Construction, Forestry, Maritime, Mining and Energy Union v BHP Coal Pty Ltd
[2020] FWC 311
•22 JANUARY 2020
| [2020] FWC 311 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Construction, Forestry, Maritime, Mining and Energy Union
v
BHP Coal Pty Ltd
(C2019/2455)
DEPUTY PRESIDENT ASBURY | BRISBANE, 22 JANUARY 2020 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] – Proper construction of dispute settlement procedure – Requirement for unresolved matters to be progressed within 14 days – Failure of CFMMEU to progress matter within required time frame – No jurisdiction for Commission to deal with dispute – Application dismissed.
BACKGROUND
[1] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) applies under s. 739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a dispute (the substantive dispute) under the Dispute Resolution Procedure in clause 37 of the BMA Enterprise Agreement 2018 (the Agreement). The Respondent in this matter is BHP Coal Pty Ltd (BHP/the Company).
[2] The notification of the substantive dispute was lodged with the Commission on 15 April 2019. The background to the substantive dispute is that on or about November 2016, Mr Mitchell Power, was transferred from Blackwater Mine to Saraji Mine as part of a restructuring process. In or around September 2018, Mr Power requested a return to Blackwater Mine and relied on clause 8.4(a)(3) of the Agreement, which provides for preference for employees to previous jobs in certain circumstances. The request was rejected by BHP. Mr Power disputed the matter under clause 37 of the Agreement. In accordance with clause 37.10(c) of the Dispute Settlement Procedure a State Level Conference (SLC) was held on 19 March 2019 in an attempt to resolve the matter.
[3] On 1 April 2019 the CFMMEU notified BHP that the matter was not resolved and that the Union intended to notify the dispute to the Commission for conciliation pursuant to clause 37.10(d) of the Dispute Settlement Procedure. Clause 37.10(d) provides that a dispute may be referred to the Commission “where the matter remains unresolved after completion of other stages in clause 37.10”. BHP contends that on a proper construction of the Agreement, the 14 day time frame commenced either on 19 March 2019 when the SLC was held or at a date prior to 1 April 2019, and that the matter was referred to the Commission outside of the 14 day time frame in clause 37.10(d). BHP further contends that as a result, the Commission does not have jurisdiction to deal with the substantive dispute. This decision deals with that objection.
[4] Directions were issued requiring the parties to file and serve material upon which they intended to rely to enable the Commission to determine the jurisdictional objection raised by BHP. The following persons provided witness statements on behalf of BHP:
• Jodie Lee Dubois, Principal Employee Relations BHP; 1
• Allison Chauncy, Specialist Employee Relations BHP; 2 and
• Ryan Ferricks, Maintenance Manager at Saraji mine. 3
[5] The following persons provided witness statements on behalf of the CFMMEU:
• Brad Crompton, Operator at the Saraji mine and President of the CFMMEU’s Saraji Mine Lodge; 4
• Simon West, Operator at the Goonyella Riverside mine and President of the CFMMEU’s Goonyella Riverside Mine Lodge; 5 and
• Steven Grant, Operator at the Blackwater mine and President of the CFMMEU’s Blackwater Mine Lodge. 6
[6] Mr Ferricks, Ms Dubois and Mr Crompton were required for cross-examination and attended the hearing to give their evidence. Statements of other witnesses were tendered without objection save as to the parts of the statements expressing the opinion of witnesses about the proper construction of the Agreement, which were not pressed and have not been taken into account.
[7] After the filing of submissions and witness statements in support of their positions, but prior to the hearing in respect of the jurisdictional objection, the parties agreed to narrow the issues in dispute on the following basis:
1. [The CFMMEU] did not press its argument that the Decision in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd 7 (which concerned a dispute in relation to a disciplinary matter involving other clauses of the dispute settlement procedure) applies to clause 37.10(d) of [the Agreement];
2. [BHP] did not press its argument that a State Level Conference (SLC) – one of the steps in the Dispute Settlement Procedure – necessarily finished on the day of the agreed SLC meeting;
3. The parties agree that whether a SLC finishes on the day of the SLC meeting, or a later date, and therefore the date from which the 14 days commences to run, depends on the circumstances of how the meeting concludes. 8
[8] This reduction in the issues in dispute meant that some of the submissions and evidence filed by the parties was no longer relevant. BHP was represented by Mr M Coonan of Herbert Smith Freehills who appeared as of right as provided in clause 37.18 of the Agreement. The CFMMEU was represented by Mr C Newman, Senior Legal Officer.
THE COMMISSION’S POWER TO DEAL WITH DISPUTES
[9] Legislative provisions concerning the jurisdiction of the Commission to deal with a dispute pursuant to dispute settlement procedures in enterprise agreements are found in s.595 and s.739 of the Act. Section 595 states:
“595 FWC’s power to deal with disputes
(1) The FWC may deal with a dispute only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.
The FWC may deal with a dispute (other than by arbitration) as it considers appropriate, including in the following (a) by mediation or conciliation (b) by making a recommendation or expressing an opinion.
(2) The FWC may deal with a dispute by arbitration (including by making any orders it considers appropriate) only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.
Example: Parties may consent to the FWC arbitrating a bargaining dispute (see subsection 240(4)).
(3) In dealing with a dispute, the FWC may exercise any powers it has under this Subdivision.
Example: The FWC could direct a person to attend a conference under section 592.
(5) To avoid doubt, the FWC must not exercise the power referred to in subsection (3) in relation to a matter before the FWC except as authorised by this section”
[10] Section 739 provides that:
“739 Disputes dealt with by the FWC
(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.
(2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:
(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or
(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.
Note: This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)).
(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.
(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.
Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).
(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.
(6) The FWC may deal with a dispute only on application by a party to the dispute.”
[11] The Commission’s powers to deal with disputes derive, in the case of an enterprise agreement, from the terms of the dispute settlement procedure contained in the enterprise agreement. As a Full Bench of the Commission observed in CFMEU v North Goonyella Coal Mines Pty Ltd 9 the Commission may deal with a dispute only on application of a party to the dispute (s.739(6)); is prohibited from exercising any powers limited by the dispute settlement procedure (s.739(3)); may arbitrate only if the agreed dispute settlement procedure permits it to do so (s.739(4)); and must not make a decision that is inconsistent with the Act, the enterprise agreement and any other applicable fair work instrument (s.739(5)).
