Construction, Forestry, Maritime, Mining and Energy Union v BHP Coal Pty Ltd
[2023] FWC 2347
•13 SEPTEMBER 2023
| [2023] FWC 2347 |
| FAIR WORK COMMISSION |
| REASONS FOR DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Construction, Forestry, Maritime, Mining and Energy Union
v
BHP Coal Pty Ltd
(C2022/4034)
| VICE PRESIDENT ASBURY | BRISBANE, 13 SEPTEMBER 2023 |
Alleged dispute about any matters arising under the enterprise agreement and the NES; [s186(6)] – Construction of enterprise agreement – Incorporated material – Principles of construction – Common understanding.
Overview
The Construction, Forestry, Maritime, Mining and Energy Union – Mining and Energy Division (MEU) applied to the Fair Work Commission (Commission) pursuant to s. 739 of the Fair Work Act 2009 (Act) for the Commission to deal with a dispute under the dispute resolution procedure in the BMA Enterprise Agreement 2018 (2018 Agreement). The Respondent is BHP Coal Pty Ltd (BHP/the Company), the employer covered by the 2018 Agreement. The 2018 Agreement was approved by the Commission on 21 May 2018, commenced operation on 28 May 2018 and reached its nominal expiry date on 21 May 2021. This dispute notification was lodged in the Commission on 12 July 2022, prior to the approval of the current BMA Enterprise Agreement 2022 (2022 Agreement) on 13 January 2023.
The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) have been granted permission to intervene in these proceedings. The AMWU and the CEPU were also covered by the 2018 Agreement. Permission was granted on the basis that the outcome of these proceedings directly affects the interests of the Unions and their members, and the interests of the two Unions in these proceedings align with those of the MEU. The MEU, AMWU and CEPU (collectively, the Unions) were bargaining representatives for, and are covered by, the 2018 Agreement and the 2022 Agreement.
The dispute concerns provisions of the 2018 Agreement, and the Moranbah Accommodation Agreement 2012 (the 2012 MAA). The provisions of the 2018 Agreement on which this dispute centres are included in the 2022 Agreement in identical terms. The 2012 MAA, which is incorporated into both the 2018 and the 2022 Agreements, provides inter alia that employees who live in a single person village (SPV) will pay a subsidised rate of $60 per week, which will be deducted from their post-tax salary. There is evidence that BHP entered into Rooming Accommodation Agreements (RAAs) under the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTRA Act), with employees accommodated in the SPV. The current practice is that employees occupy a particular room while they are rostered to work, and some employees reside in their allocated rooms in periods where they are rostered off and do not wish to travel to another location. When employees leave the SPV at times when they are rostered off, they leave personal possessions in their allocated rooms. Pursuant to the RAAs, BHP gives Entry Notices under the RRTA Act (Form 9) to employees when rooms are entered for the purposes of cleaning or maintenance.
On or around 11 November 2021, BHP gave notice to all residents of the SPVs at various locations that from 18 January 2022, the Company would cease the $60 per week deduction and issued employee residents in the SPV with a Notice to Leave (Form R12) pursuant to the RTRA Act, giving notice of the termination of RAAs. While employees were not required to leave their allocated rooms, the immediate effect of the termination of the RAAs, was that an Entry Notice under the RRTA Act (Form 9) would no longer be issued for cleaning and maintenance of the rooms. Witnesses who gave evidence on behalf of the Unions also expressed concern that BHP would implement “hot bedding” whereby employees’ rooms may be provided to other employees or contractors when they were not on shift, or that BHP staff may enter their rooms without notice.
The Unions contend that clause 5.2 of the 2012 MAA imposes mandatory obligations on employees to pay, and BHP to deduct, a weekly payment of $60 from employees’ salaries, in return for residence in the SPV. The MEU contends that the effect of a unilateral decision by BHP to end the RAA meant that residents of the SPV accommodation were no longer entitled to the legal protections available to them under the RTRA Act with respect to their rooming accommodation. The AMWU and CEPU similarly contend that clause 5.2 imposes obligations on both the employee and BHP – one to pay, and the other to accept – the $60 weekly payment and that this payment is rent. It is also contended that the intent of BHP in ceasing the deduction of $60 per week was to take steps to remove the continuing application of the RTRA Act and thereby to fundamentally change the rights of employees to their detriment.
BHP contends that the language of clause 5.2 is permissive and creates a right for BHP to deduct $60 per week from employees’ wages, rather than an obligation and that BHP is entitled to waive that right. BHP also contends that there is nothing in the text of the 2012 MAA to suggest that clause 5.2 was intended to create benefits or rights for employees, whether directly or indirectly, including under the RTRA Act. Further, BHP contends that the 2012 MAA does not expressly or impliedly require BHP to provide “rooming accommodation” within the meaning of the RTRA Act.
Question for determination
The dispute was not resolved by conciliation. Clause 8 of the 2012 MAA provided that “in the event a dispute arises pertaining to this Agreement, it will be dealt with in accordance with the dispute settlement procedure in the BMA Enterprise Agreement 2012 or any replacement enterprise agreement.” Clause 34.2(e) of the 2018 Agreement further provides that any issues in relation to the application of the Accommodation Agreement to an individual is to be resolved pursuant to the dispute resolution procedures in clause 37. It is not in issue that this dispute pertains to the interpretation of clause 5.2 of the 2012 MAA and that the dispute resolution procedure in clause 37 of the BMA Agreement empowers the Commission to resolve this dispute by arbitration. The parties have agreed on the following question for determination:
“Can BHP lawfully cease the $60 per week deduction from post-tax salary of all employees residing in the SPV?”
In a Decision[1] issued on 21 August 2023, I determined that question should be answered in the negative. These are my reasons for that Decision.
Procedural history
Following a conciliation conference before the Commission on 28 July 2022, the parties engaged in a series of private discussions attempting to resolve all accommodation related issues and requested that the matter before the Commission be placed on hold, subject to the outcome of those discussions. On 2 December 2022, BHP advised that there remained one unresolved SPV matter and sought that the matter be determined by way of a hearing.
Directions were issued with the consent of the parties on 12 December 2022 requiring that the parties file and serve written outlines of submissions and statements of evidence outlining the evidence of each witness to be called at the hearing. BHP’s material was also required to respond to the MEU’s material and the MEU was directed to provide any further material in reply. All material was required to be filed and served prior to the hearing. The Directions further stated that witness statements were designed to take the place of evidence-in-chief and that leave must be sought at the hearing to adduce further evidence-in-chief.
On 14 December 2022, the AMWU, through its legal representative, corresponded with the Commission indicating that it had become aware of the present proceedings and that the subject matter of this dispute related to the same issue, the subject of a proceeding commenced by the AMWU in the Federal Court of Australia and seeking to intervene in the matter. On 15 December 2022, two Form F53 Notices were filed in the Commission indicating that the AMWU and the CEPU sought to be legally represented in the proceedings.
The AMWU and the CEPU filed submissions on 15 December 2022 seeking permission to intervene in these proceedings on the basis that being parties to the BMA Agreement, they had a direct interest in being heard in these proceedings and that any outcome in the Commission proceedings would be binding on the intervenors and their members, pursuant to clause 37.19(b) of the BMA Agreement. For the AMWU, it was further submitted that deferral of the proceedings before the Federal Court was warranted in light of the Commission proceedings. The AMWU and the CEPU sought permission to provide written submissions and evidence and to appear before the Commission in the substantive hearing.
On 20 December 2022, the MEU and BHP corresponded with the Commission confirming that no objection was raised with respect to the AMWU or CEPU intervening in these proceedings. I was satisfied, for the reasons outlined in the submissions, that permission should be granted for the AMWU and the CEPU to be heard and directions were issued requiring the intervenors to file and serve an outline of submissions and any material in reply.
The MEU provided the following evidence in support of its case:
· A witness statement by Mr Barry Borellini,[2] a coal mine worker employed by BHP at the Goonyella Riverside Mine site and a resident of the SPV accommodation under the 2012 MAA since March 2012;
· Documents annexed to MEU’s Outline of Submissions.[3]
The intervenors provided the following evidence in support of their case:
· A witness statement by Mr Darryl Piper,[4] a boilermaker employed by BHP Coal Pty Ltd T/A BHP Mitsubishi Alliance (a joint venture) and a resident of the Moranbah SPV accommodation.
· A copy of a Rooming Accommodation Agreement (Form R18) entered into between BHP Coal Pty Ltd and Mr Daniel Farmer.[5]
BHP provided the following evidence in support of its case:
· A witness statement by Mr Peter Stelmach,[6] who was the HR Manager of BHP between August 2009 and May 2013; and
· A witness statement by Ms Licia McGroarty,[7] who was employed by BHP between August 2011 and November 2021 and was involved in the negotiation of the BMA Enterprise Agreement 2012 and the various Accommodation Agreements.
On 27 February 2023, the parties advised the Commission that none of the witnesses would be required for cross-examination at the hearing and the evidence of the parties was tendered without objection. A hearing was conducted by video link on 2 March 2023. Clause 37.18 of the BMA Agreement entitles the parties to be represented by a legal practitioner in arbitration proceedings before the Commission, and in any event, I would have granted permission under s. 596 of the FW Act on the basis that this dispute raises issues of complexity, particularly in relation to the interpretation of the Accommodation Agreement and its interaction with the RTRA Act. I was also satisfied that assistance from the legal representatives would enable the matter to be dealt with more efficiently and that no issues of unfairness arose.
At the hearing, the MEU was represented by its Senior Legal Officer, Mr C. Newman, the intervenors were represented by Mr L. Saunders of Counsel instructed by Maurice Blackburn, and BHP was represented by Mr I. Neil SC instructed by Herbert Smith Freehills.
2018 Agreement provisions
The 2018 Agreement contains provisions at clause 34 dealing with “Accommodation and Commute Arrangements”. In summary, clause 34.1 sets out the overriding principles and objectives that govern these arrangements. Clause 34.2 details the accommodation arrangements and refers to the four Accommodation Agreements, which are incorporated into the BMA Agreement in accordance with s. 257(b) of the FW Act, which provides that “…an enterprise agreement may incorporate material contained in an instrument or other writing… as in force from time to time”. Clause 34.3 outlines the commute arrangements and clause 34.4 details the process by which the Accommodation Agreements may be varied. Relevant provisions of clause 34 are as follows:
“34.1 Principles
(a) Employees may either:
(1)Access accommodation in accordance with clause 34.2; or
(2)Access a commute arrangement in accordance with clause 34.3.
(b) The objective of these principles is to increase the pool of available housing for Employees and their families. These principles will be included in the development of the Accommodation Agreements referenced at clause 34.2(a).
