Construction, Forestry, Maritime, Mining and Energy Union v BHP Coal Pty Ltd
[2021] FWC 779
•16 FEBRUARY 2021
| [2021] FWC 779 |
| FAIR WORK COMMISSION |
REASONS FOR DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Construction, Forestry, Maritime, Mining and Energy Union
v
BHP Coal Pty Ltd
(C2019/7762)
DEPUTY PRESIDENT ASBURY | BRISBANE, 16 FEBRUARY 2021 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)].
1. Background
[1] This Decision concerns an application by the Construction Forestry, Maritime, Mining and Energy Union (CFMMEU) under s. 739 of the Fair Work Act 2009 (FW Act) for the Fair Work Commission (Commission) to deal with a dispute in accordance with a dispute settlement procedure in the BMA Enterprise Agreement 2018 (the 2018 Agreement). The Respondent is BHP Coal Pty Ltd (BHP).
[2] The dispute concerns clause 22(6) of the Agreement which provides for annual leave to be approved or refused on the basis of quotas set by reference to “approved crew numbers”. The dispute arose when an employee at the Goonyella Riverside Mine (GRM), Mr Les Bentlin, applied for and was refused annual leave by his supervisor on the basis that more than 15% of employees allocated to a particular Dig Unit designated 41, were away at that time.
[3] The central issue in dispute is whether BHP can designate the size and scope of crews in accordance with its operational requirements. The CFMMEU contends that the term “crew” for the purposes of clause 22 of the 2018 Agreement means: all operational workers at the Mine who work a particular shift or all persons in a department or sub-department of the Mine who work on the same roster panel.
[4] It is common ground that the dispute has progressed through the stages of the dispute settlement procedure in clause 37 of the Agreement, the matter was referred to the Commission for conciliation and conciliation was exhausted without resolution of the matter. The dispute was then referred to the Commission for arbitration pursuant to clause 37.16 and 37.17 of the 2018 Agreement. The parties agree that the Commission is empowered to determine the dispute by arbitration and agreed on the following questions for that purpose:
1. What is the meaning of “crew”, for the purposes of clause 22.6(b) of the BMA Enterprise Agreement 2018 (Agreement)?
2. Can a labour hire employee who is not actually taking annual leave be included towards the 20% quota in clause 22 of the Agreement?
3. What information is required to be provided to Employees, or to be accessible to Employees, in order to ascertain whether or not they are entitled to take annual leave on the basis of the leave quotas in clause 22 of the Agreement?
[5] A hearing was conducted in Mackay on 7 and 8 October and in Brisbane on 6 November 2020. Pursuant to clause 37.18 of the 2018 Agreement both parties exercised their rights to be represented by a legal practitioner with the CFMMEU being represented by Mr Charles Massy of Counsel instructed by Hall Payne Lawyers (who appeared by video link from Brisbane to Mackay due to a COVID-19 related travel issue) and BHP being represented by Mr Michael Coonan of Herbert Smith Freehills.
[6] Evidence for the CFMMEU was given by:
• Mr Simon Royce West, President of the Goonyella Riverside Lodge and Shotfirer at GRM 1;
• Mr Les Graham Bentlin, Mine Employee at GRM 2;
• Mr Wayne Goulevitch, Mine Employee at GRM 3; and
• Mr Glenn Power, District Secretary of the CFMMEU Mining Division, Queensland District Branch 4.
[7] The CFMMEU also tendered a statement made by Mr Michael Shafferius, Superintendent Pre-strip at GRM, which was made in other proceedings before the Commission as presently constituted. BHP initially objected to the tender of the Statement and later withdrew that objection. The statement was marked as Exhibit A1.
[8] Evidence for BHP was given by:
• Mr Robert Edward Gibbons, Mine Services Superintendent at GRM 5;
• Mr Thomas James Swanton, Superintendent Draglines in Production Overburden at GRM 6; and
• Mr Kevin Christopher McDonald, Maintenance Manager at GRM. 7
[9] In a decision issued on 8 February 2021 8 I determined the dispute by answering each of the questions for arbitration and indicated that I would provide reasons for my decision shortly thereafter. These are my reasons.
2. Approach to construction of enterprise agreements
[10] The approach and the principles relevant to the task of construing the terms of an enterprise agreement was most recently set out in a Decision of a Full Bench of the Commission in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Berri Pty Ltd 9 as follows:
“1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:
(i) the text of the agreement viewed as a whole;
(ii) the disputed provision’s place and arrangement in the agreement;
(iii) the legislative context under which the agreement was made and in which it operates.
2. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.
3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.
4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.
5. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.
6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.
7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.
8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.
11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.
12. Evidence of objective background facts will include:
(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;
(ii) notorious facts of which knowledge is to be presumed; and
(iii) evidence of matters in common contemplation and constituting a common assumption.
13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.
14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.
15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.”
[11] In CFMEU v Endeavour Coal Pty Ltd T/A Appin Mine10 a Full Bench of the Commission held that the context of an agreement provision is significant. In this regard, the Full Bench set out the explanation of this point by the NSW Court of Appeal in Mainteck Services Pty Ltd v Stein Heurtey SA11 emphasising the following matters:
• Until a word or phrase is understood in the light of the surrounding circumstances, it is rarely possible to know what it means12 and there is always some context to any statement;13
• Language considered in its context will often have a clear meaning and context will often not displace that meaning – “but not always”;14
• To state that a legal text is clear reflects the outcome of an interpretation process and means that there is nothing in the context that detracts from the ordinary literal meaning and cannot mean that context can be put to one side;15
• The phrase used by Mason J in Codelfa “if the language is ambiguous or susceptible of more than one meaning” does not mean that the susceptibility of the language to more than one meaning must be assessed without reference to the surrounding circumstances and in order to determine whether more than one meaning is available it may be necessary to turn to context;16 and
• Context has also been described as surrounding circumstances and the meaning of terms normally requires consideration not only of the text, but of the surrounding circumstances known to the parties and the purpose and object of the transaction17
[12] The case law in relation to the approach to the construction of enterprise agreements makes it clear that context and purpose must be considered even where the words of the provision being construed appear, on their face, to have a clear and unambiguous meaning. The following observations of Madgwick J in Kucks v CSR are apposite in the present case:
“It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.
But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.”18
[13] In principle 15 in Berri the Full Bench dealt with the relevance of post-agreement conduct to the construction of the terms of an enterprise agreement citing the judgment of Gray J in ALHMWU v Prestige Property Services Pty Ltd 19 in which his Honour observed that:
“I am prepared to accept that the construction of an award can be affected by a common understanding of the parties to it about a particular state of affairs. If such a common understanding existed when the award was made, it should not be departed from when the Court comes to construe the award at a subsequent time. Care must be taken however, to distinguish a common understanding from common inadvertence ... In order to have an understanding, it is necessary that there be a meeting of minds, a consensus. There can be no meeting of minds, no consensus, if no one has thought about the issue.” 20
[14] In that case Gray J then went on to observe that the case he was dealing with was not one where a party had changed its mind and gone back on a common assumption but rather, was a case where no common assumption ever existed. 21 Also relevant in the present case are the observations his Honour made in Shop Distributive and Allied Employees’ Association v Woolworths Limited22as follows:
“If the presumption of consistent use of terminology is so weak in legislative drafting, it must be even weaker in the context of a Certified Agreement. Typically such agreements are the product of hard negotiation, in which the wording of particular clauses is often agreed without reference to other provisions of the same document. Provisions are often transmitted from one agreement to the next in a series, without regard to whether their terminology sits well with the words used in newly adopted terms. The use of other agreements, and awards, as precedents can often result in the borrowing of provisions, again without regard to whether the words used in them are consistent with the rest of the agreement under consideration. For these and other reasons, consistency will often be absent. It is easy to see that the same word can be used in different provisions with different meanings.”
[15] I have applied these principles in determining the matters in dispute.
3. Relevant Agreement provisions
[16] The provisions of the Agreement to which the dispute relates are in the following terms:
22.6 Annual leave quotas
(a)Annual leave quotas are as follows:
Shift Coverage | Leave approved? |
Less than 20% (rounded up to the nearest whole number) away on annual leave at any time during the period of that leave (based on approved crew numbers) | Leave will be approved providing that adequate notice is given (see clause 22.5) |
20% or more (rounded up to the nearest whole number) away on annual leave at any time during the period of that leave (based on approved crew numbers) | The operation of the Mine is presumed to be affected Provided adequate notice is given (see 22.5): - Consideration will be given to operational requirements of the Mine to determine whether any additional Employees can take annual leave; and - The Company will approve leave at its discretion, subject to operational requirements and availability of skills |
(b) Approved crew numbers for the purposes of calculating the above ratios will not include apprentices. Approved crew numbers are the number of positions in each crew approved by the Company. Approved crew numbers will be provided by a supervisor to an Employee upon request.
(c) If the opportunity arises, the leave numbers in clause 22.6(a) may be increased from time to time at the Company’s discretion and subject to operational requirements and the availability of suitable skilled labour, including labour hire.
4. Evidence
4.1 The organisational structure of GRM
[17] There was competing evidence in relation to the way that GRM is organised and the departmental structure that operate at the Mine. The essential points of difference were the number of departments and whether some of the areas nominated as departments by witnesses for the CFMMEU are sub-departments. According to Mr West, work areas are commonly referred to as “departments”, and there are 8 departments within production: Pre-Strip, Coal Mining, Drag Line, Drill and Blast, the Wash Plant, Field Maintenance, Workshop Maintenance and the Pump Crew.
[18] Witnesses for the Company stated that there are three departments within the Mine: Production Overburden, Maintenance and Production Coal which are broken down into sub-departments. Mr Gibbons gave evidence in relation to the Production Coal department stating that it consists of a number of “work areas”, each managed by a Superintendent, namely: Coal Mining; Coal Handling Preparation Plant (CHPP); and Mines Services. In his oral evidence, Mr Gibbons said that within the departments there are sub-teams or sub-departments. Mr Gibbons maintained that some of the departments referred to by Mr West are in fact sub-departments. 23
[19] Mr Gibbons said that in his role Mines Services Superintendent, he is responsible for providing water management services and earthwork services across the Mine to enable the different departments. Mr Gibbons also said that there are currently six Supervisors within the Mines Services team who are responsible for management of six different crews:
• 2 x Pump Crews (referred to as BA and DC crews). Each of these crews work a roster of 7day rotating day shifts; and
• 4 x Earthworks Crews. Each of these crews work a continuous roster known as the Broadmeadow roster.
