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

[2014] FWC 1049

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
(C2013/2872)

Coal industry
COMMISSIONER SPENCER	BRISBANE, 12 FEBRUARY 2014

Alleged dispute regarding shift changeover work and 12 hour shifts..

[1] This Decision relates to an application made by the Construction, Forestry, Mining and Energy Union (the Union/Applicant) pursuant to s.739 of the Fair Work Act 2009 (Cth) (the Act). BHP Coal Pty Ltd (the Respondent/Employer) operates various mines throughout Queensland including Goonyella Riverside, Peak Downs and Saraji Mines. The dispute, the subject of this Decision, relates to the interpretation of the BMA Enterprise Agreement 2012 (the Agreement) and various clauses (extracted below) relating to the ordinary hours of work, starting and finishing times and the operation of shift changeover. Specifically the Dispute relates to the hours of work and the particular work that employees can be directed to perform beyond 12 hours, in accordance with the Agreement.

[2] The Commission assisted the parties in Conference to resolve the dispute, but the matter was not resolved between the parties.

[3] Directions were set for the filing of an agreed question for Arbitration and statement of agreed facts, and for each party to file submissions and evidence in the matter.

[4] The parties agreed the question for Arbitration, as follows:

“In what circumstances does the BMA Enterprise Agreement 2012 allow the Company to require employees who work rostered shifts in excess of 12 hours at Saraji, Goonyella Riverside and Peak Downs Mines to perform production work after the 12 hour mark?”

[5] It was agreed at the outset of the Hearing in this matter that the task being asked of the Commission was to issue a Decision that may involve a recommendation. 1

[6] While not all of the submissions and evidence in this matter are referred to in this Decision, all of such have been taken into account.

[7] A general matter as to the evidence filed in proceedings requires comment at the commencement. Many of the witnesses provided their views or their opinion as to what the term “hot seat changeover”, and related phrases, meant. This evidence was objected to if it was intended as evidence of what the words of the Agreement meant. By consent between the parties, the evidence was admitted on the basis that it was an expression of an opinion, state of mind or experience of the relevant witnesses and not as evidence as to the meaning or interpretation of the phrase or Agreement. 2 The task of interpretation was accepted by both parties as properly to be dealt with by submissions and the task of this Commission.

[8] The Applicant was represented by Mr Tony Slevin, Counsel, instructed by Mr Rowan Anderson, Legal Officer of the CFMEU. The Respondent was represented by Mr Ian Neil, Senior Counsel, and Mr Richard Dalton, Counsel, instructed by Ms Tamara Gillies, Senior Associate of Ashurst.

[9] The evidence in this matter is that the agreed roster or shift lengths, varies between mines and organisational departments. These agreed rosters are reflected in the site-specific Schedules to the Agreement. References to specific agreed shift lengths or agreed roster lengths in this Decision are not intended to be a specific reference to the agreed shift lengths or agreed roster lengths of employees as a whole, covered by the Agreement. Any specific time mentioned is intended to be interchangeable with the agreed roster that may apply to any specific employee or situation - and is usually based upon the example utilised by the parties in submissions - unless the context of its use dictates otherwise.

Background

[10] The dispute in question considers the specific Agreement provisions and the continuation of work as part of a shift changeover, against operational requirements, and the balancing act of ensuring health and safety and maintaining fatigue management, in the potentially dangerous environment of a mine site.

[11] A critical argument of the dispute is that the Applicant submitted that the Respondent only has the right to require employees to work a maximum shift length of 12 hours. The Applicant conceded that this right of the Respondent is extended (by the terms of the Agreement) to include the right of the Respondent to increase shift lengths beyond this maximum of 12 hours, but only “to effect a hot seat changeover/effective shift changeover” 3 (hot seat changeover/changeover). The Applicant submits that the Respondent has been extending the shift length beyond the maximum shift length for purposes other than to effect the efficient shift changeover.

[12] The Respondent denied that by virtue of achieving the effective shift changeover they were endeavouring to extend the shift. The Respondent agreed that the Agreement provision does set a maximum rostered shift length of 12 hours. Further, the Respondent submitted that the parties have agreed on a further period of overlap between the shifts to effect the shift changeover. However, the Respondent submitted that staff are paid for greater than 12 hours regardless of whether they finish before their rostered hours and that this was agreed during bargaining for the Agreement provisions, to take into account the changeover process. The Respondent’s view is that the Agreement does not operate such that, at the 12 hour mark employees are able to completely cease work in all circumstances, and cannot undertake any production work at all. In summary, the Respondent’s view is that employees are to continue to work, including production work, until they are relieved by the oncoming shift or directed otherwise. This is in line with the Respondent’s argument that such work is necessary to give effect to the shift changeover, within the terms of the Agreement.

