Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd

[2018] FWC 2747

[2018] FWC 2747

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Construction, Forestry, Mining and Energy Union
v
BHP Coal Pty Ltd
(C2017/3632)

DEPUTY PRESIDENT ASBURY SYDNEY, 17 MAY 2018

Application to deal with a dispute – Construction of agreement.

[1] This decision relates to an application by the Construction, Forestry, Mining and Energy Union - Mining and Energy Division (CFMEU, as the Union was then known) and BHP Coal Pty Ltd (BHP) for the Fair Work Commission (the Commission) to deal with a dispute under a dispute settlement procedure in the BMA Enterprise Agreement 2012 (the Agreement). The dispute relates to the proper construction of terms of the Agreement dealing with the right of displaced employees to return to a position. The dispute arose with respect to a particular employee at Blackwater Mine, Mr Shane O’Brien. Attempts by the parties to resolve the dispute under initial stages of the dispute settlement procedure were unsuccessful and it was referred to the Commission. The dispute was not resolved through conciliation, and was listed for arbitration.

[2] The parties to the dispute agreed on a statement of facts. They were unable to agree on a question for arbitration. The question proposed by the CFMEU is:

“In accordance with clause 8.4 of the BMA Enterprise Agreement 2012, when is an employee’s preference to return to their previous position enlivened and when does it extinguish?” 1

[3] The question for arbitration proposed by BHP is:

“Does Shane O’Brien currently have a right to return to a relevant position in the Coal Mining Department at Blackwater Mine in accordance with clause 8.4 of the BMA Enterprise Agreement 2012?” 2

[4] The CFMEU submitted that the issue of the question for arbitration is ‘largely moot,’ with both questions accurately encapsulating the dispute between the parties. The CFMEU submitted that the Commission could issue an arbitrated decision on the matter without having to resolve the issue of which is the preferred question for arbitration. My preference is to answer a specific question and in circumstances where the CFMEU submits that the difference in the proposed questions is moot and the agreed statement of facts refers to Mr O’Brien, I have determined to answer the narrower question posed by BHP.

STATEMENT OF AGREED FACTS

[5] The agreed facts are as follows:

“1. The Respondent is and was, at all relevant times, the employer of the permanent production and engineering workforce at the Blackwater Mine (Mine).

2. The Applicant is and was, at all relevant times, an industrial association (for the purposes of the Fair Work Act 2009 (Cth)) (FW Act) whose members consisted of, or included, employees of the Respondent.

Blackwater Mine

3. The Mine is an open-cut coal mine situated about 77 kilometres east of Emerald in the Bowen Basin in Queensland.

BMA Enterprise Agreement 2012

4. The BMA Enterprise Agreement 2012 (Agreement):

(a) commenced operation on 2 November 2012 and had a nominal expiry date of 26 October 2015;

(b) covers and applies, inter alia, to the Applicant, the Respondent and its production and engineering employees at the Mine;

(c) provides, at clause 8.4:

8.4 Preference for Employees to return to previous jobs

(a) Where:

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

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

(3) employees are moved out of their functional work area for operational reasons and there is subsequently an increase in crew numbers in their original functional work area,

the Employees who have been displaced will, within three years of their displacement, have first right to return to the relevant positions provided that they have the necessary skills mix and proficiency or the ability to regain proficiency in a reasonable period of time.

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

Shane O'Brien

5. On 15 August 2004, Mr O'Brien commenced employment at the Mine with the Respondent as an operator. Mr O'Brien commenced work as an operator in the Coal Mining Department at the Mine.

6. A restructure occurred at the Mine in late 2014 (First Restructure). As part of the First Restructure, Coal Mining Department crew numbers/approved crew numbers (There is a dispute between the parties as to how the phrase 'crew numbers' in clause 8.4 (a) (3) of the Agreement should be understood) were reduced. Specifically, Coal Mining approved crew numbers (per crew) were reduced to 29. As a result, 42 employees, including Mr O'Brien, were displaced from their positions as operators in the Coal Mining Department. The majority of the employees who were displaced were redeployed into the Prestrip Department at the Mine. The remaining employees who were displaced took voluntary redundancies or were transferred to other coal mines within BMA's asset portfolio.