[20] Each of the six crews has approved crew numbers of 7 or 8 employees. Mr Gibbons also has two additional Supervisors who are responsible for supervising service contractors. According to Mr Gibbons, each Supervisor is responsible for managing the safety and performance of their respective crews. Each crew commences at the same starting location and completes a pre-start with their respective Supervisor. Under cross-examination Mr Gibbons agreed that the earthworks crews work different panels of the Broadmeadows roster and are designated as A, B, C and D. 24
[21] Mr McDonald gave evidence about the Maintenance Department, and said that maintenance work is currently organised into the following sub-departments:
• Mobile Maintenance - Workshop 1 - within which work is further divided into truck and ancillary crews;
• Ultra Class Trucks - Workshop 2;
• Fixed Plant 1 - within which work is further divided into electrical and mechanical crews;
• Fixed Plant 2 - within which work is further divided into electrical and mechanical crews;
• Field Maintenance Ropes;
• Field Hydraulics; and
• Infrastructure Maintenance.
[22] According to Mr McDonald, each work area within the Maintenance Department is managed by a Superintendent who in turn manages a team of supervisors. There are typically four Supervisors within each work area however in some areas (for example, Field Maintenance) there are additional Supervisors as there is a requirement to further divide work between preventative maintenance crews and breakdown crews. Mr McDonald states that a crew is a group of employees and labour hire workers who report to a Supervisor. The numbers within each crew are determined by reference to the Mine's maintenance schedule and the specific skills (trades and competencies) required to maintain each type of equipment or infrastructure. The crew works together and will commence work at the same time (and at the same designated starting point) and will attend pre-starts together and work the same roster. Mr McDonald also tendered a document showing different crews within the Maintenance Department and approved crew numbers within each crew.
[23] Mr McDonald said that most crews within the Maintenance Department work a 4 panel continuous shift roster known as the Broadmeadow roster. Where this occurs, crews are referred to as either A, B, C and D depending on the relevant roster panel they are working. There are also a number of crews who work different rosters, for example:
• Employees in Fixed Plant still work a continuous roster known as the lifestyle roster (this roster has an additional “PJ” or “pyjama day” 25 compared to the Broadmeadow roster);
• Within the Field Ropes area, there are preventative maintenance crews who work a day shift only roster over Monday to Friday. This roster is referred to as the XY roster and both the X and Y crews have their own supervisor; and
• Within the Field Hydraulics team, there are breakdown crew and preventative maintenance crews who work a day shift only roster over seven successive days.
[24] Mr McDonald said that these are known as AB or CD rosters. These crews do not have their own supervisor but will report to one of two supervisors (for example, workers in the AB crew will either report to the A crew supervisor or B crew supervisor depending on the particular shift).
[25] In cross-examination, Mr McDonald said that sub-departments are grouped based on the equipment they are maintaining. Mr McDonald agreed that the document tendered by Mr Swanton showing outsourced reallocated tasks by department provided to the Union in 2016 as part of Project Zinc 26, appeared to depict departments interchangeably with the sub-departments. In relation to his evidence about sub-departments within the Maintenance Department, Mr McDonald was also taken to a document appended to his statement as Annexure “KCM-1” showing approved crew numbers for the maintenance department. Mr McDonald agreed that some of these groups are designated A, B, C or D in accordance with the Panel they work on the Lifestyle roster. Mr McDonald also said that some of the groups of employees shown in the table also work other rosters including the XY roster.
[26] Mr McDonald maintained that if the 20% quota was applied across multiple sub-departments it would create an issue but if applied across each sub-department no issue arises. In response to the proposition that people may fall sick or take long service leave and impact the quota, Mr McDonald said that other mechanisms such as backfilling would be put into place for longer term leave. In re-examination, Mr McDonald used CPP1 and CPP2 as examples and said that if they were combined for the purposes of the quota, three employees could be on annual leave at any time, and as a result all mechanical employees on one crew and one mechanical employee on the other crew could be absent, causing significant disruption. 27 Mr McDonald also said that breaking employees down into smaller crews is related to budget process and the lifecycle of equipment and that crews are made up of people necessary to maintain a particular fleet.28
[27] Mr Swanton gave evidence about Production Overburden and stated that within that Department there are a number of work areas led by different supervisors, namely: Draglines; Pre-strip; Drill and Blast; Autonomous Haulage; and Contracts. Workers within the Pre-strip area are then divided into crews, each of whom report to a Supervisor. There are currently 8 crews. The Supervisor is responsible for safely managing the people within their crew in addition to managing the approval of annual leave.
[28] Mr Swanton said that each crew comprises a group of operators who will operate a particular dig unit (either an electric shovel or digger), ancillary equipment (dozer, grader and water cart) and on average, between 8 and 9 haul trucks. Each crew has an approved crew number of either 12 or 13. At any one time, there are 8 crews operating within Pre-strip across four different roster panels (A, B, C, D). According to Mr Swanton, for about the last 3 years, BMA itself has operated with 8 crews within Pre-Strip as 8 different dig units have been operated. Mr Swanton said that there may have been rare occasions where an additional dig unit has been operated, however this has not been common. To Mr Swanton’s knowledge the Company has not operated 10 dig units.
[29] All crews within Pre-strip work a continuous shift roster known as the Broadmeadow roster. A copy of that roster was tendered by Mr Swanton. According to his evidence, the Broadmeadow roster is comprised of four panels of employee designated A, B, C and D. Although this is the most commonly worked roster at the mine, there are other areas of the mine (for example in the Maintenance Department and within the Mines Services team which is part of the Production Coal Department) where employees work day shift only rosters (either between Monday to Friday or across seven consecutive days).
[30] Mr Swanton also gave evidence about changes to the manner in which the Production Overburden Department operates. Mr Swanton said that it is the largest Department at the mine and Pre-strip is the largest work area within Production Overburden. Prior to July 2016, Pre-strip had only three supervisors per shift and all pre-starts were conducted in the one session with workers being allocated to operate different dig units and ancillary equipment each shift depending on operational requirements. By 2016, this practice had become inefficient as Pre-strip had grown in size by nearly 300% since 2012 and it was taking considerable time to allocate all the workers to the different equipment during each pre-start meeting.
[31] In approximately July 2016, Brad Holden commenced at GRM as the Overburden Manager and made changes to the way in which Pre-strip operations at GRM were organised. Pre-strip was subsequently divided into smaller dig unit crews and BMA assigned a supervisor to the crew of each dig unit. Each dig unit crew was assigned a crew bus and each Supervisor was responsible for conducting pre-starts separately in the bus whilst taking the dig unit crew from their starting point at the Mine to their particular work area (also referred to as a strip).
[32] The current practice is that the Supervisors for all the dig unit crews meet each morning at approximately 5.00 am before the shift commences. The purpose of this meeting is to ensure that each dig unit and its associated ancillary equipment can continue to meet the daily Mine plan in light of any unplanned issues that may affect that plan. During the meeting, the Supervisor reviews manning lists and the mine plan and makes arrangements to account for unplanned events (usually late notified absences or equipment breakdowns). The Supervisors also discuss what skill shortages they may have within certain crews and any movements that may be required to ensure (to the extent possible) that all 8 crews are operating productively and to avoid parking up a particular dig unit.
[33] Once the crews commence (either at 6.15am or 6.15pm), each Supervisor boards their crew bus with their respective crew and conducts the pre-start on the bus with their crew as they go out to their loading units to work out there for the day. At the end of shift, each crew travels back to their designated starting point on their crew bus. Due to the size of the workforce within Pre-strip, briefings are no longer held with all the workers on the same roster panel (eg. A, B, C or D panel). Instead, where there is a requirement for a group briefing (eg. State of the Nation discussion or if there is an industry wide event, such as the recent safety reset in September 2019), the briefings are split into two pre-strip briefings per shift because of the size of the group and room capacity.
[34] Mr Swanton also gave evidence in response to Mr West’s evidence about consultation conducted by BHP in 2016 in relation to proposed changes referred to as Project Zinc. Mr Swanton said that the CFMMEU was provided with information regarding the effects of the decision including the new approved crew numbers for Pre-strip. It is Mr Swanton’s understanding that copies of approved crew numbers were provided by BHP’s then Employee Relations Manager. Mr Swanton tendered a presentation given to employees in 2016 setting out current and required crew numbers. The presentation includes a table headed “Work Area Skill Mix” which designates “Mine Site Process” as: Pre-Strip, Coal Mining, Drill and Blast, Draglines, CHPP and Mine Services. The presentation contains crew numbers based on dig units.
[35] Mr Swanton also said that during consultation in relation to autonomous haulage at GRM, the CFMMEU was provided with current approved crew numbers for Pre-strip (and anticipated future crew numbers) by reference to the dig unit crew structure. The presentation made on 14 November 2019 at a consultation meeting was also tendered by Mr Swanton. It shows that work areas were broken up into A1 – A8; B1 – B8; C1 – C8 and D1 – D8.
[36] Under cross-examination, Mr Swanton agreed that the workers in all areas in Production Overburden are working towards a common outcome and are doing a similar type of work. Mr Swanton also agreed that it is common for people at the Mine to describe areas as departments even if he did not technically agree with that description. 29 Mr Swanton said that the approved crew numbers for each crew are produced each year as part of a workforce plan. Mr Swanton was not aware if a workforce plan document existed before 2016.30 In relation to his evidence about the potential impact if the CFMMEU construction of clause 22.6 was adopted, Mr Swanton agreed that on the Company’s construction it would be possible for three workers who make up the quota on each unit, to be on leave at the same time, in circumstances where each worker held a digger qualification.31 Mr Swanton also agreed that given employees on sick leave and long service leave are not counted for the purposes of the quota for annual leave, that there would be gaps in coverage and a need for employees to be redeployed if the Company’s construction of the clause was accepted.32 In re-examination, Mr Swanton maintained that notwithstanding that the same issues could arise if the Company’s construction of the clause was accepted, the small work groups implemented by the Company are easier to manage.