(c) In the event an Employee elects to change their accommodation arrangements by acceptance of an offer from the Company:
(1) if the Employee owns their home, the Employee will be eligible to move into the single person’s village at the subsidised rate where:
(A) the Employee elects to offer their house/unit to the Company to lease and the Company agrees that the house/unit is at a standard appropriate for such leasing; or
(B) the Company elects to buy the Employee’s house/unit and this is acceptable to the Employee.
(2) if the Employee elects to sell their house/unit on the open market, without first offering it to the Company to purchase at market value, the Employee will be eligible to move into the single person’s village or other suitable accommodation at the subsidised rate, where the Employee vacates the house/unit.
(3) if the Employee resides in a Company-subsidised house and elects to change to commute arrangements, the Employee will be required to vacate the house and will be eligible to move into the single person’s village or other suitable accommodation at a subsidised rate.
(4) if the Employee resides in a house/unit owned by a third party which attracts a Company rental subsidy and they elect to change to commute arrangements and move into the single person’s village or other suitable accommodation, they will be eligible for a subsidised rate.
(d) The availability of each arrangement may be limited by the availability of suitable accommodation and/or transport.”
34.2 Accommodation
(a) Employees will be entitled to accommodation in accordance with the following relevant Accommodation Agreement, which may be amended from time to time in accordance with clause 34.4 and consistent with the principles set out in clause 34.1:
(1) Moranbah Accommodation Agreement;
(2) Dysart Accommodation Agreement;
(3) Emerald Accommodation Agreement; and
(4) Blackwater Accommodation Agreement.
(b) The Accommodation Agreements in clause 34.2(a) are incorporated into this Agreement in accordance with section 257(b) of the Act and can be amended separately to this Agreement in accordance with clause 34.4 below.
(c) An Employee may access accommodation which is not regulated by the Accommodation Agreements in clause 34.2(a), and in those circumstances the Employee will receive no less than the same subsidy they would be entitled to under the relevant Accommodation Agreement if living in the single persons village.
(d) Where a Party to this Agreement believes that one of the above Accommodation Agreements at clause 34.2(a) is not being adhered to, a meeting between the Parties may be called. Neither Party may unreasonably refuse to participate in such a meeting.
(e) Any issues arising in relation to the application of the Accommodation Agreements to an individual may be processed through the disputes settlement procedure contained in this Agreement at clause 37.
(f) Access to accommodation, other than in accordance with clause 34.2(c), is subject to the rest of the provisions of this clause 34 (i.e., an Employee will not be entitled to accommodation under clause 34.2 if employed subject to a commute arrangement under clause 34.3).
(g) It is fundamental to the operation of this clause 34 that:
(1) the Accommodation Agreements can be amended from time to time by the parties to those Accommodation Agreements in accordance with the process in clause 34.4; and
(2) the Accommodation Agreements (and any amendments from time to time) take effect separately to this Enterprise Agreement and in their own right as contemplated by the Accommodation Agreements.
34.3 Commute
(a) Commute arrangements will be provided independent of roster, based on operational need.
(b) Where the Company offers commute arrangements, as amended from time to time, the following principles will apply:
(1) Subject to 34.3(b)(2) and availability of housing, all Employees will have the option to choose whether to access commute or residential options. This is a choice to be exercised by individual Employees.
(2) Where particular circumstances require, the Company may make commute arrangements a precondition of employment for new Employees. For example, this includes in-sourcing of currently outsourced/contracted operations. However, where an Employee’s circumstances change, they may apply to access other residential arrangements in accordance with the applicable Accommodation Agreement under clause 34.2(a).
(c) For Employees who commute, the Company will provide village accommodation or other suitable accommodation at a subsidised rate, as nominated by the Company and subject to availability, in accordance with clause 34.1(b).
(d) Appropriate travel arrangements will be put in place for commuting Employees as follows:
…”
34.4 Process to vary Accommodation Agreements
(a) The Parties acknowledge that the Accommodation Agreements may be replaced or amended from time to time by agreement between the parties to the Accommodation Agreements, in accordance with the variation procedure prescribed under the relevant Accommodation Agreement.
(b) Discussions between the Company and the Unions to vary the terms of each of the above Accommodation Agreements will include Employee Representatives from each applicable Mine.
(c) A variation to an Accommodation Agreement can be sought by either party where supported by appropriate justification.
(d) It is not intended that the Parties will seek to vary an Accommodation Agreement for an individual Employee’s particular circumstances.
(e) Neither party can unreasonably refuse to participate in discussions where a reasonable justification has been presented.”
Moranbah Accommodation Agreement
The title page of the 2012 MAA bears the names:
“BHP Coal Pty Ltd and Broadmeadow Mine Services Pty Ltd
Construction, Forestry, Mining and Energy Union
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia”
A “NOTE FOR EMPLOYEES” on the title page states:
“This is the Moranbah Accommodation Agreement 2012 as referred to in clause 34 of the BMA Enterprise Agreement 2012.
The terms of this Accommodation Agreement will be binding on BMA when employees approve the BMA Enterprise Agreement 2012.
BMA proposes that BMA and the union parties sign this Accommodation Agreement when the BMA Enterprise Agreement 2012 is approved by Employees.”
The Recitals to the MAA state:
“1. The Company is the employer of employees at Goonyella Riverside, Peak Downs and Broadmeadow Mines. These Mines are managed by the BHP Billiton Mitsubishi Alliance, a joint venture between the BHP Billiton group and the Mitsubishi group.
2. The CFMEU, AMWU and CEPU (collectively referred to as “the Unions”) are entitled to represent the industrial interests of employees at Goonyella Riverside, Peak Downs and Broadmeadow Mines.
3. The Unions were bargaining representatives under s 176 of the Fair Work Act 2009 (Cth) (FW Act) in bargaining for the BMA Enterprise Agreement 2012. The CFMEU was the bargaining representative under s 176 of the FW Act in bargaining for the Broadmeadow Mine Enterprise Agreement 2012.
4. The parties have agreed to incorporate this agreement under s 257(b) of the FW Act in the BMA Enterprise Agreement 2012.
5. It is fundamental to the operation of the accommodation and commute arrangements clause in the BMA Enterprise Agreement 2012 that this Agreement can be amended from time to time by the parties in accordance with the terms of this Agreement and the process specified in the accommodation and commute arrangements clause of the BMA Enterprise Agreement 2012.”
Clause 1 sets out the objective purpose of the Accommodation Agreement. Clause 2 explains the interaction between the 2012 Accommodation Agreement and previous iterations of accommodation arrangements. Clause 3 is a dictionary clause which provides definitions of the various terms used in the Accommodation Agreement. These clauses are set out below:
“1. Purpose
This Accommodation Agreement has been developed by the parties. having regard to the principles in clause 34.1 of the BMA Enterprise Agreement 2012 and for Goonyella Riverside and Peak Downs Employees, is subject to clauses 34.2 and 34.3 of that Enterprise Agreement.
The purpose of this Agreement is to provide eligible Employees with a range of company subsidised accommodation options. Nothing in this Agreement limits an Employee’s ability to enter into alternative arrangements with the Company, pursuant to clause 34.2(c) of the BMA Enterprise Agreement 2012 and where agreed between the Company and an Employee.”
2. Previous accommodation agreements
2.1 Application of this Agreement
This Agreement commences operation upon approval of the BMA Enterprise Agreement 2012 (Commencement Date) and unless otherwise expressly stated, this Agreement replaces all previous agreements between the parties.
2.2 Protection of existing benefits
The conditions under Previous Accommodation Arrangements that applied to Employees as at the Commencement Date will continue to apply to those Employees until such time that they access a benefit under this Agreement.
Employees residing in Company controlled properties (CCPs), third party rental properties and SPV accommodation will continue to pay their current rent/rate if less than the rent/rate prescribed in this Agreement, or if greater than the rent/rate prescribed in this Agreement, their rent/rate will reduce to that prescribed rent/rate.
Employees currently living in the Town and participating in a Home Ownership Scheme remain bound by the caveat conditions relating to the lump sum payment received.”
3. Definitions
Dependent Child: A child who lives with an Employee in Town, is dependent on that Employee and does not receive income in his or her own right and who:
(a)that Employee has legal responsibility of, either alone or jointly with another person for that child's day-to-day care; or
(b)is wholly or substantially in that Employee's care.
Company Controlled Property (CCP): A Unit or House that is owned or directly leased by the Company in Town.
Couple: An Employee who lives with another person who he or she is in a relationship with and who both intend to live in the Town.
Previous Accommodation Arrangements: Any Home Ownership Scheme agreement or the previous Moranbah Accommodation Agreement which applied to an Employee as at the Commencement Date of this Agreement.
Single Person: A person who does not live in Town together with:
(a)another person who he or she is in a relationship with; and/or
(b)any Dependent Child.
Town: Within an area of 40km from the town centre of Moranbah.
Unit: A property attached to other properties including apartments or units (medium to high density).”
Clause 5 provides for the various company subsidised accommodation options. Clause 5.1 outlines the different types of accommodation that may be provided to an employee depending on the employee’s status. For present purposes, clause 5.2 deals with “Single Person Village” or “SPV” and clause 5.3 deals with CCP. Those clauses are set out as follows:
“5.1 Accommodation Type
New Employees will be provided information on the range and availability of accommodation options outlined in the table below and the alternative options if their preference is not currently available.
The range of accommodation options (subject to availability) are:
Employee Status Accommodation Type Single Person SPV or 1-2 Bedroom Unit Couple 1 or 2 or 3 Bedroom Unit or 3 Bedroom House Single with 1 Dependant Child 2 or 3 Bedroom Unit or 3 Bedroom House 2+ Dependent Children 3+ Bedroom House
All allocation of properties will be determined by the Company, taking into account an Employee’s needs, the number of Dependent Children and other relevant family circumstances. In the event that a dispute arises under this clause, Employees may access the dispute settlement procedure in accordance with clause 8.
5.2 Single Person Village
Employees who live in an SPV under this Agreement will pay a subsidised rate of $60 per week which will be deducted from the Employee's post tax salary. Employees who live in the SPV will be required to comply with the rules of the SPV. Failure to comply may result in the withdrawal of this benefit.
Employees who reside in an SPV and commute from areas outside of the region may be required to travel to and from the SPV at the start and finish of their rostered days in a Company-provided bus.
5.3 CCP
Employees who live in a CCP will pay a subsidised rate of $60 per week, deducted from the Employee's pre-tax salary.”