7. On 9 January 2015, as a result of the First Restructure, Mr O'Brien was redeployed out of the Coal Mining Department and into the Prestrip Department at the Mine.

8. A second restructure occurred at the Mine In late 2015 (Second Restructure). (The Second Restructure resulted in positions in the Production Department and Maintenance Department being outsourced.) As a result of the Second Restructure crew numbers/approved crew numbers within each crew in the Coal Mining Department at the Mine were Increased. Specifically, Coal Mining approved crew numbers (per crew) were increased from 29 to 31. As there are four Coal Miningng crews, eight approved crew positions became available.

9. The Second Restructure involved an expression of interest (EOI) process whereby affected employees (namely employees in the Production Department and Maintenance Department whose roles were no longer available due to outsourcing) were offered the opportunity to express their interest in other roles at the Mine.

10. As part of the EOI process Mr O'Brien expressed an interest in returning to the Coal Mining Department, or as a lower preference, a redeployment to the Dozer Push Department.

11. In accordance with the EOI process, eight employees were redeployed into the Coal Mining Department at the Mine to fill the eight available approved crew positions referred to above at paragraph 8.

12. On 29 November 2015, Mr O'Brien was redeployed into the Dozer Push Department at the Mine.

13. At the time of his redeployment Mr O'Brien did not formally raise any issue with the Respondent regarding clause 8.4 of the Agreement and his placement in the Dozer Push Department.

14. Mr O'Brien currently works as an operator in the Dozer Push Department at the Mine.

15. As at 4 October 2017 the crew numbers/approved crew numbers within each crew in the Coal Mining Department have not changed as a result of any further restructuring process since the Second Restructure in mid-2015. Specifically, there remains 31 approved crew positions within each crew in the Coal Mining Department.

16. In May 2017, an employee in the Coal Mining Department at the Mine ceased employment with the Respondent.

17. Mr O'Brien has expressed a desire to return to a relevant position in the Coal Mining Department and asserts a right to return to a position, in accordance with clause 8.4 of the Agreement. No other employee who was previously displaced from the Coal Mining Department has expressed an interest in returning to that Department.

18. The Respondent has denied this request. The Respondent's position is that no such right exists in accordance with clause 8.4 of the Agreement.”

CFMEU SUBMISSIONS

[6] With reference to the principles relevant to the construction of enterprise agreements, the CFMEU submits that clause 8.4 of the Agreement relates to situations where an employee who has been moved from a previous position and has an interest to return to that position, can return. Clause 8.4(a) (1) – (3) outlines the specific circumstances in which a person can be moved from a position, and the circumstances that must be enlivened in order to trigger an ability for an employee to request a return to a position. The second part of clause 8.4(a) outlines the process and limitations under which a person can request a return. The final part of the clause – 8.4(b) – anticipates circumstances where more than one employee makes a request to return to a position and outlines a process that BHP must use where the number of employees who seek to return, exceeds the number of relevant positions.

[7] The CFMEU submits that the clause is clear and unambiguous and there is no uncertainty. If an employee meets the criteria in clause 8.4(a)(1) – (3) then within three years from the date of displacement, that employee has the first right of return to a position, if one becomes available within three (3) years of the date of the transfer occurring. The CFMEU submits that the clause applies to any available position within the three year time frame, provided that the other pre-requisites under the clause are met.

[8] The CFMEU further submits that the preferential right to return can be exercised any time there is a vacant position in the employee’s former department, and that there is nothing in the wording of the clause to suggests the right to return is a singular one only to be exercised when the events in cl.8.4(1) – (3) are met.