[37] The evidence of Mr West and Mr Bentlin is that the workers involved in Production are divided into four “crews”: A Crew, B Crew, C Crew and D Crew based on rosters worked by crew members. Mr West explained that all crew workers start their swing on the same day and that depending on whether a worker is on a Lifestyle roster 33 or Broadmeadow roster, workers in the same crew – A, B, C or D – will start their shift on the same day. Mr Bentlin works in accordance with the Lifestyle roster and explained that it involves working four nights, then four days off, followed by working two days and three nights (with a pyjama day after the day shifts). It is then followed by three days off, then five working days, followed by six days off. Each shift is 12.67 hours. Day shifts begins at 6:15am and finish at 6:50pm. Night shifts begin at 6:15pm and finish at 6:50am. Workers take two 30 minute crib breaks on each night and day shift.
[38] In Mr West’s experience, workers at the Mine use the word “crew” to refer to themselves, another worker or a group of workers, Mr West understands it to be referring to the totality of the people that are rostered to work at a particular time on the roster that operates the Mine. Mr West submitted that if a worker asked him “what crew is he/she on?”, he would understand that he was being asked whether the worker was part of A Crew, B Crew, C Crew or D Crew. Mr West explained that each Crew is further divided into sub-groups or Departments, and in the case of Pre-Strip, further divided into Dig Units. It is submitted that when taken together, the Dig Units and Departments working on the same panel of the roster, comprise the whole crew.
[39] Mr West stated workers never refer to “crews” without including the letter, (A, B, C or D), that distinguishes the particular crew. Mr West refers to himself as a member of “D Crew” and refers to workers in the same way when he wants to refer to the totality of people that he works with. According to Mr West, representatives of management have taken the same approach. It is only recently that Mr West heard representatives from management refer to crews in a different manner than described by him.
[40] Under cross-examination, Mr West agreed that there are other rosters at the GRM in addition to the four panel rosters referred to in his evidence and did not dispute that there are rosters referred to as AB, BA, CD, DC, X, Y and Z although Mr West is not aware of all of these. Mr West also accepted that there are other rosters besides the Broadmeadow roster and the Lifestyle roster which have an ABCD pattern. Mr West agreed that he was not asserting that everyone on the A panel of a roster at GRM is in A crew and that the Company broke groups of employees down into workable business units, departments or crews. 34
[41] According to Mr West, Pre-strip is significantly larger than the other departments. Pre-Strip involves workers with different skills removing the material, which mostly consists of rock and dirt, referred to as overburden, that covers the coal. Pre-Strip workers consist of shovel operators, excavator operators, dozer operators, grader operators and truck drivers.
[42] Mr West believes there are between 110 to 120 workers in Pre-Strip and approximately 50 employees in the next largest Department, Coal mining. Mr West states that Pre-strip workers are broken down into smaller workgroups based on the machinery they are assigned to. For example, Pre-Strip workers allocated to the support the work of a particular shovel, are referred to collectively as a “Dig Unit”.
[43] Mr West explained that workers who are assigned to work with a specific shovel in Dig Unit, may identify themselves by saying “I’m on shovel 35 today.” Workers that are assigned a particular strip in Dig Unit may say “I’m on strip 33 today.” Mr West said that Pre-Strip workers are the only workers that are divided into Dig Units or strips at the Mine as other Dig Units across other Departments are too small to subdivide. Other Departments, such as Field Maintenance and Workshop Maintenance, have between 10-20 workers per crew and the remaining Departments, have between 8 to 16 workers per crew.
[44] Mr West said that in the past, all Pre-Strip workers on a particular Crew (A, B, C or D) would commence their pre-start meetings in one room prior to their shift in Dig Units. Mr West stated that Pre-Strip supervisors would similarly be involved in toolbox talks with Pre-Strip workers in a particular crew as one group. Mr West said this reflected what occurred in other Departments with pre-start meetings and toolbox talks being conducted with all the members of the Department in one room.
[45] However, according to Mr West, approximately 18 months ago, D Crew Pre-Strip workers stopped conducting their pre-start meeting together in one room. Mr West stated that instead, each Dig Unit conducted their pre-start meeting on the bus on the way to their allocated Strip for that day. Mr West believes Mr Brad Holden implemented this change and he commenced as Production Overburden Manger in about June 2016.
[46] Mr West said that this change in the structure of pre-start meetings coincided with each Dig Unit being allocated to a separate supervisor who was to oversee the work of that Dig Unit. Mr West also said that this change in pre-start meetings differentiated Pre-Strip from all of the other Departments that continued to conduct their pre-start meetings together and who do not have supervisors that are responsible for overseeing the work of individual Dig Units. Mr West compared this to the Coal Mining Department that has two supervisors responsible overseeing 50 coal mining workers.
[47] Mr West can only recall one time where he was notified by the Company of a change to “crew numbers” or “approved crew numbers”. Mr West stated that the company does not publish “approved crew numbers”. According to Mr West, the only time the company discussed the number of workers assigned to a particular Dig Unit was in the context of consultation with workers where the Company advised that it would no longer include supplementary employees in the numbers of workers assigned to a particular Dig Unit.
[48] Mr West stated that the Company advised that additional employees to a Dig Unit that were previously retained to fill in for workers who were away or reassigned, would be made redundant as a pool of labour hire employees that were based in Moranbah, would be deployed to a particular Dig Unit as needed. Mr West explained that this meant if a Dig Unit was previously assigned 25 workers, 10 of whom were supplementary workers, those 10 workers would be made redundant. If one of the remaining 15 workers were unavailable to perform their role, a labour hire employee would take their place.
[49] According to Mr West, this proved difficult for the Company as for example, it was not viable in practice ensuring that workers were competent to operate particular machines. Mr West submitted that although this objective was never officially abandoned by the Company, it transformed to where labour hire employees that were originally assigned to the pool of supplementary workers, were assigned to a particular dig on a permanent basis. From the example, Mr West said this resulted in the 10 supplementary workers becoming permanent until the Dig Unit was again comprised of 25 workers. Mr West submitted that the skills matrix the Company publishes is usually incorrect or out of date as it does not reflect the current skill level across the Crew or Departments and in his view, is of no use in determining “approved crew numbers”. Mr West confirmed that he had seen the consultation documents tendered by Mr Swanton and that they had been provided by the Company in 2016 and 2019 respectively. Mr West said that the crew numbers in those documents are not an accurate reflection of the current skills mix in the areas shown and in particular in Drill and Blast.
[50] Under cross-examination, Mr West agreed that in 2016 he was provided with consultation material in connection with Project Zinc, which stated that the employees in Pre-strip were assigned to dig units and setting out crew numbers for each dig unit. Mr West later maintained that the groups were work areas rather than dig units or may have related to strips. 35 Mr West also agreed that in other departments workers are broken down into groups equivalent to dig units based on skills or location and maintained that he had never heard a reference to a sub-department. In re-examination, Mr West said when the crews were described based on dig units during the Project Zinc consultation, he thought it was a sensible way to describe how crews would be allocated to machinery to explain a reduction in the total number of employees.
[51] Mr Bentlin said that prior to the current dispute, he has not heard of any worker or representative refer to Dig Unit, other than by the number of the shovel or excavator. Mr Bentlin has not heard any worker or representative of the Company refer to B Crew Pre-Strip workers as part of a crew called B – 1 or B – 2. Mr Bentlin also said that approximately two years ago, he noticed that the Company was no longer calculating the 20% quota (for employees on annual leave) based on the number of available workers in B-Crew Pre-Strip. Mr Bentlin’s evidence is that for the last two years the 20% quota has been based on the number of workers assigned to particular Dig Unit. Mr Bentlin explained that he was aware of this due to the responses provided by his supervisor when he requested annual leave.
[52] According to Mr Bentlin, the word “crew” refers to “the roster that you work and the area in which you work.” He explained that the four named crews at the Mine are A Crew, B Crew, C Crew and D Crew. When Mr Bentlin would be asked which crew he was on, depending on the context, Mr Bentlin would reply either B Crew or B Crew Pre-Strip. Mr Bentil said that this is consistent with the manner in which other people refer to crews, and he has never heard anyone refer to their Dig Unit as their “crew”.
[53] Mr Goulevitch works in the Pre-strip Department. His evidence was that of all the Departments at the Mine, Pre-Strip has the most workers, followed by Coal Mining. Mr Goulevitch said that the workers in Pre-Strip are allocated to a “Dig Unit” which is made up of workers operating: one excavator (‘digger’) or a shovel; a water cart; a dump dozer; a face dozer; a grader; and dump trucks. The Dig Unit is named after the digger or shovel – as the digger or shovel is the unit and the other machines support the operation of the digger or shovel. According to Mr Goulevitch’s evidence, there are ten dig units that operate in Pre-Strip Department, comprised of:
• Two shovels which are larger and can move more overburden than excavators; and
• Eight excavators, including:
• four 9800 excavators, the largest of the excavators;
• three 340 excavators; and
• digger 32 which is a smaller excavator which Mr Goulevitch understands is hired by the Company to supplement the diggers.
[54] Mr Goulevitch understands the word “crew” to mean the group of workers who work as part of either A Crew, B Crew, C Crew or D Crew, or the group of workers within, for example, A Crew, that comprise a particular Department. In his role as a delegate, when discussing matters related to the workplace with members at the Mine, Mr Goulevitch uses the term “crew” to refer to the roster that a particular worker works – for example, C Crew – and/or to refer to the workers within that roster who are assigned to a particular Department – for example, C Crew Pre-Strip. In his role as an employee and mine worker, Mr Goulevitch uses the term “crew” in the same way and in his discussions with other workers at the Mine, both as their Delegate and as their colleague. Mr Goulevitch has not encountered any situation where it has become apparent his understanding of what is meant by the word “crew” is different to their understanding of what is meant by that term as it relates to work at the Mine.
[55] Mr Bentlin is allocated to Dig Unit 41. He states that there are generally between five and eight trucks. Eight trucks is the maximum amount that are allocated to Dig Unit 41. Dig Unit 41 is currently assigned 22 workers on B Crew Pre-Strip. Larger Dig Units, such as the shovels, have approximately 24 or 25 workers assigned.
[56] The workers who are not assigned a machine or truck at the beginning of the shift are sent to other Dig Units, or more commonly, are assigned as “spares” to replace other workers on their crib breaks. According to Mr Bentlin, workers usually stay in the crib huts when they are not working. If a truck driver takes their first crib break four hours into their shift, another truck driver will take over their truck and continue driving. The truck driver can either wait in the crib hut until the other truck driver comes back four or five hours later, or the truck driver may be assigned to work on another truck.