Clause 6 is headed “General Terms”. Clause 6.2 provides that while employees may choose a particular type of accommodation, the provision of such accommodation is subject to availability and employees may be offered alternative accommodation until such time their preferred accommodation becomes available. Clause 6.8 outlines the process whereby employees may apply to transition from a previous home ownership scheme to the arrangements provided under the Accommodation Agreement. Clause 7 outlines the process by which the Accommodation Agreement may be varied. Clause 8 sets out the procedures for resolving disputes under the Accommodation Agreement. Clause 9 is headed “Preservation of benefits” and provides that the entitlements of employees in relation to accessing company subsidised accommodation will continue to apply if the 2018 Agreement or any subsequent replacement enterprise agreement, is terminated. Relevant parts of these clauses are reproduced below.
“6 General Term
…6.2 Availability of Accommodation
The Company will supply accommodation according to an Employee's choice under this Agreement, subject to availability. Should the requested accommodation not be immediately available the Employee will be accommodated in an SPV, or other alternative accommodation, until the requested accommodation becomes available.
Whilst all circumstances will be considered, the timing and allocation of accommodation will be determined by the Company.
…
6.8 Option for Previous Home Ownership Scheme Participants
An Employee who has previously entered into a Home Ownership Scheme and wants to now live in an SPV under this Agreement may make an application to HR Accommodation Services to do so. The Company will assess any such applications on a case-by-case basis and will take into consideration the availability of SPV rooms. Should the application be approved, the following provisions will apply:
(1)When an Employee owns their home in a Town (or wishes to exit a caveat under the conditions of their respective Home Ownership Scheme agreement), the Employee will be eligible to move into the SPV under the terms of this Agreement if approval is given by the Company. The approval process is as follows:
(A) The Employee must offer to sell their property to the Company. The offer must specify the sale price.
(B) The Employee can then continue the application process to move into the SPV at the subsidised rates as outlined in Clause 5.2.
Employees that obtain a benefit from this clause may not enter into any other accommodation option (other than the SPY) unless approval is granted by the Head of HR or their nominee.
Employees who no longer own their own home are eligible to apply for SPY accommodation. Any Employee who has purchased a property from the Company will not be entitled to a benefit under the Agreement where they rent the property back to themselves.
7 Variation of agreement
This Agreement may be amended by agreement between the parties.
Any discussions between the parties to vary this Agreement will include employee representatives from Goonyella Riverside, Peak Downs and Broadmeadow Mines.
A variation to the agreement can be sought by any party where supported by appropriate justification.
It is not intended that the parties will seek to vary this agreement for an individual Employee's particular circumstances. However, this does not prevent the Company from offering alternative benefits to Employees.
No party can unreasonably refuse to participate in discussions to vary this Agreement where a reasonable justification has been presented. However, variation can only be effected by agreement between the parties.
8 Disputes procedure
In the event a dispute arises pertaining to this Agreement, it will be dealt with in accordance with the dispute settlement procedure in the BMA Enterprise Agreement 2012 (or the Broadmeadow Mine Enterprise Agreement 2011 for Broadmeadow Employees) or any replacement enterprise agreement. Enforcement issues will be dealt with in the appropriate jurisdiction.
9 Preservation of benefits
In the event the BMA Enterprise Agreement 2012, the Broadmeadow Mine Enterprise Agreement 2011 or any replacement enterprise agreement is to be terminated and will cease to apply to Employees, the parties agree that:
(a)Employees will continue to be entitled to access benefits under this Agreement;
(b)This Agreement will continue to operate unaffected, subject to any variation made in accordance with clause 7; and
(c)The parties will take whatever prior steps are necessary and appropriate to legally preserve the operation of this Agreement.”
RTRA Act
A “rooming accommodation agreement” is defined in s. 16 of the RTRA Act as follows:
“16 Rooming accommodation agreement
(1) A rooming accommodation agreement is an agreement under which a provider provides rooming accommodation to a resident in rental premises.
(2) Subsection (1) applies whether the agreement is—
(a) entirely in writing, entirely oral or entirely implied; or
(b) partly in a form mentioned in paragraph (a) and partly in 1 or both of the other forms.
(3) However, an agreement is not a rooming accommodation agreement if it is taken to be a residential tenancy agreement under section 18.”
The definitions of “resident”, “rooming accommodation” and “provider” under the RTRA Act are respectively provided for in ss. 14, 15 and 17, which are set out as follows:
“14 Resident
Resident means a person—
(a)who, in rental premises, occupies 1 or more rooms as the person’s only or main residence; and
(b)who is not—
(i) the provider; or
(ii) a relative of the provider.”
“15 Rooming accommodation
(1)Rooming accommodation is accommodation occupied or available for occupation by residents, in return for the payment of rent, if each of the residents—
(a) has a right to occupy 1 or more rooms; and
(b) does not have a right to occupy the whole of the premises in which the rooms are situated; and
(c) does not occupy a self-contained unit; and
(d) shares other rooms, or facilities outside of the resident’s room, with 1 or more of the other residents.
Example for paragraph (d)—
a boarding house in which each of the residents occupies a room and shares a bathroom, kitchen, dining room and common room with the other residents.
(2)For subsection (1), it is immaterial whether or not—
(a) the rooms are in the same premises; or
(b) the resident is provided with a food service, personal care service or other service.”
“17 Provider
A provider is a person who provides rooming accommodation to residents.”
“Rent” for the purpose of a rooming accommodation agreement (RAA) is defined under the dictionary in sch. 2 of the RTRA Act to mean “an amount payable by a resident under a rooming accommodation agreement for the provision of accommodation and any other service provided under the agreement.”[8] Further, under an RTRA Act, an RAA may be a fixed term agreement or periodic agreement.[9] An RAA is different from a residential tenancy agreement for the purpose of the RTRA Act. In this regard, s. 12(4) provides that “an agreement is not a residential tenancy agreement if it is a rooming accommodation agreement.” In addition, the RTRA Act applies to certain, but not all, rooming accommodation agreements, by virtue of s. 43 which provides that the RTRA Act applies:
“(1)…to rooming accommodation agreements and to—
(a) providers, residents and their respective rights and obligations under rooming accommodation agreements; and
(b) rental premises under rooming accommodation agreements.
(2)However, this Act does not apply to all rooming accommodation agreements.”
The types of RAA to which the RTRA Act does not apply, are set out in s. 44, and for present purposes, those exceptions are not relevant. Chapter 4 of the RTRA Act sets out in detail the rights and obligations of the parties to a RAA. For example, part 1 sets out the general rights and obligations of providers and residents and s. 249 is headed “Quiet enjoyment” which requires that:
“(1) The provider must take reasonable steps to ensure the resident has quiet enjoyment of the resident’s room and common areas.
(2) The provider or provider’s agent must not interfere with the reasonable peace, comfort or privacy of the resident in using the resident’s room and common areas.
Maximum penalty for subsection (2)—20 penalty units”
Part 2 in Chapter 4 of the RTRA Act makes specific provisions about the regulation of the right of entry into residents’ rooms by a provider or a provider’s agent or other persons. For example, s. 259 provides that a provider may enter the resident’s room for specific purposes after giving the resident a written notice in accordance with the requirements of that provision. Section 260 sets out the limited circumstances in which a provider may enter a resident’s room without notice, for example, in the event of an emergency or to carry out urgent repair.
Part 2 in Chapter 5 of the RTRA Act is headed “Ending of rooming accommodation agreements”, which deals with the circumstances in which an RAA may be terminated by a provider or a resident and outlines the notice requirements that must be followed in effecting a termination. Section 366 of the RTRA Act (as it was in force at the relevant times) provided that a rooming accommodation agreement could only be ended in one of the ways stipulated in that provision, as follows:
“366 Ending of rooming accommodation agreements
A rooming accommodation agreement ends only in 1 of the following ways—
(a)the provider and resident agree, in a separate written document, to end the rooming accommodation agreement;
(b)the provider gives the resident a notice under this part requiring the resident to leave the rental premises and the resident leaves the premises;
€the resident or provider gives a notice under this part terminating the agreement on a stated day;
(d)if there is only 1 resident for the agreement—
(i) the resident gives the provider a notice ending residency interest, and vacates the rental premises, in compliance with the requirements under division 3, subdivision 2A; or
(ii) the resident dies;
Note—
See section 387A in relation to the death of a sole resident.
(e)the resident vacates, or is removed from, the rental premises after receiving a notice from a mortgagee or appointed person under section 384;
(f)the resident abandons the resident’s room and the period for which the resident has paid rent has ended;
Note—
See section 509 for indications a resident has abandoned a room.
(g)the tribunal makes an order terminating the agreement.
Note—
See division 5 for the making of termination orders by the tribunal.”
Sections 369 – 372 (as they were in force at the relevant times) then set out the different grounds upon which a provider may rely, for the purpose of issuing a Notice to leave to a resident and thereby bringing an RAA to an end. Those grounds included, for example, a failure to remedy a breach by a resident[10] or a serious breach by a resident[11], or the premises had been destroyed[12]. In addition, s. 372(1) permitted a provider to terminate a RAA without grounds by giving 30 days advance notice in writing. It should be noted that s. 372 was amended by the Housing Legislation Amendment Act 2021 (Qld). The amendment came into force on 1 October 2022 and the effect of the amendment is that providers of accommodation “are no longer able to give ‘without grounds’ notices and can only end agreements on specific grounds set out in the RTRA Act”.[13] Section 372, prior to its amendment, provided as follows:
“372 Terminating of agreement by provider without grounds
(1)A provider may terminate a periodic agreement by giving at least 30 days written notice to the resident.
(2)A provider may terminate a fixed term agreement by giving the resident a notice stating the day, not before the end of the term and not less than 14 days after the notice is given, on which the agreement ends.
(3)A notice under this section must state the day the resident is required to leave the rental premises.
(4)However, the provider may not give a notice to a resident under this section because—
(a) the resident has applied, or is proposing to apply, to a tribunal for an order under this Act; or
(b) the resident has complained to a government entity about an act or omission of the provider adversely affecting the resident or another resident of the rental premises; or
(c) the resident has taken some other action to enforce the resident’s rights or the rights of another resident of the rental premises; or
(d) an order of a tribunal is in force relating to the provider and resident.
(5)Also, the provider may not give a notice to a resident under this section if the giving of the notice constitutes taking retaliatory action against the resident.”
From 1 October 2022, s. 372 provides as follows:
“372 Notice to leave for end of fixed term agreement
(1)This section applies in relation to a rooming accommodation agreement that is a fixed term agreement.
(2)The provider may give the resident a notice requiring the resident to leave the rental premises at the end of the rooming accommodation agreement.
