seen the eye bolts in that position.
[76] Mr Knox attended a meeting with Mr Woldhuise on 13 May 2020 in relation to his dispute. Mr Knox said that the meeting went for approximately 15 minutes and during the meeting he told Mr Woldhuise that he was not happy with the comments that Mr Probst had written in the warning letter. Mr Knox also said that he referred to the failing of the work order system for the Thursday 5, Friday 6, and Saturday 7 March when there were no work orders printed out. Mr Knox said that the failure of these checks for three days raised more questions than answers.
[77] Mr Knox informed Mr Woldhuise that he was aware of the timeline regarding the investigation and that there was an Electrician in the area of DCB109 on the Thursday 5 and Saturday 7 March 2020 proving that there were other workers around after he had done his Code A inspection on 3 March 2020. Mr Knox said that Mr Woldhuise made the comment that he believed the damage was done prior to transportation on 27 February 2020. Mr Knox said to Mr Woldhuise words to the effect of, “Don’t go there. The company doesn’t know when it got damaged or it would have mentioned it in the LFI report” – (Learning from Incidents -Investigation Report).
[78] Mr Woldhuise told Mr Knox that he had spoken to Mr Camp and believed that the damage was not done in transit. Mr Knox said that he raised the issues of the eye bolts on the roof that were near DCB109 and explained that it was a very real possibility that DCB109 could have been moved in the timeframe between 5 – 7 March. Mr Knox told Mr Woldhuise that he had spoken to Mr Nowell who did a Code A inspection on 4 March 2020 and they were both adamant that there was no damage on the dates that they did their inspections.
[79] Mr Knox also said that he told Mr Woldhuise that if the DCB was damaged at the time of inspection, he would have found it the damage. Further, Mr Knox said that he explained to Mr Woldhuise that he was not happy about the interview he had on 13 March 2020 after a night shift and that Mr Probst had intentionally mispresented what he said on 13 March 2020 and had mixed his sentences up. Mr Knox explained to Mr Woldhuise that he had never said that he had missed identifying the damage in his inspection. Instead, Mr Knox maintained that he said that he did not know how the damage happened and that he did not identify any damage to report. Mr Knox also maintained that he told Mr Probst that if there had been damage, be would have reported it and that he took this matter extremely seriously.
[80] Mr Knox had a meeting on 25 March 2020 in relation to his dispute. The duration of the meeting was 15 minutes and it was attended by Mr Johns, Mr Probst and Mr Harris (SSHR). At that meeting, Mr Knox went over what was discussed in the previous meeting with Mr Woldhuise. According to Mr Knox, Mr Johns was very adamant that DCB109 was damaged during transport on 27 February 2020. Mr Knox said that he had the LFI findings with him ready to discuss but Mr Johns stated again that he was adamant about the findings and Mr Knox did not feel it was worthwhile to press on.
[81] On 8 June 2020, Mr Knox attended a meeting with Mr Murphy, Engineering and Maintenance Manager, Ms Opperman, HR Manager, Mr Probst and Mr Thomas, CEPU Organiser. At this meeting, Mr Knox stated that he informed Company representatives that the dispute was about the fact that he had been issued with a Step 2 warning. Mr Knox stated that Ms Opperman asked him if he performed the inspection that was required. Mr Knox said that he stated to her that he had done a thorough Code A inspection.
[82] Mr Knox said that Mr Thomas raised an issue with the photographs on pages 3 and 4 of the LFI Report and stated his belief that there were inconsistencies in the photos of the damage to the dummy plugs and the damage to the receptacles. Mr Knox also said that he explained that he had spoken to Mr Nowell who did the Code A Inspection on 4 March 2020 and Mr Camp who was the Miner who moved DCB109 on 27 February 2020, and they had assured him that they had not identified any damage before, during or after transportation.
[83] On 24 June 2020, Mr Knox attended a further dispute meeting with Mr Thomas, Ms Opperman and Mr Wynn, Site Senior Executive. Ms Opperman asked Mr Knox to state his position to Mr Wynn. Mr Knox said that he told Mr Wynn that the investigation was flawed and that Mr Probst had mixed his words and included them in the Level 2 Warning letter issued on 9 April 2020. In response, Mr Wynn said that he had reviewed the process with Mr Probst and discussed the matters relating to the positioning of DCB109. Mr Wynn also said that he agreed with Mr Probst’s view that due to the position of DCB109, the damage could only have been made during the transit of DCB109.
[84] Mr Knox asked Mr Wynn if he had been made aware of the eye nuts and their position in relation to DCB109 and that this could help explain that DCB109 was damaged after transit and after Mr Knox’s inspection. Mr Knox said that he showed Mr Wynn the pictures of DCB109 in the Report and explained that the roof bolts could have been used to lift/move the equipment after he had inspected it.
[85] Mr Knox said that it could not have been done prior or during the transport before his Code A inspection, because the person involved in the transit, Dan Camp had three spotters and confirmed that there was no damage in transit. Mr Knox drew a diagram for Ms Opperman who took a copy of the diagram. Mr Knox also said that he and Mr Thomas, pointed out in the diagram where eye nuts were found to be in relation to the damaged DCB109 receptacle.
[86] Mr Knox explained that he had spoken to ERZ Controller Richard Harris, Site Safety and Health Representative who confirmed that the eye nuts were still in place where DCB109 was located. Mr Knox explained the significance of this as being a possible explanation on the basis that the eye nuts could have been used as a method of lifting and moving the DCB109 after he had performed his Code A inspection.
[87] In response, Mr Wynn said words to the effect of: “My position stands for the Step two, if it had of been Step 1, I would have had it escalated.” Mr Knox also said that Mr Wynn stated that his position stood, and that it was his view that the damage was done prior to Mr Knox’s Code A inspection on 3 March 2020 and that Mr Knox had failed to identify the damage.
Mr Nowell
[88] After receiving the warning, Mr Nowell spoke with Mr Adams, a CFMMEU Lodge Executive member about disputing the warning. Mr Nowell attended a dispute meeting with Mr Hedley, who was his representative. The meeting occurred on a date that Mr Nowell does not recall. Also in attendance were Ms Opperman from Human Resources and Mr Murphy the Engineering Site Manager. Mr Nowell said that the issue of the statement mentioned in the warning letter being incorrect was raised along with other issues. Mr Nowell said that the Company was not receptive to the matters raised and just stuck its guns.
[89] Mr Nowell does not believe that the matter was investigated properly and is particularly upset that the Company used a statement that he did not make and has twisted things to justify the warning. As far as Mr Nowell is aware, only two other workers received disciplinary action – Mr Knox who had performed the Code A before Mr Nowell and Mr Daniel Leitch. Mr Nowell said that he approaches his work – including electrical inspections – professionally and seriously and undertakes inspections in a tradesperson like manner. Mr Nowell also said that he is aware of the serious job he has and the consequences which might result from any failure to undertake those tasks properly. Mr Nowell maintains that there was no damage to the DCB at the time he conducted his inspection.
