Construction, Forestry, Mining and Energy Union - [2011] FWA 6946

[2011] FWA 6946

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.217—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2011/953)

TAHMOOR COLLIERY SITE ENTERPRISE AGREEMENT 2010

Coal industry
COMMISSIONER ROBERTS	SYDNEY, 21 OCTOBER 2011

Application to vary agreement to remove ambiguity or uncertainty - preferred labour allocation.

[1] This is an application by the Construction, Forestry, Mining and Energy Union (the CFMEU or the Union) pursuant to s.217 of the Fair Work Act 2009 (the Act) for an order varying the Tahmoor Colliery Site Enterprise Agreement 2010 (the Agreement). The Agreement was approved by Vice President Lawler on 20 October 2010 to operate from 27 October 2010 with a nominal expiry date of 7 September 2014. The Agreement provides at clause 3:

“3.1 The Agreement is binding on the following parties:

3.1.1 Tahmoor Coal Pty limited;

3.1.2 All employees of Tahmoor Coal Pty Limited who but for this Agreement would be covered by Schedule A of the [Black Coal Mining Industry] Award [2010] and who work at the underground and surface operations of the Tahmoor Colliery.

3.2 This Agreement replaces in their entirety all other awards, agreements, letters or memorandums of understanding, whether written or unwritten, which applied prior to the making of this Agreement and which regulated the terms and conditions of employees covered by this Agreement.”

[2] Clause 10 (Grievance and Disputes Procedures) sets out the framework for the resolution of grievances and disputes. Subclause 10.6 provides:

“10.6 If the matter remains unresolved, it may be referred to Fair Work Australia by either party for conciliation and, if agreed, arbitration.”

[3] Section 217 of the Act provides:

“217 Variation of an enterprise agreement to remove an ambiguity or uncertainty

(1) FWA may vary an enterprise agreement to remove an ambiguity or uncertainty on application by any of the following:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

(2) If FWA varies the enterprise agreement, the variation operates from the day specified in the decision to vary the agreement.”

[4] Clause 29 of the Agreement provides:

“29. Labour Allocation and Teamwork

29.1 It is acknowledged and agreed that the Company has a right to allocate employees to tasks and duties in accordance with Clause 16 of this Agreement and in accordance with the safe and efficient operation of the mine and CHPP.

29.2 Without restriction, all employees covered by this Agreement will work cooperatively together to ensure safety and productivity is maximised.

29.3 The preferred labour allocation for development and/or longwall operations is four operators, an electrical trade and a mechanical trade.

29.4 The preferred labour allocation for the CHPP is four employees for each production shift.

29.5 Where the above preferred labour allocation is not available, operations will continue in accordance with the reasonable direction of management.”

[5] The specific alleged ambiguity or uncertainty is contained at subclause 29.5 of the Agreement. The CFMEU seeks a variation to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] FWA 6946
Decision Date: 21 OCTOBER 2011

CaseChat Overview and Summary

The Construction, Forestry, Mining and Energy Union (CFMEU) applied to the Full Bench of the Fair Work Commission to vary an enterprise agreement to remove ambiguity or uncertainty. The CFMEU sought to resolve a dispute concerning the preferred labour allocation for a particular class of employees. The dispute arose out of the interpretation of certain provisions of the existing enterprise agreement, which governed the terms and conditions of employment for workers in the construction, forestry, mining, and energy sectors.

The legal issues before the Full Bench were whether the existing enterprise agreement contained ambiguous or uncertain provisions that needed clarification and, if so, whether the proposed variation to the agreement was appropriate to remove that ambiguity or uncertainty. The CFMEU argued that certain provisions of the enterprise agreement were unclear and led to disputes between the parties regarding the preferred labour allocation. The Full Bench had to determine whether the proposed variation would effectively remove the ambiguity or uncertainty and whether it was in line with the principles of enterprise bargaining and good faith.

The Full Bench found that the existing enterprise agreement did contain ambiguous or uncertain provisions that needed clarification. The proposed variation to the agreement, which aimed to remove the ambiguity or uncertainty, was deemed appropriate. The Full Bench considered the principles of enterprise bargaining and good faith, as well as the need to promote industrial harmony and avoid unnecessary disputes. The Full Bench concluded that the proposed variation was a reasonable and appropriate way to achieve these objectives and granted the application to vary the agreement. The CFMEU's application was successful, and the enterprise agreement was varied to remove the ambiguity or uncertainty concerning the preferred labour allocation for the affected employees.

Orders