Construction, Forestry, Maritime, Mining and Energy Union v BHP Coal Pty Ltd - [2022] FWC 881

[2022] FWC 881

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

(C2021/2662)

DEPUTY PRESIDENT ASBURY

BRISBANE, 20 APRIL 2022

Alleged dispute about any matters arising under the enterprise agreement and the NES; [s186(6)]

INTRODUCTION

These reasons for decision concern an application by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU/Applicant) under s.739 of the Fair Work Act 2009 (FW Act) seeking that the Fair Work Commission (the Commission) deal with a dispute under the dispute resolution procedure in the BMA Enterprise Agreement 2018 (the 2018 Agreement). The Respondent is BHP Coal Pty Ltd (BHP/Respondent/Company). The 2018 Agreement covers the following mines managed by the BHP Billiton Mitsui Alliance (BMA): Goonyella Riverside Mine; Peak Downs Mine; Saraji Mine; Norwich Park Mine; Gregory Mine; Crinum Mine and Blackwater Mine.

The dispute is about whether a selection process in clause 8.3 of the 2018 Agreement for “all positions”, applies to the selection of trainee dragline operators. The CFMMEU maintains that the dragline traineeships are “positions” to which the process in clause 8.3 applies and that BHP did not apply that clause when it selected persons to undertake traineeships at the Peak Downs Mine in 2021. BHP contends that the provision of dragline training is not a “position” to which clause 8.3 applies and that it is not required to follow the process in that clause when selecting employees for training opportunities.

The matter was not resolved at conciliation and the Commission is empowered to arbitrate the dispute in accordance with the Dispute Settlement Procedure in clause 37 of the Agreement. Initially the CFMMEU sought a determination that BHP apply and comply with clause 8.3 of the 2018 Agreement in future, when it intends to appoint trainee dragline operators. The CFMMEU also sought that the appointments of trainee dragline operator positions made by BHP at the Peak Downs Mine in 2021 be vacated and the positions filled after applying clause 8.3 of the 2018 Agreement.

The parties agreed that the question for determination is: “On the proper construction of the BMA Enterprise Agreement 2018, are the expressions of interest for the dragline training program (howsoever described) to be determined by the application of the selection process at clause 8.3 of the 2018 Agreement?”

A hearing was conducted in Mackay for the purpose of taking evidence and for witnesses to be cross-examined and further hearings were conducted in Brisbane, for oral submissions. Consistent with clause 37.18 of the 2018 Agreement, which provides that either party may choose to be represented by a legal practitioner during conciliation or arbitration proceedings, the CFMMEU was represented by Mr G Rebetzke of Counsel instructed by Hall Payne Lawyers and BHP was represented by Mr M Coonan of Herbert Smith Freehills.

Evidence for the CFMMEU was given by:

Mr Scott Leggett, mine employee and CFMMEU Peak Downs Lodge Secretary, from 2006 until 2021;[1]
Mr Nigel Bell, mine employee, Peak Downs;[2]
Mr Danny Kliese, mine employee and President of CFMMEU Peak Downs Lodge since 2012;[3]
Mr Dennis Rose, mine employee, Peak Downs and CFMMEU senior delegate in the dragline area;[4]
Mr Peter Jones, mine employee and trainer/assessor dragline area;[5]
Mr Mark Brodie, mine employee;[6]
Mr Bradley Crompton mine employee Saraji Mine and President of CFMMEU Saraji Mine Lodge;[7] and
Mr Glenn Rennick, mine employee Saraji Mine.[8]

Evidence for BHP was given by:

Mr Vaughan Abrams, Overburden Manager at Blackwater Mine and previously employed in various positions at Saraji Mine, and South Walker Creek Mine;[9]
Mr Tyson Hammer, Dragline Superintendent Peak Downs Mine and previously employed in various positions at the Goonyella Riverside Mine;[10] and
Mr Greg Hamilton, Manager Talent Acquisition (Projects) and previously employed in Human Resource Management Positions, including at the Saraji Mine.[11]

While the present dispute relates to the 2018 Agreement, references were made in the evidence and submissions to other Agreements as follows and a bundle of those Agreements was tendered by the CFMMEU:

Peak Downs Mine Enterprise Agreement 1998 (1998 Peak Downs Agreement);
BHP Coal Enterprise Agreement 2001 (2001 Agreement);
BHP Coal Pty Ltd Enterprise Agreement (2004 Agreement);
BHP Coal Pty Ltd Workplace Agreement 2007 (2007 Agreement); and
BMA Enterprise Agreement 2012 (2012 Agreement).

In a decision issued on 7 March 2022, I answered the question for arbitration in the affirmative and found that the expressions of interest for the dragline training program (howsoever described) are determined by the application of the selection process at clause 8.3 of the 2018 Agreement. These are my reasons for that decision.

RELEVANT PROVISIONS OF 2018 AGREEMENT

Clause 8 of the 2018 Agreement, in which the disputed provision appears, deals with the subject of Career Development and Progression. It is necessary to set out that clause in full, as follows:

8 Career Development and Progression

8.1 Development

The Company is committed to ensuring that all Employees have equitable access to training and development opportunities, in order to provide job security, job satisfaction, workplace flexibility and increased productivity. The Company will:

(a) Make information available to all Employees about the requirements of each position on the Mine and the potential career paths that will enable progression to each role;

(b) Identify for Employees the training available to attain the required skills to facilitate progression within the various career paths so that Employees can assess their skill needs against the designated skill requirements for their preferred path;
(c) Offer the relevant courses in accordance with a training calendar published annually. Such courses may be classroom-based, on-line, computer-based, onthe-job or self-paced distance learning;
(d) Have a transparent process to identify the Employees who will receive training or be provided with other career development opportunities in recognition of their performance, aptitude, attendance and length of service with the Company and Individual Development and Performance Review (IDPR) assessments (as outlined in clause 36);

(e) Explore other learning and development tools that are available which enhance career opportunities for Employees;
(f) In accordance with 8.1(d), fast-track training opportunities for Employees who aspire to become an OCE, ERZ Controller or Dragline Operator or other positions where the Company identifies that shortages have occurred or are likely to occur. Where the Company assesses such Employees as being suitable for appointment to these positions or other positions requiring critical skills, the Company will provide such training over a reasonable period to make the Employees ‘job-ready’;
(g) Provide preference to Employees covered by the Agreement for any development opportunities that arise over any labour hire and contractor employees, subject only to operational requirements, such as where there is an identified immediate need for a particular skill; and
(h) Include apprenticeships as development opportunities that may be offered to existing Employees, in addition to those offered to school-leavers.

8.2 Career Progression

The Company is committed to addressing Employees’ career aspirations and will give preference to Employees by:
(a) Inviting expressions of interest for current roles or future opportunities (via a designated noticeboard in each Functional Work Area) from Employees at the Mine who have acquired a majority of the necessary skills for a position prior to the Company advertising the position externally.
(b) Assessing any expressions of interest and where there is a single candidate assessed by the Company as being suitable for the role, appointing that candidate directly to the role. Where there are multiple candidates assessed by the Company as being suitable for the role, they will be shortlisted, invited to submit a formal application and interviewed in accordance with clause 8.3.
(c) Advising all successful internal candidates that their application for the position has been successful. Once successful candidates have been advised, the Company may advertise the position externally while the formal appointment process is being conducted.
(d) Offering unsuccessful candidates with feedback to assist them in pursuing future opportunities. Where there are no internal candidates assessed as suitable for a role, the Company may advertise the position externally. However, nothing in this clause prevents any Employee from applying for any role that is advertised externally.
(e) Providing preference to Employees to move into the roles of OCEs, ERZ Controllers and Dragline Operators or other positions where shortages have occurred or are likely to occur where they have undertaken the necessary training and meet the criteria for the position, in accordance with clause 8.1(f).

8.3 Selection Process for internal and external candidates

It is acknowledged that the purpose of this clause 8.3 is to facilitate quick selection decisions. All Parties are committed to completion of this process in the most expedient timeframe possible.

(a) The Company will establish a panel or panels to undertake interviews of suitable candidates as identified by the Company for all positions.

(b) A Panel will include:
(1) an Employee or Employees; and
(2) Company representatives; who are knowledgeable about the particular role to be filled and available at the interview time.

(c) Any Employee to be included on a Panel will be selected by the Company from a pool of Employees:
(1) who have been, or will be, suitably-trained in interviewing, in a training program nominated by the Company; and

(2) which consists of Employees who have been elected by Employees in each Functional Work Area specifically for the purpose of conducting interviews.

(d) After the suitable candidates have been interviewed, the Panel conducting the interviews will recommend the preferred candidate, who may be either an internal or external candidate, on the basis of best person for the job.

(e) For the avoidance of doubt the departmental manager or their nominated representative will be responsible for making the final decision about filling a position. Where the departmental manager or their nominated representative elects not to accept a Panel’s recommendation, he or she will discuss his or her reasons with a Panel.
(f) An Employee who is an unsuccessful candidate will be provided with relevant feedback on the reasons why they were not selected for the position.
(g) No Employee will be required to undergo any psychometric or aptitude testing.
(h) In the event that an Employee is forcibly retrenched, if they apply for a future vacant position at any Mine, they will be guaranteed an interview.
(i) Where an existing Employee is successful through this selection process and is required to relocate from a Mine in one township (eg Moranbah) to a Mine in another township (eg Dysart), the Employee will be eligible to be relocated at the Company’s expense by a service provider nominated by the Company.

This clause 8.3 does not apply where Apprentices employed by the Company are hired as permanent Employees following the completion of their training contract.

8.4 Preference for Employees to return to previous jobs

(a) Where:

(1) a piece of equipment is parked-up and that particular piece of equipment is to be returned to production; or

(2)employees are moved from seven day roster to five day roster and that part of the operation is to revert back to seven day roster; or

(3) employees are moved out of their functional work area for operational reasons and there is subsequently an increase in crew numbers in their original functional work area, the Employees who have been displaced will, within three years of their displacement, have first right to return to the relevant positions provided that they have the necessary skills mix and proficiency or the ability to regain proficiency in a reasonable period of time.

(b) Where there is a greater number of returning Employees than positions, the recruitment process will be used to determine the Employees to return to the equipment or roster based on merit.”

CFMMEU EVIDENCE AND SUBMISSIONS

Evidence

Selection for the dragline traineeship program

Mr Brodie, Mr Kliese, Mr Bell and Mr Leggett gave evidence of their selection to participate in the dragline traineeship program at the Peak Downs Mine. Mr Kliese applied for a position as a dragline operator in 1998 but was unsuccessful. In or around early 2004, BHP called for expressions of interest for positions in the inaugural dragline traineeship program by posting notices on noticeboards in all areas of the Mine. Mr Kliese expressed interest and was shortlisted as a candidate for a position in the program. Mr Kliese was told by the then Dragline Superintendent Mr Medrizki that 16 candidates were shortlisted. After being shortlisted, Mr Kliese did a psychometric test, which he passed.

