Construction, Forestry, Mining and Energy Union-Mining and Energy Division Queensland District Branch v Central Queensland Services Pty Ltd

[2017] FWC 3365

[2017] FWC 3365

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Construction, Forestry, Mining and Energy Union-Mining and Energy Division Queensland District Branch
v
Central Queensland Services Pty Ltd
(C2016/6807)

DEPUTY PRESIDENT ASBURY BRISBANE, 22 JUNE 2017

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

OVERVIEW

[1] The Construction Forestry Mining and Energy Union – Mining and Energy Division Queensland District Branch (CFMEU) applies under s. 739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a dispute in accordance with a dispute settlement procedure in the BMA Daunia Mine Enterprise Agreement 2014 (the Agreement).

[2] The dispute concerns the proper construction of clause 21 of the Agreement – Issues Resolution Procedure (the Procedure) – and in particular whether an employee has the right under clause 21.1 to choose at any stage, to be represented by any person including a full time official of the CFMEU for the purposes of the Procedure. The Respondent – Central Queensland Services Pty Ltd (CQS Pty Ltd and/or the Company) – contends that during the initial stages of the Procedure prior to a dispute being referred to the Commission, an employee who chooses to be represented can only have as a representative, another employee of the Company and may not choose to have a person who is not an employee, such as a full time official of the CFMEU.

[3] The question for arbitration as agreed between the parties is as follows:

Does an employee’s right to representation under clause 21.1 of the BMA Daunia Mine Enterprise Agreement 2014 extend to having any person they elect as a representative during a dispute and not just an employee representative?

[4] Directions were issued requiring the parties to file and serve material upon which they intended to rely and a hearing was conducted at which both parties made oral submissions. I have considered the submissions and material filed by the parties.

RELEVANT AGREEMENT PROVISIONS

[5] Clause 2 of the Agreement states that it applies to and covers Central Queensland Services Pty Ltd and a number of Unions including the CFMEU. There are a number of clauses in the Agreement that refer to “parties” but no definition of the term “party”: for example see clauses 3.4 and 21.1.

[6] Clause 21 – Issues Resolution Procedure – provides as follows:

“21 ISSUE RESOLUTION PROCEDURE

21.1 It is the intention of the parties that all issues arising out of the interpretation or application of this agreement or in relation to the NES shall be dealt with at the local level to the maximise extent possible. Other issues, such as those arising in the course of employment, may be dealt with under this procedure by mutual agreement. Employees may nominate a representative of their choice to represent them at any stage of this procedure.

21.2 There will not be any stoppage of work either by the company or employees whilst the procedure is being followed.

21.3 When a matter arises, it shall in the first instance be discussed between the employee and the immediate supervisor involved.

21.4 If the matter remains unresolved, it shall be referred for discussion between the employee or the employee and a representative of the employee’s choice and the relevant department manager (or their nominated representative).

21.5 If the matter remains unresolved, it shall be referred for discussion between a senior officer of the company and the employee or the employee and a representative of the employee’s choice.

21.6 Where the matter remains unresolved, the company or employee or the employee’s representative of their choosing, may refer the matter to FWC or, by agreement of both parties, an agreed private arbitrator or mediator to conciliate on the matter.

21.7 By agreement, the company, the employee and the employee’s representative may bypass any of these steps in the interests of speedy resolution of the issue.

21.8 Subject to clause 21.9, provided that all the above steps have been exhausted FWC may conciliate or where conciliation has been exhausted and the dispute remains unresolved, arbitration in relation to the matter.

21.9 In the circumstances set out in clauses 18.2(g) or 18.4(c) or by agreement under clause 21.7, FWA may conciliate or where conciliation has been exhausted and the dispute remains unresolved, arbitrate in relation to the matter. The parties to the matter are not required to first exhaust the above steps.

21.10 During any conciliation or arbitration proceedings before FWC under this clause, either party may choose to be represented by a legal practitioner.

21.11 If FWC issues a decision in writing under this clause, the decision and reasons for the decision will be provided in writing to the parties.