[57] In relation to Dig Unit 41, Mr Bentlin stated that around February 2020, he was certified as competent to operate the diggers. He previously operated dozers at the Mine. Mr Bentlin explained that his current role is operating the excavator in Dig Unit 41. It is named Dig Unit 41 because the excavator that is assigned to the Dig Unit is Excavator 41. The term “Unit” refers to the digger, either the shovel or the excavator, as a unit of machinery.
[58] Mr Bentlin stated that as Excavator 41 is a comparatively smaller unit than some other excavators, as well as being much smaller than shovels, Dig Unit 41 is generally assigned work that is low priority. Mr Bentlin explained that the type of work Dig Unit 41 may be assigned is to clear material or ground, in order for a larger machine, for instance a shovel, to be able to enter the area and quickly remove the overburden.
[59] Mr Bentlin explained that Dig Unit 41 may also be shut down and so the workers are dispersed to other Dig Units if, for example:
• machinery operators in other Dig Units are away, including on personal or annual leave, and replacement machinery operators are required in order for the other Dig Unit to perform its work; and/or
• a higher priority work is needed elsewhere. In this instance, truck drivers would be dispersed to provide further assistance in other Dig Units to clear overburden and to allow that work to be completed quickly.
[60] Under cross-examination, Mr Bentlin agreed that he is mostly assigned to dig unit 41 and that he considers that he is a member of B crew. Mr Bentlin agreed that his roster is not worked out on B crew across the mine and is broken down into dig units. 36
[61] Mr Power said that during his time in the role of District Vice President Rockhampton, the working arrangements that existed at GRM for production workers were the same (or at least substantially similar) to the working arrangements that exist at other open cut Mines that were operated by the Company in the area. In this regard, the workers involved in production were divided into four crews, to ensure the mines are able to operate 24 hours a day, seven days a week. The crews were often referred to as A Crew, B Crew, C Crew and D Crew. Amongst the workers on a particular crew, the production workers are then further divided into departments. While the names of certain departments may vary from mine to mine, the process of grouping workers into departments by reference to their skills and competencies, was the same. Mr Power has never heard any workers or representatives from BHP refer to any sub- units or groups within a department, such as dig unit, as a “crew”. In Mr Power’s experience, the word “crew” has always been used to describe the group of workers on a particular roster, either across the Mine or in a particular Department.
[62] The CFMMEU also tendered a witness statement made by Mr Michael Schafferius, Superintendent Pre-strip at GRM and tendered by BHP in proceedings before the Commission as presently constituted, in relation to unfair dismissal applications made by two GRM employees in 2018. Mr Schafferius statement was made on 30 May 2019. In that statement Mr Schafferius said a number of things in relation to Pre-strip crews at the Mine including that:
• The Pre-strip Department looks after nine digging units (including rope shovels, hydraulic excavators and excavators), 65 trucks and approximately 48 pieces of ancillary equipment and that within the Pre-strip Department there are four crews (A, B, C and D Crew) with each crew split into sub-groups that work on a single digging unit.
• Mr Schafferius works on a seven day on, seven day off roster back to back with another Superintendent overseeing 34 supervisors who are direct reports and indirect reports are Pre-strip Operators with total crew size of between 640 and 660 and approximately 164 per crew.
• C Crew (in which two employees involved in that case worked) has 8 supervisors and approximately 164 Operators.
4.2 Internal movement of employees
[63] A number of witnesses gave evidence about the movement of employees between departments, rosters and crews. Mr West stated there are limited movements of workers between departments, including when there is shortage of workers in a department, as each department performs specialised work and for example, it would not be possible for a Pre-strip worker to backfill as a dragline operator, as specific skills and competency are required in the operation of the dragline.
[64] Mr West notes the exception of some workers on, for example, C Crew who have transferrable skills. Mr West stated that it is rare for workers to transition between crews. Mr West has continued to work on D Crew for most of the period he has been employed at the Mine. He initially worked on C Crew Coal Mining for three months when he was made permanent, before he was moved to D Crew Blasting. Mr West also worked on B Crew Blast for a few months before returning to D Crew where he has remained for over 10 years. Mr West said that transferring or swapping between crews rarely occurs. This is because if a worker wants to change to another crew, the worker would need to find someone on the other crew to swap with otherwise one crew may be overstaffed and the other understaffed. Additionally, Mr West said that if a worker did change crews, the worker would need to take days off either at the start or end of their current swing before starting with the new crew so that they were working the correct amount of permitted days and hours under the relevant enterprise agreement and/or the fatigue management policies at the Mine.
[65] Under cross-examination, Mr West agreed that employees are not usually assigned to a different dig unit every day but said that employees may move around to cover leave and absence due to illness. Mr Goulevitch supported Mr West’s evidence and also said that it is unusual for workers to be transferred between departments because the skills and competencies that are required in one department are not necessarily required in another department. According to Mr Goulevitch, it is also rare for workers to be transferred to a different crew on the basis of different swings in the roster which would require the transferring worker to take time off so as not to work too many shifts in a row.
[66] In practice Mr Goulevitch performs most of his work on one particular excavator, but states that there is no reason why he could not be transferred, either temporarily or permanently, to another Dig Unit. Other workers in Pre-strip, for example, truck drivers may be required to perform work for other dig units, depending on staffing levels across pre-strip and on the priority given to various dig units. According to Mr Goulevitch, movement of workers across dig units is very common and occurs at least 3 to 4 times across a 4 – 5 day swing. An example of when movement of workers occurs is when a dig unit is down for maintenance and digger operators are dispersed to other dig units to operate dozers or to relieve workers as they go on crib breaks. Mr Goulevitch said that workers would not sit idle in the crib room while their digger is down.
[67] To the best of Mr Goulevitch’s knowledge, Pre-strip workers are the only workers at the Mine who are divided into dig units on the basis that there are not enough workers in the other departments to justify dividing them into dig units. Mr Goulevitch agreed with Mr Swanton’s evidence about the reasons why workers might be required to move between dig units but maintained that this occurs frequently because of breakdowns of machinery. These breakdowns are so frequent that there are two diggers to operate in the event of a breakdowns. Under cross-examination, Mr Goulevitch agreed that the reasons employees are moved between dig units are outages, breakdowns, unexpected absences and the like.
[68] Mr Bentlin estimated that at least once a week in Pre-strip, workers would commonly be sent to different dig units to complete their shift. Mr Bentlin provided two day shift examples of workers in dig unit 41 who were sent to work in different dig units; 28 April 2020 and 14 May 2020. In relation to the events of 28 April 2020, a Step-Up Supervisor informed Mr Shaun Cameron, a dig unit 41 digger operator, that he would be working with dig unit 12 for the whole shift and 4 truck drivers from dig unit 41 were also directed to join Mr Cameron. As a result around 14 – 15 workers remained in dig unit 41. Later the same day, Mr Bentlin was also directed to go to dig Unit 12 due to another worker taking sick leave. Mr Graham Halverson, an experienced digger operator from dig unit 41, provided assistance to dig unit 12.
[69] Mr Bentlin believed that after he was allocated to dig unit 12, dig unit 41 stopped operating; truck drivers were likely dispersed to other dig units and the remaining dig unit 41 machinery operators would have most likely stayed in the crib room in the event any further work would be assigned to dig unit 41. On 14 May 2020, dig unit 41 workers were informed by their supervisor that all but two truck operators would be allocated to other dig units for the day and gave directions to the re-allocated truck drivers. Two truck drivers, four operators, one trainer and one water cart driver remained in dig unit 41. Mr Bentlin stated that he was directed to drive the water cart operator to dig unit 33 and take the remaining two truck drivers to dig unit 65 so they could assist with crib breaks. After doing this, Mr Bentlin returned to dig unit 41. Also during that shift, excavator 65 broke down, and dig unit 65 workers assisted the workers remaining in dig unit 41 and excavator 41 was operated for approximately an hour, until excavator 65 was fixed and dig unit 65 workers returned to operate excavator 65.
[70] In response to Mr Swanton’s evidence, Mr Bentlin stated that whilst the Company may want to reduce the movement of workers between dig units, it is not consistent with practice and it is more notable when there are no movements between workers in dig units, as opposed to when there are changes. Mr Bentlin said that he cannot remember the last swing he worked where there were no changes to the workers that were usually assigned to a particular dig unit.
[71] In relation to Mr Swanton’s estimate that changes between dig units are less than 10% of the approved crew numbers in every crew within any given shift, Mr Bentlin questions whether this has taken into account the changes that occur at the start of a shift. Mr Bentlin stated that regardless if those changes were not considered, the total movement of workers between crews frequently exceeds 10/100 workers.
[72] Mr Bentlin referred to when he was last rostered to work a swing shift on 19 June 2020, as an example of workers moving between crews. This swing was comprised of five day shifts where he took 19 June 2020 and 20 June 2020 as annual leave. This meant that 21 June 2020 was his first shift. On that shift, Mr Bentlin was assigned to dig unit 41, which is the digger he normally operates. Mr Bentlin stated that usually seven trucks are assigned to the dig unit. However, this time as four trucks were assigned, at least three workers that were usually assigned to dig unit 41, were reassigned to other dig units.
[73] On 22 June 2020, digger 41 was not being used due to planned maintenance. This meant that the 22 workers that were assigned to dig unit 41, were sent to other dig units. Mr Bentlin stated that he was sent to dig unit 12 for his whole shift and relieved the digger operator while he was on crib breaks. Mr Bentlin explained that dig unit 12 is a standby digger that is primarily utilised when other diggers are not able to be used. Mr Bentlin said that as a result, the 20 other people working on digger 12 that day were also from other dig units as there is no dig unit permanently assigned to operate digger 12.
[74] During his shift on 22 June 2020, Mr Bentlin stated that he was working with some, but not all workers from shovel 33. Mr Bentlin indicated that the entire dig unit from shovel 33 was not working on digger 12 as there were not 23 workers allocated, which is the number usually allocated to the dig unit for shovel 33. Mr Bentlin concluded that on 22 June 2020, 22 workers who were usually assigned to dig unit 41 were sent to other dig units (including dig unit 12), and 23 workers that were usually assigned to dig unit 33 were sent to other dig units (including dig unit 12).
[75] On 23 June 2020, Mr Bentlin was again assigned to work in dig unit 12 with workers from dig unit 33. During that day, as a machine in dig unit 44 was not able to be used, 3 truck drivers from dig unit 44 assisted operating digger 12 for two hours, until the problem was fixed. Mr Bentlin believes that the remaining dig unit 44 workers would have been sent to other dig units during this time. Mr Bentlin said that Mr Swanton’s assessment is therefore incorrect as workers transfer between dig units multiple times during a shift. Mr Bentlin said he did not work with the same people on any of these three days, which is not unusual.