After the psychometric test Mr Kliese did a bulldozer test which took about six hours and required candidates to cut a road from the dragline to the coal pit, then to the spoil pile, and then build a tank stand. After the bulldozer test, Mr Kliese participated in a panel interview with two company representatives and two union representatives. The company representatives were Mr Medrizki and Mr Graham Perkins (Draglines Foreman later Draglines Superintendent). The Union representatives were Mr Rose (draglines delegate), and another union member whose name Mr Kliese could not remember.

After the interview, Mr Kliese received a call from Mr Medrizki who advised that Mr Kliese had been successful and offered Mr Kliese a position as a dragline trainee. Mr Kliese accepted the offer on the phone. He does not recall if this was followed by anything in writing. Mr Kliese stated that he was one of four trainees ultimately selected for a position in the inaugural traineeship program. Mr Kliese’s traineeship was for a fixed period of 2 years.

Mr Kliese completed the traineeship in 2006 and then between 2006 and 2008 worked on the dozer push, assisting the draglines by doing earthwork to keep the benches level so that draglines are stable and able to do their dig sequences. Mr Kliese also filled in as a dragline operator when needed. When a permanent position for a dragline operator opened up during 2008, Mr Kliese applied for it. The vacancy was advertised on the Mine’s noticeboards, and Mr Kliese applied by handing an application in to the Draglines Superintendent.

After handing in the application, Mr Kliese participated in a targeted selection panel interview, which included employee representatives, in accordance with the enterprise agreement that was in force at the time. He was not required to do a bulldozer test. Afterwards, the Superintendent told Mr Kliese that he was successful and Mr Kliese signed and returned a letter of offer. Mr Kliese has been working as a dragline operator since then.

Mr Brodie applied for a dragline traineeship in around 2009 but withdrew his application before shortlisting commenced as he wanted to remain on a permanent day shift. Mr Brodie said that BHP did not call for expressions of interest for dragline traineeships again until about 2015. Mr Brodie understood from discussions around site at the time and on past practice that there would be 8 vacancies available (two on each crew). After being shortlisted for this program, Mr Brodie had an informal conversation with his existing superintendent, to ascertain what Mr Brodie’s intentions were and how it would affect his department moving forward.

Mr Brodie then attended another interview, with a panel consisting of Mr Dennis Rose, Targeted Selection Representative, Mr John Marr, Supervisor of C Crew of Draglines and Mr Darren McFarlane, Supervisor of D Crew of Draglines. The interview lasted for 20 minutes, and Mr Brodie was asked questions in relation to work he had done previously, safety and the draglines. After the panel interview, Mr Brodie, along with 10 – 12 operators, was asked to do a practical bulldozer test. Mr Brodie recalled being required to do 3 specific tasks with the bulldozer and was scored by the observers. The same persons who were present at the interview observed the bulldozer test.

After the bulldozer test, Mr Brodie was advised that that he was successful in obtaining a traineeship position. Mr Brodie accepted the opportunity and received a letter of offer stating that he remained as a permanent Mine Service employee and that the dragline traineeship position was for a temporary period of 2 years. There were 8 trainees in Mr Brodie’s dragline traineeship program intake, including Mr Brodie with two trainees on each of the four crews.

Mr Brodie completed a two-year traineeship, after which he continued to work on draglines and did not return to Mine Services. After a year of working in draglines, Mr Brodie formally released his role in Mine Services and permanently transferred to draglines. There was no interview or selection process involved. Mr Brodie did not receive a letter of offer but was told that the Mine’s organisational chart had been updated to reflect his permanent move to draglines.

Mr Bell started working at Peak Downs Mine as a Mine employee in the Coal Mining Department on 8 September 2008. Although Mr Bell continues to hold the title of Mine employee, he now works as a Dragline Operator and is engaged under the 2018 Agreement. Mr Bell first applied for the Dragline Traineeship position in 2010, and received an offer which he declined, because the traineeship requirements were inconsistent with his responsibilities as a carer for his wife, which required him to work dayshift while the traineeship would have required that he work day and night shifts.

In 2015, BHP called for expressions of interest for positions in the dragline traineeship program that was to run that year using the noticeboards around the Mine. Mr Bell completed an application form including details of his work history, and skills, but did not retain a copy of the form. Mr Bell was later notified that he had been shortlisted and was required to attend an interview which he understood was a targeted selection panel interview. Mr Bell was told during the panel interview that 16 people were shortlisted for 8 traineeship positions. Mr Bell recalled that the targeted selection panel at his interview consisted of Mr Darren McFarlan, Acting Superintendent Draglines, Mr Marr, C Crew Supervisor (draglines), and Mr Rose, draglines Union delegate. After the interview, Mr Bell had to do a bulldozer test which took about an hour. During that time, he had to build a tank stand, cover a spoil, and cut a track. The same people that interviewed Mr Bell assessed him during the bulldozer test.

A few months later, Mr Bell received a letter of offer for a trainee position from the Dragline Superintendent, Mr Gary Hughes and while Mr Bell does not have a copy of the letter he remembers that it said that the position was for a fixed term of 2 years, he would be reporting to Mr Marr, and there was no guarantee of job in the draglines department at the end of the traineeship.

In late 2017 when Mr Bell finished the dragline traineeship, there was a manpower shortage in the draglines department at the Peak Downs Mine and Mr Bell was told that he would be staying in the draglines department and working as a dragline operator. Mr Bell did not receive a new letter of offer but one of the dragline supervisors, told him that the Peak Downs Mine’s organisation structure had been updated to reflect the fact that he was now permanently in draglines. Mr Bell has remained working in the draglines area since then.

Mr Leggett was that he was selected for a position in the dragline traineeship program in 2005 or 2006. He recalled that the company put a notice on the main noticeboard in the breezeway calling for expressions of interest. Mr Leggett said he was also approached by one of the dragline supervisors at the time, about applying for the traineeship. After applying, Mr Leggett was shortlisted and went through a targeted selection process which he understood was set out in clause 15.1 of the 2004 Agreement.

Mr Leggett was interviewed by a supervisor from draglines department, Mr John Dickson, and two employee representatives, one of whom was Mr Rose. Mr Leggett was selected for the traineeship position and received a letter of offer. Mr Leggett did not keep a copy of that letter but said that it stated that it was a traineeship position, what crew and roster he would be on, what his remuneration would be, the start and finish dates, and the Company’s expectations with respect to competencies being reached by certain times. The letter made it clear that the traineeship position was not a permanent position and that after he completed it, Mr Leggett would be sent back to his nominal department.

Mr Leggett’s position in the traineeship program went for about two years. For the duration of those two years Mr Leggett’s entire job was dragline trainee and he did no other work. After completing the traineeship, Mr Leggett returned to the coal mining department from which he had been seconded and worked in that area for 6 to 12 months before some positions opened in the draglines area which were advertised at the Mine. Mr Leggett applied for a permanent position in draglines in 2009 and had to go through a targeted selection process similar to the trainee selection process. He recalled there were three applicants, including himself, for two positions. By that time, the process that was followed was set out in clause 15.1 of the 2007 Agreement+. Mr Leggett was successful in securing a position as a Dragline Operator from then onwards.

On 28 September 2012, Mr Leggett received his Open Cut Examiners (OCE) Certificate of Competency and in mid-2013 he was appointed as an OCE at the Mine. Mr Leggett has not worked on draglines since then.

Dragline training

Mr Brodie, Mr Kliese Mr Leggett and Mr Bell also gave evidence about the way that dragline raining is conducted under the traineeship program. The dragline is normally operated by a team of two, where one is in the operator’s seat and the other carries out other tasks around the draglines, as required. The two team members swap roles throughout the day so that one person is always in the seat. When there is a trainee working on the machine, the staffing changes as there are then three people in the team. One is the normal operator, another is an operator that also acts as a trainer, and the third is the trainee. The trainer and trainee are always together for the first several months of the program and do the work that one operator would usually do.

Trainees commence doing work such as ground and cable work and watching the trainer operate the dragline. After a few months, trainees operate the dragline for short periods of around 10 – 20 minutes at a time. Evidence was given that operating a dragline requires a lot of knowledge and awareness of things like spoil placement, dig sequences, and bench stability. There are also two hand and two feet controls which take some time to get used to. After several months, trainees work up to doing a few hours of operating at a time.

After a period, trainees are signed off as only requiring minimal supervision, which means that while they have a trainer, the trainer does not need to watch at all times, and only needs to be within two-way range of the trainee. Mr Leggett said that in order to be signed off for minimal supervision, Mr Leggett needed to demonstrate 75% of the productivity of an average dragline operator within six months of starting the training. Mr Leggett said that to be signed off as competent at the end of the traineeship, he had to demonstrate 90% of the productivity of an average dragline operator.

In addition to the practical work on the job training, trainees undertake written modules and assessment. Mr Brodie said that the assessment consisted of 30 or 40 questions, and the trainer would also put him through two full scenarios where he had to demonstrate all the relevant competencies. At the completion of the training, Mr Brodie obtained a dragline ticket. Mr Kliese said that during the traineeship, he was sent to Brisbane twice to do dragline training for 3 days at a time. This component of the traineeship program ceased after Mr Kliese finished the program.

Evidence was also given that employees who undertook the dragline traineeship understood that upon completion the qualification is recognised in all coal mines and the ticket is recorded on the employee’s training transcript. Mr Rennick estimated that only about 20% of dragline trainees end up going back to their original department after completing the training. This is because, at the Saraji Mine, there is too much demand for their skills.

Participation of elected employees on selection panels for dragline traineeships

A number of CFMMEU witnesses gave evidence of having participated on selection panels for dragline traineeships, as elected representatives of employees, at the Peak Downs and Saraji Mines. Mr Rose was selected to be trained as a Dragline Operator in the late 1980s or early 1990s. After applying to be trained, Mr Rose was offered the training position without an interview or any tests. According to Mr Rose, employee representatives started being used on selection panels at the Peak Downs Mine under clause 2.10 of the 1998 Peak Downs Agreement. However, Mr Rose was not involved in the selection panels at that time. In or around 2001, the Respondent started using a selection process for the selection of all positions in accordance with clause 6 of the Peak Downs Schedule of the 2001 Agreement.

Mr Rose explained that the selection process at that time required that candidates be interviewed by a targeted selection panel which included two employee representatives and two company representatives. He recalled that one of the employee representatives between 2001 and 2004 was a union delegate, Mr Kevin McGuire but does not recall the name of the other employee representatives at that time. Mr Rose started acting as an employee representative on targeted selection panels in around 2004. For every intake of dragline trainees between 2004 and 2020, Mr Rose recalled the selection process consisted of:

· the company calling for expressions of interest in the traineeship program on noticeboards around the Mine;
· a number of workers being shortlisted;
· a targeted selection panel interview; and
· a practical bulldozer test.

Mr Rose participated in almost every targeted selection panel interview for the dragline traineeship positions between 2004 and 2020, except for a few interviews in 2015. He explained that typically, the number of workers that were shortlisted for a position in any given intake was around twice that of traineeship program vacancies that existed. Mr Rose was never involved in shortlisting candidates. The panel interview consisted of one or two employee representatives (subject to the requirements of the agreement in place at the time), including Mr Rose and Company representatives, usually supervisors from the draglines area. After the panel interview, the panel members would discuss the candidates’ suitability for the traineeship program and score each of them on a scale of one to five. It was Mr Rose’s experience that the employee and employer representatives usually reached a consensus about the candidates.