[13] It has become apparent that this dispute requires the consideration of a number of associated questions before the question for Arbitration can be considered. They are:

1. What is the extent of the ability of the Respondent to require employees to work after 12 hours?
2. Are employees, in fact, rostered on shifts in excess of 12 hours?
3. Are they rostered in excess of 12 hours for the purpose, or to undertake, production work?
4. Related to questions 1 and 4 is: is production work beyond the scope of the Respondent’s ability to instruct employees to work for greater than the maximum shift length of 12 hours?

[14] The answer to each of these questions assists the consideration of the question for Arbitration and any subsequent Decision

Agreed Statement of Facts

[15] This matter required the consideration of a large amount of evidence and testimony of witnesses. In order to efficiently deal with the matter the parties were directed to provide an agreed statement of facts that formed a background to the evidence. The statement was not agreed in full, but any level of disagreement relates to those matters in dispute between the parties.

[16] An agreed statement of facts was prepared in this matter. The statement was not agreed in total by the parties. However the following provides a contextual understanding of the dispute:

“Background

The Respondent operates the Goonyella Riverside, Saraji, and Peak Downs mines in Queensland.

The terms and conditions contained in the BMA Enterprise Agreement 2012 cover and apply to employees employed at the abovementioned mines.

The BMA Enterprise Agreement 2012 came into effect on 2 November 2012.

Mine Operations

The Respondent has issued directions to employees at the abovementioned mines to perform work, after the completion by the employees of twelve (12) hours’ work, including:

(a) To continue collecting loads of material (overburden and coal) and transporting those loads.

(b) To continue drilling activities, including drilling new holes.

(c) To continue production activities in the Dragline Department.

(d) To continue operating Dozers and other machinery.

(e) To perform other tasks such as cleaning and refuelling vehicles.

Prior to commencing their shifts employees are required to travel to the mine sites and perform Occupational Safety Performance Assessment Technology tests (OSPAT tests).”

[17] The Respondent agreed to the facts provided above in so far as they represent a factual summation of the context of the dispute.

[18] In summary terms the Applicant submitted:

“... that the employees can not be required to perform production work beyond 12 hours and that work performed on shift after 12 hours can only be work that gives effect to a hot seat changeover / effective shift changeover as defined in the Schedules to the Agreement.” 4

[19] The Applicant further clarified this position in closing submissions as follows:

“In determining the dispute, by reference to the question posed by the parties, the applicant submits that the Commission should find that:

The Agreement requires the respondent to ensure that employees who work 12 hour shifts which have been extended to accommodate a shift changeover by limiting the work performed so that the total shift length is as short as possible.

To achieve the requirement in a. the Agreement permits the Respondent to require employees to work beyond 12 hours only to perform tasks associated with:

i) passing over operational and safety information concerning the shift, including work completed during the shift and the status of work to be handed over;

ii) where necessary, effect a hot seat change; and

iii) travel to start/finish place.

The tasks described in b. do not include production tasks.” 5

[20] The Respondent submitted:

“The company submits that the Commission should resolve the dispute by answering the posed question in substance as follows:

(a) Subject to clause 4 of the Agreement, the company can require the employees to perform any tasks for the duration of a properly constituted rostered shift;

(b) The rostered shifts under consideration, being extended shifts beyond 12 hours, are properly constituted in accordance with clause 11.2(b) of the Agreement;

(c) Under the shift changeover clause in the site specific schedules, the shift changeovers will be conducted at the company’s direction to maximise continuous operations, and to that end employees may properly be required to continue to perform production tasks past the 12 hour mark until the on-coming crew arrive and are ready to begin work;

(d) Under the last paragraph of the shift changeover clause in the site specific schedules, should the union have any concerns that any members are being disadvantaged by the “swings and roundabouts” arrangements contemplated therein, the union is able to have those concerns addressed by the orderly mechanisms in the disputes procedure.” 6

Relevant legislation and Agreement clauses

[21] The dispute has been referred to the Commission pursuant to s.739 of the Act which provides so far as is relevant to this matter:

“739 Disputes dealt with by the FWC

(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.

...

(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.

Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).”

[22] Section 738 of the Act relevantly provides:

“738 Application of this Division

This Division applies if:

...

(b) an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in subsection 186(6); or

...”

[23] It is agreed that the disputes procedure had been complied with.

[24] The dispute raises a number of relevant clauses of the Agreement, as follows.

[25] Clause 1.5 relevantly stated:

“1.5 This Agreement (including any relevant Schedule) will form the complete agreement covering all terms and conditions of employment that apply to Employees. It overrides and replaces in its entirety:

...

(b) Any existing custom and practice (whether written or unwritten) which may have prevailed at a Mine or Mines prior to the making of this Agreement.”