21.12 Where FWC issues a decision in writing under this clause, it shall be binding on the parties and persons bound by this agreement in accordance with its terms for the life of this agreement.

21.13 The role of the employee’s representative will not detract from their primary responsibility which is to do the job they are employed to do at the Mine.

[7] Clause 27 – Employee Representation – is in the following terms:

“27 EMPLOYEE REPRESENTATION

27.1 Employees may nominate an employee representative of their choice to represent them in relation to any issues that arise concerning their terms and conditions of employment under this agreement. In this event, the following principles will apply.

27.2 The role of the employee representative will not detract from their primary responsibility which is to do the job they are employed to do at the Mine.

27.3 Employees and their representatives agree that issues in relation to 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. Accordingly, employee representative(s) will not be permitted time away from the job on issues where there has not been a genuine attempt to resolve the issue at the workgroup level.

27.4 Employees agree that they will not hold any meetings including with employee representatives during normal hours of work, without the prior approval of the departmental manager (or their nominated representative). Any meetings held on site will be at a place designated by management.

27.5 Nominated employee representatives will be allowed unpaid leave to attend training off site on the basis that at least 14 days notice is provided and that site operations will not be adversely affected.

27.6 Where employees are required to attend FWC in accordance with the Issue Resolution Procedure, providing that procedure has been complied with, the company will pay ‘no loss of earnings’ for such attendance together with reimbursements for reasonable travel, accommodation, and reasonable costs of meals (not including alcohol). This will apply for up to two employee representatives and agreed witnesses provided that the employee representative(s) is nominated at the time that the application to FWC is made unless agreed otherwise in advance. This will not apply to any employee or employee representative appeals against a decision of FWC.

27.7 Employee representatives, who under the rules of the union hold elected office of the union’s Board of Management or Central Council will, subject to a minimum of 14 days’ notice and provided that site operations will not be adversely affected, be entitled to unpaid leave to attend relevant meetings.”

THE APPROACH TO CONSTRUCTION OF AN ENTERPRISE AGREEMENT

[8] The approach to construing provisions of an enterprise agreement was set out in a Decision of a Full Bench of the Commission in AMIEU v Golden Cockerel Pty Limited (Golden Cockerel).¹The principles established in that Decision and the cases referred to, can be summarised as follows:

• Construction of an agreement begins with a consideration of the ordinary meaning of its words;²



• The agreement must be read as a whole³ and regard must be had to the context and purpose of the provision being construed;⁴



• Context extends to the entire agreement, other associated documents or the ideas that gave rise to an expression in a document;⁵



• The words used in an agreement should not be interpreted in a strict technical fashion, because those who framed the agreement are often non-lawyers with a practical frame of mind, drafting words in the context of custom and practice in an industry or particular enterprise;⁶



• The process of construction is an objective task and it is not appropriate to have regard to the subjective beliefs or expectations held by one party;



• The task of construction is to identify the common intention of the parties as they have expressed it in the terms of their agreement;⁷



• Search for evident purpose is permissible and meanings which avoid inconvenience or injustice may be reasonably strained for, however the task remains one of interpreting a document produced by others and not giving effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the agreement;⁸



• Regard may be had to evidence of the surrounding circumstances before the existence of ambiguity in an agreement is identified as an aide to interpreting the agreement for the purposes of determining whether an ambiguity exists, but cannot be used to contradict its language;⁹



• If ambiguity is identified extrinsic material may be used as contextual material to aide in the interpretation of the agreement;¹⁰



• It is not permissible to take into account the conduct of parties which occurs after an agreement is made as an aide to interpretation.¹¹

SUBMISSIONS

[9] The CFMEU contends that the final sentence in clause 21.1 of the Agreement allows for an employee to exercise a right to be represented by any person the employee chooses, including an officer of the CFMEU. According to the CFMEU, CQS Pty Ltd has denied employees this right on the grounds that it incorrectly asserts that the clause only permits the representative to be an employee representative. When the principles of construction outlined in Golden Cockerel are applied, the ordinary meaning of the term “representative” as it is commonly and widely used in the context of industrial relations is to describe a person acting as both an advocate and a support person/witness on behalf of an employee, in meetings with management.