[76] In response to Mr Swanton’s evidence that each dig unit supervisor is better placed to develop the skill sets of the crew members when training opportunities become available, Mr Bentlin said that one of the main reasons workers move between dig units is because the current skills mix is not broad enough to allow workers within a particular dig crew to step into different roles if other workers in the dig crew are not at work.
[77] In response to Mr Swanton’s evidence that operators within a dig unit become familiar with workers in their unit, Mr Bentlin said that while this was the case when he started work at GRM 5 years ago, due to the Company’s increased use of labour hire employees who have a higher turnover rate, Mr Bentlin is now not familiar with the B Crew Pre-strip workers.
[78] In relation to employees changing between Pre-strip crews, Mr Swanton said that it is in the interests of the mine to minimise changes between the dig crews and to do so only where it becomes necessary. According to Mr Swanton, there are commonly only two reasons why a worker might move between the eight different dig crews during the day:
• Unplanned absences at the commencement of a shift or during the shift. For example, in order to keep a dig unit operating, it may be necessary to move a worker from one crew into another crew so that there are sufficient numbers of trained operators available to operate certain loading equipment - this is because not all workers within a crew are trained to operate all equipment (for example some employees may be trained to grazers or water carts but may not be trained to operate excavators, shovels or dozers); and
• Breakdowns to equipment. For example, if a dig unit breaks down, the Control team based in Brisbane may temporarily assign the crew that were to operate the trucks associated with that dig unit to another dig unit (located elsewhere at the mine) to try and make best use of the trucking capacity while that digger is being repaired. The other ancillary equipment (eg. dozers, graders, water cart) may also be temporarily assigned to other areas within Pre-strip to maximise utilisation of the equipment. Once the dig unit has been repaired, the trucks and ancillary equipment will be re-allocated back to their original dig unit and the crew will continue production in accordance with the mine plan.
[79] From time to time, there may also be a requirement to move workers to another crew at short notice to provide coverage for illness or injury (which may occur during the course of a shift) or for training requirements. There may also be a requirement to move workers to another crew at short notice to provide coverage for workers who need to be hot seated (meaning that a worker might cover another worker while they go on lunch or have a break) in the event that the Company does not have the right skills mix within the relevant crew to provide that coverage. If this was to occur, then it would be arranged during the morning supervisor meeting. The worker providing crib relief would cease operating their allocated equipment and swap with the second worker who was on going on lunch, before swapping back once the second worker returns from lunch and returning to their usual crew.
[80] Mr Swanton estimates that on average, changes during a shift have been less than 10% of the approved crew numbers in every crew within any given shift. This is approximately 10 out of 100 people working across a single roster panel being required to move between different dig crews within a shift. Mr Swanton said that it would exceed 10% rarely and only if there were two dig units that had broken down (which has occurred from time to time). This could result in less than 20% of the approved crew numbers across all crews (being approximately 20 out of 100 people working across a single roster panel) being required to move between different dig units within a shift. Where possible, movements between the eight different dig crews are minimised to maintain or increase productivity and to minimise the disruption to execution of the mine plan.
[81] Mr Swanton said that examples of the reasons for minimising such movements are that GRM covers a large mine area. Pre-strip operators may be required to travel up to 35km to 40km between the different strips. Each time there is a requirement to move workers around during the shift time is lost (not only the down time for the worker who is required to move to a different crew but also time for an additional crew member to drive the worker to the new work area). Travel to and from the new work area can take anywhere between 20 minutes to 40 minutes. Additionally, if area familiarisation is required to be completed by the trainer/supervisor, then the combined loss of time caused by the travel and familiarisation may be up to one hour.
[82] Mr Swanton said it is also the case that the Supervisor of each crew is better placed to understand the skills and competencies within the crew and can further develop skill sets of the crew members as and when training opportunities become available. In addition, having the crews assigned to work on different dig units and areas (strips) within the mine reduces the time which is required to allocate workers to equipment and allows them to get their equipment going straight away. Further, operators within a crew develop a familiarity with the other crew members and the area in which they are working. This means that production is optimised as the crew understand the mine plan for the area, the dig plan for the shift and the changing environmental factors within that area.
[83] Mr Swanton said that it is in the interests of the mine to minimise changes between dig crews to keep all eight strips operating at any one time. While there are areas for overburden to be uncovered which are prioritised, the mine planning team requires overburden to be uncovered across all eight strips to account for all downstream activities and to ensure that the right blend of coal can be supplied to the customer.
[84] Further, Mr Swanton said that if a dig unit and its associated equipment are not operating because of a shortage of operators within that area, it creates problems, including:
• loss of production - whilst the overburden could be removed at a later time, the delay in the removal of overburden is an opportunity cost to the business as it means that coal cannot be uncovered until a later point in time. Delays in different areas mean impacting coal stock piles which affects having the right blend available when needed for customers;
• cash costs increase because the volume of overburden is not being moved (and indirectly are not producing the volume of coal) to dilute spend; and
• causing impacts or delays to planned downstream activities.
4.3 Approval of annual leave
[85] Mr Bentlin’s evidence in relation to the process for approval of annual leave was that approximately two years ago at the Mine, a different system to the current one existed for submitting leave requests. Mr Bentlin explained that previously, he would have approached Mr Mark Finlay, an operator on B Crew, with leave requests. Mr Finlay kept a diary of B Crew Pre-strip employees’ scheduled leave. According to Mr Bentlin, before he submitted a leave application, he would first liaise with Mr Finlay who would inform him whether more or less than 20% of the entire B Crew Pre-Strip workforce were on annual leave at time he was planning leave. If fewer than 20% of workers were on annual leave during this time, Mr Bentlin stated that he would then submit a leave request and it would be approved by the Supervisor.
[86] Mr Bentlin said that during the last two years, since Mr Brad Holden commenced as Production Manager, the practice has changed and a greater emphasis is placed on the individual dig units and a desire to stop the movement of workers across these dig units. Mr Bentlin recalls that at a “State of the Nation” address, Mr Holden addressed B Crew Pre-Strip workers and said words to the effect of:
“You will not be transferring between dig units. We will have enough workers on each dig unit to cover any annual leave or sick leave, so that it will not be necessary to transfer employees between dig units.”
[87] Mr Bentlin stated that notwithstanding Mr Holden’s statement, workers have continued to transfer between Dig Units depending on the nature of the work a Dig Unit is performing and the availability of workers. Mr Bentlin referenced the examples given in his evidence and said that workers transfer between Dig Units about once each swing. Mr Bentlin also said that Mr Holden introduced a worker colour classification system which was not adopted by the workforce and is not in use.
[88] Mr Bentlin said that it was not until late 2019 when his request for annual leave was refused for the first time, that he had cause to dispute the difference in interpretation of clause 22.6 adopted by the Company due to the differences in understanding of the word “crew”. In relation to the current dispute, Mr Bentlin stated that on 8 December 2019, he handed Mr Stibbard a completed leave application form requesting annual leave from 28 to 30 December 2019. Prior to making his leave request, Mr Bentlin approached a Supervisor to look at a copy of the leave chart where he observed that only Mr Halverson and Mr Sharp, from Dig Unit 41, were recorded as being on leave over this period. Mr Bentlin said that as no one else from Dig Unit 41 was recorded as taking annual leave during this time, he decided to apply for leave over the Christmas period.
[89] Mr Bentlin stated that approximately one day after applying for annual leave, Mr Stibbard informed him that his request has been denied. Mr Bentlin said that he was surprised at this response as he checked the leave calendar and understood that the Company was required to approve his leave. According to Mr Bentlin, Mr Stibbard informed him that there were three people, including Mr Stibbard, taking leave at that time and that for the purposes of determining the quota, supervisors were included. Mr Bentlin then informed Mr Stibbard that regardless of Mr Stibbard being included in the quota, that four people were allowed to take leave as 20 people work on Dig Unit 41. Mr Stibbard then explained to Mr Bentlin that he was told that only 13 people were required to Operate the Dig Unit and that the quota is 15% of 13 people. Mr Bentlin replied that it makes no sense as 20 people are assigned to Dig Unit 41 and that the clause states the quota is 20%. According to Mr Bentlin, Mr Stibbard replied that “this is the way they are running the show and this is what I’ve been told to tell you.”
[90] Mr Bentlin then contacted Mr West and explained his interaction with Mr Stibbard and that he was denied annual leave over Christmas because more than 15% of the 13 people allocated to Dig Unit 41 would be on annual leave. Mr Bentlin told Mr West that this was contrary to what he had been told before – that four workers are able to take leave at one time as that is 20% of the 20 workers that are assigned to Dig Unit 41.
[91] On 11 December 2019, Mr Rob Oram, Union Delegate for B Crew, notified BHP of a dispute and requested that the steps in the Dispute Resolution Procedure be bypassed. The next day, the CFMMEU wrote to Ms Caitlyn Ryan, BHP Principal Employee Relations, advising of the dispute and inviting BHP to withdraw its position. On 17 December 2019, BHP convened a State Level Conference about Mr Bentlin’s dispute. The same day, Ms Ryan informed the Union in a letter that in BHP’s view, the annual leave quota for 28 to 30 December 2019 already exceeded 20% of the approved crew number and maintained that Mr Bentlin’s leave application would not be granted.
[92] Ms Ryan provided to the CFMMEU a breakdown of the annual leave already approved for BMA employees covered by the Agreement during this period, which did not include the names of the employees taking leave. Mr Bentlin expressed his dissatisfaction with the names of the employees being redacted as according to Mr Bentlin, Supervisors do not hesitate to tell other work colleagues the reasons a worker is not at work. Mr Bentlin stated that the list provided by Ms Ryan, separated the workers into Dig Units and identified that each Dig Unit was comprised between five to ten workers. Mr Bentlin said that this is not correct as in Dig Unit 41, where he works, there are over 20 assigned workers.
[93] Mr Bentlin further stated that the list identified eight separate Dig Units, by the strip that the Dig Unit was assigned to and recorded a total of 62 workers. Mr Bentlin submitted that this is less than the number of Pre-Strip workers he knows work on B Crew, which he estimates as being over 100 workers. According to Mr Bentlin, as the names of the workers are redacted, it is impossible to determine whether the list included permanent employees of the Company or labour hire workers. Mr Bentlin estimates that from his conversation with labour hire workers on B-Crew, approximately 90% are casual employees. Mr Bentlin contended that the vast majority of labour hire workers are casuals and only a few are employed on a permanent basis.