After the interview stage, there would be a bulldozer test. According to Mr Rose, the bulldozer test has always been an important part of the selection process for dragline trainees because dragline trainees and operators are required to operate bulldozers in and around the draglines. Mr Rose explained that it takes a higher degree of skill and competence to operate a bulldozer in and around the draglines than it does in other areas of the Mine. Other than a dispute between the CFMMEU and BHP in or around 2007 in relation to the use of psychometric testing as a part of the selection process for dragline trainees, it has been Mr Rose’s experience that the selection process used for selecting dragline trainees has been used without issue and has worked well.

Mr Rose understood that the recruitment process set out in clause 8.3 of the 2018 Agreement, and predecessor agreements, applies to the recruitment and selection of dragline trainees. This understanding is based on his reading of clause 8.3 and his experience as an employee representative on targeted selection panels for positions in the draglines department of the Peak Downs Mine since around 2004. Clause 8.3 of the 2012 Agreement and the 2018 Agreement are substantially the same and Mr Rose does not recall clause 8.3 being an issue around the time of the ballot for the 2018 Agreement. That clause was not mentioned in the materials that the Company distributed to workers about the 2018 Agreement and Mr Rose was not told by the company that clause 8.3 would not apply to the dragline traineeships.

Mr Bell was elected in 2019 by other members of the Peak Downs Lodge, to sit on the targeted selection panel as an employee representative. Mr Bell understands that the selection process contained in the 2018 Agreement applies to the selection of dragline trainees in the same way that it does for the selection of any other position at the Peak Downs Mine. Mr Bell is of the view that the selection process that was used to select him as dragline trainee in 2015 should continue to apply to the future recruitment of dragline trainees.

Mr Rennick is currently a dragline operator and is engaged under the 2018 Agreement. In around 2012, all four dragline crews at Saraji elected Mr Rennick to be the employee representative for targeted selection panels. He clarified that “employee representative” meant that he fulfilled the role of “Employee” for the purposes of clause 8.3(b)(1) and (c) of the 2018 Agreement. After being elected, Mr Rennick completed training run by the Company about interviewing, which was conducted in Moranbah, in around 2012. When Mr Rennick started sitting on the targeted selection panels, there were two elected employees on the panel – Mr Rennick and Mr Bashford. From around 2012, Mr Rennick was the only employee on the panels.

In relation to Mr Abrams’ evidence that the dragline training program had not been running at Saraji for a number of years, Mr Rennick’s understanding, based on his own observation, is that the Company has relied extensively on labour hire workers to fill gaps. With respect to the 2012 intake of dragline trainees in which Mr Rennick was directly involved, the process used to select the trainees was as follows:

· a call for expressions of interest;
· a shortlist of candidates being prepared by the Company;
· the shortlisted candidates doing a bulldozer test; and
· the shortlisted candidates being interviewed by a panel consisting of the draglines superintendent, a dragline supervisor, and 2 draglines employees that were elected by other employees from the dragline area.

Mr Rennick recalled that the dragline superintendent responsible for the process, Mr Martin Greenhalgh, wanted to use one rather than two elected employees on the panel for the targeted selection interviews of the dragline traineeship candidates. Mr Rennick said that he and Mr Greenhalgh took the matter to the onsite human resources office and explained the issue and were advised that the matter would be referred to Mr Greg Hamilton, who was a senior human resources employee. Subsequently, Mr Rennick was informed that Mr Hamilton’s advice was that they had to use two elected employee representatives in accordance with the 2007 Agreement and this was the process followed for that intake in 2012.

In oral evidence at the hearing, Mr Rennick responded to Mr Hamilton’s evidence that BHP did not use targeted selection panels for 2 intakes into the dragline training program at Saraji in 2009 and 2012 respectively. Mr Rennick produced documents he found after being shown Mr Hamilton’s statement, consisting of interview records and records of dozer tests conducted for applicants. There were records of 12 interviews conducted in February 2012 on various dates. The records are on BMA letterhead and headed “Dragline Trainee Program” and are in relation to “Opportunity: Dragline Training Program – Saraji Mine”. The forms include the names of the people on the interview panel – “Marty, Basher, Herb” – who are respectively Mr Martin Greenhalgh the Dragline Superintendent; Mr Rick Bashford and Mr Rennick [Herb] who were employee representatives on the panel. The interview records include a series of questions which were asked of each candidate. The introduction on the form – presumably for the purposes of panel members explaining the process to interview attendees – is as follows:

“Thankyou for meeting with us today! Please remember to take your time while answering the questions and try and think of relevant examples to give us in regards to each question.
through this interview we are trying to determine whether or not you are the right person for this position and that you have the skills, experience, learning ability and motivation to successfully complete this program.”[12]

The bundle of documents also contains records of practical testing whereby participants were asked to use a dozer to level an area as quickly as possible and to cut an access ramp. Mr Rennick also tendered his diary from 2012 in which he recorded a discussion with Mr Bashford to the effect that Mr Greenhalgh was not going to involve them in the selection process. The diary has an entry for 23 January 2012 recording that: “Had disagreement with Marty about two employee reps involved in the interview process. Went to HR to sort issue out and Marty was told to follow the EA.”[13]

The 2018 Agreement

Mr Brodie said that he first read clause 8.3 of the 2018 Agreement when it was part of the 2012 Agreement and understood that clause 8.3 of the 2018 Agreement is the same, or substantially the same, as clause 8.3 of the 2012 Agreement. He understood since that time, the selection process in clause 8.3 applies to the selection of all positions at the mine, including positions in the dragline traineeship program.

Mr Brodie noted the company distributed materials about the 2018 Agreement prior to it being put to ballot. He does not recall those materials making any reference to changes being made with respect to the targeted selection process, including its application to dragline traineeship positions. Mr Brodie recalled attending union meetings around the time and being told that the targeted selection process would remain the same under the 2018 Agreement. Based on what he was told by the company, and the union, during bargaining, Mr Brodie was of the impression that clause 8.3 was not an issue and that no changes were being made.

Mr Kliese understands that clause 8.3 of the 2018 Agreement applies to the selection of dragline trainees in the same way that it has been applied for dragline trainees selected under previous agreements. Mr Kliese does not recall clause 8.3 being in dispute at the time the 2018 Agreement was voted on and it was not mentioned in the pre-ballot materials distributed by BHP to workers. On that basis Mr Kliese understands that the application of clause 8.3 would remain the same under the 2018 Agreement as it had previously.

To the best of Mr Kliese’s knowledge, the Company has applied the recruitment process set out in clauses 8.1 to 8.3 of the 2018 Agreement and the clauses that preceded it in previous agreements at the Peak Downs Mine, until the 2021 dragline traineeship intake. This latest program was overseen by Mr Hammer who started as the Draglines Superintendent at the Peak Downs Mine in or around early 2020. The 2021 intake was Mr Hammer’s first as Superintendent. Mr Kliese has never been a member of the targeted selection committee but is aware that Mr Rose and Mr Bell were supposed to sit on the targeted selection committee this year.

The 2021 dispute at Peak Downs

Mr Brodie and Mr Rose gave evidence about the events that gave rise to the present dispute. Mr Brodie said that in late 2020, the company called for expressions of interest for the new Dragline Traineeship positions. After the expressions of interests were called, Mr Hammer, attended one of Mr Brodie’s pre-start meetings. One of the workers at the pre-start meeting asked Mr Hammer: “Can you give us any information about what is happening with the new dragline trainees?”. In response, Mr Hammer advised: “We are going to put four on and then do another four trainees after 12 months or so.” Mr Brodie became aware, at some time after February 2021, that four trainees were selected. When they commenced, Mr Brodie was informed by one of the trainees that he knew two of the next four trainees.

Mr Rose said that he was approached by Mr Hammer in November 2020, to have a conversation about the selection process for the dragline traineeship program. By this time, the call for expressions of interest had already been posted on noticeboards by the Company. Mr Rose said that at that time, the other person that had been appointed as an employee representative for targeted selection panels, Mr Nigel Bell, had availability issues. Mr Hammer said words to the effect of: “We need to organise this targeted selection. We need to get the ball rolling. When are you going to be available to do it?”. Mr Rose said to Mr Hammer: “All you have to do is call me, if Nigel can’t do it that’s fine, I’ve got no problems with that”. Mr Hammer then said that he would get back to Mr Rose about arranging the interviews.

At one point in the conversation, Mr Hammer also raised the topic of the bulldozer test that had previously been used as a part of the selection process for dragline trainees and said: “We’re not going to the dozer test”. Mr Rose asked why, and Mr Hammer said words to the effect of: “Because the dozer test will take too long and I’ve got foremen that can tell me how they are”. Mr Rose replied by saying words to the effect of: “I don’t trust what they say, I think you still need to do the dozer test”.

After that conversation Mr Rose did not hear anything from Mr Hammer about the targeted selection panel interviews. Mr Rose recalled asking Mr Hammer on a number of occasions over the next few months when the interviews of the trainees would be starting, using words to the effect of: “How are the trainees going?”. Mr Rose does not recall exactly how Mr Hammer responded on each occasion but recalled that the responses were either non-committal or that he did not answer Mr Rose’s question. Mr Rose advised that at no time did Mr Hammer tell him that he would not be using the selection process in the 2018 Agreement.

In his evidence in reply, Mr Rose said that the conversation referred to by Mr Hammer in his evidence is the same conversation as Mr Rose outlined in his earlier statement and accepted that the conversation could have occurred in October rather than November 2020. Mr Rose also recalled Mr Hammer stating that he wanted to recruit four trainees, and then another four trainees 6 months after the first lot but that he did not want to have to go through the recruitment process twice, so close together. In response, Mr Rose suggested to Mr Hammer that he could select 8 trainees using one round of targeted selection and then have them do a staggered start, similar to an approach that had been used in the past, so that they did not need to duplicate the targeted section process too close together.

Mr Rose said that he did not know the details about what Mr Hammer had been doing with respect to the recruitment of 9 permanent dragline operators around that time because Mr Bell was the targeted selection representative for that process and that Mr Hammer did not raise it with Mr Rose during the conversation. Mr Rose agreed that Mr Hammer did not use the exact words of “targeted selection” but maintained that is the effect of what he said. To the best of Mr Rose’s recollection, he used the words like “the interview process”. Regardless, Mr Rose said that it was clear to him during and after the conversation, that he was talking about conducting interviews for dragline traineeship positions that would involve employee representatives. Mr Rose maintained that Mr Hammer did raise the subject of bulldozer tests.

Mr Rose disagreed with Mr Hammer that they had no further conversation and recalled a further occasion where Mr Rose was involved in a discussion with Mr Hammer and the topic of the dragline trainees was raised. Mr Rose’s brother, Mr Philip Rose, participated in this conversation and one of them asked Mr Hammer how the dragline trainees were going.