(3)The notice must—
(a) be in the approved form; and
(b) state why the resident is being required to leave the rental premises; and
(c) state the day by which the resident is required to leave the rental premises; and
(d) be signed by the provider.
(4)The day by which the resident is required to leave the rental premises must not be earlier than either of the following—
(a) 14 days after the notice is given to the resident;
(b) the end of the rooming accommodation agreement.”
Evidence and submissions
Communications and engagement plan
It is not in dispute that the decision of BHP to terminate the “Rooming Accommodation Agreement (RAA) between the resident and BHP Coal Pty Ltd” was first announced in a communications and engagement plan dated 11 November 2021 (the communications plan). [14] The communications plan was appended to the Form F10 Notification of dispute, lodged by the MEU.[15] The communications plan, headed “BMA Removal of RAA”, stated that the termination was to take effect from 18 January 2022. It also outlined the steps to be undertaken by BHP to implement this decision. The purpose of the communication, including its background and objectives, was stated as follows:
“A Notice to Leave (Form R12) will be issued to impacted residents across Moranbah Single Person Village SPV, Dysart SPV, Eureka Village & Village on Blain (approx. 1,000 pax) and the Rooming Accommodation Agreement (RAA) between the BMA employee and BHP Coal Ply Ltd will be terminated, effective 18 January 2022.
It is important to note that impacted employees will no longer be charged for their rooms (which will save impacted employees approximately $3,000 per annum) and, at this stage the workforce will maintain their current accommodation rooms.
Residents are not being evicted from their accommodation and will keep their current room.
On removal of the RAA (from 18 Jan 2022), Entry Notice (Form 9) will no longer be issued for cleaning of rooms or maintenance.”
Under the heading “Reference”, explanations of the various terms used in the communications plan were set out as follows:
“Form R12- Notice to leave – Rooming accommodation
This RTA (Residential Tenancies Authority) form is issued to Residents to cancel the Rooming Accommodation Agreement.
Form R18 - Rooming accommodation agreement
This RTA form is the agreement between BHP Coal Ply Ltd and the ResidentForm 9-Entry Notice
This RTA form is currently issued to a resident when entry is required to a room for cleaning or maintenance purposes This will no longer be required once RAA (Form 18) is removed.Residents
Refers to EA and non-EA workers residing at impacted accommodation facilities (Moranbah SPV, Dysart SPV, Eureka Village & Village on Blain)”
In a list of Frequently Asked Questions appended to the communications plan, further clarification was provided by BHP with respect to its decision to terminate the RAAs, as follows:
“What is changing?
The Rooming Accommodation Agreement (RM) between the resident and BHP Coal Pty Ltd will be terminated on 18 January 2022.
This will apply to residents of Moranbah SPV, Dysart SPV, Eureka Village & Village on Blain.
Importantly, this administrative change does not mean that you are required to vacate, and you will not be required to move from your current room on this date.
Impacted residents will no longer be charged for their rooms (which will save impacted employees approximately $3,000 per annum).
When are the changes happening? 18-19 NOV 2021
Notices issued to all impacted employees.1 JAN 2021
Payroll deductions cease for NON-EA & EA employees.18 JAN 2021
RAA terminated.
… Am I being forced to leave my accommodation/change rooms?
Importantly, this administrative change does not mean that you are required to vacate, and you will not be required to move from your current room on this date.
The R12 Notice to leave is a required procedural step in terminating the RAA. Residents are not evicted from their accommodation or required to change rooms as part of this change.”
… Will people be entering my room? Cleaning or maintenance of your rooms will continue. On removal of the RAA, an Entry Notice (Form 9) will no longer be issued for cleaning or maintenance of your rooms. To enable access without disruption to your stay, please confirm your roster is accurate in the SAM – Accommodation Booking System.”
MEU
Mr Borellini, has been employed as a coal mine worker by BHP at the Goonyella Riverside mine site in Central Queensland from around November 2007. Mr Borellini has maintained a residence at the SPV accommodation at Moranbah since approximately March 2012. When he gained the entitlement to the SPV accommodation, Mr Borellini understood that the $60 deduction from his wages was for the RAA, similar to employees who paid $60 per week for a residential tenancy; that his SPV was his room; and that he was able to access it whenever he required and be able to use it as a residence.
In January 2021, Mr Borellini’s RAA was discontinued by the Company and the deduction of the $60 payment per week ceased. Mr Borellini placed the issue in dispute with the Company because of the concerns he held about this change. His concerns were that although he maintained another residence in Ayr, he often used his SPV accommodation when he was on RDOs and not just in between shifts. Mr Borellini expressed the view that there were a number of other employees residing in the SPV who also stayed in the camps during days off and not just in between rostered shifts. Mr Borellini noted that his residence in Ayr is a significant distance from the mine and he only returned to Ayr when he was on leave or had a number of days off in a row. If there was a short break between rostered swings, he would remain in his SPV accommodation.
Prior to the change in January 2021, the Company would always inform Mr Borellini and other residents when the rooms would be cleaned or when maintenance would occur. This would give him and the residents the opportunity to either vacate the room during that time or arrange for another room. However, after the change, Mr Borellini said the Company no longer notified him when the room was being cleaned or when maintenance would occur. Mr Borellini is concerned about cleaners or security personnel entering his room without notice and said that without the RAA, the Company has the ability to move to a system of “hot bedding” at any time whereby his room would be provided to other employees or contractors when he was not on shift. Mr Borellini felt that his SPV room was no longer his residence and that it was more of a temporary camp facility for work purposes only.
In submissions, the MEU stated that the starting point is clause 5.2 of the 2012 MAA, noting that clauses identical to clause 5.2 are also found in the Dysart and Blackwater Accommodation Agreements. In accordance with the principles relevant to the construction of enterprise agreements, the MEU submitted that the Commission’s first task is to consider the ordinary meaning of the relevant words in the clause and in the context of the Agreement as a whole. In this instance, the wording of clause 5.2 states that those employees living in the SPV accommodation “will pay” a subsidised rate of $60 per week which “will” be deducted from their post-tax salary (emphasis added).
In the MEU’s view, the use of the term, “will”, indicates that it was the intention of the parties that the obligation or commitment that follows “will” is mandatory on all parties. Indeed, the term, “will”, is used three times in clause 5.2. Firstly, it is used twice to indicate the rate of pay to be deducted and to ensure that the deduction is made by the employer from the post tax salary of an employee in return for accessing SPV accommodation. Finally, it is used to state that it is mandatory for employees residing in the SPV to comply with the rules of the SPV. The MEU submitted that the term “will” in clause 5.2 is used in circumstances where the only option for the parties is to meet the obligation or commitment. Each time it is used, it indicates that both parties must comply with the obligation in the manner as specified.
Given the repeated use of the term “will” in the clause, the MEU contends that any argument by BHP that the clause allows it to cease or alter the deductions of the $60 payment, would mean that BHP must simultaneously concede that employees also have an option to cease their compliance with the rules of the SPV when residing in the camp. Such an argument, in the MEU’s view, would be a “nonsense”. Logically, if one cannot read the obligation to comply with the SPV rules as being optional, then the clause must also be read in a manner that there is no ability to refuse to deduct the $60 in return for SPV accommodation.
In addition, the MEU contrasted the use of “will” with the use of “may” in clause 5.2 and said that the term “may” is used twice to convey the existence of optionality with respect to the commitments or obligations, i.e., BHP has the option to withdraw the SPV accommodation benefit if an employee fails to comply with the rules. Similarly, BHP has the option to direct employees in SPV accommodation to travel by bus if they live outside the region. If BHP had an option to cease the deduction of the $60 from employees accessing SPV accommodation, then the parties would have used “may” and not “will” in the clause. As this has not occurred, it is submitted that the ordinary meaning of clause 5.2 simply does not permit BHP to cease the deduction of the $60 payment and that BHP is bound to do so. Thus, the operation of clause 5.2 is, in the MEU’s view, unambiguous.
While its primary submission is that clause 5.2 is unambiguous such that the ordinary meaning of the clause can be determined, the MEU also submitted that should the Commission find clause 5.2 to be ambiguous, regard should be had to the post-agreement conduct of the parties. It was highlighted by the MEU that the Moranbah, Dysart and Emerald Accommodation Agreements have remained in place without significant change since the approval of the BMA Enterprise Agreement 2012 and throughout the life of the BMA Enterprise Agreement 2018. As outlined in Mr Borellini’s evidence, employees residing in the SPV would often stay in the camp on rostered days off and not merely in between shifts. Even if employees maintained residence elsewhere, they nevertheless used their SPV accommodation as a residence and not just for temporary accommodation during shifts.
The MEU noted that since the 2012 Agreement, employees residing in SPVs had an RAA with BHP. In the MEU’s view, this was because of the operation of clause 5.2 and the deduction of the $60 per week. It contends that, while not explicitly stated in clause 5.2, the manner in which the clause has operated leaves it open for the Commission to make a finding that the real purpose of clause 5.2 and the $60 deduction was to create legal relationship between BHP and employees under the RTRA Act, for the benefit of employees, such as Mr Borellini. By having an RAA with the Company, the MEU submitted that employees using the SPV as a residence had the benefits and legal rights afforded to them under the RTRA Act.
Taking into account the nature and operation of the 2012 BMA Agreement and the relevant Accommodation Agreements, the MEU stated that it was open for the Commission to find that employees reasonably believed and expected that, when voting on the 2018 Agreement, clause 5.2 would require the continued deduction of $60 per week and afford employees residing in the SPV the benefit of an RAA. In addition, the conduct of the parties after the approval of the 2018 Agreement was also consistent with the expectations of employees when they voted for the 2018 Agreement. It was further submitted that the conduct of the parties between 2012 and 2022 therefore demonstrated a meeting of minds between the parties as to the intended operation of clause 5.2.
By ceasing the deduction of $60 and cancelling the RAAs, the MEU submitted that BHP has acted contrary to the intent of clause 5.2. If BHP were to submit that the effect of its actions has not altered the rights or entitlements of employees or that employees continued to maintain the same entitlements to SPV accommodation, the MEU said such submissions would be incorrect. By cancelling RAAs, the MEU said employees have lost vital legal protections afforded to them under the RTRA Act, including the legal right to quiet enjoyment. Employees no longer had any rights to dispute camp rules or to require notice to be given by BHP before entering employees’ rooms. BHP now has unrestricted ability to alter camp rules and accommodation rights, as and when they see fit. For employees using the SPV as a residence outside of their rostered shifts, this was a major loss of freedom and rights that they reasonably expected would have been guaranteed when they voted for the 2018 agreement.
