Construction, Forestry, Mining and Energy Union
[2014] FWC 6569
•19 SEPTEMBER 2014
| [2014] FWC 6569 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Construction, Forestry, Mining and Energy Union
(C2014/3040)
“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
(C2014/2928)
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(C2014/2930)
vBHP Coal Pty Ltd
DEPUTY PRESIDENT ASBURY | BRISBANE, 19 SEPTEMBER 2014 |
Application to deal with a dispute.
Background
[1] This Decision concerns applications under s.739 of the Fair Work Act 2009 (the Act) by the Construction, Forestry, Mining and Energy Union, Mining and Energy Division (CFMEU); the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU); and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union (CEPU) (the Unions) for the Fair Work Commission to deal with a dispute with BHP Coal Pty Ltd in accordance with a dispute settlement procedure in the BMA Enterprise Agreement 2012 (the Agreement). The dispute is about the implementation by BHP Coal Pty Ltd (BHP Coal) of a Mobile and Electronic Device Procedure relating to the use of such devices at the Goonyella Riverside open cut coal mine.
[2] BHP Coal asserts that the Commission does not have jurisdiction to deal with the dispute on the basis that the dispute resolution procedure in the Agreement expressly states that it does not apply in relation to the exercise of rights or implementation of processes or systems provided for under the Agreement or under “relevant prevailing legislation”. The introduction of the procedure is an exercise of the rights of BHP Coal Pty Ltd and/or an implementation of a process under prevailing legislation – the Coal Mining Safety and Health Act 1999 (Qld) (CMSH Act).
[3] The Unions assert that the Commission has jurisdiction to deal with the dispute on the basis that the dispute settlement procedure in the Agreement applies to disputes pertaining to the Agreement or arising in the course of employment. The dispute pertains to a number of clauses in the Agreement and matters arising in the course of employment. The dispute settlement procedure provides that the Commission can arbitrate disputes subject to compliance with and exhaustion of other steps in the procedure. The exclusion relied on by BHP Coal has no application in respect of the dispute and does not limit the Commission’s jurisdiction.
[4] The parties have agreed that if the matter is arbitrated, the question for arbitration will be in the following terms:
1. Is BHP Coal Pty Ltd required to allow employees at Goonyella Riverside Mine (Mine) to access and use a personal mobile electronic device during their crib breaks under clause 20.1 or clause 20.4(c)(1) of the BMA Enterprise Agreement 2012 (Agreement)?
2. Does the right to representation under clause 38 of the Agreement entitle an employee representative to have access to and use of a mobile phone at the Mine?
3. If the answer to 1 or 2 above is yes, does this override the GRM Mobile Electronic Devices Procedure?
[5] Written submissions and witness statements were provided by the parties. Statements in support of the jurisdictional objection were provided by Mr Peter Stelmach, Senior Manager – Employee Relations and formerly Manager, Employee Relations for BHP Billiton Mitsubishi Alliance (BMA) and Mr Tony Briffa, General Manager Site Senior Executive at Goonyella Riverside Mine. A statement for the Unions in opposition to the jurisdictional objection was made by Glenn William Power, District Vice-President for the CFMEU. The parties also advised that they agreed to the jurisdictional objection being determined on the basis of the material filed without the need for a hearing.
The dispute settlement procedure
[6] By virtue of s.596 of the Act, the Commission is only empowered to deal with a dispute if expressly authorised to do so in accordance with the provisions of the Act. Section 739 of the Act authorises the Commission to deal with a dispute where a term in an enterprise agreement requires or allows the Commission to do so.
[7] In exercising power under a dispute resolution procedure in an enterprise agreement the Commission acts as a private arbitrator and the nature and scope of its power derives from the agreement of the parties. 1 To determine the jurisdictional objection, it is necessary to consider the types of disputes the parties agreed would be subject to the dispute settlement procedure. Relevantly, the dispute settlement procedure provides as follows:
37.1 It is the intention of the Parties that any disputes arising in relation to the NES; or pertaining to this Agreement; or in relation to the application of the Accommodation Agreements (as referred to in clause 34 of this Agreement); or arising in the course of employment shall be dealt with in accordance with this clause.
37.2 Employees and their Employee Representatives agree that issues in relation to the employment of Employees covered by this Agreement should be ideally addressed at their source by those involved and without undue involvement of those not directly involved.
37.3 An Employee may nominate an Employee Representative (as defined in clause 38.1) to represent them at any stage of this procedure.
37.4 This procedure does not apply in relation to the exercise of rights or implementation of processes or systems provided for under this Agreement (for example, the right of the Company to have free and unfettered access to contractors) or under other relevant prevailing legislation.
37.5 Where the matter relates to:
(a) An issue arising under the IDPR process (clause 36); or
(b) An issue relating to a disciplinary outcome;
then clause 37.9 does not apply.