In November 2020, Mr Bell saw on the Peak Downs Mine’s noticeboards that the company was calling for expressions of interest for positions in the dragline traineeship program. After seeing this, Mr Bell did not hear anything from Mr Hammer about the trainee selection and so on a number of occasions between late 2020 and early 2021, Mr Bell asked Mr Hammer what was going to happen with the panel interviews. In late 2020, Mr Bell told Mr Hammer that he would not be able to come in for interviews on his days off because he had to look after his children. Mr Bell advised he told him this because he was aware that he and Mr Rose lived in Mackay and was on a different roster to him. Mr Bell does not recall exactly how Mr Hammer responded but recalled that Mr Hammer indicated this would not be a problem.

In February 2021, Mr Bell found out that the trainees had already been selected without having participated in a bulldozer test or panel interview. Mr Bell approached Mr Hammer and told him that they needed to have a bulldozer test to ensure the trainees could drive a bulldozer. Mr Hammer said, words to the effect of, he “did not have time” for bulldozer tests. Mr Bell replied with words to the effect of, Mr Hammer “needs to make time” for the bulldozer tests. During the same conversation, Mr Bell asked Mr Hammer why he had not done the panel interviews and Mr Hammer said that he had spoken to human resources and had been advised that because the traineeships were not permanent positions, he did not need to hold the targeted selection panel interviews.

Mr Leggett was informed by employees that four dragline trainees had been selected, without the process in clause 8.3 of the 2018 Agreement being followed. On 19 February 2021, Mr Leggett sent a dispute notice to Mr MacGibbon, Manager Production Overburden, alleging that Mr Hammer had failed to comply with clause 8.3 of the 2018 Agreement with respect to the selection of the 2021 dragline trainees.[14] Between 25 February and 1 April 2021, Mr MacGibbon and Mr Leggett exchanged emails about the dispute. On 24 March 2021, Mr Leggett met with Mr MacGibbon to discuss the dispute.[15]

Mr MacGibbon’s position was summarised in an email to Mr Leggett dated 1 April 2021 in which he stated: “I have reviewed your concerns raised and have followed up with Tyson Hammer. I am comfortable with the process Tyson has followed and view that it complies with the requirements of the EA particularly as described in Clause 8”. In response to Mr Hammer’s evidence, Mr Leggett agreed that a number of at-risk workers were not allowed to work at the Mine between around March and October 2020 but also said that most of those workers returned to work by October 2020, before the expressions of interest for the 2021 dragline trainee intake were invited. Mr Leggett is not aware of any issues in November 2020 that made the logistics “too difficult” to conduct dozer tests.

On 5 January 2021, Mr Kliese had a brief conversation with Mr Hammer in which Mr Hammer asked Mr Kliese for information about who was supposed to be involved in the targeted selection panel interview process. According to Mr Kliese, Mr Hammer said words to the effect of: “Who can I use for the interviewing process, not just Dennis [Rose] and Nigel [Bell]?”. Mr Kliese said he told Mr Hammer that Mr Rose and Mr Bell were the only ones that had been voted in by all crews, but that Mr Kliese thought Mr Clinton Druitt “may be able to help out”. At that time, Mr Kliese believed that Mr Hammer was going to follow the process because he had asked this question. Mr Kliese tendered a diary note he made of this conversation.[16]

In late January or early February 2021, Mr Kliese received a telephone call from Mr Bell who told him that four trainees had been selected for the traineeship positions. Mr Kliese was aware that on or around 19 February 2021, Mr Leggett sent an email to Mr Doug McGibbon, Mining Manger, that initiated a dispute about the fact that the 2018 Agreement had not been complied with.

On 23 February 2021, Mr Kliese went to see Mr Hammer about BHP not following clause 8.3 in relation to the selection of the new dragline trainees. Mr Hammer said words to the effect of: “Because they are not full-time jobs, HR said I was right to have done what I did”. Mr Kliese then said words to the effect of “You have broken the agreement” and that he should “just do it right like always”. Mr Hammer then said: “No”, and Mr Kliese ended the conversation by saying words to the effect of “See you in court”. Mr Kliese also tendered a diary note he made of this conversation.[17]

On 23 February 2021, Mr Kliese went to see Mr MacGibbon who confirmed that he had received the dispute that had been initiated by Mr Leggett. Mr Kliese attended a meeting with Mr MacGibbon, Mr Hammer, and Mr Leggett about the dispute. Nothing was resolved at that meeting and Mr MacGibbon told Mr Leggett and Mr Kliese that he would get back to them by email. Mr Kliese confirmed he did not receive an email but understood that Mr MacGibbon did send an email to Mr Leggett.

On 27 April 2021, Mr Kliese attended a state level dispute conference with Ms Jodie Dubois, Principal Employee Relations, Mr Leggett, and Mr Steve Pierce (District Vice President). The matter was not able to resolved and an application was made to the Fair Work Commission soon after. Mr Kliese explained that he did not have a problem with the people that were selected for the dragline traineeship or being involved in their training moving forward. However, he was never notified by the Respondent, or had it explained to him why the process set out in the 2018 Agreement was not followed.

Mr Kliese is aware that at least 15 other suitable candidates were not shortlisted or interviewed. He became aware of this because at least 15 unsuccessful candidates have approached Mr Kliese to discuss the selection process used by the company for the dragline traineeship positions. Mr Kliese believed that the number of unsuccessful candidates would be much greater than 15 and that a lot of very experienced operators that would have otherwise been good candidates did not get an opportunity to attend a panel interview or have their bulldozer skills tested. Mr Kliese also gave evidence about the bull-dozer skills of various trainees.

In response to Mr Hammer’s evidence Mr Kliese provided the following further evidence:

· The superintendent that immediately preceded Mr Hammer had told Mr Kliese that he intended to do an intake of dragline trainees shortly before Mr Hammer commenced as the draglines superintendent in early 2020.

· Mr Kliese confirmed that he had to complete a bulldozer test when he applied for the dragline traineeship, but that he did not have to do another bulldozer test when he applied for a permanent position in draglines after completing the traineeship.

· The conversation between Mr Kliese and Mr Hammer on 5 January 2021, did not occur in the pre-start room but rather in Mr Hammer’s office after a meeting in relation to another matter. During this conversation, Mr Hammer raised the topic of dragline trainees and the conversation occurred as set out in Mr Kliese’s earlier statement.

· Mr Kliese had a brief conversation with Mr Hammer in the pre-start room in or around February 2021, during which Mr Kliese asked if Mr Hammer was going to follow the 2018 Agreement in relation to the selection of the dragline trainees. Mr Hammer replied that he could not interview all 48 of the people that applied.

· Mr Kliese did not expect, or suggest, that Mr Hammer would need to interview every applicant for a dragline traineeship position. Rather, Mr Kliese’s expectation was that he would create a shortlist of approximately 20 candidates and then conduct targeted selection interviews in relation to the shortlisted candidates.

In his oral evidence, Mr Kliese named six of the 15 workers that came him raising issues about the dragline trainee selection process and while unable to remember all relevant names, is confident that there were nine others. In relation to the Step 1 Formal warning Mr Kliese received, referred to by Mr Hammer in his Statement, Mr Kliese and Mr Leggett (who is Mr Kliese’s representative in the matter) said that it is currently the subject of an ongoing dispute.

Mr Jones is an operator and trainer/assessor in the draglines area of the Peak Downs Mine and is employed under the 2018 Agreement. Mr Jones gave evidence in response to Mr Hammer’s witness statement. Mr Jones confirmed he had spoken to Mr Hammer around July 2020 to discuss the selection of dragline trainees. Mr Jones recalled they were in the pre-start room, when Mr Hammer told Mr Jones that he wanted to start selecting the new trainees as soon as possible and would like Mr Jones to participate in the interview process as he wanted someone with a “level head”.

Mr Jones told Mr Hammer that Mr Rose was the elected “target selection guy” for draglines. Mr Jones clarified that when he said “target selection guy” or similar, he meant an employee representative within the meaning of clause 8.3(b)(1) and (c) of the 2018 Agreement. He further told Mr Hammer that Mr Rose should be the one on the target selection panel because he is “not biased” and has “always chosen good candidates for the traineeships in the past”. Mr Hammer then said, words to the effect of, “I don’t want Dennis sitting in on the interview process”. Mr Jones replied that if he did not want to use Mr Rose, then he could use Mr Bell instead because he had also been elected by the workers.

During the same conversation, Mr Hammer said he wanted to follow the process that is in the 2018 Agreement. In response, Mr Jones advised that he was pretty sure that there was something in the Agreement about using target selection guys. Mr Hammer then said he did not have a copy of the 2018 Agreement and asked if Mr Jones knew where he could get a copy because he could not find it on the online portal. Later that day, Mr Jones found a copy of the 2018 Agreement online and emailed it to Mr Hammer. Mr Jones stated that he also informed Mr Hammer, during their conversation, that the bulldozer tests were an important part of selecting dragline trainees. He replied with words to the effect that the bulldozer tests were important but not essential.

Mr Jones said that the next day, he had a follow up conversation with Mr Hammer about the target selection process. Mr Hammer had advised him that “I think I know what you are going to say, but do you want to sit on the interviews?” Mr Jones relied, “Yes, you are right. I won’t be sitting in on the interviews. The only way that could happen is if I was nominated by the workers for the process and trained in how to conduct interviews.” Mr Hammer advised that he knew Mr Jones would say that.

Later during that conversation, Mr Hammer said that clause 8.3 of the 2018 Agreement was the relevant part that applied to the selection of dragline trainees. They both then read through clause 8.3 of the 2018 Agreement together. After reading it, Mr Hammer said “okay, it’s in the agreement black-and-white, I will have to use the target selection guys”. Contrary to what Mr Hammer said in his statement, Mr Jones maintained that Mr Hammer used the term “target selection” during their second conversation. Mr Jones confirmed that he told Mr Rose about his discussion with Mr Hammer but clarified that the discussion with Mr Hammer took place in July 2020 and not October 2020.

Previous agreements

Evidence was also given by witnesses on behalf of the CFMMEU in relation to the selection of dragline trainees under previous agreements. Mr Leggett said that clause 8.3 in the 2012 and 2018 Agreements is similar to clause 15.1 of the 2004 and 2007 Agreements. Clause 15.1 of the 2001 Agreement and clause 6 of the Peak Downs Schedule B to the 2001 Agreement, and clause 2.10 of the 1998 Peak Downs Agreement also relate to the selection processes that were historically used at the Mine and include provision for employee representatives on selection panels. It is Mr Leggett’s view that the selection process set out in clause 8.3 applies to the selection of candidates for the position of dragline trainee. This belief is based on his reading and understanding of the 2018 Agreement, his experience as a bargaining representative since around 2004, and his experience as a dragline trainee program candidate in 2005 or 2006. Mr Leggett was a also bargaining representative for the Union during the enterprise bargaining process that resulted in the 2004, 2007, 2012 and 2018 Agreements.