[90] The warning is a serious matter, and Mr Nowell is concerned that it might have consequences for his employment. Mr Nowell has not received disciplinary action before and is concerned that the warning will impact on his ongoing employment as production at the Mine is due to cease soon and not all workers can be transferred to other employment. It is also a stain on Mr Nowell’s otherwise clean record at the Mine. Further Mr Nowell said that he has not had any previous warnings in relation to inspections or similar matters and that while on occasion corrections may have been required to be made to inspection forms – for example if Mr Nowell’s name was omitted or similar issues – this was by far the exception. It is Mr Nowell’s understanding that there are GPS locators in cap lamps worn underground, they are not reliable in terms of identifying precise locations, do not update continuously and do not work in every underground location.
[91] Mr Grant Hedley who gave evidence about the dispute meeting attended by Mr Nowell, commenced employment at the Mine in approximately September 2011 and is employed as a mechanical tradesperson. Mr Hedley is a CFMMEU member and Lodge President of the CFMMEU Grasstree Lodge.Mr Hedley was involved, in the capacity of Mr Nowell’s Union representative, in the dispute concerning the Level 2 Warning that was issued to Mr Nowell on 9 April 2020 and attended a meeting on 23 June 2020 in relation to the dispute. On 25 April 2020, Mr Hedley was provided with a range of information from the LFI Investigation. The meeting was held in the Incident Control Room. Mr Stuart Murphy, Engineering Mine Manager, and Ms Stephanie Opperman, Human Resources, attended that meeting on behalf of the Company.
[92] At the meeting, Mr Hedley raised issues, including some raised by the LFI Investigation report that he had been provided, as to why they considered the Level 2 Warning to be unfair including:
(a) The Company had included misleading statements in the warning letter and Mr Nowell had not said the words that the Company included in the letter.
(b) In light of the information obtained relating to the LFI Investigation, there was no proof that the damage to the DCB occurred when it was being transported.
(c) That the damage could have been caused by the DCB being moved after the inspection Mr Nowell performed, by a process known as “chaining”.
(d) That they understood that when the DCB was moved prior to the inspection by Mr Nowell, that spotters were used and there was nothing to indicate the damage was caused at the time.
(e) That they understood that no workers involved in transporting the DCB had been disciplined.
(f) That an absence of written work orders in the days following the inspection by Mr Nowell did not mean that work would not have been carried out in relation to the DCB, or in the relevant area, during the four-day period when the printer was not working.
(g) That the suggestion that the DCB was damaged during transportation prior to Mr Nowell’s inspection was inconsistent with aspects of the investigation report. The investigation report made no findings as to the need to review the policies and procedures. Had the damage occurred in that context such recommendations should have been made to address any issues in the future.
[93] Mr Hedley submitted that in addition to the above matters, the Union and Mr Nowell were concerned about the approach taken by the Company in relation to the damage to the DCB. There is no doubt that the required electrical inspections are extremely important. Despite the apparent findings of the Company, Mr Hedley is not aware of the Company taking any steps to address what, if the findings were correct, is a very serious issue. The Company appears to suggest that three separate electrical inspections missed the damage and it appears that all that the Company has done is seek to blame particular employees through issuing disciplinary warnings, rather than looking at wider issues such as procedures and training.
[94] Mr Hedley tendered documents he was provided with as part of the LFI Report. Those documents comprise:
• Electrician’s Daily Statutory Shift Report for afternoon and night shifts 2 March which make no reference to any work being done on DCB109;
• Initial incident report dated 9 March 2020 in relation to failure of flame proof equipment;
• Statement from Mark Glasby re Sunday D/S [8 March] discovering missing paperwork from Tuesday 3rd and Wednesday 4th [March] and identifying flame path issues with GDC109 [DCB109];
• Statement Mark Woods re conducting Code C inspection on GDC109 on 2 March 2020;
• Statement from Daniel Leitch recording that on Monday 2 March Matt O’Conner was working on fibre upgrades on DCB109 and recording that he had powered up the unit so that Matt O’Connor could test his work and that Daniel Leitch asked Dan Runzonza for Friday, Saturday and Sunday work orders and was told by Dan Runzonza that he would print off Friday, Saturday and Sunday “tomorrow”. Mr Leitch also records that on Wednesday 4th he asked Dan Runzonza for the work orders and was told that Mr Runzonza had printer issues and would leave the work orders on the MTS desk.
• File note from Matthew O’Conner stating that he attended the east mains on 2 March 2020 to investigate a breakdown relating to communications equipment previously installed on GDC109 and noting that he was under the impression that the equipment had been previously powered and codes were being completed daily and was not under the impression that a Code A needed to be completed before he did his work. Mr O’Connor also states that brattice being in the area resulted in him not having an opportunity to see the receptacle towards the front of the machine that had been reported as damaged and this is not what he was there to do and that it is not his role to undertake Code A Inspections.
• Timeline of GDC109 power indicating that:
• it was transported to 69F Hdg on the night of 27 February 2020;
• Mr O’Connor worked on communication on GDC109 on 2 March which required power and power was removed once communication was established;
• Function testing on GDC109 commenced on afternoon shift and was completed on night shift by Mr Woods and Mr Nowell;
• Daily work order was completed by Mr Knox on 3 March;
• Daily work order was completed by Mr Nowell on 4 March;
• Due to issues with work orders not coming out they were not completed for the rest of the week;
• Mr Glasby was step up MTS for the tour as the Electrical MTS was off sick;
• Mr Glasby powered up various pieces of equipment on Thursday and Saturday; and
• On Sunday 8 March Mr Glasby found that daily work orders had not been completed by his side of the roster and then proceeded underground to complete the dailies in the east mains and during the inspection found the compromised incomer receptacle [on GDC109].
• Statement from Mr Daniel Runzona that on Monday 2 March he was asked to create Code A panel inspection work orders which he undertook but during printing the printer became jammed after printing off Wednesday and Thursday operations. These were required to be taken underground and were given to Mr Leitch. Mr Runzona states that he told Mr Leach about the printer issue and that he would give him the remainder of the work orders the next day. Mr Runzona did not have time to print these before he left site.
• Statement from Mr Nowell that he had powered the DCB on 2 March and had been informed that the Code A inspection had been completed and that at the end of the shift on 4 March Mr Nowell completed the Code A inspection on the DCB and noted nothing untoward.
• Statement from Mr Knox about inspection of DCB and other work he carried out on 4 March.
Mr Probst
[95] In relation to Mr Nowell’s assertion that if the damage to DCB109 occurred during transportation it would have been identified during the Code C Inspection (on 2 March 2020) as the receptacles were required to be checked, Mr Probst said that:
• A Code C inspection of the DCB is undertaken every 6 months. This type of inspection is more comprehensive than a Code A inspection, as it involves significant work regarding the internal components of the DCB;
• The majority of the Code C inspection of the DCB (including the requirement to identify any damage to the DCB) had already been undertaken prior to transportation on 27 February 2020; and
• Given the final part of the Code C inspection on 2 March 2020 was a functionality/power-up check only, there was no requirement for the electricians to identify the damage to the DCB, as that part of the inspection had already been completed.
[96] Mr Probst stated that Mr Knox and Mr Nowell were given opportunities to provide their responses to the Incident, which were considered by the Respondent's representatives, during the investigation and disputes process. Mr Probst is aware that Mr Knox and Mr Nowell have suggested the following:
• An electrician was in the area of the DCB on 5 March 2020 and 7 March 2020 and could have moved the DCB;
• Eye bolts could have been used to move the DCB between 5 March 2020 and 7 March 2020; and
• Even if work orders are not produced (which is uncommon), work is likely to still be performed and in such case the work would be written into the shift report and the forms would be completed once the issue was resolved.