RELEVANT PROVISIONS OF THE AGREEMENT
[12] The Agreement was approved by a decision of the Commission on 21 May 2018. 10 It commenced operation on 28 May 2018 and will nominally expire on 21 May 2021. The CFMMEU is covered by the Agreement. The ‘parties’ to the Agreement are BHP Coal Pty Ltd and employees engaged at mines managed by BHP Billiton Mitsubishi Alliance. The Agreement “overrides and replaces in its entirety” the BMA Enterprise Agreement 2012 (the 2012 Agreement).
[13] Clause 37 provides the Dispute Settlement Procedure. Clause 37 is lengthy, but it is necessary to set the clause out in its entirety:
37 Dispute Settlement Procedure
37.1 It is the intention of the Parties that any disputes arising in relation to the NES; or pertaining to this Agreement; or in relation to the application of the Accommodation Agreements (as referred to in clause 34 of this Agreement); or arising in the course of employment shall be dealt with in accordance with this clause.
37.2 Employees and their Employee Representatives agree that issues in relation to the employment of Employees covered by this Agreement should be ideally addressed at their source by those involved and without undue involvement of those not directly involved.
37.3 An Employee may nominate an Employee Representative (as defined in clause 38.1) to represent them at any stage of this procedure.
37.4 This procedure does not apply in relation to the exercise of rights or implementation of processes or systems provided for under this Agreement (for example, the right of the Company to have free and unfettered access to contractors) or under other relevant prevailing legislation.
37.5 Where the matter relates to:
(a) An issue arising under the IDPR process (clause 36); or
(b) An issue relating to a disciplinary outcome; then clause 37.9 does not apply.
37.6 At all times work will continue without disruption and at the direction of the Company, subject to the relevant provisions of the Coal Mining Safety and Health Act 1999 (Qld).
37.7 Matters affecting the majority of Employees across a crew, a department or a whole Mine may be raised by an Employee Representative and progressed in accordance with clause 37.10 where the disputed issue affects the Employees in substantially the same way.
37.8 Notwithstanding clause 37.7, the parties will address matters of an individual nature on an individual basis.
37.9 Where a matter arises:
(a) It shall be discussed between the Employee (and an Employee Representative if requested) and the immediate supervisor involved within 14 days.
(b) The supervisor will not be involved in the discussion at 37.9(a) if the dispute directly relates to that supervisor. In such a case, the matter will progress to a discussion under clause 37.10(a) with the Company nominating an alternative representative to attend the discussion (or discussions) in lieu of that supervisor.
37.10 If the Employee considers the matter remains unresolved, the following process applies:
(a) The Employee and/or an Employee Representative if requested may refer the matter to the relevant superintendent. The Employee and/or an Employee Representative must set out the details of the matter in writing and provide this to the superintendent first within 14 calendar days. The matter will then be referred for discussion between:
(1) the Employee and an Employee Representative (if requested); and
(2) two representatives from the Company (the relevant supervisor and superintendent, unless otherwise agreed).
(b) If the matter remains unresolved after completion of clause 37.10(a), the Employee and/or an Employee Representative if requested may refer it in writing to the relevant department manager within 14 calendar days. The matter will then be referred for discussion between:
(1) the Employee and an Employee Representative (if requested); and
(2) two representatives from the Company (the relevant supervisor and department manager, unless otherwise agreed).
(c) If the matter remains unresolved after completion of clause 37.10(b) and the Employee wishes to escalate it, the Employee and/or their Employee Representative (if requested) may refer it in writing to one representative of the Company not based on that site within 14 calendar days. The matter will then be referred to a State Level Conference for discussion between (unless otherwise agreed) the following participants:
(1) the Employee, and if requested:
(A) an Employee Representative; and/or
(B) a District Official of the relevant Union; (collectively, the Employee’s Representatives); and
(2) up to three Company representatives (which includes the relevant supervisor and one representative of the Company not based on that site).
(d) Where the matter remains unresolved after completion of the other stages in clause 37.10 or where the parties agree to bypass the above stages in accordance with clause 37.15, the Company or Employee and/or their Employee Representative (if requested) may refer the matter in writing within 14 calendar days to FWC to conciliate the matter. Alternatively, by agreement of both parties, a matter may be referred to an agreed private arbitrator or mediator to conciliate on the matter.
37.11 At each stage of this process in clause 37.10, the Company will have 14 calendar days from the date of the last discussion with the Employee to respond to the Employee, or make contact with the Employee (and if they have requested one, their Employee Representative) to arrange a meeting to attempt to resolve the matter raised by the Employee, in accordance with clause 37.10; and
37.12 Where the Company fails to make contact with the Employee and their Employee Representative to arrange a meeting within the time limit specified in clause 37.11, the Employee may progress the matter to the next stage of the process.
37.13 Where an Employee (or their Employee Representative on the Employee’s behalf) does not seek to progress their matter within the time limits specified in 37.10 or respond within 14 calendar days to the Company’s attempts to arrange a meeting under 37.11, the matter in dispute will be treated as being withdrawn. Once this occurs, an Employee cannot seek to re-invoke this procedure in relation to that same matter.
37.14 Unless otherwise agreed between the participants, an HR representative will not attend the discussions at clauses 37.9, 37.10(a) and 37.10(b). For the avoidance of doubt, an HR representative may be involved in a discussion held in accordance with clause 37.10(c) and 37.10(d).
37.15 By mutual agreement, the Company, the Employee and their Employee Representative may bypass any of the above steps.
37.16 Subject to clause 37.15, provided that all the above steps have been exhausted FWC may conciliate or where conciliation has been exhausted and the dispute remains unresolved, arbitrate in relation to the matter. Where a matter involving an individual Employee progresses to this stage, the Employee will be permitted to attend FWC proceedings on the same arrangements set out in clauses 38.13 and 38.14. If proceedings are brought on more quickly by FWC, the travel plan must be submitted immediately upon the listing of the matter by FWC and before travel commences.
37.17 In the circumstances set out in clauses 14(e) or 14(g), or by agreement under clause 37.15, FWC may:
(a) Conciliate in relation to the matter; or
(b) Where conciliation has been exhausted and the dispute remains unresolved, arbitrate in relation to the matter.
The parties to the matter are not required to first exhaust the above steps for the purposes of this sub-clause.
37.18 During any conciliation or arbitration proceedings before FWC under this clause 37, either party may choose to be represented by a legal practitioner.
37.19 If FWC issues a decision in writing under this clause:
(a) the decision and reasons for the decision will be provided in writing to the parties; and
(b) the decision shall be binding on the parties to the matter in dispute and persons bound by this Agreement.