[9] In support of this contention, the CFMEU relies on the division of the clause into three separate subsections as indicating that the displaced employee to whom one of the separate subsections applies, has the right to return at any time, providing that employee meets the pre-conditions. The CFMEU further contends that there are no words in the clause to indicate that it makes the right to return contingent or restricted by the events in subsections (1) – (3) occurring within the three year time period. The clause should be read as allowing a right to return to work which can be enlivened at any time there is a vacancy, provided the prerequisites in the final paragraph are met.

[10] The CFMEU submits that as set out in the agreed statement of facts, Mr O’Brien moved out of the coal mining department in 2014 as a result of an operational decision. In November 2015 there was an increase in crew numbers in the coal mining department due to the second restructure. Mr O’Brien expressed an interest in returning to one of these positions and was unsuccessful, achieving only his second preference. Therefore the second half of clause 8.4(a)(3) became operational and Mr O’Brien now enjoys a right to return to any vacant position in the Coal Mining Department.

[11] If the clause is read in the manner suggested by the CFMEU, then Mr O’Brien does have a right to return to his former role as there is a position available and no other employee who was affected by the transfer of November 2014 has raised an expression of interest to return. The position is available because a permanent employee who was a member of the crew has ceased employment. Accordingly there is a vacant position within the three year period, and Mr O’Brien is entitled to exercise his right to return to the Coal Mining Department with respect to that position.

[12] In oral submissions, the CFMEU argued that clause 8.4 should be interpreted from the beginning of the clause, which defines it as relating to how and when an employee can return to their previous job. The clause refers to three separate sets of operational factors which could occur in the course of the business. In the present dispute, clause 8.4(a)(3) is relevant.

[13] The CFMEU went on to argue that a displaced employee whose right to return is enlivened by one of the three sets of operational factors under clause 8.4 has a right to return which is not a right that “ebbs and flows.” 3 As summarised during the hearing, the CFMEU’s argument was that once a reduction occurs, then any persons who are transferred out of a particular area as a result of the reduction have that right triggered, and that right stays in place for three years regardless of what else happens.4 An employee with that right is entitled to exercise it with respect to any vacant position in the former work area. The CFMEU also accepted for the purposes of the construction contended for, that the right to return to a vacant position was a right to return to a vacant permanent position.

BHP SUBMISSIONS

[14] BHP submits that regard should be had in the construction of the Agreement, to the basic principle that an employer is free to allocate labour as it sees fit subject to any limitation imposed by statute, common law contract or industrial instrument. Any limitation on an employer’s general rights to allocate labour as it sees fit should only be found by reference to clear and express language in the Agreement.

[15] BHP submits that in accordance with clause 4.1 of the Agreement, employees covered by the Agreement will perform such tasks as are reasonably required by the Respondent without any demarcation of duties while complying with all legal and statutory obligations. BHP can require the performance of any operational mining, maintenance or technical tasks that employees are trained competent and/or authorised to perform. Further, in accordance with clause 4.4 of the Agreement, employees covered by the Agreement are required to attend for work in accordance with their roster and to work as directed. The text of the Agreement must be read as a whole.

[16] According to BHP, if any of the three situations outlined in clause 8.4(a) (1), (2) or (3) of the Agreement occur, a displaced employee will have the right to return to the “relevant positions” provided that the employee has the necessary skill mix and proficiency or the ability to regain proficiency in a reasonable amount of time. This means that the critical determinative question is what is meant by the reference to “relevant positions” in clause 8.4.

[17] BHP submits that the effect of the construction of clause 8.4(a)(3) contended for by the CFMEU is that:

(a) If an increase in crew numbers in a displaced employee’s original functional work area occurs then the right to return is triggered.

(b) For a period of three years after the date of the displacement, the displaced employee has a right to return to any vacant position in their original functional work area, howsoever it arises. For example, if an employee resigns from the original functional work area the displaced employee has the right to return to the “vacant position” created.

[18] BHP contends that the CFMEU’s construction has the effect of decoupling the event referred to in 8.4(a)(3), namely an increase in crew numbers, from a displaced employee’s right to return to their original functional work area. The CFMEU achieves this by contending that any vacant position which arises in the original function work area is a “relevant position”. The necessary premise of the CFMEU’s construction is the insertion of the words “vacant position” into the clause. That is not the correct approach to construction.