[26] Clause 1.8 of the Agreement provided:

“Employees’ terms and conditions are governed by this Agreement and the relevant Schedules. The Agreement will prevail over any inconsistency between it and the Schedules appended to it, unless otherwise provided in the Agreement.”

[27] Clause 4.1 of the Agreement stated:

“Employees will perform such tasks as reasonably required by the Company without any demarcation of duties while complying with all legal and statutory obligations. In this regard, Employees accept that the Company can require the performance of any operational, mining, maintenance or technical tasks that Employees are trained, competent and/or authorised to perform. The Company will not allocate tasks in a manner which promotes deskilling.”

[28] Clause 4.4 of the Agreement stated:

“Employees are required to attend for work in accordance with their roster and work as directed. An Employee will only be entitled to be paid for time worked, unless taking authorised leave.”

[29] Clause 9.3 of the Agreement stated:

“Subject to clause 9.4, Base Salary means an annualised salary that takes account of all hours worked including rostered overtime, hot seat change allowance, all penalties, annual leave loading, payments for rostered public holidays, breaks and all other allowances and payments that would otherwise be payable under the BCMI Award. It excludes the following specific payments made to Employees under this Agreement:

(a) Bonus payments made under clause 17;

(b) Payments made for travel under clause 4.2;

(c) Payments made where normal transport is unavailable under clause 4.3;

(d) Payments made under clause 5 (Training);

(e) Payments made under clause 11.4(c) (change of Employee’s place on a six or seven day roster);

(f) Payments made for non-rostered overtime, call-back and meal breaks/allowances under clause 13;

(g) Payments made for change of shift for permanent day shift Employees under clause 16.3;

(h) Payments made for any allowances under clause 9.4;

(i) Accident pay under clause 19;

(j) Payments made for working on a non-rostered public holiday under clause 21.4;

(k) Electrical and maintenance leading hand payments made under Schedule 8, clause 7.4;

(l) Payments made under an accommodation agreement listed at clause 34.2(a).”

[30] Clause 13.1 of the Agreement stated:

“Subject to the NES, the Company may require an Employee to work reasonable additional hours in addition to their rostered hours and be paid the applicable overtime rates.”

[31] Clause 16.2 of the Agreement stated:

Type of shift	Shift rates
Day shift	Ordinary time
Afternoon and rotating night shifts • Ordinary hours • Overtime hours - > 6 and 7 day roster - all others	115% of the ordinary time rate overtime penalty rate plus 15% of the ordinary overtime penalty rate overtime penalty rate
Permanent night shift • Ordinary hours • Overtime hours - > 6 and 7 day roster - all others	125% of the ordinary rate overtime penalty rate plus 25% of the ordinary time rate for the hours worked overtime penalty rate

[32] In particular, the dispute focuses on the following Agreement and site-specific Schedule provisions.

[33] Clause 11.1 of the Agreement provides:

“11.1 Ordinary hours of work

(a) The ordinary hours of work will be an average of 35 hours per week averaged over a roster cycle.

(b) The ordinary working hours on any shift will be no less than six ordinary hours and not more than twelve ordinary hours provided that with appropriate notification the Company may determine the shift length up to ten ordinary hours. Shifts longer than ten hours (whether or not the shift contains overtime) can be introduced with the agreement of the majority of the affected Employees required to work the shifts. Where agreement cannot be reached, the Company may trial and implement these shifts in accordance with the Continuous Improvement provision (clause 14).” (emphasis added)

[34] Clause 11.2 of the Agreement provides:

“11.2 Starting and finishing times

(a) The starting and finishing times of the ordinary working hours of any shift will be worked between those hours that are agreed between the Company and the majority of the affected Employees. “Affected Employees” means those Employees in the work areas (e.g. Dragline, Field Maintenance etc) that are directly impacted by the alteration to their starting and finishing times.

(b) The Company may change shift duration to effect a hot seat changeover / effective shift changeover. It is the Company’s intention to limit shift lengths to the shortest practical duration to enable a hot seat changeover / effective shift changeover. Employees will not be required to work a shift, including a hot seat changeover / effective shift changeover, of greater than 12 hours 45 minutes.”

[35] Individual mine sites of the Respondent, and specifically start and finish times, are dealt with separately in the Schedules to the Agreement for site-specific matters, as follows.

[36] Schedule 4 deals with the Goonyella Riverside site. Clause 9, of Schedule 4, of the Agreement provides (the Goonyella Clause):

“9. Shift Changeover

The purpose of a shift changeover is to:

(a) pass over operational and safety information concerning the shift, including work completed during the shift and the status of work to be handed over;

(b) where necessary, effect a hot seat change; and

(c) travel to start/finish place.

Shift changeovers will occur at the Company’s direction and will be conducted to maximise continuous operations.

Employees will be allowed to leave the site once the hot seat changeover / effective shift changeover has been completed.