[97] In relation to Mr Knox’s statement that the absence of work orders for the period 5 – 7 March 2020 was a failure that raised questions, and that eyebolts in the roof could have been used to move the DCB during that time and Mr Nowell’s assertion that work is still performed when there are no work orders and entered into shift reports with work orders completed later, Mr Probst said that he did not believe any worker/s would have moved the DCB on 5 March 2020 or 7 March 2020 because:
• When the damage to DCB109 was identified on 8 March 2020, DCB109 had not been moved from 69F Hdg;
• There were no work orders to require any person to move DCB109 between 5 March 2020 and 7 March 2020;
• The final location of DCB109 was in a low traffic area, due to there being no operations/cutting in the area at that time and as such, there was simply no reason to move the DCB; and
• If an electrician had performed the work without work orders (which Mr Probst does not believe occurred), the electrician would have likely:
• completed the job without the work order and submitted the work order after the event, which did not occur; or
• completed the job without the work order and noted in their shift report that they had completed the job, which did not occur; or
• complained that they did not have a work order to undertake the job, which would have prompted a work order to be produced, which did not occur.
[98] In relation to Mr Knox’s statement about the possible lifting of DCB109, Mr Probst said he did not believe the eye bolts and chain blocks would have caused the damage because:
• The damage to the DCB was not consistent with eye bolts, chain blocks or chains being wrapped around the DCB. The damage to the DCB was caused by an impact from the bottom of the DCB, which would require an object to strike the DCB with significant force;
• It would be unlikely for an electrician or any other coal mine worker performing their duties with the requisite care and skill to put a chain around electrical points/the receptacle to attempt to move it, because:
• Wrapping a chain around the electrical points could cause damage to the DCB (and ultimately, give rise to an explosion risk); and
• The DCB had lifting points which could be used to lift from;
• A DCB would not usually be moved by eye bolts and chain blocks, unless a loader was unable to access it (which Mr Probst does not believe was the case), meaning this is an unlikely scenario; and
• In any event, it is not unusual for eye bolts to be in the area, as they can be used for many reasons.
[99] In relation to Mr Camp’s statement about his certainty that DCB109 was not damaged in transit, Mr Probst said he did not believe Mr Camp was in a position to know whether he had caused the damage because:
• Mr Camp does not have electrical qualifications to determine whether the DCB was damaged, as it is a large piece of equipment with electrical components;
• The damage to the DCB was not obvious, meaning it could have occurred without Mr Camp knowing, and could have gone unnoticed by the spotters;
• Mr Camp was not required to undertake an inspection of the DCB that would have identified whether he damaged the DCB or not; and
• The spotters would likely have been watching out for the surrounding areas, as opposed to the DCB sitting on the loader which is where the damage is most likely to have come from.
[100] Mr Probst said that while he understood Mr Knox and Mr Nowell assert that they inspected the DCB in accordance with their work orders on 3 March 2020 and 4 March 2020 respectively, he believed that their inspections were either superficial or that they did not inspect the relevant component of the DCB (potentially due to the brattice in the area).
[101] Based on his review of the evidence and circumstances of the damage to DCB109, Mr Probst believes that that the damage occurred during transportation and that there is simply no other plausible explanation. In support of his conclusion, Mr Probst tendered the final version of the LFI Report which contained the following conclusions:
• Damage to DCB109 found on 8 March was that the flame path on the through feed outlet was compromised and the dummy plug was damaged;
• It appeared the damage was caused during transport by a lifting force and was substantial enough that a machine interaction would have been the likely cause;
• The incident did not involve a critical control failure;
• The DCB had been relocated twice before going to its final position at 69F Hdg and once in that location a machine would not have been able to access the back to damage DCB109;
• DCB109 had been powered prior to the issue being found with several daily statutory inspections being completed by multiple different electricians across numerous shifts;
• There was a discrepancy with the daily work orders with Tuesday, Wednesday and Thursday being the only work orders issued due to a problem with a printer; and
• The work order issue led to DCB109 being powered for a longer period without the damage being identified;
[102] The timeline appended to the LFI report indicates that it was transported to the location where it was found to be damaged at 22:00:00 on 27 February 2020. It was powered on 2 March at 8:00:00 to complete testing of comms and was powered with the damaged flame path. A Code C inspection was conducted at 16:00:00 on 2 March and was completed by a number of electricians. A Code A inspection was conducted at 10:00:00 on 3 March by an electrician and the fault was not found during the inspection. A Code A inspection was conducted on 4 March at 10:15:00 and the damage was not found during the inspection. On 5 March at 10:15:00 Code A work orders were not issued for the rest of the week. This was identified in the LFI Report as an issue with the planning department which meant that the damage to DCB109 was not found for the rest of the week. A Code A inspection was completed on DCB109 on 8 March at 11:15:00 before repowering after a power outage at which time the damage was discovered.
[103] The Human Behaviour analysis in the LFI Report identifies as activators: miscommunication; Code A not completed correctly; work orders not issued; and the Code A being completed before repowering. The behaviour identified is that the Code A daily inspections were not completed correctly resulting in damage to DCB109 not being identified.
Mr Johns
[104] In relation to Mr Nowell’s assertion that if damage to the DCB occurred during transportation it would have been identified during the Code C inspection (on 2 March 2020) as the receptacles were required to be checked, Mr Johns confirmed that Mr Probst’s evidence about the Code C Inspection before DCB109 was transported and why that Inspection would not have identified the relevant damage.
[105] Mr Johns said that he was aware that Mr Knox and Mr Nowell had suggested an electrician was in the area of the DCB on 5 March 2020 and 7 March 2020 and could have moved the DCB or that eye bolts could have been used to move the DCB between 5 March 2020 and 7 March 2020. Mr Johns said he was also aware that Mr Knox and Mr Nowell had suggested that even if work orders are not produced (which is uncommon), work is likely to still be performed. In such case the work would be written into the shift report and the forms would be completed once the issue was resolved.
[106] In relation to assertions by Mr Knox and Mr Nowell that other workers could have moved the DCB after their respective inspections, Mr Johns said that he did not believe any worker/s would have moved the DCB on 5 March 2020 or 7 March 2020 because:
• It is unlikely they would do so without work orders or informing someone that they had done so (including by writing it in the shift report), which they did not;
• The final location of the DCB was in a low traffic area, due to there being no operations/cutting in the area yet. As such, there was simply no reason to move the DCB; and
• When the damage to the DCB was identified on 8 March 2020, the DCB had not been moved from '69F Hdg'.
[107] In relation to the possibility that eye bolts and chain blocks could have caused the damage, Mr Johns said that this was unlikely because:
• The damage to the DCB looked like it was most likely hit by the tines (forks) of the loader, and not by eye bolts or chain blocks;
• It would be unlikely for a worker to move the DCB by chaining because it involves manual labour (which makes the job very difficult), in circumstances where there are loaders available for that purpose; and
• This method would be unlikely to cause the damage that aroseto the DCB, based on the points they would need to pull and lift from.