37.6 At all times work will continue without disruption and at the direction of the Company, subject to the relevant provisions of the Coal Mining Safety and Health Act 1999 (Qld).
Approach to the construction of enterprise agreements
[8] The approach to the construction of enterprise agreements was dealt with at length in the submissions of the parties and can be summarised as follows:
● If the terms of an industrial instrument are clear and unambiguous, then the industrial instrument must be interpreted in accordance with that clear and unambiguous meaning; 2
● The words used in an industrial instrument should not be interpreted in a strict technical fashion, because those who framed the industrial instrument are often non-lawyers drafting words in the context of custom and practice in an industry or particular enterprise; 3
● The words used in an industrial instrument should be interpreted within its context, that is, the meaning of particular words should be read in the context of the industrial instrument as a whole 4 and in the context of the clause/section in which it falls;5
● The court or tribunal should strive to give effect to the intention of the authority which made the award (or presumably, in the case of an agreement, the intent of the parties to the agreement), provided that the words appearing in the instrument can reasonably be interpreted to mean that which the authority/tribunal/parties intended them to mean; 6
● The court or Tribunal’s recourse to extrinsic material in the interpretation of industrial instruments is not dependent on the existence of ambiguity in the industrial instrument. 7
[9] Evidence about the negotiations for an industrial instrument, is relevant to the extent that it establishes relevant background facts that go to the context or subject matter of the negotiations. Evidence about the actual intentions and expectations of negotiating parties is not admissible as an aid to the construction of industrial instruments, on the basis that it reveals the terms of the agreement they hoped to make, and those intentions and expectations are merged into the agreement. As Justice Mason observed in Codelpha Construction v State Rail Authority (NSW):
“It is here that a difficulty arises with prior negotiations. Obviously the prior negotiations will tend to establish objective background facts which were known to both parties and the subject matter of the contract. To the extent to which they have this tendency they are admissible. But in so far as they consist of statements and actions of the parties which are reflective of their actual intentions and expectations they are not receivable. The point is that such statements and actions reveal the terms of the contract which the parties intended or hoped to make. They are superseded by, and merged in, the contract itself. The object of the parol evidence rule is to exclude them, the prior oral agreement of the parties being inadmissible in aid of construction, though admissible in an action for rectification.
Consequently when the issue is which or two or more possible meanings is to be given to a contractual provision we look, not to the actual intentions, aspirations or expectations of the parties before or at the time of the contract, except in so far as they are expressed in the contract, but to the objective framework of facts within which the contract came into existence, and to the parties’ presumed intentions in this setting. We do not take into account the actual intentions of the parties and for the good reason that an investigation of those matters would not only be time consuming but it would also be unrewarding as it would tend to give too much weight to these factors at the expense of the actual language of the written contract.” 8
Submissions and Evidence
[10] BHP Coal submits that it is clear from the terms of the dispute settlement procedure that the parties agreed that the range of matters that could otherwise be dealt with was subject to a limitation as set out in clause 37.4. Mr Stelmach’s evidence is that in the negotiations for the Agreement BHP Coal was seeking to exclude certain matters from the dispute settlement procedure, including matters in relation to the operation, implementation and/or amendment of standard operating procedure or the safety and health management system at the mine or to any arrangements, process or actions taken or implemented in discharging obligations under the CMSH Act. Mr Stelmach also said that BHP Coal had pressed the contention that safety issues should not be dealt with or managed under a process contained in an industrial instrument and maintained that position throughout the bargaining.
[11] The specific exclusions sought by BHP Coal did not find their way into the Agreement, but instead, according to Mr Stelmach, the words “or under other relevant prevailing legislation” were included in the Agreement to reflect the deletion of the express matters. Mr Stelmach maintained that the inclusion of those words was intended to cover the CMSH Act and that it was clear that these words were intended to be a catch all so that issues or matters relating to the CMSH Act and Regulations (including the Safety Health Management System and other processes under that legislation) could not be the subject of a dispute.
[12] Mr Briffa said in his statement that a serious safety incident occurred in October 2012 involving a truck going through a safety bund, and the root cause was found to be inattention because the driver was texting using a mobile phone, while operating the truck. Following an investigation, the Department of Natural Resources and Minesissued a Bulletin suggesting that mines could seek to manage the risks of operator inattention due to mobile phones by reviewing their policies and procedures on site and by possibly limiting access to mobile phones while on the worksite.
[13] BHP Coal and the SSE have obligations under the CMSH Act to ensure that the level of risk at the mine is at an acceptable level including: developing and maintaining a Safety and Health Management System for the Mine; ensuring that the system is effectively implemented and maintained; ensuring that safety structures and systems are in place and implemented; and that risk is as low as reasonably practicable taking into account the likelihood and consequences of those potential risks. After the incident in October 2012, a risk assessment was undertaken and a decision was made by the SSE to change the policy. Following a consultative process the policy was implemented at the Mine from 19 November 2013.