[10] The CFMEU submits that there is no limitation in the clause with respect to who can be a representative and the term does not require that the representative be another employee. There is no wording in the clause to suggest that the term “representative” is limited in any way and accordingly, the term must be given the widest possible meaning. The CFMEU further submits that clause 27 of the Agreement defines a limited and particular class of representative, the “employee representative” and sets out the rights of an “employee representative” who is chosen to represent another employee. The CFMEU contends that if a “representative” in clause 21 was intended to be limited to an “employee representative” in accordance with clause 27 of the Agreement, then the same term would have been used in both clauses.

[11] The CFMEU also submits that there is no ambiguity in clause 21.1 and that on the plain meaning of the clause, any person chosen by an employee can be the employee’s representative. Accordingly, the Commission should answer the question for arbitration on the basis that an employee’s right to a representative is extended to any person the employee chooses and not just to a person who is an employee of CQS Pty Ltd.

[12] In oral submissions, the CFMEU asserted that clause 27 does not limit the employee’s choice of representative but only operates when an employee chooses a representative who is also an employee of the Company. Further, clause 21.13 simply operates to curtail the rights of representatives who are also employees. In relation to the Full Bench Decision in Golden Cockerel, the CFMEU submits that the interpretation of the Agreement in the present dispute “stops at step 2 of the principles” set out in that case and that the Commission should determine that the Agreement has a plain meaning and stop at that point. The plain meaning is that the Agreement provides that an employee can be represented by any person of his or her choice. According to the CFMEU, Golden Cockerel is a distillation of all relevant principles in relation to the resolution of ambiguity in, and the construction of, enterprise agreements.

[13] In relation to the submission of CQS Services Pty Ltd that the interpretation contended for by the CFMEU would open the floodgates and allow employees to be represented by a potentially unlimited number of people, the CFMEU contended that this is not a relevant consideration. Rather the Commission should interpret the Agreement in accordance with its plain meaning and intent to give effect to the wishes of employees to appoint a representative of their choosing. In response to a question from the Commission about the inconvenience that may result in the Company being required to induct a wide range of persons who may seek entry to the Mine site for the purpose of acting as a representative and the disruption that may result, the CFMEU contended that the Company has offices in Murrumba and Mackay and meetings could be held in those offices as they currently are.

[14] CQS Pty Ltd contends that the right of an individual to be represented under clause 21.1 of the Agreement is limited to an individual who is employed by the Company at the Daunia Mine. The Company contends that the CFMEU relies on the Golden Cockerel decision and argues that the steps in that decision are in effect, a process for resolving ambiguity. If Golden Cockerel relegates the principle of context and purpose to one of a number of tests to resolve ambiguity, or suggests that this is the correct approach, then it is wrong and should not be followed.

[15] CQS Pty Ltd contends that the Commission should have regard to the following principles as set out in decisions of the Federal Court considered in Golden Cockerel:

• Regard must be had to the context and purpose of the provision being construed which may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction;¹²



• Giving primacy to the text does not deny the importance of understanding the context in which an instrument was made and which it was intended to address or the facts as they were known when the instrument was drafted;¹³



• Context can extend to the entire document or to other documents with which there is an association¹⁴ or to the legislative background against which it was made or intended to operate;¹⁵ and



• Construction of an enterprise agreement should not be strict, but should be one that “contributes to a sensible industrial outcome such as should be attributed to the parties who negotiated and executed the Agreement”.¹⁶

[16] CQS Pty Ltd submits that the meaning of clause 21.1 can be gauged from clause 21 as a whole. In particular, clause 21.13 demonstrates that it was contemplated by the parties to the Agreement that a representative of an employee for the purposes of clause 21.1 would be a person who is an employee of the Company. Reading the Agreement as a whole it is evident that an employee’s representative under clause 21.1 of the Agreement must be employed by CQS Pty Ltd at the Mine and must comply with the principles set out in clause 27 of the Agreement.