[108] In relation to Mr Camp’s statement that he had not damaged the DCB during transport, Mr Johns said that he did not believe Mr Camp was in a position to know whether he had caused the damage on 27 February 2020 because:
• Mr Camp is not a qualified electrician with the requisite skills to identify any damage he had caused to the DCB;
• Mr Camp’s view that the DCB was “not damaged” might be different to what an electrician’s view might be;
• Mr Camp was not required to undertake an inspection that would identify the damage to the DCB; and
• The damage to the DCB would be difficult for Mr Camp to see if he did not know what he was looking for and if he was not looking at the area of the damage.
[109] Mr Johns said that whilst he understood Mr Knox and Mr Nowell assert that they inspected the DCB in accordance with their work orders on 3 March 2020 and 4 March 2020 respectively, he believed that their inspections were either superficial or that they did not inspect the relevant component of the DCB (potentially due to the brattice in the area). Based on his review of the evidence and circumstances of the damage to the DCB, Mr Johns said that he believed that the damage occurred during transportation and that there is simply no other plausible explanation.
Submissions of the CFMMEU and CEPU
[110] In seeking that the Commission make a Recommendation in relation to the dispute, the CFMMEU and the CEPU submitted that there is a long-standing legal principle that the investment of a court or tribunal with jurisdiction is intended to include all of the powers of the court or tribunal unless a contrary intention is stated. This principal has been recognised by the Commission both at Full Bench and single Member level, including in DP World Brisbane Pty Ltd v The Maritime Union of Australia 1 where a Full Bench of the Commission found:
“[47] As a matter of general principle when jurisdiction is conferred on an established court or tribunal it may be assumed that the legislature intended to take the court as it finds it, with all its incidents including any liability to appeal. This presumption is clearly stated by the High Court in Electric Light and Power Supply Corp Ltd v Electricity Commission of New South Wales:
When the legislative finds that a specific question of judicial nature arises but that there is at hand an established court to the determination of which the question may be appropriately submitted, it may be supposed that if the legislative does not mean to take the court as it finds it with all its incidents including the liability to appeal, it will say so. In the absence of express words to the contrary or of reasonably plain intendment the inference may be made that it takes it as it finds it with all its incidents...
[48] The above proposition also applies to tribunals. When the parties to an enterprise agreement choose to confer a power of private arbitration on the Commission then, absent any contrary intention, they take the Commission as they find it, including the liability to appeal. On appeal the Commission exercises a power of private arbitration conferred by the implied agreement of the parties (s.739(4)). Such a conclusion is also consistent with Full Bench authority”
[111] Reference was also made to Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd 2 where the Commission found:
“[37] There is a long established principle that the investment of a Court with jurisdiction is intended to include all of the procedure of the Court unless a contrary intention is stated. Extrapolating this principle to the present case, the power of the Commission to arbitrate a dispute in accordance with a term of an enterprise agreement providing for settlement of disputes, must include all of the usual procedures (and the powers that underpin them) incidental to the exercise of the power to arbitrate. The terms conciliation and arbitration have a long history and are well understood. The power to engage in those processes cannot be exercised without incidental powers of the kind found in Part 5, Division 3, Subdivision B of the Act. If the parties to the Agreement had intended to exclude any of those powers then they could have done so.”
[112] Section 595 of the Act provides powers to the Commission when dealing with a dispute. Relevantly, subsection 595(2) of the Act expressly provides that the Commission “may deal with a dispute (other than by arbitration) as it considers appropriate”, while subsection 595(4) provides that the Commission may exercise “any of the powers it has under this Subdivision”. Subdivision B of Division 3 of the Act incorporates ss.589 – 595 of the Act including s. 590 which sets out powers of the Commission to inform itself “in such manner as it considers appropriate”, including by holding a hearing and taking evidence under oath or affirmation. It was submitted that s. 590 makes no distinction between conciliation and arbitration.
[113] The CFMMEU and the CEPU also referred to the Decision of a Full Bench of the Commission in Clermont Coal Pty Ltd v Construction, Forestry, Mining and Energy Union 3. That decision involved an appeal in circumstances where it was found that the Commission had power to make a recommendation as part of its conciliation powers under the dispute procedure in an enterprise agreement. The consideration of conciliation powers had arisen in circumstances where the employer, like the Respondent in the present matter, had not consented to the dispute being progressed to arbitration and had opposed the making of a recommendation, arguing before the Commissioner and on appeal, that the Commission’s powers of “conciliation” did not include the making of a recommendation. In relation to this argument, the Full Bench found:
“[29] The meaning that should be ascribed to the word ‘conciliation’ pursuant to ss. 739 and 595 of the Act does not require a convoluted answer. It is to be given its long standing meaning in an industrial context. That meaning accords with the proposition found in Finance Sector Union of Australia and New Zealand Banking Group Limited in which the Full Bench of the Commission referred to recommendations as "a common feature of the conciliation process" and made the following observations:
[32] We make it clear that in our view the making of a recommendation is often a useful tool in the conciliator's armoury and can facilitate the parties reaching agreement. As the President of the South Australian Commission said in Re: Clerks Customs Agent (SA) Award:
The prime charter course of the Commission is, in any proceedings before it under the statute, io attempt to effect conciliation by mediation between the parties and that is a process well known to all who appear in this jurisdiction. It is, in our view, quite proper, indeed quite normal, in the course of many if not most mediations, for the person attempting the mediation to make positive suggestions to the parties as to what might be a suitable basis for resolving the matter, indeed, if felt appropriate, expressing strong views as to what might be a possible consequence, prima facie, of any arms length arbitration before the Commission. There is nothing improper about that. It happens every day of the week'.
[33] We agree with the above observations."
[30] We note that the parties did not expressly limit the conciliation process in the terms of cl. 4.2 of the Agreement. We consider that the parties referred to the Commission, the process of conciliation and in doing so engaged the full range of armoury that was available to the Commission as conciliator, including the making of recommendations.
[31] In any event, a recommendation by its very nature is not legally binding. It cannot create or impose a legal right or obligation. Its adoption and implementation is dependent upon the consent of the parties. It is properly characterised as "an advisory function and as an action which the Commission is authorised to take so as to make suggestions for the resolution of a dispute”. [emphasis added].
[114] The CFMMEU and the CEPU submitted that in the present dispute, the Commission may likewise utilise the “full range of armoury” pursuant to its powers under s.590 of the Act, to inform itself when dealing with the disputes before it, unless such powers are contrary to the terms of the Agreement. Step 4 of the Disputes Resolution Procedure contained in clause 36 of the Agreement does not in any way purport to restrict the procedural or substantive powers of the Commission. Accordingly, the Commission is empowered in the matters before it not only to make a recommendation, but to utilise any of the powers in s.590, including to receive sworn evidence and to allow parties an opportunity for cross examination in relation to that evidence, as part of its conciliation functions pursuant to Step 4 of the Disputes Resolution Procedure.
[115] In relation to the current disputes, the CFMMEU and the CEPU submitted that the Respondent has not demonstrated a jurisdictional bar to the Commission dealing with the matters before it by way of a recommendation, nor with respect to the Commission informing itself by way of a hearing or the taking of sworn evidence and cross-examination. The Commission has the power to do so by virtue of clause 5.2 of the Agreement and ss.589 – 595 of the Act.