In response to BHP’s submission that clause 5.2 does not impose an obligation on the Company in relation to the deduction of $60 per week, the MEU said that whilst the language used in clause 5.2 explicitly refers to the obligations of employees, the clause is simply not functional and would lead to irrational conclusions if similar obligations were not imposed on the employer. Firstly, the initial part of the clause states that “employees will pay a subsidised rate of $60 par week” for accommodation. For the clause to function effectively, it must also require the employer to have a corresponding obligation to accept the $60 payment. Secondly, if BHP were able to simply refuse to accept the payment, the drafter would have used the term “may” and not “will”. Thirdly, if the employee remains under an obligation to make a $60 payment for the SPV accommodation, there must be a corresponding obligation to accept payment placed on BHP so that the employee can comply and not be in contravention of the 2018 Agreement and exposed to a civil penalty. BHP’s interpretation would lead to an industrially absurd outcome whereby the employer can unilaterally refuse to accept the $60 payment, notwithstanding that the employees remain obliged to make the payment.
As to a submission by BHP that employees have continued to be entitled to accommodation under the Accommodation Agreement despite the ceasing of the deduction of $60 per week, the MEU submitted that even if BHP were to largely maintain the rights of residents that were previously provided for under the RAA, employees have no certainty that BHP would not alter those terms and conditions in the future, nor do employees have any legal right to enforce certain conditions for their accommodation.
In relation to BHP’s submission that there is nothing in the text of the Accommodation Agreement that suggests clause 5.2 was intended to create any benefits or rights for employees, including those under the RTRA Act, the MEU submitted that the overall intent of the 2012 MAA is to provide a range of discounted residential accommodation for all employees based on their personal status. Employees accessing accommodation under the Agreement are then entitled to access the requisite legal rights associated with maintaining a residence in Queensland. Whether it be rental or private properties, employees have access to the rights afforded to them through legislation or instruments such as tenancy leases.
The MEU submitted that prior to the decision in November 2021, employees in SPV were afforded similar associated legal property rights as other employees for maintaining a rooming accommodation residence. It was submitted that the intent of clause 5.2 was to provide the mechanisms for employees residing in SPV accommodation to create housing rights as provided for in State legislation, so that there was little difference between employees accessing SPV accommodation and those accessing other types of accommodation. For example, in accordance with clause 5.1, single employees are entitled to either SPV accommodation or a one or two bedroom unit. If a new employee were allotted a 1-bedroom unit as their entitlement, they would be required to enter into a residential tenancy agreement with the Company for the property, thereby affording both parties the rights and obligations that the lease entails.
However, if BHP’s submission is accepted, that same employee could be assigned SPV accommodation but without access to the corresponding legal rights and obligations that come with an RAA. The MEU submitted that it would make no sense for an employee accessing one form of accommodation be denied the ability to access the associated legal property rights that are afforded to other employees accessing alternative forms of accommodation or to have that right removed unilaterally by the employer without recourse. Thus, the MEU’s submission is that the intent of clause 5.2 is to ensure that employees accessing SPV accommodation are afforded rights and obligations like employees accessing the other forms of accommodation.
In relation to the approach advanced by BHP that the common law principles of contractual interpretation should be adopted in the construction of the Accommodation Agreement, the MEU contends that such an approach is a narrow and pedantic one that should be rejected. The MEU stated that it is well established that the interpretation of enterprise agreements cannot be an overly technical, but rather, should rely upon the ordinary meaning of the words in the context of the Agreement as a whole.
It was submitted that the interpretation advanced by BHP that the employer does not have any obligation to deduct the $60 or has some form of unilateral right to waive acceptance of the $60 payment, is one that places reliance upon a technical legal point of common law contractual construction. Such an approach was said to favour an interpretation based on the legal niceties found in common law contracts over a more purposive approach in order to ascertain its meaning, thus ignoring the principles of the interpretation of enterprise agreements found in both Skene[16] and Berri[17].
In response to questions from me as to the basis for the assertion that an RAA applies in the context of SPV accommodation and whether, if the company’s interpretation of clause 5.2 were correct, it would be open to the company to refuse to accept rent and terminate a residential tenancy agreement concerning other forms of accommodation, Mr Newman said that the Company could take the same approach in relation to such agreements.[18]
In summary, the MEU submitted that in answering the question as agreed by the parties in the dispute, the Commission should find:
a)That the ordinary meaning of clause 5.2 does not allow the Company the option to cease deducting the $60 payment for SPV accommodation; and
b)Given the nature of the conduct of the parties between 2012 and 2021, it is reasonable to conclude that there was a meeting of minds in relation to both the deduction of $60 per week as well as the reasons for it under clause 5.2 affording employees in SPV accommodation the right to a RAA.
On that basis, the MEU submitted that the Commission should answer “No” to the question for determination. In oral submissions in reply, the MEU contended that BHP had not waived its right to deduct $60 per week from the wages of employees, but rather was refusing to do so, and the issuing of the notices to employees terminating the RAAs evidences that the payment of $60 per week by employees was intended to create the necessary legal framework by which an RAA would come into effect.
AMWU and CEPU
Mr Darryl Piper, an AMWU delegate, is employed as a Boilermaker by BHP Coal Pty Ltd T/A Mitsubishi Alliance (a BHP joint-venture) at the open cut coal mine at the Goonyella Riverside site. Mr Piper has been in the role since February 2005 and is currently on a “lifestyle” roster which follows a pattern of 5 day shifts, 5 days off, 4 night shifts and 4 days off. Mr Piper was involved in the bargaining for the 2022 Agreement and had some involvement in the bargaining for the 2018 Agreement. Mr Piper was also involved in the negotiations for the 2012 MAA when it was first introduced and understands that the 2012 MMA was incorporated into the 2012 Agreement so that it did not need to be renegotiated every time a new enterprise agreement was negotiated. In addition, Mr Piper understands that the “Village Rules” are applicable to him as a resident in the Moranbah Single Person Village.
When Mr Piper is rostered to work at Goonyella, he stays in the Moranbah SPV, which is accommodation for single people who do not have dependents. Mr Piper stated that sometimes he stays in that accommodation when he has not been rostered to work, for example, when he attended events with co-workers in Moranbah on his days off. Mr Piper described his SPV accommodation as a room that is approximately 4m by 3m in size with a single bed, a small study desk built into side cupboards, a TV mounted on the wall, a small couch, a small bathroom with a toilet and a stand-up shower and a balcony approximately 1m by 2m in size. In addition, Mr Piper described that there are three of those rooms in each demountable “house”. The doors are next to each other. The demountable houses are connected by concrete paths which also connect to the mess hall. Mr Piper said that he does not share any facilities with other employees, except the mess hall where the residents eat their meals and “get their crib”.
In or around July 2015, Mr Piper commenced residing in the Moranbah SPV and he was allocated a particular room. Mr Piper stated that he uses the same room every time he stays at the Moranbah SPV and considers it as his permanent room. Mr Piper keeps personal effects in the room, such as pictures of his family and he described the accommodation as his “home away from home”. Mr Piper arrives and leaves his Moranbah SPV at the start and end of each swing, and he signs in and out by texting his name and room number to a mobile number provided by the Company. Were he not provided with accommodation by the Company, Mr Piper would probably have to rent accommodation privately in Moranbah.
When he first moved into the Moranbah SPV, Mr Piper believed that he was provided with and signed a “Rooming Accommodation Agreement”, a form issued by the Residential Tenancies Authority Queensland. However, Mr Piper no longer has a copy of the Agreement that he signed. In this regard, Mr Piper spoke with a colleague, Mr Farmer, who has retained a copy of the RAA that Mr Farmer signed. Mr Piper believes he signed the same standard form agreement. A copy of Mr Farmer’s RAA was. Mr Piper recalled only signing an accommodation agreement once. The “rent” charged under the RAA was $60.00 per week and that amount was deducted from his pay by the Company and the deductions were stipulated in his payslips. Mr Piper further recalled that the first deduction was made as soon as he moved in to the SPV. Prior to moving into the SPV, he had to wait for a room to become available and during that time, he stayed at the Eureka Camp which also cost $60 per week.
Prior to January 2022, Mr Piper said he did not recall being notified of any formal “inspections” of his room and entry into his room was only for cleaning and general maintenance. Mr Piper said he has never been provided with a formal “notice” of those entries. Instead, there was a board in the mess hall which displayed a cleaning schedule of which rooms would be cleaned and on which days. That was the only notice of entry with which he was provided. If his room required maintenance, Mr Piper had to go to the SPV office and complete a maintenance request form to provide consent for his room to be entered for maintenance. Mr Piper’s understanding was that the Company was required to either give notice, or obtain his consent, to enter his room because of the accommodation agreement and the obligations under the relevant residential tenancy legislation.
On or around 18 November 2021, Mr Piper received an email from the Company informing him of changes to his accommodation arrangement, in identical terms to the Notice to Residents appended to the MEU’s Form F10 Notification of dispute, as follows.
“Dear Resident,
The purpose of this letter is to let you know about some upcoming changes to your accommodation arrangement which will mean from 1 January [2022] you will no longer be charged for your village accommodation.
Importantly, this administrative change does not mean that you are required to vacate your accommodation, and you will not be required to move from your current room when the changes come into effect.
If you have any questions about the process, we encourage you to contact [email address] or speak to your supervisor.
How will this affect you?
From 1 January 2022, an accommodation payment will no longer be deducted from your salary (a saving approximately $3,000 per annum)
Enclosed is a standard notice (Form 12) that is required to be issued to end a Rooming Accommodation Agreement (RAA).
This Form does not mean you are being evicted from your accommodation and you are not required to leave your current room.
Your accommodation entitlement will not change as a result of this notice and you will continue to be entitled to accommodation in line with the terms and conditions of employment.
How will the change be made?
The RAA between you and BHP Coal Pty Ltd will end on 18 January 2022, but this does not mean you need to vacate your accommodation.
Enclosed is a notice (Form 12) issued under section 372 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTA) terminating the RM between you and BHP Coal Pty Ltd.
From 1 January 2022, payroll deduction for your accommodation will cease.
What do I need to do?
There is no requirement for you to vacate your current accommodation.
On removal of the RAA, the standard Entry Notice (Form 9) will no longer be issued for cleaning or maintenance of your room. To enable access without disruption to your stay, please confirm your roster is accurate in the SAM – Accommodation Booking System.
Please also to continue to check in and out at the administration areas in accordance with the standard village procedure.