[17] CQS Pty Ltd also submits that the term “employee representative” as it appears in clause 27 of the Agreement is not a term of art or such that it can be distinguished from the term “representative” in clause 21. Even if such a distinction could be made – which is not conceded – clause 27 cannot detract from clause 21.13.

[18] Further, CQS Pty Ltd submits that if the construction contended by the CFMEU is accepted, any person can be a representative of an employee for the purposes of clause 21.1 of the Agreement. The result would be that any number of unknown persons would be able to enter the Mine any time that an employee had an issue arising in the course of employment that he or she wished to raise, even an issue raised in the first instance with a supervisor. Such an interpretation would create an absurdity and significantly hinder the Company’s ability to resolve issues that arise in the course of employment with employees, in a timely manner.

[19] In oral submissions, CQS Pty Ltd made a number of additional submissions. The test in the Golden Cockerel case was said to be not whether the terms in dispute have a plain meaning but whether the Agreement has a plain meaning. Further, Golden Cockerel is not a summary of all cases about interpretation of enterprise agreements, with some cases relied on by CQS Pty Ltd having been decided after that case.

[20] The term “employee representative” could not have a different meaning in clause 21.7 than it does in clause 21.13. Further it is submitted that with respect to the steps in 21.1 to 21.7 employees may only be represented by a representative who is also an employee. For the steps in clauses 21.8 onwards, the matter has been referred to the Commission so that representation is determined according to the Commission’s general powers which then apply. If this was not the case, there would no reason for clause 21.10 to be included in the Agreement as the parties could choose to be represented by a lawyer at any point and that clause would serve no purpose.

[21] It was further submitted that clauses 21.6, 21.7 and 21.10 could not operate if the CFMEU’s submission was accepted. Furthermore, clause 21.13 refers to the role of “the employee representative” rather than “an employee representative”. In summary the Company submits that for the steps in clauses 21.1 to clause 21.7 an employee can be represented only by a person who is also an employee, and for the steps thereafter, by a person of the employee’s choice including an officer of the CFMEU.

CONSIDERATION

[22] Contrary to the suggestion in the submission of the CFMEU, the Full Bench decision in Golden Cockerel does not set out a series of steps that must be sequentially followed in order to interpret an enterprise agreement. Further, that decision does not set out an exhaustive code or principles. Rather, the decision of the Full Bench in Golden Cockerel gathers together the authorities on interpretation of industrial instruments and distils them into a number of major points relevant to that task.

[23] I do not accept that if the language in an agreement has, on its face, a clear meaning, then the decision in Golden Cockerel requires that the Commission forming this view is the end of the exercise of interpreting the agreement. It may be the case that language in a single provision of an agreement which appears to be clear is susceptible of more than one meaning when it is considered in the context of the agreement as a whole or the circumstances in which the agreement was made.

[24] In Golden Cockerel the Full Bench set out an explanation of the judgment of Mason J in Codelfa Construction Pty Ltd v State Rail Authority (NSW)¹⁷endorsed by a Full Court of the Federal Court in Stratton Finance Pty Ltd v Webb¹⁸which included observations about the importance of context. Those observations were to the effect that often nothing contextual will displace the ordinary grammatical meaning of language, but this is not always the case, and context cannot be put to one side.¹⁹

[25] The importance of context in construing industrial instruments is consistent with the established principle that a narrow or pedantic approach should not be taken and that it is relevant that the framers of such instruments are likely to be practical people – in the present case an employer, employees and their Union, at a Mine site expressing their intention in ways likely to be understood in the context of the industry and the industrial relations environment – rather than legally qualified persons with experience in drafting legal documents.

[26] A plain reading of clause 21.1 of the Agreement suggests that an employee in dispute with the Company in relation to the application or interpretation of the Agreement or the NES or an issue arising in the course of employment, and who activates or seeks to activate the procedure in clause 21, is entitled to be represented by a person of their choice, without restriction.