[116] Whether the Commission decides to make recommendations and/or utilise its various procedural powers to deal with the disputes is a matter for the Commission’s discretion. In exercising that discretion, the normal considerations would apply with respect to the objects of the Act and the need to exercise the Commission’s powers taking into account equity, good conscience and the merits of the matters.
[117] The CFMMEU and the CEPU submitted that the Commission should proceed to deal with the matters before it by way of considering whether it is appropriate to issue a recommendation on the merits of the matters to be put before the Commission. It is further submitted that in the circumstances of conflicting factual contentions, the appropriate way for the Commission to proceed in the matters before the Commission would be by way of the receiving of witness statements, and if it is necessary to do so, having that material sworn or affirmed and cross-examined.
[118] In support of its position with respect to how the Commission should deal with the disputes, by the making of recommendations, the CFMMEU and the CEPU pointed to the following matters:
(a) There is nothing on the face of the agreement· to suggest that the parties intended that a recommendation not be given, nor that the Commission should not have full access to its powers under s.590 of the Act.
(b) The Commission has previously issued recommendations of an advisory nature in relation to disputes procedures in other industrial agreements.
(c) The manner in which Mr Nowell and Mr Knox have been treated is unreasonable and unfair. The recommendations sought may assist in mitigating the disadvantage suffered by Mr Nowell and Mr Knox as a result of the warnings they have received.
(d) Further to (c) above, the Unions submit that this is particularly important having regard to the impending closure of the Grasstree Mine, the otherwise significant unblemished service of the two relevant employees, and the pending transfer process of employees at the Mine.
(e) Mr Nowell has been employed at the Mine since approximately 2017 and has no track record of disciplinary action. Mr Knox has been employed at the Mine since mid 2017 and similarly has an unblemished record.
(f) Both Mr Nowell and Mr Knox strongly deny the allegations and the Level 2 Warnings present a real threat to their ongoing employment.
(g) The Respondent has not demonstrated fairness in issuing the Warnings. There is a real and apparent injustice given the Respondent's failure to ascertain the timing and cause of the damage to the DCB. In effect, the employees have been treated as scapegoats, noting that no action appears to have been taken by the Respondent in relation to the actual transportation of the DCB.
(h) There is a significant injustice occasioned by the inclusion and use by the Respondent of statements purported to have been made by Mr Nowell and Mr Knox. This is a significant common feature of the two disputes and the CFMMEU submits the proper exercise of discretion by the FWC should address that.
(i) In is inconceivable, in light of the statement of Mr Daniel Camp, that the Respondent has in any reasonable way, established that the damage to the DCB was present prior to the relevant inspections.
[150] Further and in the alternative, the Respondent submits that on the facts in the case the Commission should not make the recommendation requested by the Unions. Mr Nowell and Mr Knox are employed as Maintenance Technicians – Electrical, had the relevant competencies to complete Code A inspections and were required to do so in accordance with work instructions. DCB109 is a safety device designed to eliminate the possibility of an electrical ignition or explosion underground.
[151] Mr Knox and Mr Nowell’s Code A inspections were the first to have occurred since the DCB had been transported to 69F Hdg on 27 February 2020. The DCB had no further Code A inspections at 69F Hdg until 8 March 2020. The DCB was not moved from 69F Hdg between 3 March 2020 and 8 March 2020.
[152] On 8 March 2020, a Code A inspection found a faulty receptacle on DCB109, which compromised its flameproof integrity. The Incident was classified as a high potential incident, as it had the potential to pose a significant and imminent risk to the health and safety of coal mine workers underground. The seriousness of the health and safety risk posed by the Incident was increased due to the Grasstree Underground Mine being one of the grassiest underground pits in the Bowen Basin, and because the DCB was in an explosion risk zone
[153] The Respondent reported the Incident to the relevant mine inspector, the relevant safety and health representatives and the mine's Site Senior Executive. The Respondent then commenced an investigation into the Incident in accordance with its safety and health management system.
[154] During the meetings of 13 March 2020 the Respondent put the allegation to Mr Knox and Mr Nowell that they had failed to identify the damage to the DCB during their Code A inspections on 3 March and 4 March 2020 and invited Mr Knox and Mr Nowell to provide their version of events to the Respondent, which they did. The Respondent submitted that Mr Knox said words to the effect of, “I'm not sure” why he missed it and Mr Nowell said words to the effect of, “I must have missed it”. Mr Knox and Mr Nowell confirmed that the area where the damage was located was easily accessible for inspection, and Mr Knox and Mr Nowell acknowledged that the damage would likely have occurred while the DCB was in transportation.
[155] The relevant standard of proof for the purpose of the investigation was the balance of probabilities. That is, the Respondent needed to be satisfied that it was more probable than not that the conduct as alleged occurred. Any findings made by the Respondent needed to be reasonably open, based on the evidence.
[156] The investigation into the Incident found, on the balance of probabilities, that the damage resulting in the faulty receptacle of the DCB did not occur in situ (ie when the DCB was stationery), and occurred in transportation, and that Mr Knox and Mr Nowell should have identified the damage during their Code A inspections on 3 March 2020 and 4 March 2020 respectively. The exercise of managerial prerogative was not unreasonable because a reasonable person in the position of the employer could have made the decision in question.
[157] The Respondent decided that the appropriate and reasonable disciplinary action in the circumstances was to issue Mr Nowell and Mr Knox with the Warnings in circumstances where Mr Nowell and Mr Knox were electricians who had received the training to carry out electrical work to an acceptable standard and had been appointed by the Electrical Engineering Manager to do so. The Respondent submits that despite their training, Mr Nowell and Mr Knox failed to identify the damage which had the potential to seriously impact the safety of coal mine workers, noting that the Incident was a high potential incident as the DCB was in a zone that had the potential to cause an explosion.
[158] The Respondent further submits that Mr Nowell and Mr Knox's failure to perform the external statutory inspection to an acceptable standard resulted in a high potential incident and the Respondent had reasonable and genuine concerns about Mr Nowell’s and Mr Knox’s work performance. The Warning issued on 9 April required the following further action by Mr Nowell and Mr Knox:
• Improve their working behaviours and to ensure all inspections and tasks are carried out to an acceptable standard; and
• Take the time to ensure they adopt safe working practices, comply with relevant statutory obligations, work to the best of their abilities and work with due care and diligence as per the employee obligations set out in the Agreement.
[159] Mr Nowell and Mr Knox were reminded that the above improvements were imperative as any further instances of non-compliance or failure to work within the Respondent's standards may result in the termination of his employment and they were offered support from Gryphon Psychology, the Company’s free and confidential Employee Assistance Program. The Respondent’s position is that the decision to issue the Warnings was reached in a fair, transparent and measured way, in compliance with clause 4.2.1 of the Agreement, and was proportionate to the conduct in question.
[160] Both Mr Knox and Mr Nowell have raised issues during the disputes process, including competing theories about how the damage to the DCB occurred. The Respondent has carefully considered the matters raised by Mr Knox and Mr Nowell, and for reasons outlined in the witness statements of Mr Probst and Mr Johns, the Respondent remains satisfied that, on balance
• The damage to the DCB was present on 3 March 2020 and 4 March 2020; and
• The inspections undertaken by Mr Knox and Mr Nowell were either superficial, or did not occur (for whatever reason).