37.20 Nothing in clause 37.19 removes the right of either party to a matter in dispute from appealing a decision of FWC, in accordance with the Act.
37.21 If a person who will be involved in any discussions, conferences or proceedings under this clause is not employed or reasonably available at the Mine, then that person may participate by teleconference or other remote means where possible, to expedite the process.
37.22 None of the arrangements in this clause otherwise limit the rights of the Parties at common law or under the Act.
37.23 The outcome of any matter dealt with in accordance with clause 37.10 will be recorded in writing but will not form a precedent for any other matter, either at that Mine or at any other Mine.
EVIDENCE AND SUBMISSIONS
BHP
[14] BHP provided the following chronology of events which is submitted to be critical to the resolution of the dispute:
Date 2019 | Description |
19 March | SLC held |
19 March | Crompton informs SLC union will escalate the conference if it is not resolved today |
19 March | Dubois informs union its over to them to escalate |
19 March | Crompton tells Ferricks in the breezeway that the union is going to escalate dispute to FWC |
20 March | Crompton advises Ferricks by phone he was going to escalate the dispute to FWC |
27 March | Dubois advises Crompton of BMA Swap policy |
27 March | Crompton advises Power of Swap policy |
29 March | Power asked union to escalate |
1 April | Crompton emails Dubois |
15 April | Union escalates to FWC |
[15] There is no dispute between the parties that the steps contained in the disputes procedure prior to clause 37.10(d) have been complied with. 11 There is also no dispute that a SLC meeting occurred on 19 March 2019. BHP contends that the SLC also concluded on 19 March 2019.
[16] Ms Allison Chauncy is a Specialist in Employee Relations, responsible for working with leaders at BMA’s Peak Downs, Saraji and Blackwater Mines. Ms Chauncy works closely with Ms Dubois, whose evidence I deal with below. Ms Chauncy attended the SLC conference with Ms Dubois and Mr Ferricks. Mr Crompton and Mr Steve Pierce (District Vice President) attended on behalf of the CFMMEU. The employee the subject of this dispute, Mr Power, was also in attendance. The conference occurred via videoconference, although Mr Pierce was present by telephone. During the meeting Ms Chauncy made handwritten notes, which she attached to her statement in these proceedings.
[17] Ms Chauncy states that during the conference:
“Ms Dubois asked Mr Power whether the dispute arose because he believed he had a right to return to Blackwater within 3 years. Mr Power said words to the effect of “Yes”. Mr Crompton said if the matter was not resolved today they would progress the dispute.
We then discussed his claims that there were positions open at Blackwater. Each side put their position. The parties could not agree on that.
Ms Dubois then asked whether Mitchell had considered other options for flexibility.
The conversation then returned to number and openings at Blackwater and union concerns on supplementary workers. The parties differed on that.
Mr Pierce said words to the effect of ‘What I’m hearing, there is no resolution to Mitchell’s dispute and he won’t be redeploying back to Blackwater today.’
Ms Dubois said words to the effect of ‘This is our position. We don’t consider he has the right under the Agreement to return to Blackwater.’ ” 12
[18] Ms Chauncy states that “[A]fter this, both Mr Pierce and I left the conference”. 13 Ms Chauncy tendered her hand-written notes of the which accord with the summary in her evidence.
[19] Mr Ryan Ferricks is the Maintenance Manager of the Saraji Mine and was present at the SLC on 19 March 2019. Mr Ferricks did not take notes during the SLC. Mr Ferricks said that he did not run the meeting on behalf of BHP and that this role was played by Ms Dubois. 14 Mr Ferricks maintained that when he was leaving the meeting he did not hear anything about a job swap.15 Mr Ferricks’ recollection of events at the SLC is as follows:
“My recollection is that Mr Power’s position in the SLC was there were vacant positions in the organisational chart at Blackwater and he had the right under the Agreement to transfer back. He also outlined the personal reasons he had for returning.
There was a discussion on what were approved crew numbers. There was no agreement on the numbers, but I did agree to provide the numbers to Mr Power if he requested them. No request was made at the SLC or subsequently.
Ms Dubois then suggested to Mr Power he have a discussion with me about his personal circumstances and other options such as flexible work arrangements. I was prepared to do so.
Towards the end of the meeting, Ms Dubois, in a respectful tone, then said words to the effect of ‘It has been challenged before in Fair Work. The Company is not going to change our position.’
Mr Pierce then said something I can’t remember, hung up and left the SLC as he was tied up with another matter.
Ms Chauncy disconnected shortly thereafter.
In the breezeway after the SLC ended, Mr Crompton said words to the effect of “we will be escalating it to the Fair Work Commission.” 16
[20] According to Mr Ferricks, the discussion with Mr Crompton in the breezeway was “a very quick conversation” 17 between Mr Ferricks and Mr Crompton with no one else present,18 during which Mr Crompton approached Mr Ferricks and said: “…Look, we believe we have a strong case here and we’re going to escalate it straight away.”19
[21] Mr Ferricks said that he considered that this was Mr Crompton’s “serious” and “formal” position 20 although it was not put in writing21. Mr Ferricks maintained that even though he was not running the meeting it was not unusual for Mr Crompton to put his formal position in this way.22 Mr Ferricks also said that in his view Mr Crompton was quite clear in putting his position that the dispute would be escalated.23
[22] Mr Ferricks spoke with Mr Crompton, by telephone, on 20 March 2019. 24 During that call, Mr Crompton again raised the issue with Mr Ferricks25 and said words to the effect that the dispute would be escalated to the Commission. Mr Crompton’s words to Mr Ferricks were “quite clear”.26 Mr Ferricks stated in cross-examination that:
“The nature of the conversation was in relation to something else, and what that matter was I cannot recall but, once again, he reiterated that he believed he had a strong case and as a result they were escalating to the Fair Work Commission” 27
[23] Further evidence in reply was called at the hearing, with leave. Mr Ferricks stated that he does not agree with Mr Crompton’s evidence (discussed below) in which Mr Compton states that Ms Dubois said that there were 52 permanent roles and she would confirm that number. Mr Ferricks states that there was no mention of the number of roles at all, and Ms Dubois did not undertake to confirm any numbers. 28
[24] Similarly, Mr Ferricks does not agree with Mr Crompton’s recollection that the prospects of a job swap were discussed during the SLC meeting. Mr Ferricks maintains that there was no discussion about a job swap at all during the SLC, 29 he did not hear anything about a job swap being offered30 and nobody spoke to him about a job swap31. After Mr Pierce (who was attending the SLC by telephone) hung up Mr Ferricks said that the meeting wrapped up with Ms Chauncy cancelling the videoconference on her end and Ms Chauncy packing up.32 After this, Mr Ferricks left the room.33 Mr Ferricks did not see Ms Dubois or Mr Crompton talking or having a discussion.34