[19] If clause 8.4 is read as a whole, the three situations outlined in clause 8.4(a)(1), (2) and (3) are intrinsically linked to a displaced employee’s right to return to their functional work area. The “relevant positions” referred to are created by either:

(a) a particular piece of equipment which was parked up being returned to production; or

(b) part of the operation moving back to a seven day roster; or

(c) an increase in crew numbers in the functional work area.

[20] BHP submits that the use of the words “the relevant positions” and not “their relevant positions” is also instructive. The position which a displaced employee has a right to return to is not a position which belongs to the employee, it is a position which arises when one of the situations described in clause 8.4 (a)(1), (2) or (3) occurs. BHP also submits that the CFMEU’s construction does not adequately address when a “vacant position” arises and whether this occurs in circumstances where an employee takes a period of extended leave or transfers to another department at the Mine on a temporary basis.

[21] There is no express language in the clause which limits BHP’s general rights to allocate labour as it sees fit in circumstances where a vacancy arises. The CFMEU’s construction also imposes a limitation on BHP’s express right to direct employees to perform such tasks as reasonably required and the obligation placed on employees to work as directed. No such limitation should be implied, absent such express language. The express language of clause 8.4(a)(3) refers only to an increase in crew numbers and the relevant positions which become available as a result.

[22] BHP’s position is that on the proper construction of the Agreement (including by reference to the provisions of the agreement as a whole), the reference to crew numbers in sub-clause 8.4(a)(3) of the Agreement is a reference to approved crew numbers. BHP maintains that there is a distinction between avacant position becoming available and an increase in approved crew numbers occurring.

[23] BHP further submits that if a position becomes available in the Coal Mining Department, that position is not the subject of a first right of return to a displaced employee unless the position becomes available as a result of an increase in approved crew numbers.

[24] Accordingly, when a vacant position became available because an employee in the crew ceased employment, no right to return existed for Mr O’Brien, as there were no approved additional crew positions to which Mr O’Brien should have been provided the first right of return in the period from 30 November 2015 to 30 October 2017 and BHP has not misapplied the Agreement.

[25] In oral submissions, BHP referred to clause 8.4(a)(1) in the context of the CFMEU’s argument using the example of “parking up” a haul truck, resulting in a displacement of employees. BHP submitted that if the truck was to be brought back into production and additional employees were required to operate the truck, then employees who had been displaced from that functional work area within the three year period prior to the additional positions being required, would have the right to return to those positions. The CFMEU’s interpretation would give displaced employees a right to return to any vacant position which might subsequently arise in the functional work area even if the truck was not brought back into production. 5

[26] BHP submitted that this was not the intention of the clause, and that if this is what was meant, that is what would have been included in the agreement. 6 BHP also submitted that clause 8.4(a)(3) is conjunctive so that where employees are moved out of their functional work area for operational reasons and there is subsequently an increase in crew numbers in their original functional work area,the right of return applies to the relevant positions. BHP submitted that the term “relevant positions” identified in the second half of clause 8.4 attaches to the positions which resulted from the increase in crew numbers only, and that only in these circumstances does a right of return arise.7 BHP also submitted that the concession the CFMEU in oral submissions that the right of return applied to vacant permanent positions did not resolve the deficiencies in the CFMEU’s argument.

THE APPROACH TO CONSTRUCTION OF AGREEMENTS

[27] The approach to construing enterprise agreements 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 Ltd⁸ 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 and 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.”

[28] In CFMEU v Endeavour Coal Pty Ltd T/A Appin Mine 9a 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 SA,10emphasising 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 means 11 and there is always some context to any statement;12

•  Language considered in its context will often have a clear meaning and context will often not displace that meaning – “but not always”; 13

•  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; 14

•  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; 15 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 transaction. 16

[29] The case law in relation to the approach to the construction of enterprise agreements makes it clear that context and purpose are relevant to the construction of provisions in an enterprise agreement and must be considered even where the words of the provision being construed appear, on their face, to have a clear and unambiguous meaning. There is always context to any term of an enterprise agreement and the presence or absence of ambiguity is in the eye of the beholder.