Mr Leggett confirmed that there have been at least four selection processes for dragline trainees since 2004. To the best of Mr Leggett’s knowledge, these intakes occurred in 2004 (in which Mr Kliese was selected as a trainee), in 2005 or 2006 (where Mr Leggett was selected as a trainee) and 2015 and 2016 (where Mr Bell and Mr Brodie were selected as trainees).

Mr Leggett gave detailed evidence about the provisions of agreements which preceded the 2018 Agreement. While the 1998 Peak Downs Agreement predated Mr Leggett’s employment at the Peak Downs Mine, he is aware that clause 2.10(a) of that agreement concerned internal recruitment and provided as follows:

2.10 Recruitment
(a) Internal

1.Promotions, transfers and training in the normal course of business will be done on merit, not seniority, recognising individual employee skills and the results of their annual performance appraisal.

2.When a vacancy for a position becomes available a review team comprising the relevant Supervisor and 2 employee representatives from the relevant work area (in conjunction with the Human Resources Department if required) will arrange for a suitable advertisement to be placed on mine site noticeboards.
3.The advertisement will detail the:
·                 position being advertised
·                 roster currently applying to the position
·                 desired skills/ competencies for the position
·                 closing date for applications

4.The review team will be responsible for short listing 2 to 4 applicants. Applicants will be short listed on the basis of:
·                 attendance
·                 skills
·                 safety performance
·                 performance reviews
·                 simulation models if available

5.The review team is responsible for the interviewing process and ensuring the selection process is conducted in a fair and even handed manner.
6.The parties will develop the generic structure and content for the interview guides. All members of the review team will be required to undertake necessary training.
7.At the conclusion of this process the review team will make their formal decision on the successful applicant and notify all other applicants as to the outcome.

8.If an employee has been in the Engineering Stream for a period of 5 years they can apply for Production vacancies however these should be filled on a one engineering stream employee in every four production stream vacancies i.e. every fourth vacancy.

Mr Leggett was not involved in the bargaining for the 2001 Agreement but noted that clause 15.1 of the 2001 Agreement provided:

15.1.Where vacancies arise, the Company will use its normal selection process (Targeted Selection) to select the best candidate most suited to the job and:

a) will consider internal applications from employees with the necessary skills and proficiency.
b) may also consider training existing employees with the appropriate skills mix.
c) may also consider external recruitment simultaneously together with internal candidates.

It is Mr Leggett’s view that the 2001 Agreement did not require employee representatives to be used on targeted selection panels other than where specified. For example, clause 13(B)4 required that the targeted selection committee for redundancies include an employee representative. In addition, Mr Leggett noted clause 6 of the Peak Downs Schedule B to the 2001 Agreement, which provided:

6. Recruitment

1.Recruitment, promotions and transfers in the normal course of business will be done on merit, not seniority.
2.A selection team will be formed comprising 2 employee representatives from the appropriate unions and 2 supervisor I management representatives from the Department where the vacancy exists.
3.The required job specifications and applicant selection criteria will be developed by the selection committee and advertised through the appropriate channels.
4.The advertisement shall detail the:
·   The position being advertised;
·   roster currently applying to the position;
·   desired skills/ competencies; for the position;
·   closing date for application.

5.The selection team will be responsible for short listing a suitable number of candidates to participate in a structured and consistent interview. The team will also utilise practical and aptitude assessment when available.
6.A comprehensive pre employment medical and access to Workers Compensation history is an integral part of the selection process and will include testing for illegal drugs as per the relevant Australian Standard.
7.At the conclusion of the selection process, the review team will forward its recommendation to the Mine Manager. Any change to the recommendation of the selection team will only take place after full consultation with the team has occurred.
8.In order that the integrity and quality of the selection process is maintained, potential members of a selection team will be provided with training to equip them with the necessary skills and information to conduct the process in a competent manner.

Mr Leggett advised that he was originally externally recruited to work at the Peak Downs Mine in 2003 using the process set out in clause 6 of Schedule B of the 2001 Agreement. He recalled that he was interviewed by a panel consisting of two employee representatives, Mr Harry Hughes and Mr Mick Cox, and two employee representatives, Mr John Noonan and Mr John Marks. After the interview Mr Leggett had to do a bulldozer test in the pit.

Mr Leggett also referred to clause 15.1 of the 2004 Agreement, which provided:

15.1 Internal Recruitment
15.1.1 Where vacancies arise which the Company decides to fill by internal recruitment, the recruitment process will include a targeted selection interview to select the best candidate for the job based on merit.
15.1.2 A selection team will be established which will involve two (2) employee representatives (unless otherwise agreed) nominated by the appropriate Union/s from the area in which the vacancy arises, who have completed targeted selection training and have relevant experience and knowledge in that area. The selection team will manage all stages of the recruitment process including job specification, advertisement, short listing and targeted selection interview.

15.1.3 To ensure all stages of the process are managed efficiently, all members of the selection team will be expected to meet at the earliest convenient date, which may require individual members to rearrange their roster arrangements in order to be present.
15.1.4 At the conclusion of the recruitment process, the selection team will forward its recommendation to the relevant Departmental Manager, who will be responsible for making the final decision. Where that Departmental Manager elects not to accept the recommendation, he will discuss his reasons with the selection team.

Mr Leggett does not recall anything noteworthy about clause 15.1 during the bargaining for the 2004 Agreement, other than that the recruitment provision moved from Schedule B to the body of the agreement so that it applied to all mines under the agreement. Mr Leggett clarified that his involvement in bargaining that year was limited to discussions around the Peak Downs schedule B. Mr Leggett’s recruitment for the dragline traineeship occurred under the 2004 Agreement.

Mr Leggett also made reference to a decision of Commissioner Bacon of the Australian Industrial Relations Commission, in which the selection process for what was then called the “Dragline Skilling Program” (DSP) was considered.[18] Following that decision, BHP and the CFMEU in 2003 agreed to the following wording in relation to the DSP:

Selection Process

There are various assessments or selection processes, which a candidate will progress through to be part of the DSP. Selection of the participants will be carried out according to clause 6 of the Peak Downs Schedule.
The selection panel will consist of experienced personnel representing the company and the union asper clause 6.2 of the Peak Downs Schedule. This selection panel will meet and decide who will be the chosen participants according to the Peak Downs recruitment process.
…
4. Shortlisting
Once all applications have been received the selection panel will commence a shortlisting process. The shortlisting process can be completed in any order and is to be determined by the selection panel at the beginning of the recruitment process.
Initial Shortlisting
Completed applications will be forwarded to the selection panel for the initial shortlisting after the application close date. The selection panel will then meet to choose what candidates will be progressed to the Targeted Selection Interview stage.
Successful applicants will be notified of the interview date, time and location. Those applicants not granted an interview will be notified via a written correspondence.
Targeted Selection Interview
Targeted Selection is the chosen interview technique to be used by the company in selecting the DSP participants.
The interview will focus upon the applicants experience and knowledge of the advertised criteria and the DSP criteria.
Dozer Skill Test
A practical test will be conducted on the Peak Downs Mine site for the shortlisted applicants. This test will have established criteria (c.f. Appendix D). Candidates will be observed performing the tasks asked in the Dozer Skill Test and an overall rating will begiven. A similar test for all short listed candidates will be performed. …”

Mr Leggett also made reference to clause 15.1 of the 2007 Agreement which provided as follows:

“15.1 Internal Recruitment

15.1.1Where vacancies arise which the Company decides to fill by internal recruitment, the recruitment process will include a targeted selection interview to select the best candidate for the job based on merit.
15.1.2A selection team will be established which will involve two (2) employee representatives (unless otherwise agreed) elected by the employees from the area in which the vacancy arises, who will complete or have completed targeted selection training and have relevant experience and knowledge in that area. The selection team will be responsible for the development of the job specification, short listing and targeted selection interview.
15.1.3The selection team will be responsible for interviewing the shortlisted candidates using a targeted selection process. The selection team may use any assessment tools that are appropriate for selection to a specific role, including any ability and aptitude tests, (such as mechanical reasoning and comprehension, problem solving, literacy, numeracy, etc). However, if management wishes to use a psychometric/ spatial reasoning test in the selection process, the selection team must agree or the test will not be conducted. Where an employee has already demonstrated an ability or aptitude through the performance of their work or their trade qualification, they will not be required to undertake the particular test involved.
15.1.4 To ensure the interview process is efficient, all members of the selection team will be expected to meet on the nominated date, which may require individual members to rearrange their roster arrangements in order to be present.
15.1.5 At the conclusion of the recruitment process, the selection team will forward its recommendation to the relevant Departmental Manager, who will be responsible for making the final decision. Where that Departmental Manager elects not to accept the recommendation, he will discuss his reasons with the selection team.”

Mr Leggett does not recall anything noteworthy about clause 15.1 or other relevant clauses during the bargaining for the 2007 Agreement. Mr Leggett advised that the 2012 Agreement contained significant changes to the clauses about internal recruitment and selection. The agreement was restructured significantly during bargaining and clause 15.1 became clause 8.3. Mr Leggett stated that one of the most noteworthy changes was that the minimum number of employee representatives required to be on the targeted selection panel was reduced to one. Previously, under clause 15.1.2, there had to be two employee representatives.

Mr Leggett recalled during discussions in bargaining that both the union and the company wanted to make the clause easier to understand. There was no discussion during that bargaining, or any claim by the Respondent that Mr Leggett was made aware of, to the effect that clause 8.3 should not apply to recruitment for the dragline traineeship, or for other training positions. In or around 2012, BHP published a document titled “Explanation of the BMA Enterprise Agreement 2012”. That document contained a section about how clause 8 affects workers. Mr Leggett noted that clause 8.3 of the 2012 Agreement and clause 8.3 of the 2018 Agreement are identical. Mr Leggett said there was no discussion during bargaining for the 2018 Agreement, or any claim by the respondent, to the effect that clause 8.3 should not apply to recruitment for the dragline traineeship, or for other training positions.

After reading Mr Abrams’ witness statement, Mr Leggett provided additional evidence as follows. It was clear to Mr Leggett that during the negotiations for the 2012 Agreement and from the discussion between the parties, the new clause 8.3 was intended to apply to all positions, including training positions, temporary positions, and permanent positions. During that bargaining, it was agreed that the primary reason that the targeted selection clauses were moved from clause 15.1 of the 2007 Agreement to clause 8.1 to 8.3 of the 2012 Agreement, was to simplify the process for selecting positions and to avoid future disputation.

Mr Terry Low and Mr Leggett were the representatives from Peak Downs at the negotiations, and Mr Leggett recalled them both speaking on more than one occasion during the negotiations about the mechanics of targeted selection and how it had worked at the Peak Downs Mine in the past. Mr Leggett recalled explaining during the bargaining his experience with the targeted selection process because it had been used extensively at the Peak Downs Mine before and after it was incorporated into the central agreement in 2007.

Following the bargaining, Mr Leggett understood that the section about clause 8 in the “Explanation of the BMA Enterprise Agreement 2012” was to explain the selection process to other mines that, unlike the Peak Downs Mine, may not have had a history of using elected employee representatives on targeted selection panels as part of the recruitment process.