If the shift changeover is completed in less time than that prescribed under the roster, there will be no deduction of salary. If the time required to effect the shift changeover is more than the time prescribed, there will be no additional payments unless authorised by the department manager.”

[37] Schedule 7 deals with the Peak Downs site. Clause 3, of Schedule 7, of the Agreement provides (the Peak Downs Clause):

“3. Shift Changeover

The purpose of a shift changeover is to:

(a) pass over operational and safety information concerning the shift, including work completed during the shift and the status of work to be handed over;

(b) where necessary, effect a hot seat change; and

(c) travel to start/finish place.

Shift changeovers will occur at the Company’s direction and will be conducted to maximise continuous operations.

Employees will be allowed to leave the site once the hot seat changeover / effective shift changeover (as directed by the Company) has been completed.

[38] Schedule 8 deals with the Saraji site. Clause 11, of Schedule 3, of the Agreement provides (the Saraji Clause):

“11. Shift Changeover

11.1 The purpose of a shift changeover is to:

(a) pass over operational and safety information concerning the shift, including work completed during the shift and the status of work to be handed over;

(b) where necessary, effect a hot seat change; and

(c) travel to start/finish place.

11.2 Shift changeovers will occur at the Company’s direction and will be conducted to maximise continuous operations.

11.3 Employees will be allowed to leave the site once the hot seat changeover / effective shift changeover (as directed by the Company) has been completed.

11.4 If the shift changeover is completed in less time than that prescribed under the roster, there will be no deduction of salary. If the time required to effect the shift changeover is more than the time prescribed, there will be no additional payments unless authorised by the department manager.”

Summary of Applicant’s submissions and evidence

[39] The Applicant submitted that the Commission does have the power to conduct a Hearing in this matter. The Applicant accepted that the parties agreed that the Commission would issue a decision with a recommendation.

[40] The Applicant submitted that the Agreement sets a maximum length for shifts up to 12 hours, but that the Agreement allows the Respondent to increase shift length beyond this maximum to effect a changeover as provided for in the various Schedules to the Agreement (extracted above).

[41] The Applicant alleged that the Respondent issued instructions to employees to perform “duties”, being duties that require employees to perform work that is outside of the scope of work necessary to effect a changeover. The Applicant submitted that this direction or instruction is contrary to the terms of the Agreement.

[42] The Applicant submitted that the instruction is contrary to the Agreement because the instruction requires employees to continue or begin new “production activities” and undertake other tasks not related to an effective changeover.

[43] The evidence relied upon by the Applicant goes to actual examples of the types of instructions or work being undertaken by employees. This evidence is considered in more detail below. The evidence also goes to the concerns of employees about working beyond the 12 hour mark and the overarching balancing act being undertaken between productivity versus health and safety.

[44] The starting point for interpretation, in the Applicant’s submission, are clauses 11.1 and 11.2 of the Agreement (extracted above) relating to ordinary hours of work.

[45] The Applicant submitted that the approach to construing industrial agreement is well settled. The Applicant relied upon the following authority from Kucks v CSR Limited:

“It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.

But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.” 7

[46] The Applicant also relied upon Amcor Limited v Construction, Forestry, Mining and Energy Union and Others where Kirby J stated:

[47] Applying these principles the Applicant submitted that the ordinary meaning of clause 11.1(b) is that the ordinary shifts can be no longer than twelve ordinary hours.

[48] The Applicant submitted that the operation of clause 11.2(b) is that hours in addition to the 12 hours may only be worked as overtime, and by agreement.

[49] The two clauses, read in conjunction, is in the Applicant’s submission that shifts of greater than 12 hours can only be worked, by agreement.

[50] The Applicant’s submission progresses then that clause 11.2(b) does allow the Respondent to change shift duration where to do so is to effect a changeover. However, the Applicant submitted that that right is absolutely limited to no longer than 12 hours and 45 minutes.

[51] The Applicant submitted that the concept of shift changeover is defined by the Schedules of the Agreement (set out above). In regards to clause 9 of Schedule 4 of the Agreement (the Applicant submitted that the remaining two schedules were to a similar effect) states that a shift changeover is to:

“a. Pass over operational and safety information concerning the shift, including work completed during the shift and the status of work to be handed over;

b. where necessary, effect a hot seat change; and

c. travel to start/finish place.”

[52] This definition or explanation of shift changeover in the schedule, in the Applicant’s submission, meant that the Respondent could only extend shift length in the three circumstances outlined above. The Applicant submitted that the right in clause 11.2(b) is not generally a right to extend shift lengths beyond 12 hours, rather it is a right to extend shift lengths beyond 12 hours in the circumstances described above.

[53] The Applicant submitted that this drafting evinces an intention on the part of the drafters to limit the Respondent’s right to extend shift lengths beyond 12 hours.