[25] Ms Dubois is Principal Employee Relations for BHP and was in attendance at the SLC. Ms Dubois said that before the SLC commenced introductions were made and Ms Dubois explained some “ground rules” 35 using words to the following effect:
“Today’s SLC is the last step in the dispute resolution process prior to the Fair Work Commission and this is an opportunity to listen to Mr Power explain his dispute and provide any new information that could be considered by BMA to take a fresh look at the situation.” 36
[26] Following this, Mr Power explained his dispute and Ms Dubois confirmed that Mr Power’s view was that under the Agreement he had a right to relocate within three years. Ms Dubois recalls Mr Crompton stating that “if the matter was not resolved today he would escalate it” 37. After considering what had been said by Mr Power and Mr Crompton, Ms Dubois explained BMA’s position, which was BHP’s “final position”38 in relation to the dispute. Mr Crompton and Mr Pierce took issue with Ms Dubois’ response. Ms Dubois said that she explained BHP’s position on approved crew numbers two or three times.39 Ms Dubois maintained that she did not undertake to report back in relation to numbers.40 Ms Dubois then said words to the effect of:
“This issue had already been dealt with before. The Company’s position has not changed and [Mr Power] doesn’t have a right to return to Blackwater under clause 8.4.” 41
[27] Ms Dubois referred to other options, such as flexible work arrangements, at which time Mr Ferricks confirmed he was always happy to talk about that. After confirming BHP’s position, Ms Dubois said that the stated that it was “over to you” meaning that it was now up to the CFMMEU to decide whether or not it wanted to escalate the matter. 42 When asked the context of that statement, Ms Dubois stated:
“I’d stated that the company’s position was unchanged, that [Mr Power] doesn’t have a right to return. That’s our position. Over to you now to – that’s the end of the state level conference.” 43
[28] Mr Pierce responded with words to the effect that BHP was not changing its position and disconnected from the call. Ms Dubois considered the SLC was finished because: she had stated BHP’s final position in relation to the dispute concerning clause 8.4; Mr Pierce confirmed that the position hadn’t changed; Mr Pierce hung up and all persons in the room started to pack up; 44 and Mr Ferricks was getting his bag and walking out of the room.45
[29] In what Ms Dubois has called “Post SLC events” she states that after Mr Pierce hung up, while she was still in the meeting room, 46 Mr Crompton put a “different proposal”47 involving a swap. Despite Ms Dubois considering that a swap had nothing to do with clause 8.4 of the Agreement,48 Ms Dubois indicated that she would “have to take that on notice”49. Ms Dubois indicated she would be able to respond on this issue early in the next week but that:
“…the Company’s position hasn’t changed in relation to the right to return. I will take this swap on notice and get back to you.” 50
[30] Mr Crompton then thanked Ms Dubois for her time, shook hands and he left the room. Ms Chauncy also left the videoconference at this time. 51
[31] In her witness statement Ms Dubois said that in the week commencing 25 March 2019 she spoke to the Employee Relations Team about what BMA’s practice is in relation to “the swap proposal”. 52 Ms Dubois telephoned Mr Crompton on 27 March 2019 about this matter. Ms Dubois did not indicate in her statement what she said to Mr Crompton but said that in response, Mr Crompton said: “Thanks very much, I will let Mitchell [Power] know. I think we are escalating his transfer anyway.”53 Under cross-examination, Ms Dubois was asked exactly what she said to Mr Crompton on 27 March 2019 and said:
“What exactly have you said to Mr Crompton on the 27th? ---- I stated to him that if there was an employee at the mine that Mr Power wanted to swap to, Blackwater, that wanted to swap to Saraji or wherever the employee's coming from, in a like for like position, that essentially had the same skillset and that it was approved by both managers, that would be something that the company would consider.” 54
[32] In response to a proposition under cross-examination that she had put forward terms that would have resolved the dispute, Ms Dubois said: “I’ve stated to him that if those – that was something that came up, the company would consider it.” 55 Ms Dubois did not agree that Mr Crompton raised the possibility of a swap as a means of settling the dispute.56 Ms Dubois agreed that she understood that the context of raising a swap was that Mr Power would potentially swap with an employee at Blackwater so that Mr Power could go to Blackwater.57 Ms Dubois also accepted that a swap resulting in Mr Power returning to Blackwater could potentially have resolved the dispute58 and that it may have been Mr Crompton’s intent that by inquiring about a job swap he was attempting to resolve the dispute outside of any purported right to return under the agreement.59
[33] Ms Dubois rejected the proposition put to her in cross-examination that Mr Crompton’s response was that he would discuss the offer of a swap with Mr Power and get back to her and maintained that Mr Crompton said: “Thanks. I’ll let Mitchell [Power] know. I think we are escalating his transfer anyway”. 60 Ms Dubois did not accept that this was a proposal from BHP to Mr Power 61 or that it was put forward as a means of settling the dispute,62 but rather Ms Dubois conveying BHP’s practice63. Ms Dubois said that she was conveying the information because she had committed to doing so at the SLC on 19 March 2019.64
[34] In response to questions from me, Ms Dubois accepted the following propositions:
• The parties were having a dispute because Mr Power wanted to get back to Blackwater; 65
• The mechanism that was being relied upon by the CFMMEU was the purported right to return under clause 8.4 of the Agreement; 66
• The proposal put by Mr Crompton in relation to a possible job swap was a different proposal to resolve the dispute about Mr Power going back to Blackwater; 67
• In undertaking to respond to the different proposal, Ms Dubois was undertaking to come back to Mr Crompton on the proposal about a job swap; 68
• This discussion was not a general discussion about a job swap but was a proposal to resolve Mr Power’s dispute another way; 69 and
• This all occurred in the context of a dispute about Mr Power wanting to go back to Blackwater. 70
[35] While Ms Dubois did accept that the objective of the dispute from the CFMMEU perspective was to get Mr Power back to Blackwater, Ms Dubois maintained that this was not the matter in dispute 71 and that the dispute was about the right to return under clause 8.4 of the Agreement.72 Ms Dubois said that she is not aware of a situation where a job swap has operated by way of an offer by BHP and acceptance by an employee.73
[36] Mr Crompton emailed Ms Dubois on 1 April 2019, confirming that the dispute would be escalated to the Commission. Mr Crompton had not, prior to 27 March, previously stated in writing to Ms Dubois that the dispute would be escalated. 74 Ms Dubois received the CFMMEU’s application to the Commission on or around 15 April 2019.