[161] The Respondent submits that it is commonplace where allegations of this kind arise for the employee concerned to vehemently deny the allegations (as Mr Knox and Mr Nowell have done) Nevertheless, the Respondent notes that decisions must be made by employers as to whether or not such protestations are to be accepted, and the continued making of such protestations, cannot, of itself, lead to the conclusion that misconduct has not occurred.
[162] The Respondent noted that Mr Knox and Mr Nowell assert that another worker could have moved the DCB on 5 March 2020 or 7 March 2020. However, both Mr Probst and Mr Johns assert that:
• The physical damage and marks on the DCB were consistent with damage caused by a loader during transportation and that only a loader or a machine with significant force could have caused the type of damage found on the DCB;
• Given a machine could not have accessed the area where the damage was found to the DCB, the damage could not have occurred in situ and was most likely to have occurred during transportation; and
• No work orders for the DCB were produced during this period, nor was any paperwork completed that reflected the DCB was moved or any work was undertaken on the DCB at this time.
[163] In relation to the assertion that eye bolts could have been used to move the DCB between 5 March 2020 and 7 March 2020, Mr Probst and Mr Johns maintain that:
• It was unlikely that the DCB was damaged by eye bolts or chain blocks, the damage marks were simply not consistent with that theory and the damage required an impact with significant force from the bottom of the DCB, such as impact by a loader; and
• It would be highly unusual and unlikely for any workers to move the DCB by this process, in circumstances where moving the DCB by eye bolts would be physically difficult and loaders are available and can be used to move equipment, and there was no cutting in the area at the time.
[164] The Respondent noted with respect to Mr Camp’s witness statement that:
• It is unlikely that Mr Camp could determine if he damaged the DCB;
• Mr Camp does not have electrical qualifications to enable him to assess the DCB for damage, and he was not required to perform an inspection of the DCB; and
• In any event, the damage to the DCB was not obvious and could have occurred without him noticing, even if he was careful.
[165] With respect to the assertion that the if the damage occurred to the DCB during transportation it would have been identified during the Code C inspection on 2 March, the Respondent submits that:
• The Code C inspection on 2 March 2020 undertook functionality/power-up checks only, as the majority of the Code C inspection had already been completed prior to transportation on 27 February 2020; and
• There was no requirement to check the area where the damage to the DCB occurred on 2 March 2020, as this aspect of the inspection had already occurred prior to transportation on 27 February 2020.
[166] With respect to the assertion that only two employees were disciplined for their involvement in the Incident, the Respondent submits that:
• Mr Leitch was required to ensure a Code A inspection of the DCB was undertaken before the DCB was powered up on 2 March 2020, and he failed to do so. As a result, he received a “First and Final” Level 2 Counselling and Written Warning, based on his employment history and circumstances; and
• Mr O'Connor was not required to complete a Code A inspection of the DCB on 2 March 2020 and instead was required to undertake other work according to his work orders, which he did. Given there was no issue with Mr O'Connor's work performance, he was not disciplined.
[167] With respect to Mr Knox’s assertion that he was not given sufficient notice of the meeting on 13 March 2020 or offered a support person, the Respondent submitted that the investigation and disputes process was fair and Mr Knox and Mr Nowell were given sufficient notice about a meeting to discuss what happened during their inspections and given an opportunity to respond. Further, the Respondent did not unreasonably refuse a support person. When potential alternative scenarios or suggestions were raised by Mr Knox and Mr Nowell about how the damage to the DCB could have occurred or what the outcome of the Incident should be, the Respondent considered those suggestions.
[168] With respect to the assertion that no action has been taken regarding the actual transportation of the DCB, the Respondent submits that Mr Camp was not required to undertake an inspection of the DCB. As such, he was not disciplined for failing to identify any damage to the DCB and even if Mr Camp transported the DCB correctly, the damage could have occurred. Accordingly, it was not appropriate to discipline him.
[169] In relation to the assertion that a recommendation may assist in mitigating the Warnings with respect to the pending transfer to the Aquila mine, the Respondent submits that whilst decisions regarding the ultimate makeup of the workforce at Aquila are yet to be made, it is instructive that Mr Knox (by way of example) who is on a fixed term contract, had his contract extended on 3 September 2020, after the Warning was issued to him.
Consideration
Powers of the Commission under the Dispute Resolution Procedure
[170] Legislative provisions concerning the jurisdiction of the Commission to deal with a dispute pursuant to dispute settlement procedures in enterprise agreements are found in s.595 and s.739 of the Act. Section 595 states:
“595 FWC’s power to deal with disputes
(1) The FWC may deal with a dispute only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.
The FWC may deal with a dispute (other than by arbitration) as it considers appropriate, including in the following ways:
(a) by mediation or conciliation
(b) by making a recommendation or expressing an opinion.
(2) The FWC may deal with a dispute by arbitration (including by making any orders it considers appropriate) only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.
Example: Parties may consent to the FWC arbitrating a bargaining dispute (see subsection 240(4)).
(3) In dealing with a dispute, the FWC may exercise any powers it has under this Subdivision.
Example: The FWC could direct a person to attend a conference under section 592.
(5) To avoid doubt, the FWC must not exercise the power referred to in subsection (3) in relation to a matter before the FWC except as authorised by this section”
[171] Section 739 provides that:
“739 Disputes dealt with by the FWC
(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.
(2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:
(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or
(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.
Note: This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)).
(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.
(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.
Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).
(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.
(6) The FWC may deal with a dispute only on application by a party to the dispute.”
[172] The Commission’s powers to deal with disputes derive, in the case of an enterprise agreement, from the terms of the dispute settlement procedure contained in the enterprise agreement. The Commission may deal with a dispute only on application of a party to the dispute (s.739(6)); is prohibited from exercising any powers limited by the dispute settlement procedure (s.739(3)); may arbitrate only if the agreed dispute settlement procedure permits it to do so (s.739(4)); and must not make a decision that is inconsistent with the Act, the enterprise agreement and any other applicable fair work instrument (s.739(5)). 18
[173] The Agreement in the present case contains reference to a disciplinary procedure and levels of warning and the disciplinary procedure is appended to the Agreement. Accordingly the dispute arises under the Agreement and Grasstree accepts that it is a dispute of the kind which can be dealt with under the Dispute Resolution Procedure in clause 5.2 of the Agreement. The parties have agreed that the Commission is empowered to conciliate such a dispute and that it may be arbitrated with the agreement of both parties. As is its right, Grasstree does not agree to the dispute being arbitrated by the Commission. While not disputing the Commission’s power to make a recommendation, Grasstree contends that the Commission should refuse to do so, essentially on two bases:
• The Commission’s conciliation functions are directed to assisting the parties to settle industrial disputes by agreement and a recommendation should not be issued where it unlikely to have utility in resolving a dispute; and
• As a matter of discretion, on the facts in the present case, a recommendation should not be issued.
The Commission’s conciliation functions
[174] I deal first with the contention in relation to the Commission’s conciliation functions. An enterprise agreement is required by s. 186(6) of the FW Act to include a dispute settlement term. Such a term is required to be agreed by parties to an enterprise agreement, evidenced by the fact that, unlike the model consultation term provided for in the FW Act and Regulations, there is no prescribed dispute resolution term taken to be included in an enterprise agreement if the agreed dispute resolution term does not meet the legislative requirements. Those requirements are that, as a minimum, the term provides a procedure that requires or allows the Commission or another person independent of the parties to the agreement, to settle disputes about matters arising under the agreement or in relation to the NES. A dispute settlement term providing for arbitration only by agreement, will comply with this requirement. 19 Section 186(6) does not require that a dispute settlement term provides for either conciliation or arbitration and a dispute resolution term may provide for some other agreed method to deal with disputes.