[94] Mr Bentlin said that as the names on the list provided by Ms Ryan are redacted, it is not possible to verify with the workers if they are taking annual leave over the period that he had requested for leave. Mr Bentlin believes that the number of workers on the list scheduled to take annual leave during that time was not consistent with what he was told. As the dispute was not resolved before his requested period of leave, Mr Bentlin attended work on 28 December 2019.
[95] Mr Bentlin disagreed with Mr Swanton’s evidence that the CFMMEU’s interpretation of the leave quota would potentially result in all 23 holders of a particular competency – digger operators – being on leave, resulting in Pre-Strip not being able to operate. According to Mr Bentlin, if the Company’s calculations concerning approved crew numbers were accepted, it would result in three employees from each dig unit being able to take annual leave at any one time. Mr Bentlin said that as dig unit 44 and dig unit 68 have only three digger operators allocated, it is likely that those dig units would not be able to operate when those digger operators are on annual leave.
[96] Further to this, Mr Bentlin stated that the Company’s scenario also does not consider that employees who are not at work for other reasons, including training or personal leave, would not be captured by the quota. By way of an example, Mr Bentlin said that if digger operators in dig unit 41 and dig unit 33, who each are regularly allocated four digger operators, was away on personal leave, then it would still be possible for the three remaining digger operators to also take annual leave. This would result in the dig unit not being able to operate.
[97] Under cross-examination, Mr Bentlin agreed that during the dispute his Supervisor showed him on a computer screen the names of the employees who were absent on leave at the relevant time. Mr Bentlin also agreed that he disputed the number of absent employees on the basis that he did not believe that a step-up Supervisor should be counted in the quota.
[98] Mr Goulevitch said that at various times, prior to the current dispute, the Company has treated the word “crew”, for the purpose of clause 22.6 of the 2012 Agreement and the 2018 Agreement, as meaning the workers in individual Departments assigned to a panel of the roster for Pre-strip. Mr Goulevitch said that he knows this based on his experience assisting workers with disputes about the application of the annual leave clause and how the quota of 20% of the crew is calculated.
[99] Mr Goulevitch said that prior to the current system for approving leave – in which leave applications are submitted to the supervisor, who confirms whether or not the leave can be taken – each Department at the Mine used to rely on a “book runner” to track workers who were on annual leave. This system was in operation when Mr Goulevitch commenced work at GRM in 2010. The “book runner” for the Pre-strip C Crew was Mr David Pomeroy. While each department’s book runner used their own system to track the leave of the workers on that crew, because Mr Pomeroy had an IT background, he maintained a website that recorded which workers of C Crew Pre-Strip were on annual leave on any given date.
[100] Before a leave application was submitted, workers, including Mr Goulevitch, would check the website to see whether more than 20% of C Crew Pre-Strip workers were already on annual leave. If there were fewer than 20% of workers on annual leave, Mr Goulevitch would submit his annual leave application and it would be approved as a matter of course. Mr Goulevitch said that if he submitted an application for annual leave he would be told by his supervisor to check with Mr Pomeroy and that if Mr Pomeroy was happy the supervisor was happy. According to Mr Goulevitch, there was there was no particular point in time where this system stopped operation, however Mr Pomeroy’s ability to track which workers were on annual leave gradually became more difficult with the increased number of labour hire employees. As the system became less reliable, employees of the Company stopped relying on Mr Pomeroy’s website and stopped entering their leave. Mr Goulevitch recalls using the book runner system in about 2015, but has limited recollection of using it after this date and it does not currently operate at the Mine.
[101] Mr Goulevitch also gave evidence about previous disputes in relation to the application of the annual leave quota. In December 2017, an application for leave made by Mr Goulevitch was refused on the basis that 20% of the crew were already on leave at the time. During subsequent discussions in which he requested further information, Mr Goulevitch was advised that there would be 17 people on annual leave on the dates that he had requested to take leave. This meant that there were at least 85 workers in the crew that the supervisor was using as the basis for his calculations and individual dig units were not used. Mr Goulevitch said that at the relevant time, each dig unit had around 22 workers and a dedicated supervisor. Mr Goulevitch tendered a letter sent by him on 28 December 2017, to Mr Schafferius, querying the calculations relating to the refusal of his annual leave. In that correspondence Mr Goulevitch set out his understanding that there are four pre-strip crews averaging 149 workers in each crew. 37 Mr Goulevitch did not proceed with the dispute because the period for which he wanted to take leave had passed.
[102] On 21 May 2018, Mr Goulevitch wrote to Mr Schafferius in relation to Mr Brian Wells being denied annual leave for July 2018, despite having submitted a leave request on 8 May 2018. Mr Wells advised Mr Goulevitch that his Supervisor had denied the request on the basis that each dig unit could only have one employee absent on leave at a particular point in time. Mr Goulevitch tendered correspondence to the Company in which he stated his understanding that 20% (generally four full time employees) per strip are allowed to be away at any one time and that this is calculated on the required manning for each strip/unit being around 20 positions. The letter states that Mr Goulevitch has been informed that it is 20% of the full time employees on a strip, which works out to be one person per strip, on average. 38 Mr Goulevitch states that following his notification of a dispute, Mr Wells was permitted to take the annual leave he had requested. Mr Goulevitch also said that in the period between the two letters he was not notified of any change to approved crew numbers or any formal change in position regarding how BHP would calculate the 20% quota.
[103] On 13 September 2019, Mr Goulevitch wrote to Mr Swanton, in relation to Mr Brian Purcell being denied annual leave on the basis that there were already two full time employees in his dig unit on annual leave. In that correspondence Mr Goulevitch identified two issues. The first was that the calculation should have been based on approved crew numbers and not full time employees and the second was that the Agreement does not recognise pre-strip teams as a crew. 39 The dispute was resolved when Mr Swanton identified that the Company had incorrectly calculated the 20%.
[104] In relation to the current dispute Mr West received a call from Mr Bentlin on or about 9 December 2019 and was informed that Mr Bentlin’s leave application had been refused because the 20% quota was being counted based on his dig unit. Due to the fact that Mr Bentlin wished to take leave at a date less than three weeks away, it was decided to escalate the matter to the supervisor level by notifying a dispute and requesting that the dispute resolution procedure be expedited.
[105] Mr West understands that the Company’s position is that individual dig units are referred to as “crews” and maintains that he has never heard a worker refer to a dig unit as a “crew”. The only time Mr West has heard workers use the term “crew” is when they are referring to the roster on which they work, being A Crew, B Crew, C Crew or D Crew. Similarly, Mr West states that he has never heard a worker refer to themselves as being part of “A-1” or “B-3”, for example, to identify the Dig Unit. Prior to the current dispute, Mr West was not aware that the Company considered that the “approved crew numbers” for the purpose of the annual leave quota were to be calculated by sub-dividing A, B, C or D Crew Pre-Strip into smaller “crews”, which were designated by a letter and a number, such as A – 1, A – 2 or A – 3.
[106] Mr West also said that throughout his work at the Mine, and during the course of performing the various roles he has held with the Union, his experience is that workers use the term “crew” to refer to their roster, being A Crew, B Crew, C Crew or D Crew. This is how Mr West has historically used and understood the word “crew” to be defined in respect of the workers at the Mine covered by the Agreement and is consistent with how the Company has previously interpreted the Agreement, as this particular provision has not previously been the subject of disputation between the parties.
[107] Mr Goulevitch’s understanding of the Company’s position is that that individual dig units are referred to as “crews” and these “crews” are designated by a letter – based on whether they work on A Crew, B Crew, C Crew or D Crew – and a number. For example, the workers in A Crew Pre-strip dig units, are referred to as: A – 1, A – 2, or A – 3. Mr Goulevitch has never heard a worker refer to themselves as being part of a crew identified on the basis of dig unit – for example, A – 1 or B – 3. Mr Goulevitch also said that the Company’s new interpretation of “crew” as being the individual dig units, would mean that the clause does not make sense when considering the workers in other departments, who are not divided into dig units.
[108] In relation to Mr Swanton’s description of a scenario where all digger operators could be away from Pre-strip on annual leave at one time, Mr Goulevitch said that prior to the introduction of dig units in about mid-2016, the scenario contemplated by Mr Swanton did not arise on C Crew Pre-strip and he is not aware of it having arisen on any of the other roster swings. Mr Goulevitch also said that the scenario contemplated by Mr Swanton could arise under the Company’s current interpretation of the relevant clause. On Mr Swanton’s understanding of the approved crew numbers – being 12 or 13 – a total of three workers would be permitted to be on annual leave at any one time. There are only two or three digger operators for a number of dig units, including dig unit 66 which has two operators and dig units 65 and 67 which have three operators. Shovel 33 and shovel 35 are the only dig units on C Crew Pre-strip that have more than 3 operators regularly assigned to them.
[198] This can be contrasted with the term “crew”. That term connotes a group of employees in various positions who work closely or directly together. There are no provisions in the Agreement which mandate that a crew is all employees in a department or sub-department who are working on the same panel of a roster. A crew may be a narrower and more focused group than a panel of employees on a roster. Whether that is so depends on the scope of the group that BHP designates as a crew by establishing the number of members of the specific crew and the position that each member of the crew is allocated to work in. The fact that the members of a crew work on the same panel of a roster is a function of the duties they are required to perform and the need for them to perform those duties at the same time as other employees to achieve a common objective, rather than being the basis upon which the crew is constituted. While employees in Pre-strip who work on the same panel of the roster are all undertaking the same or similar work, the evidence establishes that BHP has grouped them around particular machines working on particular strips and it is this which makes the employees a crew. The Agreement does not prevent BHP from organising its workforce in this way and it is consistent with the way in which the workforce is organised elsewhere on the GRM site. Accordingly, I do not accept that clause 8.4 of the Agreement supports the construction advanced by the CFMMEU.
[199] I do not accept the CFMMEU’s submission that annual leave taken by employees on other shifts is irrelevant and that what is relevant is the amount of annual leave being taken by workers on the same shift in the same department. The fact that workers in the same crew who are working different shifts by reason of being allocated to different panels on the roster, take leave, can affect the operation of the crew by preventing the crew from working a shift if sufficient coverage is not available. This would undoubtedly affect subsequent shifts. I am also of the view that even if the construction advanced by the CFMMEU was accepted, leave taken by Pre-strip employees in one panel of the roster could affect other Pre-strip employees assigned to different panels of the roster by virtue of changing the rate of work or preventing work from occurring on one or more dig units during a different another shift.