[37] Ms Dubois does not agree that Mr Crompton made an offer to her regarding a swap 75 but accepted that Mr Crompton asked if a swap would be something that BHP would consider76 and that she told Mr Crompton that she would have to get back to him in relation to this.77 Ms Dubois maintained that Mr Crompton did not say that the dispute would not progressed until the option of a swap had been explored.78
[38] At the time of hearing, Ms Dubois estimated that she had been involved in 4 disputes, 79 but Ms Dubois does not know whether it is the CFMMEU’s common practice to confirm their intentions of escalating a dispute in writing.80
CFMMEU
[39] The CFMMEU’s position is that the application was made to the Commission within the timeframe set by clause 37.10(d) and that consequently, the Commission has jurisdiction to deal with the dispute in accordance with the disputes procedure. The CFMMEU maintains that the 14 day time frame ran from the point at which the Union informed BHP that the matter would be referred to the Commission – 1 April 2019.
[40] Mr Grant has been employed by BHP for over 24 years and currently works at the Blackwater mine. Mr Grant is also the CFMMEU Blackwater Lodge Secretary and has been so for approximately 3 years. Mr Grant has also been the Lodge Vice-President, a position he held for approximately 6 years. As a member of the Lodge Executive, Mr Grant has been an employee representative on behalf of members and was involved in negotiations for the 2012 and 2018 Agreements. It has always been Mr Grant’s experience that the 14 days only begins at the time that the dispute has been fully exhausted at the existing level. 81 Attempts at resolution often continue beyond the SLC to allow for further enquiries to be made or to consider proposals made.82
[41] Mr West has been employed by BHP since 2004 and currently works at the Goonyella Riverside mine. Mr West is the CFMMEU Goonyella Riverside Lodge President and has held various Lodge positions since 2008. Mr West has also acted as an employee representative for CFMMEU members in disputes under the 2012 and 2018 Agreements.
[42] Mr West states that it has always been his experience that the 14 day time limit to escalate a dispute commenced when all matters between the parties were exhausted. In a majority of cases, both parties go away from meetings to consider the dispute further. 83 Mr West also provided an example of a dispute evidencing his understanding of the 14 day time frames.
[43] Mr Crompton has been employed by BHP for 12 years and currently works at the Saraji Mine. Mr Crompton is the CFMMEU Saraji Lodge President and has been so for approximately 2 years but has otherwise been involved in an official capacity with the Lodge for 10 years. Mr Crompton attended the SLC on 19 March 2019. Mr Crompton recalls that the dispute was over Mr Power’s request to return to the Blackwater mine, as he had been transferred from there to Saraji on or about November 2016.” 84
[44] Mr Crompton’s recollection of the meeting is as follows:
“This is to the best of my recollection meeting started with conversation on general topics.
We then explained the dispute and reasons for Mitchell returning to Blackwater. [I] recall that I made statements to the effect that I had concerns that the disputes process is not going to get resolved today as the company had a pre-conceived outcome of this meeting.
I recall that we had a discussion over the "organisational structure" at Blackwater and whether or not there were diesel fitter positions open at the Blackwater mine for Mitch Power to transfer from Saraji.
I recall that Jodie stated words to the effect that she was confident that there were 52 permanent roles and that they were not being filled by temporary labour hire but that she would confirm.
After discussing these issues, it became apparent that there was going to be little chance of resolving the issues of whether or there was an increase in the number of permanent roles at Blackwater which would require the company to consider Mr Power's transfer request. The company also did not appear willing to look at other compassionate reasons for transferring him.
In one final attempt to see if we could get a positive resolution of the dispute, I recall making an offer to the company to the effect that if Mitchell could find another employee at Blackwater to do a ‘job swap’ would the company agree to this. As part of this I recall asking for a broad swap and to look at positions such as operating a truck.
I recall that I specifically made it clear to the company representatives that the offer put forward was made in an attempt to resolve the dispute at the "state level" step and that we would not be making any application to the Fair Work Commission until this issue had been explored.
Jodie's response was to the effect that she could not give an answer on that but will get back to us on or about the end of the next week. At this stage, the meeting ended.” 85
[45] About a week later, Mr Crompton spoke to Ms Dubois by telephone. Mr Crompton states in relation to that conversation:
“I recall that on or about a week later, I cannot recall the specific date, I received a call from Jodie in relation to the offer made to settle Mitch Power's dispute. I recall her stating to me words to the effect that if there was an employee at the Blackwater mine performing the same role as Mitchell and willing to swap then they would consider it.
As the offer of a job swap was confined to his role as a fitter and not a wider offer for any role I did not believe it would be possible for Mitchell to find someone to swap and I recall saying words to the effect that I thought it would be difficult and that we would be unlikely to be able settle the dispute on this basis. However, I did state that I would consider the offer with Mitchell and get back to her.” 86
[46] Mr Crompton relayed this response to Mr Power, who stated that he would consider it and make enquiries. Mr Power contacted Mr Crompton “2 days later” to confirm he could not find a person prepared to swap and that he wanted to escalate the dispute to the Commission. On 1 April 2019, Mr Crompton emailed Ms Dubois to indicate that the dispute would be escalated to the Commission. That email was in the following terms:
“Dear Jodie,
Please be advised the CFMEU Saraji Lodge are progressing Mitchell Power’s Dispute to the FWC for Conciliation as per Clause 36.16 of the Workplace Agreement.” 87
[47] Mr Crompton’s evidence at the hearing was that he agreed that he had a conversation with Mr Ferricks in the breezeway after the SLC but maintained that he said that the matter would “probably” or “more than likely” end up in the Commission. Mr Crompton also said that Mr Ferricks was present in the room when the job swap proposal was discussed at the SLC. Further Mr Crompton said that in the telephone conversation with Mr Ferricks on 20 March 2019 he stated that the dispute would probably be escalated but at that stage had not had a response from Ms Dubois in relation to the swap proposal. 88
[48] Under cross-examination Mr Crompton did not depart from his evidence about these matters except that he agreed that Mr Ferricks may have left the room at the point he discussed the job swap proposal. 89 Mr Crompton said that he did not deny having a telephone conversation with Mr Ferricks on 20 March 2019 but maintained that he would not have said that he was taking Mr Power’s dispute to the Commission because he had not yet had a response from Ms Dubois about the job swap. Mr Crompton also said that Mr Ferricks might have misinterpreted what he said.90 Mr Crompton agreed that the majority of Ms Dubois’ statement in relation to what was discussed at the SLC was correct and that the dispute was about whether Mr Power had a right to return to Blackwater under clause 8.4 of the Agreement on the basis of the increase in crew numbers in the area that Mr Power came from. Further, Mr Crompton did not dispute that the date upon which Ms Dubois contacted him and advised him of BHP’s policy in relation to job swaps was 27 March 2019.