[175] The term “conciliation” has an established meaning in an industrial context and that meaning includes the making of a recommendation. 20 Section 595(2) of the FW Act gives the Commission broad powers to deal with a dispute (other than by arbitration) as it considers appropriate. The section goes on to refer to methods or processes by which disputes may be dealt with. Two observations may be made about the methods and processes in s. 595(2).
[176] First, they are expressed in an inclusive way rather than being limited to the specific methods and processes set out in the section. Section 592(2) limits the Commission only by the requirement that the method or process employed to deal with a dispute is not arbitration and is a method or process that the Commission considers to be appropriate. Second, the two limbs of the sub-section set out in (a) and (b) are not expressed as being mutually exclusive or as alternatives. All or none of those methods or processes may be employed by the Commission to deal with a dispute, as it considers appropriate, provided they are within the parameters of the powers the parties have agreed that the Commission may exercise, by virtue of the dispute resolution term. Where the dispute resolution term leaves the appropriateness of a method or process for dealing with a dispute to the Commission in its discretion, the Commission may decide on the method for dealing with a dispute by reference to any number of considerations, including the nature and subject matter of the dispute, the views and attitudes of the parties, the outcome sought by the parties and the utility of the method or process being considered.
[177] The dispute settlement term in the Agreement in the present case is entitled “Dispute Resolution”. The term gives either or both parties the right to refer a dispute to the Commission for conciliation and provides that they will genuinely attempt to reach agreement in relation to the matter in dispute. The term provides that the Commission can only arbitrate a dispute if the parties specifically confer authority for it to do so. Accordingly, where the parties intended to limit the power of the Commission to deal with a dispute, they have done so expressly by restricting arbitration to disputes where the parties agree to the Commission arbitrating. In contrast, there are no limitations in relation to the power of the Commission to conciliate a dispute.
[178] There is also no indication that processes which are part of the Commission’s conciliation function – the expression of an opinion or the issuing of a recommendation – are subject to the agreement of the parties. Further, I do not accept that the fact that the parties have agreed to limit the power of the Commission to arbitrate a dispute, is a basis for finding that the conciliation powers of the Commission are limited or are narrower than the ordinary meaning given to conciliation, in the absence of an express limitation in the Agreement with respect to conciliation.
[179] The Dispute Resolution Procedure in clause 5.2 of the Agreement provides for an employee to raise a dispute and after proceeding through certain steps, “either or both parties” may refer the matter to the Commission for conciliation. Agreement is not required between the parties for a dispute to be referred to the Commission for conciliation by one or other of the parties.
[180] The parties to the Agreement are defined in clause 1.3.2 as Anglo Coal (Grasstree Management) Pty Ltd and the Construction, Forestry, Mining and Energy Union. While the CEPU is not defined as a party to the Agreement in the present case, that Union is a representative pursuant to the Dispute Resolution Procedure in clause 5.2 of the Agreement. Both parties to the Agreement are large and well-resourced organisations with industrial relations expertise. Against the legislative and practical context in which the Dispute Resolution process in the Agreement operates, it can be inferred that the parties intended to take the Commission as they found it and as the Full Bench in Clermont Coal Pty Ltd v Construction, Forestry, Mining and Energy Union put it, “the parties referred to the Commission, the process of conciliation and in doing so engaged that full range of armoury that was available to the Commission as conciliator, including the making of recommendations”. Accordingly, I do not accept the submission of Grasstree that making a recommendation will take the role of the Commission beyond that envisaged for the Commission in the Agreement. ion would be deprived of .
[181] Nor do I accept that the absence of clear language from the legislature that it intended to direct and empower the Commission to evaluate the reasonableness of managerial decisions by employers, indicates that the Commission is not empowered to express a view or make a recommendation about such matters. The legislature gave the parties to enterprise agreements the ability to agree about the range of matters which may be the subject of a dispute resolution term in an enterprise agreement and set only a minimum requirement that an enterprise agreement contain a term that provides a procedure that requires or allows the Commission or another independent person, to settle disputes about any matters arising under the agreement or in relation to the National Employment Standards. If a dispute arises under an agreement by virtue of the agreement dealing with a matter, then by virtue of s. 186(6) of the FW Act, the agreement must provide a procedure to deal with such a dispute.
[182] In the present case the Commission is empowered to conciliate a dispute, with all the ancillary mechanisms that conciliation entails, regardless of whether the parties agree to those mechanisms being utilised. Where a recommendation is sought, the Commission is empowered to seek input from the parties in an appropriate form, including submissions and witness statements. If a party decides not to participate in such a process, the Commission may still proceed based on the material before it and on the application of the party initiating the dispute and seeking a recommendation or expression of opinion. Whether to make a recommendation or express an opinion is a matter left to the discretion of the Commission. I now turn to consider matters relevant to whether discretion should be exercised.
Discretionary issues
[183] As stated above, there are considerations that may inform the exercise of discretion by the Commission as to whether to make a recommendation or express a view, to deal with a dispute. While the utility of a recommendation or expression of a view is a relevant consideration, it is not determinative. In short, I do not accept that a statement made by a party in conciliation, to the effect that it is not bound to accept a recommendation or that a recommendation will not be accepted, is determinative of whether the Commission should decide to make a recommendation. Nor do I accept that a statement by a party that it will not accept a recommendation deprives it of utility.
[184] In circumstances where a party to an enterprise agreement has agreed to a process for dealing with disputes, it cannot avoid the process by evincing an intention not to accept an outcome contrary to its position, as and when it wishes. In the present case, Grasstree does not explicitly state that it would refuse to accept a recommendation of the Commission in terms sought by the Unions. Grasstree has stated that such a recommendation “is unlikely to have any utility” and that “a recommendation technically does not impose any legal rights or obligations on the parties”.
[185] To accept that the Commission should refrain from making a recommendation or expressing a view sought by one party, simply because the other party indicates that it will not accept a recommendation or view, would allow the non-accepting party to remove the right of the other party to access its entitlement to have disputes settled in accordance with a term that has been bargained for. This is not to say that the views of one or other party about utility will not be considered, but rather that those views are not determinative of the Commission deciding to make a recommendation or express a view.
[186] I do not accept the submission made by Grasstree that a recommendation is in effect, a de facto finding. As the Company points out, a recommendation is not binding. The fact that a party who obtains the benefit of a view or recommendation from the Commission, may use that view or recommendation to pressure the other party, is not a basis for the Commission to refuse to exercise the full range of conciliation functions in appropriate cases. The point of a recommendation or view of the Commission is that it may carry weight and can be used by a successful party to attempt to persuade the other party to accept the Commission’s view or recommendation or to publicise the reasonableness of its position in a dispute. Were this not so, the value of conciliation as a dispute resolution function would be reduced.