[14] Mr Power said that the CFMEU maintained through negotiations for the Agreement that matters raised by BHP Coal should not be excluded from the application of the dispute settlement procedure. The exclusions sought by BHP Coal were deleted from the draft agreement throughout the course of negotiations, and it was clear that matters such as the current dispute in relation to safety procedures could be raised under the dispute settlement procedure.
[15] The Unions contend that the dispute is not one which merely relates to the exercise of rights or implementation of processes or systems under the CMSH Act. The dispute, as encapsulated in the agreed question, relates to rights and obligations under the Agreement, specifically clauses 20.1, 20.4(c)(1) and 38. The policy is not strictly required and deals with matters not provided for in the risk assessment conducted under the CMSH Act. Significantly the policy references the Company’s disciplinary procedures which are not part of the risk assessment.
[16] The Unions also contend that the exception in clause 37.4 of the Agreement must be read in the context of clause 37 and the Agreement as a whole. When read in context, clause 37.4 does not exclude disputes specifically pertaining to the Agreement and the clear purpose of that clause is to provide a mechanism by which such disputes can be resolved, including by arbitration. Clause 37.4 must be read to only exclude matters of dispute which relate only to processes or systems under relevant prevailing legislation and not otherwise impact on matters pertaining to the Agreement.
Conclusions
[17] The dispute as articulated by the Unions and reflected in the agreed question in the event that the dispute is arbitrated, pertains to certain clauses of the Agreement. Such a dispute can only be removed from the operation of the procedure in clause 37 of the Agreement, if it is in relation to the exercise of rights or implementation of processes or systems provided for under the Agreement or under other relevant prevailing legislation.
[18] While the intention of BHP was to remove disputes relating to the CMSH Act and Regulations (including the Safety Health Management System and other processes under the legislation) that is not the effect of the provision that was included in the Agreement at the conclusion of negotiations. The use of the term “prevailing” suggests that it is not every dispute relating to the CMSH and Regulations that is excluded, but only disputes where the legislation prevails. It is also the case that the exclusion in clause 37.4 is not limited to the CMSH but applies with respect to any legislation that prevails. Further the exclusion that found its way into the Agreement in the terms in clause 37.4 is narrower than the earlier versions referred to by Mr Stelmach.
[19] In my view the exclusion in clause 37.4 of the Agreement operates where the CMSH Act (or any other legislation) mandates or requires that a particular thing is done or not done and that requirement is inconsistent with an entitlement or right specified in the Agreement. This can be contrasted with a circumstance where the SSE determines to meet a general obligation under the CMSH Act by implementing a particular policy or procedure, in circumstances where the legislation does not mandate or require the obligation to be met in any particular way. In the latter case, a dispute about the effect of the policy or procedure may be dealt with under the dispute settlement procedure in clause 37 of the Agreement.
[20] This construction of the clause gives effect to the dispute settlement procedure in the context of the Agreement as a whole as well as the exclusion in clause 37.4 of the Agreement. To accept the contention of BHP Coal in relation to the operation of the exclusion would result in a situation where any change in policy or procedure that could be said to be directed to meeting the general obligations of the SSE with respect to a safety and health management system and related structures could be implemented over the top of entitlements or rights under the Agreement.
[21] In the present case, the Mobile and Electronic Devices Policy implemented by BHP Coal was not specifically mandated or required under the CMSH Act. Rather it was suggested as a possible means of managing the risk of operator inattention. Accordingly, the Commission has jurisdiction to deal with the dispute and to arbitrate the question agreed between the parties. The jurisdictional objection advanced by BHP Coal Pty Ltd is dismissed. The matter will be listed for mention to set Directions for filing and serving material upon which the parties intend to rely in the arbitration of the dispute and dates for the hearing of the matter.
DEPUTY PRESIDENT
Final written submissions:
23 June 2014.
1 Construction, Forestry, Mining and Energy Union v The Australian Industrial Relations Commission and Another (2001) 203 CLR 645.
2 Ibid [12] citing Re Clothing Trades Award (1950) 68 CAR 597.
3 Ibid [12] citing Bond & Co Ltd (in liquidation) v McKenzie (1929) 28 AR 499.
4 Ibid [12] citing Australian Workers’ Union v Abbey (1939) 40 CAR 494.
5 Ibid [12] citing Avondale Motors (Parts) Pty Ltd v Federal Commissioner of Taxation (1971) 44 ALJR 280 at 283.
6 Ibid [12] citing Australian Timber Workers’ Union v W Angliss and Co Pty Ltd (1924) 19 CAR 172.
7 Australian Municipal, Administrative, Clerical & Services Union v Commonwealth of Australia (1998) 82 FCR 175; 80 IR 345.
8 (1982) 149 CLR 337 at 347 - 353 (with which Stephen and Wilson JJ expressed agreement)
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