Key dates
Date Activity 18-19 NOV 2021 Form 12 notices issued to resident 1 JAN 2022 Payroll deductions cease for resident 18 JAN 2022 RAA ends (no requirement to vacate)” [19]
Appended to the correspondence is a Form R12 Notice to Leave – Rooming Accommodation,[20] a form created by the Residential Tenancies Authority Queensland for the purpose of ending a rooming accommodation agreement in accordance with ss. 366, 369–372 and 384 of the RTRA Act. The Notice was issued to Mr Piper. Under item 2 of the Form R12, the Notice was issued and signed by BHP Coal Pty Ltd as the “Manager/provider”. Item 4 of the Notice stated that the Notice was issued “without grounds”. The Notice was issued on Thursday, 18 November 2021, under the option of by email or in person. Item 6 stated that resident/s must vacate the property by midnight on Tuesday, 18 January 2022 and that if a resident did not leave by the stipulated time, “it may be lawful for the agent or manager/provider, and anyone helping them, to use necessary and reasonable force to remove you and your property from the residence, in the presence of a police officer.”
Mr Piper’s understanding of the correspondence is that if he no longer pays rent, he does not have an accommodation agreement and the room is technically the Company’s room rather than his room, and the Company could enter the room at any time. Mr Piper is concerned that this meant that the Company would start “hot bedding” at the SPV allowing other employees to use his room on his days off. Mr Piper feels uncomfortable about the change and considers that he may be required to remove photos of his family and other personal items as he did not know who would now be staying in his room in his absence. Consistent with the correspondence, Mr Piper recounted that the deductions did stop in January 2022 and the one-month notice given by the Company was consistent with the requirements under the legislation.
After the change, Mr Piper said he did not know whether anyone stayed in his room while he was not there or whether the room has been entered or inspected without notice. However, in early 2022, Mr Piper said he found a card holder under the pillows on his couch, and it contained expired tickets and licences. Mr Piper said he was distressed as he had not been informed that anyone was in his room. In addition, Mr Piper expressed the view that aside from “hot bedding”, residents were also worried about any unilateral changes to the Village Rules by the Company. Mr Piper said that currently the Company seeks the agreement of residents to change the rules. However, Mr Piper said that if the Company can enter their room at any time, people were worried that they may be evicted from the SPV for breaking those rules.
In submissions, the AMWU and the CEPU stated that the only clause which appears to be in any way controversial is clause 5.2 of the Accommodation Agreement. Read in its context – particularly the documentary context of an agreement about accommodation – it was submitted that the intent of the clause is to record an agreement about the payment and collection of rent. It imposes obligations on both the employee and BHP – one to pay, and the other to accept. In other words, it is directed at establishing the fundamental and reciprocal relationship of landlord and tenant with all its attendant consequences. It is submitted that this is in fact what the clause does, and it is apparently uncontroversial that the arrangement attracted the coverage of the RTRA Act.
In that light it would be facile to read the provision as simply a one-sided obligation on the employee which BHP can elect to waive. This is because the payment attracts two benefits: first, it functions as consideration for the provision of accommodation, and second, it provides employees who use the accommodation for long periods as effectively their “home”, with the ordinary protections that renters enjoy, namely, a basic right to quiet enjoyment. Any ambiguity in the text should be resolved with reference not only to this context, but also to the behaviour of BHP surrounding the making of this agreement. In this regard, the intervenors referred to the historical treatment of these SPVs as subject to the RTRA Act by clearly established practice and the lack of any foreshadowed change to this in the bargaining process.
Further, it is “too glib” for BHP to dismiss the change as simply “deciding not to collect rent” and it is apparent that the actual decision was to take steps to remove the continuing application of the RTRA Act, and thus to fundamentally change the rights of employees to their detriment. That the impact of the change was so significant further demonstrates the incorrectness of any such interpretation. It was submitted that instead, what remain are corresponding promises: one to pay rent, and one to take it, and on doing so accept the obligations imposed by protective legislation.
In relation to a suggestion by BHP that the Accommodation Agreement is “intended to operate of its own force”, the AMWU and the CEPU submitted that this seems to be directed at supporting a submission that its interpretation should be approached as though it was a pure commercial contract, absent any of the particular features that influence the way enterprise agreements must be read. In this respect, the AMWU and the CEPU submitted that the difficulties with this approach are:
Firstly, the 2012 MAA is expressly incorporated into the Agreement by clause 34.2(b) and is undeniably part of the 2018 Agreement proper. BHP was required to, and presumably did, distribute it to employees during the pre-approval access period as required by s. 180(2)(a)(ii), as part of the matters that the employees were being asked to vote for. It is not clear how it could be sensibly severed from the Agreement itself;
Secondly, the 2012 MAA simply does not function as a contract, commercial or otherwise. The “parties” are described as the two employer parties and the three relevant Unions, and not the employees whose rights and obligations it affects. None of the above have authority to enter into contracts on behalf of individual employees; and
Thirdly, the 2012 MAA is described as becoming binding on BHP only when the 2018 Agreement was approved. By virtue of the BMA Agreement, it binds employees (i.e. new starters) who were not even engaged when BHP became bound. It is not capable of being enforced except through mechanisms within and concerning the Agreement. An individual employee could not bring a claim for breach of contract based on BHP’s non-compliance with the terms of the document. The Accommodation Agreement is simply an adjunct of the BMA Agreement. Plainly, as the Company’s evidence makes clear, it was negotiated at the same time, in the same manner and between the same people as the Agreement. It should be interpreted in the same way.
It was submitted that the principles of interpretation derived from cases concerning contract are not necessarily irrelevant, given that there is significant convergence in the modes of textual analysis used in respect of both types of instruments, in the same way as there has been convergence in relation to the principles applicable to statutory interpretation and construction of an enterprise agreement. It was also submitted that “the emphasis [is] on the objective ascertainment of the instrument’s purpose and the move from textual to contextual interpretation”[21] and the real point is that it is “necessary in interpreting a particular instrument to pay attention to the peculiar characteristics of that instrument”.[22] In this regard, the enterprise agreements have particular features, notably in the manner in which employees become bound regardless of individual consent and the way in which they are negotiated. The real vice in BHP’s submissions in this respect is the suggestion that the Accommodation Agreement should be treated like a commercial contract and the contextual features are thereby ignored.
In relation to a submission by BHP that it is not permissible to have regard to post-contractual conduct, the AMWU and the CEPU contended that if read as an absolute, the submission is incorrect regardless of whether the matter is approached as a question of pure contractual interpretation or not. In this regard, while as a general rule post-contractual conduct may not be employed in construing the terms of a contract,[23] there are exceptions whereby post-contractual conduct can be used:
“(a)to evidence the existence of a fact or relevant surrounding circumstance existing at the time the contract was made which is material to its subsequent interpretation;[24]
(b)to prove the existence of a contract at all, or its subsequent variation;[25]
(c)where the contract is not the sole repository of the terms of engagement between the parties, to prove the absent terms and the true nature of the relationship between the parties;[26]
(d)in rare circumstances to identify a mutually held understanding as to the effect of the contract or its terms.[27]”
In this regard, the AMWU and CEPU submitted that only (d) appears to be relevant in the present case. It was said to be a very narrow exception, which requires evidence of a “clear and mutual subjective intention as to what the contract originally meant”[28] It likely requires support in the objective framework of fact found to exist at the time.[29] It was said that the exception is subject to the overriding necessity to have regard to the objective theory of contract. In all but the rarest of cases, the subsequent conduct of parties goes no higher than demonstrating, at best, their subjective understanding of the meaning of the clause – what they meant to do rather than what they did. In many cases, it will not even go that far, particularly in circumstances where what is relied on is silence. A failure to enforce a term or insist on its performance may be motivated by mistake, poor advice, an absence of bargaining power or a desire to maintain harmonious relations – something more is required to demonstrate actual concurrence.
In this case, what is relied upon is: the long history of these Accommodation Agreements which makes it clear that the amounts payable by employees constituted rent in the ordinary sense; and the similarly long history of, in compliance with the underpinning legislation, entering into RAAs with employees and complying with those obligations, such that a common understanding as to the nature and purpose of the MAA emerges – that is, it is directed at establishing and maintaining a landlord/tenant relationship.
BHP’s proposition that the use of “will” in clause 5.2 is permissive rather than mandatory, such that BHP has a discretion to deduct rent if it so chooses, is completely at odds with what “will” in its ordinary sense conveys as a modal verb – it expresses inevitable future events. It was submitted that this is how it is otherwise used within the Agreement to describe mandatory obligations for BHP and reference was made to the following examples:
“• at clause 3.7(b) and (e), in the context of paid suspensions during disciplinary investigations, “the company will update the employee… on a regular basis” and, where the employee is required to return to the mine to meet with the Company, “will arrange return transportation”;
· at clause 3.8(d), in respect of unpaid standdowns, BHP “will take all reasonable steps to minimize the need for standing down Employees”;
· at clause 5.1(b), dealing with training, BHP “will develop a skills matrix…[and] will publish the skills matrix annually”;
· at clause 5.2(a), in addressing payment for training, BHP “will provide” transport and other matters; and
· at clause 18, in relation to superannuation, “BHP will make…superannuation contribution”.
The AMWU and the CEPU submitted that none of these provisions, nor the plethora of other examples, could in any way be sensibly read in the manner contended by BHP. Where there is a lack of certainty that the relevant action will occur, or a discretion is otherwise retained, caveats also appear in the language. For example, BHP “will endeavour to establish and maintain training programs” in relation to training in clause 5.1(c) or BHP “will approve leave at its discretion” in respect of leave approvals in clause 22.6. As such, the AMWU and CEPU contend that it is highly unlikely that the parties intended a new, and novel, meaning to be attributed to the word “will” in the Accommodation Agreement.
Another issue with BHP’s construction of clause 5.2 is that it requires the word “will” to be given two distinct meanings within the one sentence: First, its ordinary meaning, imposing an obligation on employees to pay the subsidised rate; and second, the meaning BHP contends for, effectively substituting “may” for what the clause says, unless BHP would also accept that the clause gives employees a discretion to pay rent if they choose. While BHP’s contention in this regard is that the clause solely benefits the employer, the clause is not as simple as that. What it in fact does is identify: the fact of the subsidy, i.e., that BHP is absorbing part of the rent the employee would, in the surrounding context of a landlord/tenant relationship, be obliged to pay; and the mechanism by which it would be extracted, i.e. principally a benefit for the employee. Viewed in light of the uncontested surrounding circumstances, notably the long-standing use of RAAs, the intervenors’ view is that it cannot be sensibly read as a clause allowing BHP to deduct money or not – and thus entirely alter the legal relationship between the parties at its discretion.