[54] The Applicant referred to the words that follow the three circumstances discussed above, which state:

“Shift changeovers will occur at the Company’s discretion and will be conducted to maximise continuous operations.”

[55] The Applicant submitted that these words “merely highlight that the three circumstances described must maximise continuous operations” 9.

[56] To gain an understanding of workplace concerns and an insight into the operations, it is necessary to consider each of the witnesses’ evidence separately, and in detail.

Mr Kurt Colquhoun

[57] Mr Colquhoun is employed at the Saraji Coal Mine as a Pre-strip Production Operator. He works in the ‘C Crew’.

[58] Mr Colquhoun has been employed directly by the Respondent since 9 February 2012, but prior to this time was employed through a labour hire organisation performing the same duties at the same site.

[59] Mr Colquhoun gave evidence that the nominal hours of work for those employees working in Pre-strip were 5.45am to 6.15 pm or 5.45pm to 6.15am.

[60] Mr Colquhoun gives further evidence that prior to approximately November 2012, and particularly while he was employed by the labour hire company, there was “no instruction” requiring employees to continue working after 12 hours on any one shift. In Pre-strip Mr Colquhoun stated that at this time employees would regularly have “parked up our vehicles” by approximately 5.30 to 5.40 (am/pm) and that employees would then travel to the start/finish point being the Production Pre-strip office. Employees would then proceed to leave work which had employees leaving site at approximately 6.05 (am/pm).

[61] Shortly after the Agreement came into effect (in 2012), Mr Colquhoun stated that the Respondent, via their representatives, began to issue directions requiring employees to collect their ‘last load’ no earlier than 5.50 (am/pm). Mr Colquhoun explained that the ‘last load’ is when the last Rear Dump Truck, which operates on a circuit, is required to collect the last load from the shovel.

[62] It was Mr Colquhoun’s evidence that Pre-strip employees operate the large Rear Dump Trucks on a circuit, collecting material from the shovel and transporting it to the dump site. The circuits vary in length and time to complete but by way of example, Mr Colquhoun’s evidence was that circuits can take approximately 15 to 20 minutes to complete.

[63] Mr Colquhoun stated that the direction given by the Respondent, relating to ‘last load’, is inconsistent with his view of the Agreement. Mr Colquhoun stated that his understanding is that once an employee reaches the 12 hour shift length they are to cease work and perform shift changeover. Importantly, it is Mr Colquhoun’s view that at this time production work ceases.

[64] Mr Colquhoun gave evidence as to the disruption that the ‘last load’ requirement has on employees. The basic effect he enunciates is that depending upon where an employee is working, the farther away that employees work from their start/finish place, the greater the disruption they suffer because of the increased travel time.

[65] Mr Colquhoun specifically gave evidence as to his recent work on Shovel 37. Mr Colquhoun stated that on his last work rotation instructions “were being issued” by Step-up Supervisor, Mr Anthony Walker, that the last load should be collected at 5.55 (am/pm), a time which is 10 minutes after the 12 hour shift had elapsed.

[66] During this last work rotation, Mr Colquhoun gave evidence that on two of the day shifts he worked, the employees on his crew missed the bus that transports employees from their start/finish point to the accommodation at the MAC and SPV Camp. Mr Colquhoun stated that this was due to the direction to continue work. Mr Colquhoun gave evidence that the buses were advised that employees were running late and that the buses should wait for these employees to arrive; the buses did not do so.

[67] Mr Colquhoun stated that he raised this issue with Mr Wayne and that after a heated discussion the direction regarding ‘last load’ was amended to be ‘last load’ at 5.50 (am/pm).

[68] Mr Colquhoun stated that he attempted to arrange a meeting with Mr Lawson to discuss the issue but that no such meeting had, at the time of his statement, been arranged.

[69] Mr Colquhoun gave evidence that “various managers”, over the last six months, have raised issue when there has been no truck at the shovel at 5.50 (am/pm) to collect the ‘last load’. Mr Colquhoun restated his understanding that trucks should be parked up by 5.45 (am/pm) so that shift changeover can be effected.

[70] Mr Colquhoun gave evidence that he understands employees and contractors working on Shovel 32 and Shovel 38 are “constantly” running late. He did not state in his statement how he came to this understanding or what constitutes “constantly”.

[71] It was Mr Colquhoun’s evidence however, that the circuits at Shovels 32 and 38 are 15 to 20 minutes in length to complete and that with the direction for ‘last load’ at 5.50 (am/pm) meant that employees at these sites are being required to continue production until 6.10 (am/pm). Mr Colquhoun stated that this is 25 minutes after the employees have completed a 12 hour shift.