[27] However, there are contextual matters that detract from this apparently clear meaning including a range of uses of the term “representative” and in the introduction of the term “parties” or “party” at various stages in the Procedure. The contextual matters include other provisions of the Agreement and the framework in which the Agreement was made. On the basis of the following textual and contextual considerations, I have concluded that the proper construction of the Agreement is that in the stages of the Procedure in clauses 21.1 – 21.7, employees who choose to be represented, may only be represented by a person who is also an employee of CQS Pty Ltd. When the dispute is referred to the Commission, the employee in dispute is a “party” in the proceeding and can be represented by a person of the employee’s choosing including a legal practitioner.

[28] Commencing with the text of the disputed clause, Clause 21.1 provides that employees may “nominate a representative of their choice to represent them at any stage of this procedure”. In clauses 21.1 to 21.7 there are references to “a representative of the employee’s choice” and “a representative of the employee’s choosing.” This can be contrasted with the point at which a matter is referred to the Commission, where the clause then refers to “parties” or a “party” rather than to the employer, the employee or a representative of the employee (see clauses 21.9 – 21.12). There is a clear distinction at this point with respect to the references to representatives.

[29] It is also relevant that before dealing with representation, clause 21.1 commences with a statement that the intention of the parties is that all issues arising out of the interpretation or application of the Agreement or in relation to the NES shall be dealt with “at the local level to the maximum extent possible.” The clause goes on to provide that other issues such as those arising in the course of employment may be dealt with under the Procedure by mutual agreement. The process in clause 21 may be invoked by either an employee or the employer.

[30] If the CFMEU’s submission is accepted, it is not possible the effect of acceptance of the CFMEU’s contended construction of clause 21.1 is that the employee may nominate a person as a representative who is neither an employee of CQS Pty Ltd nor an Officer of the CFMEU. It is not possible to construe clause 21.1 so that the class of persons who may act as representatives is restricted to other employees and Officers of the CFMEU (or another Union named in clause 2) who are not employees of CSQ Pty Ltd. Clause 21.1 either entitles an employee to nominate any person (including a paid officer of a Union) as a representative or restricts employees to nominating a representative who is also an employee of the Company.

[31] To find that any person nominated by an employee can be a representative at the stages of the dispute procedure in clause 21.1 to 21.7, could result in a person with no local connection becoming involved in an issue involving an employee. This construction is inconsistent with the objective that issues raised by employees are dealt with at a local level to the maximum extent possible.

[32] Clauses 21.1 to 21.7 of the Agreement deal with discussions at the workplace or local level with clauses 21.6 and 21.7 providing for a matter which cannot be resolved at a local level to be referred to the Commission, or by agreement of both parties to an agreed private arbitrator or mediator. The number of steps prior to a matter being referred to the Commission is consistent with the statement of intent in clause 21.1 to deal with matters at a local level to the maximum extent possible. A construction of the clause which requires that an employee representative at the steps in clauses 21.1 to 21.7 must be an employee of the Company employed at the Mine, is consistent with that intent.

[33] Support for this construction of the clause is also found in the fact that in the steps after a matter is referred to the Commission, there is a reference to “parties” rather than to the employer, the employee or a representative of the employee. Clause 21.9 refers to “the parties” in relation to circumstances where the requirement to exhaust earlier steps in the procedure before the matter is arbitrated may be waived by agreement. Clause 21.10 of the Agreement provides that in conciliation or arbitration proceedings in the FWC “either party” may choose to be represented by a legal practitioner.

[34] There is no definition of “parties” in the Agreement. Clause 2 of the Agreement states that it covers and applies to the Company, Unions including the CFMEU and all employees for whom classifications and rates of pay are prescribed. The CFMEU does not assert that it is a party to the Agreement in the sense that the Union can initiate a dispute in its own right. For the purposes of clause 21 of the Agreement, the “parties” are the employee in dispute and the employer.

[35] There is nothing in the Agreement preventing the CFMEU or another Union of which an employee is a member, representing an employee when the dispute is referred to the Commission. Once a matter is referred to the Commission, the powers of the Commission to grant permission for parties to be represented come into play, and there is nothing in the Issues Resolution Procedure to restrict those powers so that the Commission could refuse permission for an employee in dispute to be represented by an Officer of a Union covered by the Agreement.