In relation to BHP’s contention that any party to a contract is entitled to “waive compliance with a condition that is not inextricably mixed up with other parts of the transaction such that it cannot be severed”, it is submitted that to a degree that is true in respect of contracts. However, it is not clear that the principle flows in respect of enterprise agreements where parties have independent obligations to comply under statute, as opposed to simply arising due to a promise between them. Even if it were a principle applicable to enterprise agreements, the difficulty is that: the “transaction” is the provision of residential rooming accommodation by BHP (the landlord) to employees as tenants; an obligation to pay rent is inextricable with that relationship; and BHP’s “waiver” has facilitated purportedly to fundamentally alter the legal relationship between BHP and its tenants, to their detriment. In any event, the language of “waiver” is inapt in this case as BHP has not simply decided to stop charging employees by way of waiving their obligation to pay but has refused to accept rental payments via the agreed mechanism for the express purpose of obtaining a benefit for itself and to the employees’ detriment. This is a different concept and not permissible under the terms of the Agreement.
In oral submissions, Mr Saunders for the AMWU and the CEPU contended that BHP’s refusal to deduct the weekly payment has the effect of turning “residential employees into effectively commuters”[30]. In this respect, there is a delineation in the BMA Agreement between accommodation arrangements and commute arrangements (FIFO work).[31] Reference was made to clause 34.3 which explains the nature of a commute arrangement. It was said that clause 34.3(b) makes it clear that it is not the default form of engagement at the site and employees have a choice between commuting and residential options. Under clause 34.3(d), bus or air transportation organised by the Company is an option for employees to travel to the mine from the various locations and Mr Saunders said that this reflects a “true FIFO arrangements”.[32] Having regard to clause 34.3, it was submitted that:
Clause 34.2(c) provides that employees may access accommodation not regulated by the Accommodation Agreements in accordance with clause 34.2(a) and in those circumstances, receive no less than the same subsidy they would be entitled to under the relevant Accommodation Agreement if living in the SPV. Clauses 34.2(d) – (f) deal with issues and disputes arising under the Accommodation Agreements and clause 34.2(g) provides for amendments to the Accommodation Agreements and that these will take effect as contemplated by the Accommodation Agreements.
Clause 34.3 deals with Commute arrangements and provides the principles that apply to such arrangements were on the basis that employees will have the option to choose whether to access commute or residential arrangements, subject to the Company’s right to make commute arrangements a precondition of employment for new employees and subject to the right of employees to make other residential arrangements in accordance with the applicable Accommodation Agreement where their circumstances change. Clause 34.3(c) provides that for employees who commute, the Company will supply village style accommodation or other suitable accommodation at a subsidised rate as nominated by the Company and in accordance with the principle in clause 34.1(b) that the objective is to increase the available pool of housing for employees and their families.
These provisions support the conclusions that the provision of accommodation options under the 2018 Agreement (and its predecessor (the 2012 Agreement) and successor (the 2022 Agreement) are beneficial entitlements for employees and that the Respondent cannot vary those entitlements other than by agreement. There is also no indication in the 2018 Agreement that the provisions in relation to accommodation are beneficial for the Respondent. The terms of the 2018 Agreement do not cause me to reconsider any of the conclusions I have reached in relation to the 2012 MAA and its operation and effect.
The history of the 2012 MAA
A further contextual matter is the history of the 2012 MAA and the negotiations from which it followed. As indicated in the material filed by the Respondent, the 2012 MAA was part of a period of protracted disputation and negotiations in relation to the 2012 Agreement which commenced in 2011 and included a number of unsuccessful ballots. It is not necessary to set out the evidence of these negotiations appended to Mr Stelmach’s witness statement. In summary, while Mr Stelmach’s evidence was that accommodation agreements were not a major issue, it is apparent that after the first unsuccessful ballot in October 2011, the finalisation of the accommodation agreements was an issue raised by employees in subsequent bargaining.
The documents tendered by the Respondent show that by Bulletin 2 in relation to what was then referred to as the BMA Enterprise Agreement 2011, the parties were discussing the need for employees to be able to choose roster, commute and accommodation arrangements that suit their lifestyle needs and that Union bargaining representatives were seeking to incorporate elements of site schedules into the central agreement. The documents also indicate that BMA was pursuing agreement provisions that recognised that many employees commuted from towns such as Mackay, Rockhampton, Yeppoon, Townsville, Toowoomba, the Sunshine Coast and from interstate and that many commuting employees also rented or owned houses in Moranbah and other residential areas near mines. The Company wanted to “explore” high quality village accommodation options at low cost to employees who were commuting, to free up under-utilised houses and help employees who wished to reside in towns such as Moranbah to obtain rental properties.[87] A further emerging issue was concern on the part of employees that the Respondent would force individual employees who did not wish to do so, to work 7/7 “commute-friendly” rosters.[88]
It is also apparent that the Unions were focused on commute-friendly rosters whereby employees work 7 days on and 7 days off, and expressed concerns throughout the entirety of the negotiations that employees would be forced to work those rosters. The Respondent continued to press its position that it wanted to provide accommodation, commuting and residential options for employees and to enable employees to change rosters and also to decide to change from residential to commuting arrangements or vice-versa. By 8 July 2011, it was proposed that the SBU and BHP would sign Accommodation Agreements once they were finalised to give employees certainty, and that these would be reviewed in accordance with agreed principles, and changes made in accordance with the process in the proposed 2011 Agreement once negotiations for that Agreement were completed.[89] A theme also emerged whereby the Unions were seeking to make Accommodation Agreements binding (I will return to their earlier iterations later in this decision). Subsequently the Respondent proposed that current accommodation arrangements be retained, flexibility would be provided and that while they would be separate from the enterprise agreement, Accommodation Agreements would be legally binding. It is apparent from the communications that some changes were proposed but that current arrangements would be maintained.
By 14 September 2011, BMA was rejecting contentions by the Unions that it was seeking to remove terms of the Accommodation Agreements and to change benefits and that the Accommodation Agreements would not be enforceable at common law.[90] After the unsuccessful ballot in October 2011, BMA corresponded with the Unions advising that it would commence a review of the Accommodation Agreements before the next ballot took place, contrary to its previous position and employees were informed that they had told the Company they wanted greater certainty about Accommodation Agreements and that the Company would meet with Unions to attempt to finalise Accommodation Agreements prior to the next vote.[91] In November 2011, BMA stated that its proposal was to incorporate the Accommodation Agreements into the enterprise agreement by reference, and have the Agreements in the same legal form as the then current Moranbah Housing Agreement.[92]
Bulletins about subsequent meetings indicate that BMA offered certainty, security and choice for employees and no reduction in benefits while enabling accommodation choices. Further, BMA offered a balance in SPV and residential accommodation options.[93] Discussions continued and by 6 July 2012, a Memorandum of Understanding was reached, whereby principles of agreement included that regional towns would not be diminished by roster flexibility and that commuters and residential employees may desire a more flexible roster arrangement. The negotiations were also concerned with arrangements for the Company to purchase homes from employees wishing to sell them and to assist with the construction of new homes in regional areas where mines operate.
In short compass, the negotiations indicate that Unions on behalf of employees, wanted to retain existing right under Accommodation Agreements and to improve the terms and conditions under those Agreements. Unions also sought to make the Accommodation Agreements legal binding and enforceable and the mechanism by which this was to occur was their incorporation into what became the 2012 Agreement. There is no evidence of Unions negotiating away any rights and benefits that employees had under existing Accommodation Agreements, but rather seeking to improve those rights and benefits. This material also confirms that the SPV and 1 – 2 bedroom units are primarily an entitlement to be accessed by commuters, while other options including houses that are CCPs are entitlements primarily for residents.
The resulting 2012 Agreement operated from 2 November 2012 until 26 October 2015. The provisions in the 2012 Agreement in relation to accommodation are relevantly identical to those in the 2018 Agreement in clause 34, discussed above.
The Moranbah Housing Policy
The 2012 MAA, is directly associated with the 2004 Moranbah Housing Policy (2004 MHP). It was not incorporated into the 2007 Enterprise Agreement which preceded the 2012 Agreement. The BHP Coal Pty Ltd Agreement 2004 (2004 Agreement) operated from 20 August 2004 until 19 August 2007. It contained the Goonyella Riverside Enterprise Agreement 2004 Local Schedule A which included a reference to a Moranbah Housing Agreement. This was not in evidence, but I assume it was an earlier iteration of the 2004 MHP given the different title.
The 2004 MHP tendered by the AMWU and CEPU[94], was designed to provide accommodation options and a range of choices. In this regard, reference is made to employees renting a unit, townhouse or residing in the SPQ. referred to QHC houses, owned by the Queensland Housing Commission and rented to BMA and provided for a number of options for employees renting QHC houses or Company houses with respect to continuing to rent or to purchase a house. Clause 3.3 dealt with Current SPQ, Unit or Townhouse Renters and provided that employees renting a unit, townhouse or residing in the SPQ prior to 1 March 2004, could continue to do so at the rates contained in Appendix A and that SPQ rates could not be salary sacrificed and that unit and townhouse rents could be salary sacrificed.
Under the heading “Rental” clause 4.1(a) provides that single status employees will be offered accommodation in Curtin House on the rental rates in Appendix A and that if Curtin House Accommodation is not available, the employee may go on a waiting list for the facility, and in the meantime if an employee chooses to live in an external SPQ facility, the Company will reimburse them for specified amounts. It is notable that the specified amounts are significantly higher than the subsidised rent agreed in 2012 but are paid to the employee to pay rent with the employee being responsible for excess amounts, rather than the employee paying rent at a specified subsidised rate.
In short, the 2004 MPH indicates that residents of the SPQ and then existing units or town houses were considered as renters and that the terms “rent” and “rates” were used synonymously. It further indicates that the SPQ and units were interchangeable.
It is also notable that the BHP Coal Workplace Agreement 2007 which replaced the 2004 Agreement has accommodation agreements in other Schedules, which make clear that persons in single persons accommodation, variously described as villages, are charged rent. Regrettably this historical material was not referred to by the Union parties and I have not placed significant weight on it, other than to observe that payments including those made by employees for single person’s accommodation, were viewed by all parties as rent.
Subsequent conduct
Based on the evidence, before me I conclude as follows. Prior to the making of 2012 MAA, the common understanding of the parties was that payments for all forms of accommodation were rent. Employees were frequently renting properties privately and receiving subsidies for rent. Single persons’ accommodation could also be provided by third parties. The Respondent commenced a process of acquiring properties from employees to place into its pool for rental and encouraging employees to build and/or purchase their own properties.