[49] In re-examination Mr Crompton said that while the dispute was in relation to clause 8.4 of the Agreement, the ultimate outcome sought was that Mr Power be redeployed back to Blackwater either in the capacity in which he was originally employed at that mine or in some other capacity with re-training. Mr Power sought this due to his personal circumstances involving his partner and his child. Mr Crompton said that he put the job swap proposal forward to try and resolve the dispute without escalating it and the proposal was a genuine offer to investigate whether this could occur. Mr Crompton maintained that it was his understanding when he left the meeting that Ms Dubois on behalf of the Company was going to get back to the Union after she had investigated the matter including budgeted crew numbers. Mr Crompton said that he considered that the matter was unresolved at this stage and that there had never been a dispute where the Union got an answer on the day of the SLC. Usually the Union gave the Company an opportunity to come back with an answer before deciding whether the dispute was resolved or not.
SUBMISSIONS
[50] BHP referred to the principles applicable to the construction of enterprise agreements set out in the Full Bench Decision in “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Berri Pty Ltd 91and submitted that when those principles were applied to the provision subject of the present case, the correct interpretation is that the period of 14 calendar days in clause 37.10(d) begins to run from the date of the SLC rather than the date on which the CFMMEU considers that the matter is unresolved.
[51] As previously noted, BHP subsequently accepted that a SLC does not necessarily finish on the day of the meeting and that whether a SLC finishes on the day of the meeting or a later day depends on the circumstances of how the meeting concludes. In its oral submissions BHP said that the matter in dispute is whether the Commission has jurisdiction under clause 37 of the Agreement to hear and determine a dispute in relation to clause 8.4 of the Agreement. The dispute is about whether Mr Power had a right to return to Blackwater Mine under that clause. Clause 37.10(d) of the Agreement provides that when a matter – which can only be the matter in dispute – “remains unresolved” after completion of other stages in clause 37.10, the Company, the employee or the employee representative may refer the matter in writing to the Commission within 14 calendar days. The employee can make the decision to refer the dispute for conciliation in the first instance.
[52] BHP submits that in the present case, there is no doubt that the dispute was unresolved at the SLC as is apparent from the evidence of Ms Chauncy, Mr Ferricks and Ms Dubois. It is also submitted that the evidence establishes that Mr Pierce was of the view that the matter was not resolved at the SLC. In circumstances where the CFMMEU had not called Mr Pierce or Mr Power to give evidence, then the Company’s evidence should be preferred over that of Mr Crompton. Further, it was submitted that Ms Dubois’ evidence was corroborated on every single point by Mr Crompton with the exception of whether the SLC had concluded on 19 March 2019. At the conclusion of the SLC when Ms Dubois said to the CFMMEU “it is over to you”, Mr Pierce said that he understood that the matter was not resolved and hung up the phone, and when Mr Ferricks left the room where the SLC had been held, the Union knew its rights under the Agreement.
[53] During oral submissions, I put the proposition to Mr Coonan for BHP that it was arguable that at the conclusion of the SLC Mr Crompton attempted to resolve the dispute by other means and proposed that the CFMMEU using its own member contacts would explore a job swap between Mr Power and another employee at Blackwater. Mr Coonan maintained that Ms Dubois’ evidence made it clear that finding a person to swap with was only one step and a swap could not be implemented without the Company’s agreement. Further, Mr Coonan submitted that the evidence about the chronology of events does not support this proposition. Ms Dubois got back to Mr Crompton in relation to the job swap matter on 27 March 2019. Mr Crompton then spoke to Mr Power on 27 March and on 29 March Mr Power informed Mr Crompton that he wanted to escalate the dispute. In this regard Mr Coonan submitted that there is uncontroverted evidence that on 29 March 2019 Mr Power told Mr Crompton that the swap was not going to work for him and that he was not going to bother to try and find someone to swap jobs with. Further, the evidence establishes that Mr Power told Mr Crompton on that date that he wanted to escalate the dispute.
[54] Mr Coonan submitted that if the matter was not resolved at the conclusion of the SLC, time did not start to run from when the Union decided to escalate the matter but rather when Mr Power requested that this step be taken. The uncontested evidence establishes that this occurred on 29 March 2019. The dispute was not lodged with the Commission within 14 days of 29 March and the Dispute Settlement Procedure was not followed. As a result, the Commission does not have jurisdiction to deal with the dispute and the application should be disposed of on that basis.
[55] In its written submissions the CFMMEU submitted that the 14 day period commences when the employee who has raised the dispute considers that it is unresolved. This is said to flow from the language of the clause which directly refers to the employee as being the person aggrieved and who considers that the matter is unresolved. This is carried through each stage of the procedure and triggers the next stage. At the hearing the CFMMEU submitted that the 14 day time frame commenced when the Union as a representative of Mr Power informed the Company by email that the dispute remained unresolved. On 19 March 2019 Mr Crompton proposed a pathway or made an offer to resolve the dispute. On that date a position was put by the Union to resolve the dispute which included the entire factual matrix and in particular Mr Power’s personal circumstances. On 27 March 2019 there was still a possibility of resolving the dispute if Mr Power found a person to swap jobs with and the Company agreed to the swap.
[56] On 29 March 2019 there was a conversation between Mr Power and Mr Crompton as his representative. This was not a definitive position but rather an internal deliberation between the employee and his representative. It was not until 1 April 2019 when Mr Crompton communicated with the Company that the SLC step was completed. According to the CFMMEU that step was not completed until the representative informed the other party that the matter remained unresolved.
[57] In response to the proposition put by me during submissions, that the practical effect that if the Union delayed informing BHP that a matter was unresolved, then a delay could be indefinite, Mr Newman said that the this had not occurred in the current case and the Union had acted quickly to inform the Company that the dispute was not resolved and had notified the Commission of the dispute within the required time. Mr Newman further submitted that in the present case the 14 day period started to run from when Mr Crompton emailed Ms Dubois on 1 April and stated that the dispute was unresolved. The relevant discussion for the purposes of the 14 day time frame was the discussion between Mr Crompton and Ms Dubois rather than the private conversation between Mr Power and his representative Mr Crompton.