[72] Mr Colquhoun gave evidence specifically in relation to 16 August 2013 when he was working day shift. Mr Colquhoun stated that his crew was directed that ‘last load’ must be picked up at 5.55pm. He did not give evidence as to who gave this direction or how it was given. On this occasion Mr Colquhoun said there was no bus available to transport the crew to their start/finish point. Mr Colquhoun said that he left the area in a light vehicle which contained the first group of employees on his crew who travelled to the start/finish point. Mr Colquhoun’s evidence was that he arrived at the start/finish point, on this occasion, at 6.15pm. The remainder of the crew arrived after Mr Colquhoun and “finished work late”. The witness noted that it is substantially faster to travel by light vehicle than by bus. Mr Colquhoun’s evidence was that the time to travel from the various crib huts to the start/finish point is 8 to 12 minutes.

Mr Paul Guinea

[73] Mr Guinea is employed at the Goonyella Riverside Coal Mine as a Driller and has been for approximately 6 years.

[74] Mr Guinea stated that he works from 6.00 (am/pm) to 6.40 (pm/am), being a shift of 12 hours and 40 minutes.

[75] Mr Guinea’s evidence was that, generally, he would travel to work by bus, leaving home at 4.50 (am/pm) and that he catches a 5.00 (am/pm) bus (which is arranged by the Respondent), which has him arriving at work at 6.00 (am/pm).

[76] Upon arriving to work at 6.00 (am/pm) Mr Guinea reports to the Drill Office at Mine Operations and at this time the Supervisor conducts a prestart/toolbox talk. This talk usually takes approximately 10 minutes.

[77] Following the toolbox meeting Mr Guinea stated that he conducts an inspection of a light vehicle and, in most cases, does not leave the Mine Operations area prior to 6.15 (am/pm). At this time Mr Guinea stated that he would usually travel by light vehicle to the worksite, arriving between approximately 6.20 (am/pm) and 6.35 (am/pm).

[78] Mr Guinea stated that where the worksite is a “significant distance” from Mine Operations he and the other employees would meet up with the outgoing crew to exchange information about the drilling activities. More recently however, it is Mr Guineas evidence that employees on the outgoing crew have been advised to remain at the drill site and wait for the replacement crew to arrive and to perform handover at the drill site.

[79] Mr Guinea stated that employees on his team have been directed to continue drilling until 5.50 (am/pm). After this the employees are then instructed to clean the drills, complete administrative tasks and then start drilling a new hole. From a practical perspective Mr Guinea gave evidence that this chain of events means that starting to drill the new hole could not commence until after 6.00 (am/pm) because cleaning of the drills, which must be done prior to commencing the new drilling, can take “at least” 10 minutes and up to 30 minutes. Mr Guinea stated that it is also necessary to wait about 15 minutes to allow for water to drain after cleaning as, if it is not allowed to drain, the drill becomes caked in dust.

[80] Mr Guinea stated that the oncoming crew would generally arrive at the drill site between 6.20 (am/pm) and 6.50 (am/pm), but that it can be later. The time would be later depending upon how far the distance is between the drill site and Mine Operations. Mr Guinea’s evidence was that if handover is done at the drill site the outgoing crew would “almost never” arrive back at Mine Operations prior to 6.40 (am/pm).

[81] Mr Guinea stated that the requirement to clean the drill is not part of a hot seat changeover. Traditionally, Mr Guinea says, this cleaning has been completed by 6.00 (am/pm) so that shift changeover can then take place.

[82] Mr Guinea annexed to his statement a document titled “BMA Drill Crew - 12 Hour 40 Mins”. Mr Guinea stated that the directions for drilling are consistent with this document, but that the direction is not a matter that was agreed, presumably he means agreed with employees, and further he stated that it was not always reflected in practice.

[83] The BMA Drill Crew document provides, essentially, a run sheet of times for when the performance of drilling functions was to occur. Relevantly to this dispute the documents stated:

“5.50 - 6.20 am Cleaning Machine

Clean cab and windows, wash down drill dock and finish paperwork. Drill sheets be accurately filled (unreadable) complete if all cleaned up and ready for next shift, start another until next shift arrives.

6.20 - 6.25 am Exchange all relevant safety and production information with On Coming Shift.

6.30 - 6.40 am Complete Handover with Drill Supervisor” 10

[84] Mr Guinea stated that the “requirement” to remain at the drill site and perform work is a significant issue particularly so considering that travel time between drill sites and Mine Operations varies between 15 and 20 minutes, which employees must undertake after ceasing their “work” and returning to start/finish place.

[85] It is Mr Guinea’s evidence that on most occasions he will miss the 6.25 (pm/am) bus leaving from Mine Operations. When this occurs Mr Guinea stated that he cannot leave site until the next bus, being the 7.00 (am/pm) bus, which means an arrival time at Mr Guinea’s home of 7.45 (am/pm). In the past, Mr Guinea stated that he never missed the 6.25 (am/pm) bus, but in recent times he is “never” back on time to catch it.