CONSIDERATION

[30] Construction of an agreement begins with consideration of the ordinary meaning of the relevant words. It is not in dispute that on 9 January 2015, Mr O’Brien was moved out of his functional work area – the Coal Mining Department – to the Pre-Strip Department as a result of a reduction in approved positions effected by BHP. The move was a redeployment following restructuring, and was for operational reasons. In my view Mr O’Brien was displaced on 9 January 2015 and at that point clause 8.4(a)(3) applied to him. Any right of return which Mr O’Brien may have had remained in effect for three years from that date. I am also of the view that on the plain meaning of the words of clause 8.4(a)(3) it is necessary that there is an increase in crew numbers in the original functional work area, which occurs subsequent to an employee being moved out of the area, before that employee can seek to exercise a right to return to the area.

[31] For the purposes of clause 8.4(a)(3), a vacancy in a particular crew is not within the plain meaning of the words “an increase in crew numbers”. A vacancy does not increase the numbers in a crew. The numbers in the crew stay the same and there is either a temporary or permanent replacement for the crew member whose absence gave rise to the vacancy, depending on the circumstances. It is also the case that there may be a decision by BHP not to fill a vacancy because – for example – the crew can operate without the vacant member in circumstances where the absence is temporary or of short duration.

[32] This narrow construction is consistent with sub-clauses (1) and (2) of clause 8.4(a). Those sub-clauses operate when employees are displaced from a work area in particular circumstances and as a result of further circumstances crew numbers are to increase: where a piece of equipment is parked up and “that particular piece of equipment is to be returned to production” or where employees are moved from a seven day to a five day roster which results and “that part of the operation is to revert back to a seven day roster”. It is axiomatic that there has been a reduction in crew numbers in the particular area which results in employees being displaced. In order for an employee to seek to exercise a right to return to a previous job in the circumstances in clause 8.4(a)(1), the particular piece of equipment that was parked up is required to be returning to production. Similarly clause 8.4(a)(2) requires that the roster is to revert from a five day to a seven day roster for part of the operation and in both circumstances a relevant position arises because BHP requires additional employees to operate the piece of equipment or to fill positions on the roster.

[33] Neither of those sub-clauses operates to create a right of return to a previous work area in circumstances where there is a vacancy in the number of operators for another piece of equipment in the work area or a vacancy on the five day roster. The vacancy must pertain to the particular piece of equipment that was removed from production or the part of the operation which is to revert from a five day to a seven day roster. I can see no basis for construing sub-clause 8.4(a)(3) in a broader or different manner to sub-clauses 8.4(a)(1) and (2).

[34] A narrow construction is also suggested by the use of the term “the relevant positions” in the paragraph following sub-clauses 8.4(a)(1) – (3). In the context of the clause as a whole, the term “the relevant positions” refers to positions on the parked up equipment which is to be put back into operation in 8.4(a)(1); positions removed from a roster which is reduced from seven to five days in 8.4(a)(2); or the positions held by employees who were moved out of a functional work area for operational reasons when positions on a crew were reduced and are subsequently to be increased in that particular area as provided in clause 8.4(a)(3). Further, clause 8.4(b) supports a narrow construction by reference to the equipment or roster, notwithstanding that the clause does not refer specifically to the circumstances in 8.4(a)(3). Clause 8.4(b) would apply in the circumstances of an increase in crew numbers if the number of displaced employees from a functional work area exceeded the numbers by which the crew was to be increased in that functional work area.

[35] This construction of clause 8.4 means that the clause operates in accordance with its heading and deals with the subject of preference for employees to return to previous jobs. The clause is not intended to give displaced employees a right to return to any vacant job in their previous functional work area. For these reasons, the construction contended for by the CFMEU is inconsistent with the plain words in clause 8.4 of the Agreement.