[58] In response Mr Coonan submitted that to adopt the construction contended for by the CFMMEU would destroy the effect of the time limit and the purpose of the clause. It was also submitted that the words of the clause make it clear that the 14 day period commenced when the dispute was not resolved and not when the CFMMEU informed the Company of this.
CONSIDERATION
The approach to construction of enterprise agreements
[59] The approach to construing enterprise agreements was set out in a Decision of a Full Bench of the Commission in “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Berri Pty Ltd (Berri) 92 as follows:
“1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:
(i) the text of the agreement viewed as a whole;
(ii) the disputed provision’s place and arrangement in the agreement;
(iii) the legislative context under which the agreement was made and in which it operates.
2. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.
3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.
4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.
5. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.
6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.
7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.
8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aid the interpretation of the agreement.
11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.
12. Evidence of objective background facts will include:
(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;
(ii) notorious facts of which knowledge is to be presumed; and
(iii) evidence of matters in common contemplation and constituting a common assumption.
13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.
14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.
15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.”
The construction of the Agreement in the present case
[60] Applying the approach in Berri the clause of the Agreement on which the dispute centres – clause 37.10(d) – operates where the matter remains unresolved after completion of the other stages in clause 37.10. The term is composite in the sense that the language does not suggest a two-stage process where it is firstly determined that the SLC stage of the process has been completed and then that the matter which has been discussed at the SLC is not resolved. I do not accept on the plain language in clause 37.10(d) that the point at which a matter is not resolved is at the discretion of the employee who initiated the matter or their representative subsequent to the completion of the SLC stage of the Dispute Settlement Procedure.
[61] The SLC stage of the Dispute Settlement Procedure is dealt with in clause 37.10(c) of the Agreement. It includes but is not limited to a meeting of the nominated persons referred to as a State Level Conference. The stage of the Dispute Settlement Procedure encompassed in clause 37.10(c) does not preclude other discussions both before and after the SLC meeting, nor does it stipulate that the SLC concludes at the end of the day on which it takes place or even the last day on which it takes place. I accept – as the parties have agreed – that the question of when the SLC stage of the Procedure is completed depends on the facts and circumstances in each case.
[62] There will be some cases where the SLC stage of the Procedure is completed on the day (or last day) that the SLC is conducted. There will be other cases where one or both of the parties are still considering a proposal or solution put forward by the other party. It is also open to the parties to agree that they will hold a further meeting. Where the dispute relates to the operation of specific provisions of the Agreement a possible solution may be discussed at the State Level Conference which does not involve those provisions but is a different means of achieving a desired outcome. It may be necessary for one or other of the parties to consider an offer or proposal made by the other and to revert.
[63] It would be preferable if at the conclusion of a SLC or at some subsequent point, the parties agreed as to whether the SLC stage of the Dispute Settlement Procedure had concluded or whether they were still considering proposals for resolution of the issue discussed at the SLC. It would also be preferable if the parties put a time frame on any such consideration if it was to continue past the meeting of the nominated persons who constitute the SLC. In this regard, clause 37.10(c) does not preclude one or other of the parties indicating a time frame by which a response to a proposal is required or to stipulate that the SLC will conclude no later than a certain date by which a response should be provided.
[64] Where this does not occur, it is necessary to consider the facts as they existed when the meeting (which is an essential part of the SLC stage) ended and the subsequent conduct of the parties, to determine whether the SLC stage of the Dispute Settlement Procedure has concluded so that the time period for the escalation of the matter has commenced.
[65] It is also the case that the plain language of the provision in dispute makes clear that the question of whether a matter is unresolved must be viewed from the perspective of the party who raised the matter. In this regard, clause 37.10(d) provides that where the matter is to be escalated by an employee representative, the representative may refer a matter to the Commission “if requested”. Such a request can only come from the person or persons being represented and the request cannot be made unless the matter is unresolved.
[66] I do not accept that the time frame in clause 37.10(d) commences when the employee in dispute or the CFMMEU as representative informs the Company that the matter is not resolved and that it will be referred to the Commission. There is no requirement in the clause for such notification to be provided. The time frame commences when the matter is not resolved from the perspective of the employee or employees who have raised it.
[67] Where there is a dispute about when that point is reached, then the context of the provision also favours a construction that the relevant point is determined on an objective basis on the facts at the time rather than subjectively on the basis of the stated views or position of either the person who raised the issue or the person’s representative, advised to the other party at some point after SLC meeting.
[68] An objective approach to determining whether a matter is unresolved is consistent with the inclusion by the parties of time limits for each step of the Dispute Settlement Procedure. Clauses 37.11 to 37.13 clearly set out the manner in which the time limit operates and the repercussions for both parties if the time limits for progressing or responding to matters are not met. The repercussions where an employee or their representative does not progress the matter within the time limits in clause 37.10 is that BHP is entitled to treat the matter in dispute as being withdrawn.
[69] A construction of the clause to the effect that the 14 calendar day time period operates from the point at which an employee who has raised an issue (or a representative) decides to notify BHP that the matter is not resolved is inconsistent with the time frame in the clause. Such a construction could allow disputes to be parked indefinitely and then escalated at will and would render the time limits of no effect. A construction of the clause which would allow a party or representative to start the time for escalating at the point of notifying the other party that the dispute is not resolved would have a similar effect. Such a construction is inconsistent with the clear intentions of the parties that unresolved matters are to be progressed within specified timeframes.
[70] A further contextual matter supporting the construction I favour is that the parties to the Agreement have empowered the Commission to arbitrate unresolved disputes which are referred to the Commission in accordance with the Dispute Settlement Procedure. I do not accept that either the Company or the CFMMEU intended that maters in dispute could be put in abeyance indefinitely until the initiating party decided to refer the matter to the Commission for conciliation and subsequently arbitration.
Application of the Dispute Settlement Procedure in the present case
[71] In the present case, it is strongly arguable that the SLC stage ended at the conclusion of the meeting on 19 March 2019. Mr Pierce had left the meeting. BHP had not conceded that Mr Power had any right under clause 8.4 of the Agreement to return to Blackwater Mine and had indicated that its position was firm and would not alter.