[36] The use of the terms “party” or “parties” in the stages of the Procedure involving the Commission – connoting as it does the right of a party to appoint a representative for the Commission proceedings – is indicative that clause 21 generally does not intend to give the same bread rights to representation to employees during the steps prior to the dispute being referred to the Commission. A party to the dispute has the right to appoint a representative of their choice for proceedings before the Commission, including a legal practitioner. That an Officer of the CFMEU or some other person, has standing to represent members during the stages of the Procedure when the dispute is before the Commission, does not mean that an Officer of the Union or any other person who is not employed by the Company, has the right to represent employees at stages of the Procedure set out in sub-clauses 21.1 to 21.7.

[37] Clause 21.10 which gives a “party” the right to choose to be represented by a legal practitioner, would not be necessary if clause 21 was construed so that an employee could choose to be represented by any person of their choosing in the local discussions during the steps in sub-clauses 21.1 – 21.7. An employee could choose to be represented by a legal practitioner from the outset and clause 21.10 would have no work to do. If the Agreement is construed so that in the local stages of the Procedure at clauses 21.1 – 21.7 an employee who chooses to be represented is required to be represented by another employee, then when the dispute is referred to the Commission the employee can choose to be represented by: another employee; an officer of a Union; a legal practitioner; or any other person chosen by the employee. If the employee chooses to be represented by another employee, then clause 27 of the Agreement operates to confer certain rights on the employee representative.

[38] Clause 27 of the Agreement further indicates an intention that issues concerning terms and conditions of employment will be dealt with at their source by those involved. The clause provides that employees may nominate “an employee representative of their choice” to represent them in relation to any issues that arise concerning their terms and conditions of employment and goes on to provide for entitlements to time off and travel at the expense of the Company for employees who are nominated as representatives. It will be noted that in some sub-clauses of clause 27 of the Agreement the word “employee” precedes the word “representative” and in other sub-clauses the term “representative” is used. While in clause 21, the terms “representative” or “employee’s representative” are used. There are two possible reasons for this distinction:

• The distinction recognises that a representative for the purposes of a dispute under clause 21 might be a person who is not an employee of the Company and who will therefore not be afforded the benefits in clause 27; or



• The distinction was not intended on the basis that the only representative in discussions under the Procedure in the steps set out from 21.3 and 21.7 and is a result of infelicitous expression.

[39] In the context of clause 21 and the discussion of that clause set out above, I am of the view that the distinction in the language of clause 27 as opposed to clause 21 is unintentional and is a result of infelicitous expression on the part of those who drafted the Agreement. Clause 27 of the Agreement provides entitlements for employee representatives to training, time off and to have expenses necessary for attendance at the Commission to be paid for by the Company. Clause 27 does not set up a parallel or additional dispute procedure to that contained in clause 21. Clause 27 supplements clause 21 and provides for training and other benefits for employees who represent other employees and/or who hold an office with a Union. Accordingly, the term “employee representative” used in clause 27 should be given the same meaning as “representative” in clause 21. The benefits provided to employees of CQS Pty Ltd acting as representatives in clause 27 are a further indication of their significance by virtue of being the source of representation for employees at the local stages of the Procedure in clauses 21.1 to 21.7 of the Agreement.

[40] I also consider that the interpretation I favour is consistent with the overall context in which the Agreement was made. The Agreement operates at a Mine site to which access is restricted. Persons who are employees are inducted into the requirements for entry to and movement around the site. Officers of the CFMEU who are not employed by the Company have rights to enter under the Act which are governed by considerations such as notice that must be given, areas that may be accessed and compliance with health and safety requirements. Such Officers cannot generally be immediately available to attempt to resolve issues at their source. These contextual considerations tell against a construction that any person may act as a representative of an employee in local discussions.

[41] I do not accept that the fact that there may be a town office for the Mine at which a representative who is not an employee might attend is relevant. For a discussion between an employee and his or her immediate supervisor or a department manager to be required to be conducted off the Mine site, so that a non-employee could act as a representative, would create an impediment to the efficient resolution of disputes at a local level which is the intent of the parties as evidenced by the statement of that intent in clause 21.1 and clause 27.3 and the capacity for issues to be expedited under clause 21 by virtue of steps being bypassed.