2018 Dispute at Saraji Mine

Mr Crompton worked as a dragline operator at the Saraji Mine in 2012. In 2014, Mr Crompton transferred from the draglines to mine service. He now predominantly works in mine services but does relief work as a dragline operator when needed. Mr Crompton was elected as the President of the CFMEU Saraji Lodge in 2014. He was also the President of the CFMEU Norwich Park Lodge between 2008 and 2012. In response to Mr Abrams’ evidence, Mr Crompton confirmed that there was a dragline traineeship intake in around 2012 whilst he was working at the Saraji Mine. He understood that Mr Rennick participated in that process as an elected employee representative on the panel interviews that were conducted for that intake. He further understood that the process that was used for the selection of dragline trainees in 2012 involved shortlisted employees were interviewed by a panel, which included an elected employee representative.

Mr Crompton also confirmed that he lodged a dispute in 2018, because Mr Rennick complained to him about the fact that the process being used by Mr Abrams was inconsistent with the way that previous dragline trainees had been selected at the Saraji Mine and it was not compliant with clause 8.3 of the 2018 Agreement.

Upon receiving Mr Abrams’ response on 20 August 2018, Mr Crompton decided as Lodge President, not to escalate the dispute, because although disagreeing with the process that had been used to select the trainees, Mr Crompton did not object to the actual trainees that had been selected and did not want to compromise their selection or otherwise disrupt their training.

Mr Crompton stated he did not intend the decision not to escalate the dispute to be taken as acceptance of the views articulated by Mr Abrams in his email dated 20 August 2018. Mr Crompton is firmly of the view that clause 8.3 of the 2018 Agreement applies to the selection of dragline trainees and that the process contained in clause 8.3 is necessary to combat the complaints about nepotism and favouritism that Mr Crompton regularly receives from the Lodge members about supervisors and management.

In response to Mr Abrams’ statement discussing the letters of offer to the trainees, Mr Crompton advised that despite what employees were told about the temporary nature of their assignment to draglines, almost all the trainees who completed a dragline traineeship at the Saraji Mine go on to work permanently in the draglines department due to the demand for their skills immediately after they complete their dragline traineeship.

Mr Crompton accepted Mr Abrams’ evidence that targeted interviewing is not conducted for training opportunities on any of the other 30 pieces of equipment at Saraji, but maintained that it is necessary for the selection of dragline trainees because:

· dragline competency is a critical skill for which there have historically been shortages at the Saraji Mine;

· if the wrong people are selected (i.e., people who lack general aptitude or competency on bulldozers and other ancillary equipment), it can significantly affect productivity and safety at the mine;

· the draglines are the hardest piece of machinery to learn how to operate and require more hand-eye coordination and practical experience to operate effectively than other pieces of machinery; and

· the draglines aremore dangerous than most other pieces of machinery because of the presence of a 6,600-volt cable and bulldozers / cable tractors operating within reach of the dragline boom.

Mr Leggett also said that although targeted interviewing is not necessary or used for most pieces of machinery at the Saraji Mine, it is necessary for the selection of dragline trainees at mines operated by BHP generally because:

· dragline traineeships are a 2-year commitment for the trainee and BHP that is much longer than the 6 to 8 months that it usually takes a trainee to be passed out on most other pieces of machinery;

· there is much more competition for dragline traineeships than there is for training for other pieces of machinery because the dragline skill is perceived by many coal mine workers to offer greater opportunities for career development and progression than other forms of training;

· the dragline traineeship comes with significant changes to the conditions of a trainee’s employment, including changes to their hours of work, crew, department, and reporting line that do not occur as a result of other training;

· a dragline can cost in excess of $300,000,000 and weigh between 3,000 and 7,000 tonnes, which makes them the biggest and most expensive piece of machinery at a mine site, and means that when things go wrong with them the results can be very dangerous and very expensive; and

· a dragline is a very tricky piece of machinery to operate and so there needs to be a transparent process to ensure that the best trainee candidates are selected and that trainees have the right skills and experience for the job.

Mr Rennick also gave evidence about the 2018 Saraji dispute in response to the evidence of Mr Abrams. In relation to Mr Abrams’ statement about the two calls for expressions of Interest in 2018, Mr Rennick said that between these two calls, Mr Abrams called him to his office and asked him about the process they previously had used at the Saraji Mine for selecting and interviewing dragline trainees. At the outset of the conversation, it was clear to Mr Rennick from the context that Mr Abrams was aware that he had previously been involved as an employee representative on targeted selection panels for dragline trainees at the Saraji Mine.

During his conversation with Mr Abrams, Mr Rennick told him that it was important to do a bulldozer test to make sure that whoever was selected was a competent bulldozer operator because competent operators are required to ensure that the pads on which the draglines operate are level and stable as there are significant risks associated with draglines and bulldozers near the edges of the pads where there can be 40 – 50m drops. Mr Rennick further suggested to Mr Abrams that the training department use cameras to film the bulldozer tests so that unsuccessful applicants could get feedback on their tests. As Mr Abrams called Mr Rennick into his office to ask how they had done things in the past, Mr Rennick believed that Mr Abrams intended to use Mr Rennick on the selection panel interviews for the upcoming dragline trainee selection process, although Mr Abrams did not commit to using any particular process at the time.

Mr Rennick recalled that on one occasion, after this conversation, he asked Mr Abrams what was happening with the interviews for the dragline trainees. Mr Abrams told Mr Rennick that interviews had already been held and that the employees that were used for interviews were Mr Colin Sturgess and Mr Jason Fletcher, Step-Up Supervisors. Mr Rennick asked Mr Abrams if Mr Sturgess and Mr Fletcher had been trained on how to do interviews, and Mr Abrams replied that he had trained them. Mr Rennick further asked Mr Abrams if he was a trainer and Mr Abrams replied he was not. Mr Rennick stated that he does not know how Mr Sturgess and Mr Fletcher were selected and they were not elected by the workers.

Mr Rennick confirmed that he complained to Mr Crompton about the selection process in 2018. Mr Rennick advised that he does not know why Mr Crompton did not escalate the dispute but given his position in the Lodge, Mr Rennick respected his decision. Mr Rennick agreed that no other training opportunities on the other 30 or so pieces of equipment at Saraji required targeted interviewing, but maintained that targeted interviewing is necessary for the selection of dragline trainees because:

· the dragline traineeship is for an extended period of time and involves its own conditions, unlike other forms of training;

· dragline trainees and operators are required to work in small teams on every shift and it is important to interview them to see that they will be a good fit, work well with others, and not cause conflict;

· it is important to interview dragline trainees to ensure that they are safety conscious because the draglines are one of the highest risk pieces of equipment at a mine because, among other reasons, there is a 6,600 volt cable that runs to the dragline, and other people are required to operate bulldozers and cable tractors within the boom radius of the dragline; and

· the draglines are one of the hardest pieces of machinery for an operator to attain competence in, and the piece of machinery that in Mr Rennick’s experience, takes the longest amount of time to become truly proficient at.

Submissions

The CFMMEU filed an outline of submissions[19], submissions in reply[20] and a further outline of submissions in closing its case[21]. In summary the CFMMEU submitted that the selection process in clause 8.3 involves the establishment of an interview panel with the participation of an employee or employees, selected by the company, who have been elected by employees in the relevant work area, and who are both knowledgeable about the role to be filled and are suitably trained by the company in interviewing. According to the CFMMEU, the answer to the question for arbitration involves a consideration of:

· the text of clause 8.3, and its context as appears from the text and operation of clause 8 as a whole;

· the legislative context under which the agreement was made and operates;

· the evidence of the history of the clause and the common intention of the parties determined objectively;

· the evidence of the nature of the dragline training positions at Peak Downs and whether they fall within the phrase “all positions” in clause 8.3(a);

· the evidence and whether the process of determining the expression of interest is a “selection decision” as that phrase is used in the chapeau to clause 8.3; and

· which answer leads to the more sensible industrial outcome.

In relation to text, the first thing to note is that the chapeau to clause 8.3 states that its purpose is to facilitate quick “selection decisions” and indicates that the process is intended to apply broadly to selection decisions without any limitation. Next, paragraph (a) requires, in mandatory terms (“The Company will…”), the Company to establish interview panels for “all positions”. This language is unambiguous in its ordinary and plain meaning: the process applies not to some positions, but all positions.

The Respondent would effectively have the Commission rewrite the language of sub-clause 8.3(a) by the addition of the word “permanent” so that the phrase reads “all permanent positions”, or by the addition of the phrase “except temporary positions” or perhaps “except temporary or training positions”. The task of interpreting an agreement “does not involve rewriting the agreement”.[22]

In relation to context, the CFMMEU submitted that it is necessary to read clause 8.3 as part of clause 8. There is no basis for any suggestion that clauses 8.1, 8.2 and 8.3 should be read independently of each other. They complement each other and self-evidently form part of a unified scheme and an interlocking set of obligations, in relation to the topic of “Career Development and Progression”. There is no basis for reading clause 8.3 as only applying to selection decisions required for the subject matter of clause 8.2 (“Career Progression”) and not clause 8.1(“Development”).

It is not reasonably open to cherry pick certain provisions, in an attempt to retrospectively justify a failure to comply with the relevant processes, as the Respondent seeks to do. The CFMMEU argues that paragraph 8.2(a) specifically refers to the invitation of expressions of interest for “current roles or future opportunities”. That is, as a matter of fact, the mechanism that was used by the Company for the dragline trainee positions. A call for expressions of interest was made including by posting information to the relevant noticeboards.

Legislative context

I accept the CFMMEU’s submissions that the legislative context favours a construction of the Agreement which gives elected employee representatives a role in selecting employees who will be offered traineeships which will lead to them being job-ready to undertake a position which is highly coveted. The construction I favour also maintains the Company’s right to have the final say in who traineeships will be offered to, consistent with the relevant clause.

Such a construction is entirely consistent with the object of the Act to provide a balanced framework for cooperative and productive workplace relations. It is also consistent with the well-established objectives of enterprise agreements, including to promote workplace harmony.

Operational context

I am also of the view that the operational context in which the disputed provision applies, favours the construction advanced by the CFMMEU. The evidence of witnesses for the CFMMEU is that draglines are complex, difficult to operate and expensive and that dragline skills are critical and heavily sought after in the mining industry. CFMMEU witnesses also said in their evidence that failure to adequately train dragline operators can impact mine performance. In response, Mr Abrams said:

Though expensive, draglines are not a fundamentally more complicated or dangerous piece of machinery than other machinery used at mines;
Dragline skills are as equally sought after as other machine operation skills; and
Dragline operation does not itself directly impact on the productive capacity of a mining operation.

I do not accept Mr Abrams’ evidence in this regard. There is no evidence of any other piece of equipment that requires a two-year structured traineeship before an operator is competent to a minimum level. It is unsurprising that, as conceded by witnesses for the CFMMEU, the process for deciding who receives training on other pieces of equipment is not the subject of the selection process under clause 8.3 of the 2018 Agreement. While there may be competition for many pieces of equipment, it is clear from the evidence of the CFMMEU witnesses that the position or role of dragline operator is coveted by employees and I accept that evidence over the evidence of Mr Abrams to the contrary, given that Mr Abrams is neither a mine worker nor a dragline operator.