[72] On the other hand it is equally arguable that Mr Crompton made a last attempt to resolve the matter by proposing a job swap for Mr Power rather than proceeding with the claim that Mr Power had a right to return to Blackwater. While the basis upon which the SLC meeting on 19 March concluded was unclear, on fine balance I accept that discussions about an alternative proposal made by Mr Crompton to resolve the dispute were continuing. If a job swap had been arranged by Mr Power with the assistance of the CFMMEU and accepted by BHP, Mr Power would have achieved his objective of returning to Blackwater Mine without the need to pursue the argument about his right to do so under clause 8.4 of the Agreement. From Mr Crompton’s perspective the proposal was that BHP would provide some flexibility to Mr Power with respect to the swap by not requiring that he swap with an employee in the same role and by accepting that Mr Power may require some training if the swap was with an employee in a different role.
[73] Ms Dubois said in her evidence that this was a “swap proposal” and that she would take it on notice. Further, Mr Crompton’s uncontested evidence was that Ms Dubois’ response to the proposal was to make it clear that the swap would need to be with an employee performing the same role as Mr Power. Ms Dubois gave no evidence about what she said to Mr Power and I accept his evidence on this point. I also accept Mr Crompton’s evidence that he told Ms Dubois that he thought it would be difficult to arrange a job swap in those restricted circumstances but that he would discuss this matter with Mr Power and get back to Ms Dubois.
[74] The uncontested evidence of Ms Dubois is that this discussion took place on 27 March 2019. I accept that at least by this date the time frame in clause 27.10(d) had not commenced to run. There was a chance – albeit slim – that a job swap which would have been acceptable to BMA could have been arranged by Mr Power with the assistance of the CFMMEU through which he could achieve his objective of returning to Blackwater.
[75] All of that changed when Mr Crompton had a discussion with Mr Power. Mr Crompton states that this discussion occurred 2 days after his discussion with Ms Dubois. This means that the discussion between Mr Crompton and Mr Power must have occurred on 29 March 2019. On that date, Mr Power states that Mr Crompton told him that the swap would not be feasible and that he was not going to attempt to find an employee at Blackwater to swap jobs with. While this may have been a private discussion between Mr Crompton and Mr Power, there is evidence before the Commission from Mr Crompton in relation to when the discussion, which he was involved in, occurred and its substance. I accept the evidence and it follows that I must accept that the fact that the matter was not resolved crystallised on 29 March 2019 and the time in which the matter was required to be referred to the Commission commenced to run on that date.
[76] Accordingly, the time limit for the CFMMEU to refer the matter to the Commission expired on 12 April 2019. The matter was not referred to the Commission until 15 April 2019.
CONCLUSION
[77] The matter was not referred to the Commission in accordance with the time required in clause 37.10(d) and by virtue of clause 37.13 BHP is entitled to consider it as withdrawn. Accordingly, the Commission has no jurisdiction to deal with the matter and the application in C2019/2455 must be dismissed. An order to this effect will issue with this Decision.
DEPUTY PRESIDENT
Appearances:
Mr C Newman on behalf of the CFMMEU.
Mr M Coonan of Herbert Smith Freehills on behalf of BHP.
Hearing details:
2019.
4 July.
Brisbane.
Printed by authority of the Commonwealth Government Printer
<PR716063>
1 Witness Statement of Jodie Dubois filed on behalf of the Respondent dated 23 May 2019 – Exhibit R3.
2 Witness Statement of Allison Chauncy filed on behalf of the Respondent dated 23 May 2019 – Exhibit R1.
3 Witness Statement of Ryan Ferricks filed on behalf of the Respondent dated 23 May 2019 – Exhibit R2.
4 Witness Statement of Brad Crompton, unsigned – Exhibit A3.
5 Witness Statement of Simon West, unsigned – Exhibit A2.
6 Witness Statement of Steven Grant dated 6 June 2019 – Exhibit A1.
7 [2013] FWC 8741.
8 Email from Mr Michael Coonan, Partner Herbert Smith Freehills, to the Chambers of Deputy President Asbury, dated 3 July 2019.
9 [2015] FWCFB 5619.
10 [2018] FWCA 2869.
11 Outline of Submissions by the Respondent at paragraph 2.5.
12 Exhibit R1 at paragraph 8.
13 Ibid at paragraph 9.
14 PN77 to PN78.
15 PN79.
16 Exhibit R2 at paragraphs 12 to 18.
17 PN81.
18 PN82.
19 PN81.
20 PN83.
21 PN84.
22 PN87.
23 PN88 to PN89.
24 Ibid at paragraph 19.
25 PN94.
26 PN95; PN97.
27 PN93.
28 PN63 to PN68.
29 PN69 to PN71.
30 PN98.
31 PN99.
32 PN72.
33 PN73.
34 PN74.
35 Exhibit R3 at paragraph 13.
36 Ibid.
37 Ibid at paragraph 19.
38 PN120.
39 Ibid at paragraph 22.
40 PN115 to PN117.
41 Ibid at paragraph 23.
42 Exhibit R3 at paragraph 26; PN125.
43 PN123.
44 PN127 to PN128; PN142.
45 PN129 to PN130.
46 PN147.
47 Exhibit R3 at paragraph 29.
48 PN133.
49 Ibid at paragraph 29.
50 Ibid at paragraph 31.
51 Exhibit R3 at paragraph 32.
52 Exhibit R3 paragraph 33.
53 Exhibit R3 paragraph 34-35.
54 PN182.
55 PN195.
56 PN148.
57 PN173.
58 PN178; PN251 to PN253.
59 PN179.
60 PN215 to PN241.
61 PN203.
62 PN242.
63 PN203.
64 PN243.
65 PN277; PN293.
66 PN279.
67 PN280.
68 PN284.
69 PN286.
70 PN288.
71 PN294.
72 PN296.
73 PN297 to PN298.
74 PN261 to PN267.
75 PN135.
76 PN136
77 PN137 to PN139.
78 PN140.
79 PN268 to PN269; PN271.
80 PN270 to PN274.
81 Exhibit A1 at paragraph 8.
82 Ibid.
83 Exhibit A2 at paragraph 6.
84 Exhibit A3 at paragraph 5.
85 Exhibit A3 at paragraphs 7 to 14.
86 Ibid at paragraphs 15 to 16.
87 Exhibit A3 Annexure “BC-1”.
88 PN328 – 334.
89 PN358 – 368, PN383.
90 PN399 – 404.
91 [2017] FWCFB 3005.
92 [2017] FWCFB 3005.
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