[86] Mr Guinea stated that the time required to convey information for a shift changeover usually doesn’t take very long, being some 5 minutes.

[87] Mr Guinea stated that the understanding of hot seat changeover is that it is for the purposes of an exchange of information from the Off Going Crew to the On Coming Crew.

Mr Shane Kinnane

[88] Mr Kinnane is employed by the Respondent at the Goonyella Riverside Coal Mine as a Shot Firer.

[89] Mr Kinnane has a substantial work history at the Goonyella site having been employed there since approximately 1975. During this substantial time Mr Kinnane has been employed as a Trades Assistant, Operator - Coal Mining, Carpenter Shop and Operator - Pre-strip.

[90] More recently Mr Kinnane has been employed as a Shot Firer and has been employed in this capacity for two years. Immediately prior to this Mr Kinnane was an Operator in the Coal Mining Department and was so for approximately 8 years.

[91] Mr Kinnane has also previously held the position of Union Lodge President for a substantial period of time. He has also been involved in the negotiations of the 2007 and 2012 enterprise agreements. In relation to the 2012 Agreement Mr Kinnane stated that his role was more limited that in relation to the 2007 Agreement and was more of an advisory capacity to other lodge officials.

[92] Mr Kinnane stated that at present he worked on the day shift of D Crew. This crew is a permanent day shift working 5.45am to 6.15pm.

[93] Mr Kinnane gave evidence that when he initially started at the mine, in 1975, employees worked 7 hours a day (for production) and a further one hour per day for travel, paid as overtime. The idea behind this, according to Mr Kinnane, was to have employees work a total of “not more than” 35 hours per week and one hour of over time each day for the 5 days in the week.

[94] Mr Kinnane gave evidence that the nature of the hours worked and the way in which the employees worked has changed “significantly” since 1975. It is Mr Kinnane’s evidence that during the period in which he worked 8 hours there was little in terms of prestart meetings and the travel times to the worksites were much shorter.

[95] To the best of Mr Kinnane’s recollection there has never been an issue in the Coal Mining Department where employees have been required to undertake “work” after having completed the 12 hours of a shift. Mr Kinnane stated that this became an “issue” in late 2007 when Mr Steve Peters was appointed as Senior Superintendent - Coal Mining.

[96] Mr Peters, according to Mr Kinnane’s evidence, after having been in his role a short time, began to issue directions to employees not to finish prior to 6.30 (am/pm). At this time, in later 2007/early 2008, employees in the Coal Mining Department commenced work at 6.15 (am/pm) and the end of their shift was 6.45 (am/pm). These directions of Mr Peters were communicated through start up meetings at the commencement of shifts. Mr Kinnane stated that on at least one occasion he raised the issue with Mr Peters, querying the basis for the instruction and when it was agreed to. Mr Kinnane stated that in response Mr Peters remained firm in his view and that a clear answer was not received in response to the query.

[97] Mr Kinnane stated that prior to Mr Peters’ appointment employees “would have” finished production activity and be parked up and ready to leave between 6.15 (am/pm) and 6.45 (am/pm). Most employees, according to Mr Kinnane, would then have left by 6.30 (am/pm)

[98] Mr Kinnane stated that Mr Peters “progressively” gave directions to employees not to park up before 6.30 (am/pm) and that, Mr Kinnane believed, this was to try and increase production. The effect was, in Mr Kinnane’s evidence, that employees were not leaving, in some cases, until as late as 6.45 (am/pm) or later.

[99] Mr Kinnane had given evidence that Mr Ray Southey, Operations Manager, would “stand at the gate and stop employees from leaving site prior to 6.30”.

[100] Mr Kinnane stated that these directions, from Mr Peters, have never been agreed to with the workforce and “completed changed” the way in which employees were required to work.

[101] Mr Kinnane gave evidence about the effect of this change on the workforce and in particular the effect on fatigue. Mr Kinnane’s belief is that working for more than 12 hours and then driving home is a “significant” health and safety issue.

[102] Mr Kinnane stated that he received a number of complaints about this issue subsequent to Mr Peters issuing the direction and that he, and other Lodge officers, had “a number” of discussions with Mr Jason McCullum about the issue. Mr Kinnane conceded that this matter was not the subject of a written dispute and that the Lodge had tried, without success, to informally resolve the dispute prior to the 2012 negotiations, but that it was viewed that the 2012 negotiations were the place to resolve the issue.

[103] Mr Kinnane gave evidence that his view of a hot seat changeover is for an outgoing operator, if required, to pass on information to the oncoming operation. Mr Kinnane was firm in his view that it does not, and has never, involved operating or ongoing production.