In relation to Mr Abrams’ statement that dragline operation does not itself directly impact on the productive capacity of a mining operation, I note that this evidence is at apparent odds with the terms of clause 8.1(f) of the Agreement which specifically refers to dragline operation in the context of “other positions requiring critical skills”. If there is nothing special about the role of Dragline Operator, I can only wonder at why it is specifically referred to in the Career Development and Progression clause of the 2018 Agreement and in former iterations of that Agreement. There is nothing incongruous about a highly skilled and coveted role, being subject of a selection process, such as that in clause 8.3.

Historical context

There was significant evidence about the history of the disputed term canvassed by the parties in their evidence and submissions. While not determinative of the issue in dispute in the current matter, earlier agreements are relevant contextual matters to which regard may be had in construing the 2018 Agreement. The CFMMEU tendered a table setting out the clauses in earlier agreements tendered in these proceedings, dealing generally with selection processes.

The earliest agreement tendered by the CFMMEU is the 1998 Peak Downs Agreement. Relevantly, that Agreement had separate provisions for internal and external recruitment contained in a single clause 2.10 which was titled “Recruitment”. The provisions relating to internal recruitment required that promotions, transfers and training would be undertaken on the basis of merit, not seniority and that a “review team” comprising the relevant supervisor and two employee representatives, would be responsible for shortlisting 2 – 4 candidates, and the interviewing and selection process. The review team was also responsible for making a final decision on the successful applicant. In relation to external recruitment, a “selection team” comprising a representative from the Human Resources Department, a supervisory representative from the department where the vacancy existed and an employee representative from the functional work area were responsible for shortlisting and interviewing candidates and recommending a candidate to the Mine Manager, who could elect not to accept the recommendation after consultation with the selection team. The Union was also entitled to be consulted about the advertisement for a position. Training was required to be provided to review and selection team members. The 1998 Peak Downs Agreement also provided for a training committee comprising two union and two company representatives to undertake a role including monitoring and reviewing training processes at the Mine.

The second agreement tendered was the 2001 BHP Coal Pty Ltd Enterprise Agreement which covered employees at 7 mines including Goonyella Riverside, Peak Downs, Saraji, Norwich Park, Gregory, Crinum and Blackwater, and which also contained schedules setting out provisions for each Mine. The main body of the 2001 Agreement contained a clause which provided that where vacancies arose the Company would use its normal selection process “targeted selection”. The clause did not require the establishment of a selection panel or similar but simply referred to the Company considering internal applications from employees with the necessary skills or providing training to existing employees with the necessary skills mix.

The Peak Downs Appendix B to the 2001 Agreement included clause 6 which dealt with recruitment promotions and transfers without the previous distinction between internal and external recruitment and referring only to a “selection team” which was required to be provided with training. As was previously the case with respect to external recruitment in the 1998 Peak Downs Agreement, the section team was empowered to make a recommendation which could be changed by the Mine Manager after full consultation with the selection team. The Blackwater Schedule G also included a clause dealing with “Filling Internal Vacancies” involving a panel comprising at least two crew selected employees who were required to be given training on “targeted selection”. The Norwich Park Schedule D contained a detailed provision in relation to Dragline Operations at clause 28, which relevantly provided for an assessment process involving the CFMEU Lodge executive or representatives. The Blackwater Schedule G to the 2001 Agreement contained a provision dealing with filling of internal vacancies, which operated “subject to clause 15 of the main document” which also provided for an interview process conducted by a Panel comprising at least 2 crew selected employees who were required to be given training in targeted selection processes. The Blackwater Schedule also had a section dealing with production trainees from the local area, selected by mine management with interviews including a representative from the relevant work group.

The 2004 Agreement contained a clause 15 which dealt with the subject of Recruitment. The clause was in two parts and covered Internal Recruitment (15.1) and External Recruitment (15.2). The clause referred to filling “vacancies” by using a selection panel comprising 2 employee representatives nominated by the appropriate Unions from the area in which the vacancy had arisen, to manage all stages of the recruitment process. The external recruitment process was required to involve one employee representative selected by employees within the work group area and the selection criteria were required to be agreed by the panel before advertising the position. The role of the panel in both cases was to recommend candidates and the relevant manager could elect not to accept the recommendation after providing full reasons to the panel.

Clause 15.2.2 also required the Company to consider its existing employees and their skills and career aspirations, before deciding to advertise a vacancy either internally or externally. The Saraji Schedule C to the 2004 Agreement provided for targeted selection training to be provided and nominations sought from various work group areas including draglines. The 2004 Agreement also had a dragline specific provision in the Norwich Park Schedule D which involved union representatives in performance monitoring (clause 23.1). The Peak Downs Schedule ceased to include the provision which had previously appeared in clause 6.

The 2007 Agreement contained a substantively similar provision at clause 15 in terms of decision making with differences being in relation to the type of testing to be conducted. The Norwich Park Schedule continued to include the specific dragline provisions in similar terms to earlier agreements.

The 2012 Agreement contained clause 8 in its current iteration. While I accept that clause 8 of the 2012 Agreement is a departure from the previous clause 15 of the 2007 Agreement, the departure is that the 2012 Agreement clause includes, rather than excludes, training. Clause 15 of the 2007 Agreement dealt with internal and external recruitment to fill “vacancies”. A dragline traineeship could not have been described as a vacancy. If a selection process similar to that set out in clause 15 of the 2007 Agreement was followed at that time, with respect to dragline traineeships, then its source was not that clause.

However, by 2012, the new clause 8 included training, and applied to career development and progression, which included a selection process for internal and external candidates. The provisions of clause 8 of the 2012 Agreement are closer in their effect to the provisions of the 1998 Peak Downs Agreement than the 2007 Agreement and bear little, if any resemblance to the provisions in later iterations. This is probably because the genesis of the dragline traineeship was the Dragline Skilling Program (DSP) which was implemented at the Peak Downs Mine and was subject of the 2007 dispute dealt with by Commissioner Bacon.

The DSP constituted an agreement in its own right, that sat outside the 2001 Agreement. The then Peak Downs Schedule to the 2001 Agreement did not deal with training but rather with recruitment, promotion and transfers and there was no reference in the decision to the 1998 Peak Downs Agreement which is closer in its terms to the DSP than the terms of the 2001 Agreement. It is important to note that the 2007 decision held that selection of employees for the DSP was internal recruitment for the purposes of clause 15.1 of the 2001 Agreement, on the basis that the DSP described the selection as recruitment and not because clause 15 of the 2007 Agreement included training. Accordingly, the 2007 decision is of limited assistance in the present case, other than to illustrate that the basis of the present dispute is not novel.

At most, the context that can be derived from previous versions of the 2018 Agreement is that prior to the 2012 Agreement, those versions, in the main body of the Agreements, prescribed a selection process involving employee representation, with respect to internal and external recruitment, which did not include training. Individual Mines, notably Peak Downs, Blackwater and Saraji, at various times, had selection processes involving employee representatives for purposes including training, prescribed in Mine specific schedules to the main Agreement, or in the case of Peak Downs, the DSP which defined the particular training program as recruitment. It is more probable than not that these concepts made their way into the 2012 Agreement and subsequently the 2018 Agreement.

It is also relevant that the explanation of clause 8 of the 2012 Agreement, made no distinction between training, development opportunities and recruitment. The explanation of the clause is an illustration of the CFMMEU’s point that it is an integrated provision and its various parts cannot be applied in isolation. I do not accept that the explanation, considered in isolation, establishes a common understanding about the operation of the clause. However I am of the view that the explanation is an indication that there was no intention to separate the matters the clause deals with.

While not determinative, these contextual matters support the interpretation advanced by the CFMMEU.

Conduct of the parties

I have considered all of the evidence about the conduct of the parties. The evidence is summarised extensively elsewhere in these reasons. I agree with the submission advanced by BHP to the effect that this is a case where text and context are more important than the conduct of the parties. The conduct of the parties in the present case, is of little if any assistance, in construing the disputed term. I do not doubt the veracity of the evidence given by witnesses for the CFMMEU and the Company and I have not had regard to assertions that witnesses were not credible. Any discrepancies in the evidence are probably the result of faulty recollections given the lapse of time or the particular views that the various witnesses have about the disputed clause and its meaning. None of these matters are determinative of the proper construction of the clause.

In short, I do not accept that the evidence establishes a common understanding about the clause. The earlier disputes canvassed in these proceedings establish common inadvertence rather than common intention. The concept of targeted selection referred to in earlier versions of the Agreement and in the training which was provided to employee representatives in targeted selection processes, does not appear in the 2012 or 2018 Agreements. Instead, the reference is to training in relation to interviewing.

There is no evidence about what is encompassed in a targeted selection process or what such a process entailed when it was applied. Clause 8.3 provides that where a Panel is required to be established, it includes members drawn from a pool of employees selected by workers in each Functional Work Area and who are trained in interviewing techniques. Whether the term “targeted selection” was used by various CFMMEU members in articulating disputes about the failure of the Company to comply with the clause, is not to the point and is not relevant to the construction of the clause.

The process in clause 8.3 has not been generally applied at mines and its application has been patchy. Notwithstanding this, the fact that a provision has not been applied in all circumstances or in the manner intended or that the CFMMEU may have accepted that the process in the clause was not applied on some occasions, does not change the meaning of the clause.

On balance, there is more evidence of the clause being applied than not. Despite Mr Hamilton’s insistence that the process in clause 8.3 was not followed at Saraji in 2012, Mr Rennick’s evidence clearly establishes that the process was followed on that occasion and that he participated in that process using documents printed on Company letterhead. The subsequent decision by the Saraji Lodge of the CFMMEU not to escalate a dispute in circumstances where it did not take issue with the outcome of the process, is understandable and is not conduct contrary to the CFMMEU’s position.

There is also uncontested evidence from Mr Leggett, Mr Rennick, Mr Brodie, Mr Bell and Mr Kliese that they were selected for dragline traineeships using the process that the CFMMEU maintains is prescribed by the 2018 Agreement and previously the 2012 Agreement. Some of those processes were conducted when the version of the Agreement in effect at the time, was even less clear than it presently is, about the selection process. Further, as detailed in the CFMMEU’s submissions set out above, there is significant documentary and other evidence that the parties consider that dragline traineeships are positions. I agree with those submissions.

It is also the case that of these witnesses, those who moved directly from a traineeship to a permanent position as a dragline operator, were not required to undergo a second selection process while those who returned to their original work areas or had a break between completing the traineeship and being offered a permanent position as a dragline operator, were required to undertake a second selection process. This is not inconsistent with the construction advanced by the CFMMEU. However, it is not determinative of the matter and in my view, this case turns on the text of the disputed clause and the terms of the 2018 Agreement read as a whole.

Industrially sensible outcome

Finally, the construction I favour contributes to an industrially sensible outcome. It reflects the rights of employees to have a say in training and development opportunities while maintaining the right of BHP to meet its needs for persons with particular skills to be trained in skills required by the Company. BHP controls the numbers of employees who will be subject to the selection process by virtue of having the right to select suitable candidates for positions. It is only suitable candidates who are required to be subject to a selection process.