[42] The construction of the Agreement that I favour is also consistent with Unions, including the CFMEU, who have local resources in the form of office holders who are also employees of CQS Pty Ltd and who are able to respond quickly to requests from an employee for representation and represent employees in disputes or issues with the employer.

[43] An employee in dispute with the employer can represent himself or herself at the stages of the Procedure in sub-clauses 21.1 to 21.7 of the Agreement or may nominate a representative of their choice who is also an employee of CQS Pty Ltd, who may or may not also hold a role as an officer of a Union. When the dispute is referred to the Commission, the employee may be represented by another employee (who is entitled to the benefits in clause 27) or by an Officer of a Union who is not employed by the Company or by a legal practitioner or any other person the employee chooses.

[44] The legislative framework under which the Agreement was made is also relevant to its construction. By virtue of s. 186(6) of the Act, at the point the Agreement was approved the Commission was required to be satisfied that it included a term that allows the Commission or another independent person to settle disputes about any matters arising under the Agreement or in relation to the NES and that allows for representation of employees covered by the Agreement for the purposes of that procedure. The Act and the Model Dispute Resolution Term in Schedule 6.1 to the Fair Work Regulations 2009 require that an employee may appoint a representative for the purposes of the procedure but do not mandate a total freedom of choice with respect to the identity of the representative.

[45] The Object of the Act at s. 3(e) includes enabling fairness and representation at work through freedom of association and the right to be represented. The interpretation of the Agreement discussed above is not inconsistent with this object and allows for employees to be represented by a fellow employee who may be an Officer of a Union or by a full time Officer of a Union when the matter is referred to the Commission, at the choice of the employee/s concerned.

CONCLUSION

[46] For the reasons set out above, I have concluded that the question for arbitration should be answered “No” and that an employee’s right to representation under clause 21.1 of the Agreement does not extend to having any person they elect as a representative during a dispute and is limited to a representative who is employed by CQS Pty Ltd for the stages in sub-clauses 21.1 – 21.7 of the Issue Resolution Procedure in clause 21 of the Agreement.

DEPUTY PRESIDENT

Appearances:

Mr C. Newman on behalf of the CFMEU..

Mr M. Coonan of Herbert Smith Freehills on behalf of the Respondent.

Hearing details:

Brisbane.

23 March.

2017.

1 [2014] FWCFB 7447.

2 City of Wanneroo v Australian Administrative Clerical and Services Union (2006) 153 IR 426.

3 Amcor Limited v CFMEU and Ors [2005] HCA 10.

4 Short v Hercus (1993) 40 FCR 511 at 518.

5 Ibid.

6 Bond & Co Ltd (in liquidation) v McKenzie (1929) 28 AR 499.

7 Toll FGCT Pty Limited v Alphapham Pty Ltd (2004) 219 CLR 165 (at 179).

8 Kucks v CSR (1996) 66 IR 182.

9 See discussion of cases on this point in AMIEU v Golden Cockerel (2014)245IR at [23] – [30].

10 [2014] FWCFB 7447 at [30].

11 [2015] FWCFB 1981 at [23].

12 City of Wanneroo v Australian, Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 at [53].

13 Transport Workers’ Union of Australia v Coles Supermarkets Australia Pty Ltd (2014) 245 IR 449 at [46].

14 Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518 per Burchett J.

15 Amcor v Construction, Forestry, Mining and Energy Union and Others (2005) 222 CLR at [30] per Gummow, Hayne and Heydon JJ.

16 Ibid at [96] per Kirby J and see also the judgment of Madgwick J in Kucks v CSR Limited (1996) 66 IR182 at 184.

17 (1982) 149 CLR 337 at 352.

18 (2014) 245 IR 223 endorsing the decision of the New South Wales Court of Appeal in Mainteck Services Pty Ltd v Stein Heurtey SA (2014) 310 ALR.

19 Mainteck Services Pty Ltd v Stein Heurtey SA (2014) 310 ALR at [71] – [85].

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