[36] It is also necessary to look at the context of the relevant clause to consider whether there is anything in that context to displace the plain meaning of the relevant term. The term “functional work area” is defined in clause 41.1 of the Agreement for the purpose of certain specified clauses which do not include clause 8.4. However I can see no basis for the term “functional work area” as defined in clause 41.1 to be given a different meaning in clause 8.4. Accordingly, a functional work area is an identifiable segment of the Mine with its own specific skill requirements. Clause 41.1 also states that the Company is responsible for determining the actual skills required and the necessary number of such skills in each functional work area. This is a contextual matter which supports my conclusion about the proper construction of the Agreement, and makes clear that BHP has the right to increase or reduce numbers of positions in a functional work area to provide the mix of skills it considers appropriate for that area.

[37] The construction of clause 8.4 that I favour is also consistent with rights of the Company expressed in other terms of the Agreement to: require employees to perform operational, mining, maintenance or technical tasks that they are trained, competent and/or authorised to perform (clause 4.1); direct employees to work (clause 4.4); determine a skills matrix for each functional work area (clause 5.1(b)); determine training to be undertaken to suit its business needs (clause 5.1(c)); require employees to perform production and engineering tasks covered by the agreement where employees are skilled, competent, trained and authorised to do so (clause 6.1(a)); cover any position within their skills, competence and training (clause 6.1(d)); have free and unfettered access to contractors (clause 7); and decide whether there is a surplus of permanent employees and if so, activate redundancy provisions (clause 32).

[38] The construction advanced by the CFMEU is not consistent with these provisions. Further, the CFMEU has not addressed the lack of definition of “vacancy”. The construction the Union favours would also limit the rights of BHP to fill vacancies as it sees fit, regardless of whether vacancies are short term, long term or need to be permanently filled. To construe the Agreement in the manner asserted by the CFMEU would be inconsistent with the rights that BHP has to determine the numbers of positions required at the Mine and the mix of skills that employees in those positions are required to exercise. There is no reference to a vacancy in clause 8.4 of the Agreement, much less to a vacant permanent position.

[39] On the basis of the agreed facts in the present case, Mr O’Brien had a right to return to a position in the Coal Mining Department up until 9 January 2018, where such a position was available due to an increase in crew numbers. Mr O’Brien did not have a right to fill any vacant position in the Coal Mining Department during this period. There were no increases in crew numbers in the Coal Mining Department in the relevant period other than in the second restructure where Mr O’Brien was not successful in being appointed to a position, following the process in clause 8.4(b) being followed. Accordingly, there was no position to which Mr O’Brien was entitled to return.

CONCLUSION

[40]Mr O’Brien does not currently have a right to return to a relevant position in the Coal Mining Department at Blackwater Mine in accordance with clause 8.4 of the Agreement, and I answer the question for arbitration: No.

DEPUTY PRESIDENT

Appearances:

Mr C. Newman on behalf of the Applicant.

Mr I. Humphreys of Ashurts on behalf of the Respondent.

Hearing details:

Brisbane.

2 February.

2018.

Printed by authority of the Commonwealth Government Printer

<PR607134>

 1   Applicant’s Submissions, pg 1-2, para 3.

 2   Respondent’s Submissions, pg 1, para 1.

 3   Transcript, PN34.

 4   Ibid, PN 119.

 5   Ibid, PN 162-167.

 6   Ibid, PN 168.

 7   Ibid, PN 171-173.

8 [2017] FWCFB 3005 at [14].

 9   [2017] FWCFB 4487.

 10 [2014] NSWCA 184 at [71] – [85].

 11   Manufacturers’ Mutual Insurance Ltd v Withers (1988) 5 ANZ Ins Cas 60-853 at 75-343.

 12   Kirin-Amgen Inc v Hoechst Marion Roussel Ltd [2004] UKPC 6; [2005] 1 All ER 667 at [64].

 13   Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [78].

 14   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) and Dale v The Queen [2012] VSCA 324 at [73].

 15   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].

 16   Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165 at [40].