I also conclude that as the Respondent increased its role in making properties available for rental, including those occupied by single persons, it implemented a practice of entering into legal agreements under the RTRA Act. In the case of employees renting rooms in the SPV, the Respondent entered into RAAs under the RTRA Act. This practice was widespread and standard. I base these conclusions on the fact that when it decided to withdraw from such arrangements and cease to deduct the $60 per week amount paid from the wages of employees residing in the Moranbah SPV, which led to the present dispute, the Respondent saw the need to implement a comprehensive Communications and Engagement Plan for use by line managers in discussions with employees, in respect of this decision. There would have been no requirement for such a plan if the arrangements were not generally in operation.
The fact that RAAs were not mentioned during the 2012 negotiations, was because they were a given. The focus of the negotiations was on claims to make Accommodation Agreements legally binding, which was achieved by incorporating them into the 2012 Enterprise Agreement. It also appears that the rate paid by employees was expressed as an amount that would be deducted from their wages, to subsidise rental payments, rather than employees being required to pay the difference between the subsidy and the market rate of rent. There was no intention to change existing practice which included employees in SPV accommodation paying rent for that accommodation and having rights under the RAAs that it had been the practice to make between the Respondent and employees in that accommodation. This is not a case of mutual inadvertence. The Respondent would hardly have a practice of making formal RAAs under the RTRA Act, with employees in the SPV, inadvertently.
Having regard to the warnings about the distinction between common inadvertence and common understanding, I conclude on the basis of my review of the material before me, which regrettably may not be complete, that this was a case where minds had met and such arrangements agreed, and that they continued to be reflected in the 2012 MAA as incorporated in the 2018 Agreement.
Conclusion
Accordingly, I conclude that the text and context of the 2012 MAA and relevant circumstances surrounding its making and its history, all support a conclusion that the parties intended that accommodation in the SPQ at Moranbah would be provided by the Respondent to employees pursuant to an RAA under the RTRA Act and reflected this in the terms they agreed upon.
The Respondent is not permitted by those terms to vary them, other than with the Agreement of the Unions and employees and did not attempt to reach such agreement, but rather, unilaterally decided to vary the terms of the MAA and the 2018 Agreement. Those terms continue in effect in the 2022 Agreement. For these reasons, I answered the question for arbitration, which was in the form agreed by the parties, as follows:
Question:
Can BHP lawfully cease the $60 per week deduction from post-tax salary of all employees residing in the SPV?
Answer:
No.
VICE PRESIDENT
Appearances:
Mr C Newman, the MEU.
Mr L Saunders of Counsel, the AMWU and CEPU.
Mr I Neil SC of Counsel, BHP.
Hearing details:
2023.
By Microsoft Teams.
2 March.
[1] [2023] FWC 2092.
[2] Exhibit A1 – Witness Statement of Barry Borellini.
[3] Exhibit A2 – Annexures to MEU’s Outline of Submissions dated 23 December 2022.
[4] Exhibit A3 – Witness Statement of Darryl Piper dated 20 February 2023.
[5] Exhibit A4 – Rooming Accommodation Agreement (Form R18).
[6] Exhibit R1 – Witness Statement of Peter Stelmach dated 10 February 2023.
[7] Exhibit R2 – Witness Statement of Licia McGroarty dated 9 February 2023.
[8] Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTRA Act) s. 6, sch. 2 (definition of ‘rent’).
[9] RTRA Act s. 6, sch 2 (definitions of “fixed term agreement” and “periodic agreement”).
[10] RTRA Act, s. 369.
[11] Ibid s. 370.
[12] Ibid s. 371.
[13] Explanatory Note to the Housing Legislation Amendment Bill 2021 (Qld) at p 58.
[14] Exhibit A2 – Annexures to MEU’s Outline of Submissions dated 23 December 2022.
[15] Court Book page 38.
[16] WorkPac Pty Ltd v Skene [2018] FCAFC 131.
[17] AMWU v Berri Pty Ltd[2017] FWCFB 3005.
[18] Transcript of Proceedings PN74-PN85
[19] Exhibit A3, Annexure DP-3, see also Court Book page 44.
[20] Exhibit A3, Annexure DP-4 see also Court Book page 45.
[21] Paper Australia Pty Ltd t/a Australian Paper v Australian Manufacturing Workers Union[2017] FWCFB 1621 at [21].
[22] Ibid.
[23] Franklins Pty Ltd v Metcash Trading Ltd (2009) NSWLR 603 at [10], citing Agricultural and Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570 at [35].
[24] Lyn International Pty Ltd v Marcolongo [2011] NSWCA 3030 at [142]; Birla Nifty Pty Ltd v International Mining Industry Underwriters Ltd (2014) 47 WAR 522 at [50].
[25] Howard Smith & Co Ltd v Varawa (1907) 5 CLR 68 at 77-78, Australian Mutual Provident Society v Chaplin (1978) 18 ALR 385 at 392-3
[26] Hollis v Vabu (2001) 207 CLR 21 at [24].
[27] Spunwill Pty Ltd v BAB Pty Ltd (1994) 36 NSWLR 290 at 312; White & Australian and New Zealand Theatres Ltd (1943) 67 CLR 266
[28] Spunwill Pty Ltd v BAB Pty Ltd (1994) 36 NSWLR 290 at 312.
[29] White & Australian and New Zealand Theatres Ltd (1943) 67 CLR 266 at 281.
[30] Transcript of Proceedings PN132 – PN133.
[31] Transcript of Proceedings PN 106.
[32] Ibid.
[33] Transcript of Proceedings PN107 – 108.
[34] Transcript of Proceeding PN132.
[35] Transcript of Proceeding PN130 – PN133; Court Book pp. 201, 211, 253, 257 and 275.
[36] Transcript of Proceeding PN111.
[37] Transcript of Proceeding PN113.
[38] Transcript of Proceeding PN114 – 115.
[39] Transcript of Proceeding PN119.
[40] Transcript of Proceeding PN123.
[41] Transcript of Proceeding PN121.
[42] City of Wanneroo v Holmes [1989] FCA 553; 30 IR 362, 378; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 [53]; WorkPac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536 [197]; AMWU v Berri Pty Ltd[2017] FWCFB 3005; 268 IR 285 [114]; Svitzer Australia Pty Ltd v AIMPE[2023] FWC 55 [60].
[43] See NTEU v La Trobe University (2015) 254 IR 238 at [109] per White J.
[44] See Amcor Ltd v CFMEU (2005) 222 CLR 241 at [2], [13] and [30], Wanneroo at [52], Polan v Goulburn Valley Health [2016] FCA 440 at [32]; One-Key Workforce Pty Ltd v CFMEU [2018] FCAFC 77 at [190]-[191].
[45] James Miller & Partners Ltd v Whitworth Street Estates Ltd [1970] AC 583 at 603; Administration of Papua and New Guinea v Daera Guba (1973) 130 CLR 353 at 446; Agricultural and Rural Finance Pty Ltd v Gardiner [2008] HCA 57; (2008) 83 ALJR 196 at [35], [163]; Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2022) 398 ALR 404; [2022] HCA 1 and ZG Operations Australia Pty Ltd v Jamsek (2022) 398 ALR 603; [2022] HCA 2.
[46] Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s. 14.
[47] Heron Garage Properties Ltd v Moss and Another [1974] 1 All ER 421 at 422.
[48] Transcript of Proceedings PN141.
[49] Transcript of Proceedings PN145.
[50] Transcript of Proceedings PN159.
[51] Transcript of Proceedings PN161.
[52] Transcript of Proceedings PN162.
[53] Transcript of Proceedings PN167.
[54] Transcript of Proceedings PN218.
[55] Transcript of Proceedings PN219.
[56] Transcript of Proceedings PN 221.
[57] [2018] FCA 417.
[58] Ibid at [28] citing AECTEW Corporation v Pangallo [2002] FCAFC 325; (2002) 127 FCR 1 at [33] and Australian Nursing and Midwifery Federation v BUPA Agreed Care Australia Pty Ltd [2017] FCA 1246 at [500].
[59] [2023] FCA 18.
[60] Australian Licenced Aircraft Engineers Association v Qantas Airways Pty Ltd [2022] FCAFC 50; Transport Workers’ Union of Australia v Coles Supermarkets Australia Pty Ltd [2014] FCAFC 84; Toyota Motor Corporation Australia Ltd v Marmara [2014] FCAFC 84.
[61] (1982) 149 CLR 337.
[62] Ibid at 345 – 346.
[63] (2023) 398 ALR 404.
[64] Ibid at [43] – [44].
[65] [2017] FWCFB 3005 at [114].
[66] [2022] FWCFB [7].
[67] [2020] FCAFC 123, 298 IR 50 at [65] per Griffiths and SC Derrington JJ at [65]; see also WorkPac Pty Ltd v Skene [2018] FCAFC 131, 264 FCR 536 at [197]
[68] Op. cit. at [29].
[69] AMA (Victoria) Ltd and Australian Salaried Medical Officers Federation v The Royal Women’s Hospital [2021] FWCFB 6044
[70] [2004] HCA 52, 219 CLR 165.
[71] Ibid at [40].
[72] [2017] FWCFB 3005.
[73] Ibid at [114].
[74] [2017] FWCFB 4487.
[75] [2014] NSWCA 184 at [71] – [85].
[76] Manufacturers’ Mutual Insurance Ltd v Withers (1988) 5 ANZ Ins Cas 60-853 at 75-343.
[77] Kirin-Amgen Inc v Hoechst Marion Roussel Ltd [2004] UKPC 6; [2005] 1 All ER 667 at [64].
[78] Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [78].
[79] Charter Reinsurance Co Ltd v Fagan [1997] AC 313 at 391 per Lord Hoffman, approved in Campbell v R [2008] NSWCCA 214; 73 NSWLR 272 at [48] (Spiegelman CJ, Weinberg AJA and Simpson J agreeing)
[80] Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407; 76 NSWLR 603 at [17] cited in Mainteck Services Pty Ltd v Stein Heurtey SA (2014) 310 ALR at [71] – [85].
[81] Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165 at [40].
[82] [2006] FCA 11.
[83] Ibid at [44].
[84] Ibid at [46].
[85] (2006) 151 FCR 513.
[86] [2014] FCA 829.
[87] BMA communication Edition 5 – 25 January 2011, Court Book page 168.
[88] Ibid Edition 14 – 19 April 2011, Court Book page 178.
[89] Ibid Edition 38 – 8 July 2011, Court Book 2011.
[90] BMA correspondence to Union officials dated 14 September 2011, Court Book page 238.
[91] BMA correspondence to Union officials dated 17 October 2011, Court Book page 251 and Edition 64 – 24 October 2011 Court Book page 253.
[92] BMA correspondence to Union officials dated 3 November 2011, Court Book page 255
[93] Court Book 259.
[94] Court Book p. 112
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