It is also the case that the process applies only where there is a selection process for a position. BHP has significant rights to determine the numbers of positions in its Functional Work Areas. The outcome in the present case reflects the fact that the dragline traineeship is a position and not merely a development opportunity. The selection process in clause 8.3 does not apply in all cases where the Company wishes to offer training and has more applicants for the training that it has the capacity or desire to train.

CONCLUSION

For these reasons, I answered the question for arbitration as follows:

Question:
On the proper construction of the BMA Enterprise Agreement 2018, are the expressions of interest for the dragline training program (howsoever described) to be determined by the application of the selection process at clause 8.3 of the 2018 Agreement?
Answer:
Yes.

A determination to that effect has been issued.

DEPUTY PRESIDENT

Appearances:

Mr G Rebetzke of Counsel instructed by Hall Payne Lawyers for the Applicant.

Mr M Coonan of Herbert Smith Freehills for the Respondent.

Hearing details:

18 & 19 October.

2021.

Mackay.

10 November & 3 December.

2021.

Brisbane.

Final written submissions:

Applicant: 3 November 2021.

Respondent: 3 November 2021.

[1] Exhibit A1 Statement of Scott Leggett; Exhibit A2 Reply Statement of Scott Leggett.

[2] Exhibit A3 Statement of Nigel Bell.

[3] Exhibit A4 Statement of Danny Kliese; Exhibit A5 Reply Statement of Danny Kliese.

[4] Exhibit A6 Statement of Dennis Rose; Exhibit A7 Reply Statement of Dennis Rose.

[5] Exhibit A8 Reply Statement of Peter Jones.

[6] Exhibit A9 Statement of Mark Brodie.

[7] Exhibit A10 Reply Statement of Bradley Crompton.

[8] Exhibit A11 Reply Statement of Glenn Rennick.

[9] Exhibit R1 Statement of Vaughn Abrams; Exhibit R2 Reply Statement of Vaughn Abrams.

[10] Exhibit R3 Statement of Tyson Hammer; Exhibit R4 Reply Statement of Tyson Hammer.

[11] Exhibit R5 Statement of Greg Hamilton.

[12] Exhibit A12.

[13] Exhibit A13.

[14] See Annexure ‘SL-9’ of Mr Leggett’s Witness Statement for a copy of the dispute notice.

[15] See Annexure ‘SL-10’ of Mr Leggett’s Witness Statement for a copy of the email chain discussing the dispute notice.

[16] Exhibit A4 – Annexure “DK-1”.

[17] Exhibit A4 – Annexure “DK-2”.

[18] CFMEU v BHP Coal Pty Ltd[2007] AIRC 367.

[19] 13 August 2021.

[20] 24 September 2021.

[21] 3 November 2021.

[22] AMWU v Berri Pty Limited [2017] FWCFB 3005 at [114], principle 2.

[23] As to the phrase “committed to ensuring”, see AMACSU v Australian Taxation Office [2005] AIRC 700, PR957250, at [62].

[24] Fair Work Act 2009 (Cth) s 3.

[25] AMCOR v CFMEU (2005) 222 CLR 241 at 273 [103].

[26] Ibid at 283 [131].

[27] See Appendix A to the CFMMEU’s Outline of Submissions dated 3 November 2021.

[28] (PR951179).

[29] CFMEU v BHP Coal Pty Ltd [2007] AIRC 367, PR977003, [15].

[30] Ibid.

[31] Ibid at [19].

[32] Ibid at [10] – [11].

[33] Ibid at [13] – [14].

[34] Ibid.

[35] Re Alcan Australia Ltd; Ex parteFederation of Industrial, Manufacturing and Engineering Employees [1994] HCA 34; 181 CLR 96 at 106.

[36] CFMEU v BHP Coal Pty Ltd [2007] op. cit.

[37] SDAEA v Woolworths (2006) 151 FCR 513 at [31].

[38] Explanation to Clause 8 in Explanation of the 2012 Agreement.

[39] Transcript PN 1993.

[40] Exhibit A13.

[41] Exhibit A12.

[42] Exhibit R5 Annexure “GH-2”.

[43] Ibid.

[44] Spunwill Pty Ltd v BAB Pty Ltd (2004) 36 NSWLR 290 at 304 quoted in AMWU v Berri Pty Limited[2017] FWCFB 3005 at [105].

[45] BMA Enterprise Agreement 2018 [2018] FWCA 2869, PR607295.

[46] Exhibit R 1 Annexure “VSBA-1”.

[47] SDAEA v Woolworths (2006) 151 FCR 513 at [31]. Further, an examination of the historical agreements reveals that the 2001 Agreement contained a GRM schedule, just as the 2001 Agreement contained a Peak Downs schedule. Like the Peak Downs schedule, there is provision in the GRM schedule for the specific involvement of elected employee representatives with respect to training. Elected employee representatives were required to be involved in the maintenance of a “skills template” and determining “training priorities”: 2001 Agreement, Schedule A, clauses 3.1.5 and 3.2.1.

[48] PN 981.

[49] PN 976.

[50] PN 912.

[51] PN 907.

[52] PN 914 – 917.

[53] Exhibit A4 Annexure “DK-1”.

[54] PN 673.

[55] Exhibit R3 paragraph 48.

[56] PN 1681 – 1682.

[57] PN 1907.

[58] Exhibit A1 Annexure “SL-8” to Statement of Scott Leggett (Exhibit A1). The explanation given by Mr Hammer that this was a “typo” should not be accepted (Transcript PN 1751 – 1753).

[59] Exhibit R1 Annexure “VSBA-3”.

[60] Ibid.

[61] Exhibit R5 Annexure “GH-3”.

[62] Exhibit A6 paragraph 15.

[63] PN 498.

[64] PN 1907; and PN 1921 – 1923.

[65] PN 1835.

[66] PN 1873.

[67] PN 1577.

[68] PN 1581.

[69] Exhibit R3 Annexure “TJH-1”.

[70] Exhibit R1 – Annexure “VSBA-2”.

[71] Exhibit R1 Annexure “VSBA-3”.

[72] Exhibit R5 – Annexure “GH-1”.

[73]Exhibit R5 – Annexure “GH-2”.

[74] Exhibit R5 – Annexure “GH-3”.

[75] Exhibit “R6” initially marked as “ID1”.

[76] 10 September 2021.

[77] (1993) 40 FCR 511 at 518.

[78] (2020) FCAFC 123 at [65].

[79] [2017] FCA 346 at [29].

[80] [2011] FCA 1256 at [79].

[81] See subclauses 8.1(f), 8.2(b) and 8.2(f) of the 2018 Agreement.

[82] See subclauses 3.7(d), 3.8(g), 5.2(a) and (b), 6.1(b) and (e), 11.1(b) and 11.5(a) of the 2018 Agreement as some examples.

[83] Kucks v CSR Limited (1996) 66 IR 182 at 184.

[84] Mr Leggett’s Witness Statement dated [DATE] at [1].

[85] PN 222-3, 226 and 239.

[86] PN 199.

[87] PN 202.

[88] PN 456 and PN 481.

[89] PN 268 – 279.

[90] PN 281-2; and 299.

[91] PN304 to PN312, PN316 to PN318, PN 27, PN332 to PN346 and PN350.

[92] PN456 and PN481.

[93] PN179 to PN182; and PN195 to PN196.

[94] PN280.

[95] PN413 and 414.

[96] PN594 and Exhibit R6.

[97] PN280.

[98] PN 862 to PN866.

[99] PN1044 to PN1047.

[100] PN1060 to PN1065.

[101] PN1066.

[102] PN707.

[103] PN729 to PN730.

[104] Statement of Mr Hammer at [10] to [13].

[105] Statement of Mr Vaughn Abrams at [30] to [40].

[106] Statement of Greg Hamilton at [7] to [20]; and PN1978.

[107] Statement of Mr Rennick at [10] to [11]; and PN1289 to PN1297.

[108] Statement of Mr Rose at [10].

[109] Statement of Mr Rennick at [10] to [11]; and PN1289 to PN1297.

[110] Statement of Mr Greg Hamilton at [15]; Statement of Mr Compton at [9] and Statement of Mr Abrams at [19].

[111] PN676, PN1191 and PN1192.

[112] ARS at [7].

[113] Viva Energy Refining Pty Ltd v AWU [2020] FWC 4781 at [56].

[114] PN320 to PN362, PN414, PN586 to PN595, PN1046 to PN1066.

[115] PN268 to PN280.

[116] PN180 to PN182, PN195 to PN228, PN 232, PN238 to PN266.

[117] PN316-7.

[118] Australian Liquor, Hospitality and Miscellaneous Workers Union v Prestige Property Services Pty Ltd (2006) 149 FCR 209 at [44].

[119] Statement of Mr Rose at [9] – [12]; and PN868-9.

[120] Reply Statement of Mr Leggett at [2].

[121] PN866.

[122] Statement of Mr Brodie at [9]; and Statement of Mr Bell at [8].

[123] Reply Statement of Mr Leggett at [2].

[124] PN400 to PN411, PN415 to PN433 and PN707-9.

[125] Statement of Mr Rennick at [21]; Statement of Mr Crompton at [13]; and Reply Statement of Mr Leggett at [7].

[126] Reply Statement of Mr Abrams at page 1 and 3.

[127] PN71, PN73-6, PN583-5, and PN1340-3.

[128] PN878 to PN892; PN1201 to PN1211; and PN1560-1.

[129] PN1552-3.

[130] PN364-5.

[131] PN390.

[132] PN392-5; see also, PN943.

[133] PN3397.

[134] PN400-1.

[135] PN1796 to 1801.

[136] PN1674, PN1679 to PN1682, PN1694, PN1695, PN1727 to PN1735, PN1769, and PN1892.

[137] PN990-8.

[138] PN1000.

[139] PN982-9.

[140] PN782.

[141] PN1907.

[142] One Tree Community Service Inc v United Workers’ Union [2021] FCAFC 15.

[143] Exhibit R6.

[144] BHP Coal Pty Ltd Workplace Agreement 2007 cf. BMA Enterprise Agreement 2012.

[145] PN507.

[146] Viva Energy Refining Pty Ltd v AWU [2020] FWC 4781 at [56].

[147] Ridd v James Cook University [2012] HCA 32.

[148] Ibid.

[149] Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited [2017] FWCFB 3005 at [114].

[150] Shop Distributive and Allied Employees’ Association v Woolworths Ltd [2006] 151 FCR 513 at [32].

[151] ALS Industrial Pty Ltd v AMWU [2014] FWCFB 349 at [18].

[152] CFMEU v BHP Coal Pty Ltd [2007] AIRC 367.

[153] Ibid.

[154] James Cook University v Ridd (2020) FCAFC 123 per Griffiths and Derrington JJ at [65] (and cases cited therein).

[155] Amcor v CFMMEU (2005) 222 CLR 241 per Kirby J at 270.

[156] Oxford English Dictionary.

[157] Ibid.

[158] PR961315 11 August 2005.

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