[187] In the present case, Grasstree and the CFMMEU have agreed to submit disputes about matters arising under the Agreement to the Commission for conciliation and arbitration where both parties agree to a particular dispute being arbitrated. A dispute about the application of a disciplinary sanction is a matter arising under the Agreement and the CFMMEU and the CEPU seek that the Commission make a recommendation to settle the disputes.
[188] It is well established that in dealing with disputes, the Commission should examine all of the facts and should not interfere with the right of an employer to manage its own business unless the employer is seeking from employees something that is unjust or unreasonable. 21 This principle can be extrapolated to cases such as the present, and in my view, when dealing with a dispute arising under an enterprise agreement, involving the imposition of a disciplinary penalty, the Commission should consider, on the basis of all of the facts and circumstances, whether the imposition of the penalty was unjust or unreasonable. While undertaking such consideration, the Commission does not stand in the shoes of the employer, but rather, considers whether a disciplinary penalty was reasonably open to the employer on the facts and in all the circumstances of the case.
[189] Applying this principle in the present case, I have determined not to make a recommendation for the following reasons. On the basis of the material before me, the conclusion that DCB109 was damaged while being transported to 69F Hdg on 27 February 2020 was reasonable. Mr Probst’s evidence, which was uncontested, was that the majority of a Code C inspection was undertaken on DCB109 before it was moved and only the final part of that inspection was conducted while it was in situ at 69F Hdg. Mr Probst also said that the part of the Code C Inspection conducted before DCB109 was moved would have identified any damage that was present. In contrast, the final part of the Code C inspection was a functionality/power check and this would not have identified the damage that was later found and which was the subject of the warnings issued to Mr Nowell and Mr Knox. This is consistent with the damage having occurred while the equipment was in transit. Further, a Code A Inspection which should have occurred on 2 March 2020 was not conducted.
[190] The damage to DCB109 was consistent with it contacting the tines of the LHD vehicle used to move it and lined up with the position of the tines. Further, the significant damage appeared to be caused from the bottom up and was consistent with the equipment making contact with the loader, with sufficient force to have caused the damage. Photos of the damage were provided with the LFI Report and issue was not taken by witnesses called by the CFMMEU or the CEPU with the assertions of Mr Probst and Mr Johns in this regard. Mr Probst also said that it is unlikely that Mr Camp would have noticed the damage while moving the DCB and that because the damage was not obvious, it could have been caused during transportation, without him noticing. It is also the case that the damage was in an area of DCB109 that would have been in contact with the loader while DCB109 was being moved. As a result, while the presence of spotters guided the loader in to pick up DCB109 and avoided it contacting other equipment and the Mine shaft while it was being transported, spotters would likely not have noted damage that occurred at the point of contact between the loader and DCB109 while it was being transported.
[191] Further, the damage was behind DCB109 and would not have been noted while it was being put into place. The damage could also not have been caused while DCB109 was in situ at 69F Hdg because the area where the damage was located was not accessible by a machine. Mr Nowell said that there was a space of 1 m behind the DCB and neither Mr Knox or Mr Nowell nor any witnesses for the CFMMEU or the CEPU disputed the evidence of Mr Probst and Mr Johns on this point. Rather their evidence attempted to explain the damage by contending that DCB109 was moved after it was placed at 69F Hdg on 27 February 2020 and after the Code A inspections conducted on 3 and 4 March 2020 and before the damage was discovered, and that the damage must have been caused at that point.
[192] In my view, this explanation is improbable. The uncontested evidence of Mr Probst was that it is unlikely that eye bolts and a chain would have been used to lift DCB109 given that it has lifting points and this would have caused damage to the equipment, which was not evident during the investigation. It is also not the safe or appropriate method to move such equipment and would likely compromise the integrity of its flameproofing. Further, it is improbable that such a movement or work performed after such a movement would not have been recorded on shift reports.
[193] I also do not accept that the absence of work orders for the period from 5 to 8 March 2020 is sufficient to cast doubt on the outcome of the Company’s investigation. It is common ground that when work orders are not completed, there are shift reports which indicate work that was carried out regardless of the absence of work orders. Mr Probst said that the shift reports were considered and did not indicate that any work had been carried out on DCB109 between 4 March when it was last inspected and 8 March when the damage was discovered. This statement was not contested by the witnesses for the CFMMEU or the CEPU, and as a result it is improbable that equipment was moved after being placed at 69F Hgd and that the damage can be explained in this way.
[194] Mr Hedley tendered documents he was provided with as part of the LFI Report which included daily shift reports. There is no evidence that any request was made to the Company for other reports or documents to be provided, much less that such request was refused. I am also of the view that even if the statements made by Mr Nowell and Mr Knox during interviews were misinterpreted or misquoted by Mr Probst and Mr Johns, those statements were not determinative of the outcome of the investigation. Regardless of the statements made by Mr Knox and Mr Nowell, there was evidence to establish on the balance of probabilities, that the damage occurred while DCB109 was being transported and that it was not noted by Mr Nowll or Mr Knox in their inspections.
[195] Further, I am of the view that a thorough investigation was conducted and that Mr Knox and Mr Nowell were afforded procedural fairness during that investigation. There is no evidence of any refusal by Mr Probst to provide documents sought by the employees or those representing them during the investigation. I do not accept that the Company’s representatives were dismissive of the responses provided by Mr Knox and Mr Nowell. To the contrary, the responses of both employees were considered and the fact that they were not accepted does not render the outcome unfair. There is also no basis upon which I could find that there was differential treatment of other employees where similar, or the same findings were made. An employee who failed to conduct a Code A warning on 2 March received a warning that was commensurate to those received by Mr Knox and Mr Nowell. The employees who transported DCB109 were and the employee who conducted the Code C inspection prior to and after the transport, could not have been held responsible for failing to note the damage and the fact that they were not warned was reasonable.
[196] Finally, neither Mr Knox or Mr Nowell contend that they lacked the skills to conduct the Code A Inspection and there is no evidence of any deficiency in training or procedure, to explain the failure to carry out the inspections to the required standard.
[197] While I acknowledge that the warnings may have a future effect on Mr Knox and Mr Nowell, I am unable to accept that they are unjust or unreasonable to the extent that the Commission should intervene and make a recommendation that they be removed. I also note that the warnings have been reduced by the effluxion of time, in accordance with the disciplinary policy.
Conclusion
[198] For these reasons I declined to make a recommendation and dismissed the applications.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR731883>
1 [2013] FWCFB 8557.
2 [2014] FWC 7282.
3 [2015] FWCFB 3332.
4 (1984) 159 CLR 163.
5 Ibid at 468.
6 (1930) 44 CLR 319.
7 Ibid at 358.
8 [2000] HCA 34.
9 Ibid at [62].
10 [2012] FWAFB 2104.
11 (PR937858).
12 [2007] AIRC 264.
13 (PR944901).
14 (Print L9834).
15 [2014] FWC 830.
16 (PR944901).
17 [2013] FWC 3557.
18 CFMEU v North Goonyella Coal Mines Pty Ltd[2015] FWCFB 5619.
19 Re. Woolworths Ltd (T/as Produce and Recycling Distribution Centre) (2010) 192 IR 124; [2010] FWAFB 1464.
20 Clermont Coal Pty Ltd v Construction, Forestry, Mining and Energy Union[2015] FWCFB 3332.
21 (1984) 295 CAR 188.
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