[200] The construction I favour is consistent with the purpose of clause 22.6 of the Agreement. The text of the clause makes clear that the clause balances the rights of employees to take leave with the rights of the Company to have available employees with necessary skills to operate the Mine. This is apparent from the fact that if less than 20% of employees based on approved crew numbers are away on annual leave at any time during the period of the leave sought, the leave must be approved. Conversely, if more than 20% are away, the operation of the mine is assumed to be affected and leave will be approved at the Company’s discretion subject to operational requirements and availability of skills. The Company also has discretion to increase the “leave numbers” in clause 22.6(a) from time to time, subject to operational requirements and the availability of suitable skilled labour, including labour hire. The term “leave numbers” must mean, in the context of the clause, the numbers of employees for whom leave is approved.
[201] I now turn now to consider evidence of surrounding circumstances to assist in determining whether the Agreement is ambiguous or uncertain. In accordance with principle 11 in Berri the admissibility of such evidence is limited to evidence establishing objective background facts which were known to both parties which inform the subject matter of the Agreement and is distinguished from evidence of their subjective intentions, such as statements and actions which are reflective of their actual intentions and expectations.
[202] It is an objective background fact that clause 22.6 first appeared in the 2012 Agreement. It replaced an earlier provision in the 2007 Agreement which required employees to give 28 days’ notice in writing of the date upon which they sought to commence leave and provided that the Company was required to approve the request unless in the Company’s opinion, the operations of the Mine would be affected. 55 The 2007 Agreement also contained Mine specific schedules dealing to some extent with annual leave. The annual leave provisions in the Schedules were removed when the 2012 Agreement was made, with the exception of those in the Saraji and Crinum Schedules. The current Agreement retains a reference to annual leave only in the Saraji schedule with the provision in the Crinum Schedule having been deleted.
[203] I do not accept the CFMMEU’s submission that these references support its proposed construction. The references simply preserve custom and practice about how leave will be applied for and operate in conjunction with the provisions in the main body of the Agreement. The fact that the Saraji Schedule in the current Agreement allows for leave to be managed within smaller work groups does not support a construction of the Agreement whereby a crew for the purposes of clause 22.6 must be constituted by all employees in a department on the same panel of the roster.
[204] There is also evidence that until at least 2016, employees in Pre-strip at GRM were considered by the Company to be part of a crew based on the panel of the roster they worked. In short, the evidence establishes that there was a practice consistent with the construction advanced by the CFMMEU of referring to all of the employees working the same roster in the same department, as a crew, designated by a letter representing the panel of the roster to which the employees were assigned. There is some evidence – albeit less clear – that this was the basis upon which the 20% quota was calculated and applied, at least in the Pre-strip department. However, it is also the case Mr Bentlin’s evidence explicitly acknowledges that when he applied for leave, he understood that it was rejected because a certain number of employees allocated to his dig unit were absent on annual leave, and that his dispute related to the accuracy of that calculation and who was included in the quota, rather than the basis upon which the crew was constituted for the purpose of making the calculation. It is also clear from the evidence that other departments have organised crews on the basis of equipment or function without there being any controversy with respect to the impact on calculation of the quota for annual leave purposes.
[205] The evidence in Drake and Bird v BHP Coal Pty Ltd, 56dealt indirectly with Pre-strip crews at GRM. The case involved applications for unfair dismissal remedies by former employees of BHP and was heard in June 2019. The evidence in that case, from both Company and employee witnesses, was that for the purpose of arranging a Christmas function, the Company and employees in the Pre-strip department at GRM considered that all employees who were rostered to work on the panel of the roster designated with the letter “C” were in C Crew. The function, sponsored by BHP, was referred to as the C Crew Pre-strip Christmas party. There was also evidence that C Crew consisted of 150 people split into approximately eight sub-groups known as digging units.57 One of the Applicants, Mr Bird, referred to these sub-groups as “dig teams” and described a practice whereby members of dig teams in C crew socialised on evenings referred to as PJ nights, when all employees in the C panel of the roster had two day shifts followed by three night shifts, thereby providing an opportunity for employees to have a longer period of time off between finishing day shift on one day and starting night shift on the next night. The case did not deal in any way with annual leave.
[206] Witnesses for the Company conceded generally that it was reasonable for Pre-strip employees to consider that their membership of a particular crew was based on the panel of the roster they were working. The practice of designating crews by the panel of the roster on which they worked, appears to have changed, at least for mine planning purposes, at or around the time that Project Zinc was implemented in 2016. The CFMMEU also points to the evidence of Mr West about the negotiations for the 2012 Agreement to the effect that the parties were attempting to fix the 20% quota to a unit of workers understood by all participants.
[207] The evidence in the present case establishes that transfers between departments are very rare. There is also evidence to the effect that it is difficult for employees to transfer from one panel of the roster to another. However, the Agreement establishes a process for this to occur. It is also the case that while it is common for employees to move between dig units, this is limited to circumstances where they are replacing members of other dig unit crews in emergent circumstances or when they are on leave or when the dig unit that the employee is allocated to is not working for some reason.
[208] When all of the evidence in relation to background facts is considered, I do not accept that it establishes a common understanding about the meaning of the term “crew”. The circumstances in which a common assumption or understanding can be used in construing an enterprise agreement are limited and care must be taken to distinguish a common understanding from common inadvertence. In short, there must be clear evidence that the parties have acted upon a common understanding as to the meaning of the relevant provision and not for other reasons such as common inadvertence as to its true meaning.
[209] The evidence in the present case does not establish a common understanding. While there may have been an understanding in 2012 as to the use of the term “crew” to describe a group of employees who were assigned to work on the same panel of a roster, there was no common understanding that this was the only way that a crew would be defined for clause 22.6 of the Agreement or that the way that a crew was constituted could not be subject to change at the discretion of BHP. For the reasons set out above, the Company retained the right in clause 22.6 of the Agreement to determine approved crew numbers, the term crew was not limited by a definition and in the context of the Agreement as a whole, the Company is entitled to constitute crews in whatever manner it believes is appropriate to manage its operational requirements. While the Company may have allocated approved crew numbers in Pre-strip on the basis of the notion of the term “crew” advanced by the CFMMEU, it was not precluded from changing the way in which crews were constituted and did this in or around 2016.
[210] An enterprise agreement is not a static document. It operates in the context of an enterprise where change can and does occur. Enterprise agreements must include a clause which provides a mechanism dealing with the introduction of major change and changes to working hours. Enterprise agreements must also include flexibility terms which allow for the operation of provisions to be altered by agreement between the employer and an individual employee. Change which is not caught by the consultation provisions is not precluded. Enterprise agreements may be varied in accordance with the provisions of the Act. Some enterprise agreements contain internal mechanisms which allow the parties to change working arrangements set out in the agreement within certain parameters. Change may also be implemented where an enterprise agreement is silent and where it does not preclude the change that is sought. Dispute resolution procedures which are mandated to be included in enterprise agreements, may be invoked where an employer seeks to implement a change not precluded by the terms of the agreement, but which employees contend is unfair or unreasonable.
[211] In short, the working arrangements provided for in an enterprise agreement are not set in stone for the period it is in operation. Where an employer party to an enterprise agreement wishes to implement change to working arrangements covered by an enterprise agreement it is first necessary to consider the terms of the relevant agreement and whether those terms prescribe a status quo which cannot be altered unilaterally, or whether the agreement prescribes a process which must be followed in order to implement the change. It is also necessary to consider whether the proposed change is caught by a consultation term in the agreement. The change may be in relation to a working arrangement that is not prescribed by the agreement or to an arrangement which is dealt with in the agreement in a manner that is not prescriptive.
[212] The change that is sought to be implemented may be one that has not previously been the subject of any consideration by the parties to the agreement and to which they have not previously turned their minds. This is a form of mutual inadvertence. The scenario in which it occurs is that parties include provisions or terms in enterprise agreements that are assumed, without discussion, to have a meaning. It may be that the meaning given to a term by one party is based on assumptions that are not shared by the other party. Often, the same terms are transplanted from one agreement to the next.
[213] A dispute can arise at a point where an employer party to the Agreement – via a manager – looks at the agreement with fresh eyes and decides to implement a change to working arrangements, which is not inconsistent with, nor precluded by, the terms of the Agreement. Neither party has previously contemplated the change at any time, including when the Agreement was made. It may be the case that employees oppose the change on the basis that had they known that the employer would implement it at a future time, they would not have agreed to the change or to a provision which allowed that change.
[214] Notwithstanding that view, if, upon the application of the principles for the construction of enterprise agreements, it is concluded that the terms of the agreement do not prevent the change, it is open to construe the agreement as allowing the change to be implemented. In such circumstances, where a dispute resolution procedure allows, the change may be disputed by employees on the basis of whether it is fair or reasonable. 58
[215] In the present case, notwithstanding that neither party envisaged that crews would be constituted on the basis of dig units, the Agreement does not prevent BHP from organising its Pre-strip operation in this manner, and in my view the Company has the right to do so. The dispute was advanced on the basis that the Commission was required to construe the Agreement to determine the meaning of the term “crew” for the purposes of clause 22.6. The dispute was not advanced on the basis of whether it was fair or reasonable for BHP to constitute a crew in the manner that it has in Pre-strip or whether employees are being denied access to their accrued annual leave as a result. The evidence raised no issues of fairness or reasonableness in relation to the construction advanced by BHP.
[216] I accept that the CFMMEU’s construction may not cause the disruption to BHP’s operations that it claims would result and that the evidence of the Company’s witnesses may have been somewhat overstated in this regard. However, that is not a basis to prefer a different construction and would involve the Commission putting itself in the Company’s shoes and requiring the Company to organise its operations in a manner contrary to its preferred approach.
[217] There is no evidence that any unfairness or unreasonableness for employees would result from the construction of clause 22.6 advanced by BHP such that a different construction should be preferred. Accordingly, I have concluded that the meaning of the term “crew” in clause 22.6 of the Agreement is a group of employees to which BHP assigns an approved crew number.
[218] The parties agree that the correct answer to question 2 is “no” and that a labour hire employee who is not actually taking leave cannot be included towards the 20% quota in clause 22 of the Agreement. Consistent with the decision of Spencer C in the First Quota case, approved crew numbers include labour hire employees. Approved crew numbers also include positions that are not filled at the time the quota is calculated. Accordingly, all positions approved in crews are counted for the purposes of calculating the 20% quota, including positions held or filled by labour hire employees. Any person filling a position in the approved crew numbers who is absent on annual leave, is counted in the 20% quota for the purposes of determining whether an employee is entitled to annual leave.
[219] Labour hire employees who are included in approved crew numbers are counted for the purposes of quantifying the group of employees including employees of labour hire companies (the crew) upon which the number of 20% quota is calculated. Employees of labour hire companies who are included in approved crew numbers are not included in the 20% quota unless they are actually taking annual leave, or have annual leave approved, in a relevant period.
[220] In relation to question 3, clause 22.6 of the Agreement requires that approved crew numbers are provided by a Supervisor to an employee on request. I have concluded that in addition to that information, employees seeking leave are required to be provided with the names of other persons in their crew who are on leave at the same time. I have reached this conclusion for the following reasons.
[221] The plain meaning of the words in clause 22.6 of the Agreement is that an employee who applies for leave and who provides the necessary period of notice in accordance with clause 22.5, is entitled to have his or her leave approved if less than 20% of the approved numbers (rounded up to the nearest whole number) of his or her crew are away on annual leave at any time during the period of that leave. For an employee to be entitled to take annual leave for a particular period, there must be no part of that period where 20% or more of the approved crew numbers are or will be away on annual leave.
[222] It is axiomatic that an employee applying for leave for a particular period needs to understand whether he or she does have an entitlement to take leave at the time it is sought. An employee applying for leave cannot know whether he or she has an entitlement to take leave at the time it is applied for, in the absence of information about other employees who are on annual leave for any part of the same period. Because BHP has the right to constitute crews and specify approved crew numbers, and to change such specification, it is necessary that the identity of the employees who are said to be in the same crew and on annual leave at the same time as, the employee seeking to take leave.
[223] Other provisions of clause 22 also support this construction. The notice periods required to be given by an employee applying for leave as set out in clause 22.5 are:
a) For periods of annual leave of less than one week, a minimum of 48 hours’ notice is required to be given to the employee’s immediate supervisor;
b) For periods of annual leave of one week or more, reasonable notice (but a minimum of 28 days except in extenuating circumstances or otherwise as agreed) is required.
[224] Clause 22.5 goes on to provide that taking of annual leave is subject to express approval being given by the employee’s immediate supervisor, prior to the leave being taken.
[225] Clearly, it is contemplated that an application for annual leave is time sensitive, both from the perspective of the employee seeking leave and supervisor granting leave. The notice provisions allow for leave to be applied for at short notice in extenuating circumstances or where the period of leave sought is less than one week. The employee seeking to take leave may need to make travel or other arrangements and may be seeking the leave in emergent circumstances. A Supervisor dealing with an application for leave also needs to ensure that the quota is accurately calculated so that the Company’s interest in having sufficient employees at work during the period of the leave to meet the its operational requirements is protected and to ensure that the right of the employee to be granted annual leave is also protected. It is contrary to the objective of the clause – to simplify the assessment of applications for leave and to ensure crew and operational coverage for the Mine – for consideration of a particular leave application to be delayed by disputation over the calculation of the quota.
[226] Disputes over the quota will be resolved most effectively in discussions between the relevant employee and the Supervisor and such discussions will require that consideration is given to the approved crew numbers, the members of the crew who are or will be on leave in the period sought and the identity of those persons. Such disputes may even be prevented if employees can plan their leave based on an understanding of who is also seeking leave at the same time including arranging swaps with other employees.
[227] I am also of the view that annual leave is a beneficial provision which encompasses more than the simple provision of the leave. The timing of leave is also a critical matter for persons who seek to take leave. I accept that the right to take leave is not lost if leave is refused at a particular time and that it remains in credit for the employee. However, the right to take annual leave also includes the right to take it at a time of the employee’s choosing, subject to notification requirements. The latter right is time sensitive and is liable to be lost if a dispute in relation to the taking of annual leave is not able to be resolved expeditiously. This is a contextual matter which supports the construction of the clause I have determined.
[228] Further, I consider that the clause was agreed against a background which included that annual leave entitlements are part of the National Employment Standards set out in the Act. The National Employment Standards include s. 89(2) which provides that the employer must not unreasonably refuse to agree to a request by an employee to take paid annual leave. An employee cannot know whether a refusal is or is not unreasonable, without details of the basis of the refusal.
[229] Finally, I accept the submissions advanced by the CFMMEU in relation to this question. The right to take leave does not crystalise unless and until the employee’s Supervisor gives express approval and an employee needs to be able to take steps to enforce his or her right to take leave in a timely manner to retain the full benefit of that right. I also note that the information I have determined should be provided, was in fact provided to Mr Bentlin, by virtue of the Supervisor showing him a computer screen containing details of other crew members on leave at the same time.
9. Conclusion and answers to questions
[230] For these reasons, I determined to answer the questions for arbitration as follows:
Question 1:
What is the meaning of “crew”, for the purposes of clause 22.6(b) of the BMA Enterprise Agreement 2018 (Agreement)?
Answer:
“Crew” for the purposes of clause 22.6(b) of the Agreement means a group of employees (the crew) to which BHP Coal Pty Ltd (BHP) has assigned an approved crew number.
Question 2:
Can a labour hire employee who is not actually taking annual leave be included towards the 20% quota in clause 22 of the Agreement?
Answer:
No. Labour hire employees who are included in approved crew numbers are counted for the purposes of quantifying the group of employees including employees of labour hire companies (the crew) upon which the number of 20% quota is calculated. Employees of labour hire companies who are included in approved crew numbers are not included in the 20% quota unless they are actually taking annual leave, or have annual leave approved, in a relevant period.
Question 3:
What information is required to be provided to Employees, or to be accessible to Employees, in order to ascertain whether or not they are entitled to take annual leave on the basis of the leave quotas in clause 22 of the Agreement?
Answer:
The information that is required to be provided to employees or made accessible to them, in order to ascertain whether or not they are entitled to take annual leave on the basis of the leave quotas in clause 22 of the Agreementis:
1. The approved crew number – ie. the number of positions approved by BHP – for the crew to which employees seeking leave are assigned including positions held by, or approved to be held by, employees of labour hire companies;
2. The identity of other employees – including employees of labour hire companies – who are included in approved crew numbers for that crew and who are taking annual leave or have annual leave approved, at the same time as the employees seeking to take annual leave; and
3. The dates upon which other employees – including employees of labour hire companies holding positions in the crew – are taking annual leave or approved to take annual leave in the same period for which the employees in that crew seek to take annual leave.
DEPUTY PRESIDENT
Appearances:
C Massy of Counsel instructed by Hall Payne Lawyers for the CFMMEU.
M Coonan of Herbert Smith Freehills for BHP.
Hearing details:
2020.
7, 8 October & 6 November.
Mackay & Brisbane.
1 Statement of Simon West Exhibit A2; Reply Statement of Simon West Exhibit A3.
2 Statement of Les Bentlin Exhibit A4; Reply Statement of Les Bentlin Exhibit A5.
3 Statement of Wayne Goulevitch Exhibit A6; Reply Statement of Wayne Goulevitch Exhibit A7.
4 Statement of Glenn Power Exhibit A 8.
5 Statement of Robert Gibbons Exhibit R1.
6 Statement of Thomas Swanton Exhibit R2.
7 Statement of Kevin McDonald Exhibit R3.
8 [2021] FWC 622.
9 [2017] FWCFB 3005 at [14].
10 [2017] FWCFB 4487.
11 [2014] NSWCA 184 at [71] – [85].
12 Manufacturers’ Mutual Insurance Ltd v Withers (1988) 5 ANZ Ins Cas 60-853 at 75-343.
13 Kirin-Amgen Inc v Hoechst Marion Roussel Ltd [2004] UKPC 6; [2005] 1 All ER 667 at [64].
14 Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [78].
15 Charter Reinsurance Co Ltd v Fagan [1997] AC 313 at 391 per Lord Hoffman, approved in Campbell v R [2008] NSWCCA 214; 73 NSWLR 272 at [48] (Spiegelman CJ, Weinberg AJA and Simpson J agreeing)
16 Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407; 76 NSWLR 603 at [17] cited in Mainteck Services Pty Ltd v Stein Heurtey SA (2014) 310 ALR at [71] – [85].
17 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165 at [40].
18 Kucks v CSR Limited (1996) 66 IR 182 at 184.
19 [2006] FCA 11.
20 Ibid at [44].
21 Ibid at [46]
22 [2006] FCA 616.
23 Transcript PN670-671.
24 Transcript PN742 – 746.
25 A day off when a panel of employees on the roster changes from working day to working night shift.
26 Exhibit R2 Annexure “TJS-2”.
27 Transcript PN1149 – 1161.
28 Transcript PN1163.
29 Transcript PN805 – 806, PN812.
30 Transcript PN856 – 862.
31 Transcript PN879 – 882.
32 Transcript PN883 – 888.
33 Another type of four panel continuous shift roster with a different configuration of PJ or pyjama days to the Broadmeadow roster.
34 Transcript PN104 – 136.
35 Transcript PN200 – 203.
36 Transcript PN388 – 390.
37 Exhibit A6 Annexure WG – 1.
38 Exhibit A6 Annexure WG – 2.
39 Exhibit A6 Annexure WG – 2.
40 [2013] FWC 885.
41 Ibid at [72].
42 [2018] FCAFC 131 at [197].
43 (2005) 222 CLR 241 at [31].
44 (2017) 267 IR 130 at [107].
45 Shorter Oxford English Dictionary senses 3, 4 and 5.
46 (1929) 28 AR 499.
47 [2013] FWC 8805.
48 (2006) FCA 616.
49 Amcor Limited v Construction, Forestry, Mining and Energy (CFMEU) (2005) 222 CLR 241 at [131].
50 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Skilled Engineering Ltd [2003] FCA 260.
51 (1997) 187 CLR 384.
52 Ibid at 408 per Brennan CJ, Dawson, Toohey and Gummow JJ
53 Applicant's Outline of Submissions at [6].
54 CFMEU v BHP Coal Pty Ltd [2013] FWC 8805 at [72].
55 2007 Agreement clause 22.3.1
56 [2019] FWC 7444.
57 Ibid at 24.
58 A proposition I put to Mr Massey for the CFMMEU during oral submissions: PN220 – 221.
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