[104] Mr Kinnane stated that the principle has always been that employees work twelve hours and the remaining time “has always” been for travel back to the starting point. This has changed to include the passing on of information, however it have never been “agreed” that production work would be performed after 12 hours.

Mr Simon West

[105] Mr West is also employed at the Goonyella Riverside Coal Mine as a Shot Firer and has performed this role for approximately 10 years.

[106] Mr West is currently the Secretary of the Union Lodge at Goonyella and in this role was involved in the negotiations for the 2012 Agreement. Mr West is also involved in providing Union representation for its members.

[107] Mr West stated that he first became aware of issues with instructions being given in relation to changeover in approximately early 2010. He stated that he has received “numerous” complaints from Union members regarding these instructions, over the course of 2010.

[108] The 12 hour shift arrangements have been in place for many years and that after the shifts employees would travel and leave site. Mr West stated that the shift has a hot seat changeover component to “travel the ever increasing distances back to the start point as the mines workings expand further from the start/finish point”.

[109] Mr West gave evidence that the term hot seat change is when one worker gets out of a machine and another worker gets in and operates the machine. Mr West gave examples of when this occurs such as when an operator takes a crib break and they are relieved by a relief operator for this period.

[110] Mr West stated that because of the requirement for employees to perform vehicle inspections and other safety inspections at the start of shift, which Mr West stated prevent an immediate return to work of the mining equipment, a hot seat change is not performed.

[111] Mr West gave evidence about the nature of the complaints received as follows:

“(a) Employees operating in the Prestrip Department were being required to collect further loads after completing twelve (12) hours’ work on any day.

(b) The prolonged work was having the effect that employees were missing buses and/or leaving site later than they had previously.

(c) Employees in the drill and blast department were being directed to drill new holes and perform other production tasks after having completed twelve (12) hours of work on any one day.

(d) Employees in the Dragline Department were being directed to continue production tasks after having already completed twelve (12) hours of work on any one day.” 11

[112] And further, Mr West gave evidence about the reasons why the complaints are of “considerable concern” for the Applicant Union:

“(a) The changes amounted to a significant and unilateral change in employment conditions for a number of employees.

(b) The Respondent had in no way consulted with those employees affected and/or the Union as to the changes.

(c) The changes progressively resulted in an extension to the working hours of Union members.

(d) It was likely that the problem was far more widespread than was apparent given that many employees would not want to make an issue of the instructions due to fear of reprisal or because it would limit their prospects of securing full time employment and/or continuing in full time employment.

(e) The hours of work were already very long and any further extension would likely compound problems already apparent, such as fatigue related incidents at the mine.

(f) The changes meant that in some cases employees would arrive home later meaning that their family and personal time would be limited.

(g) Given the prolonged work hours employees who drive home might feel a need to rush home to make up the time. That might lead to accidents on the roads.” 12

[113] Mr West stated that one of the specific complaints he was receiving from members of the Applicant related to instructions being given in the Dragline Department by Mr Darby Mclean, Dragline Superintendent, where his direction was requiring employees to perform work that, in Mr West’s evidence, was not part of a shift changeover within the Goonyella Clause. Annexed to Mr West’s statement was a copy of a document titled “GRM Dragline Department start and finish times” 13. This document stated it was released on 20 November 2012. It relevantly stated:

“Going forward, the expectation for all Draglines employees will be:

- All operators can be required to work their full rostered shift of 12 hours, 30 minutes. It is expected that all operators will work a minimum of 12 hours on every shift.

- At the start of shift, all employees must see their Supervisor to hear the Safe Start for that shift. Operators may choose to start work between 6:00 and 6:15. - Those operators must see their Supervisor prior to leaving the start point. No operators may start work before 6:00.

- At the end of shift, the first operator to leave the dragline must not arrive at the start point before 5:45. Before leaving site, the first operator must complete and (sic) effective shift change. The expectation for an effective shift change include:

Washing down the light vehicle, ensuring that it has a full tank of fuel and ensuring that any defects noted on the vehicle pre-start have been rectified or reported;

Completing a handover with the oncoming operator;

Completing a handover/having a conversation with their Supervisor;

Signing the sign off sheet.

- No operator will be permitted to leave site unless an effective shift change has been completed to the Supervisor’s satisfaction.

- Any Operator who seeks to leave site before 6:00 must have a genuine reasons and prior permission from the Supervisor.

- At the end of shift, it is the intent that the second operator will leave site at or before 6:45. In some cases, the second operator will be required to leave site after 6:45. This will be monitored by the Supervisor to ensure fairness to all operators. If an operator feels that the time worked after 6:45 becomes excessive, they should address their concerns with the Supervisor in the first instance.

All operators must comply with these expectations to ensure maximum flexibility and fairness to all employees. Any operators found to not be following these expectations may have pay deducted or face disciplinary action, up to and including the termination of employment.” 14

[114] Mr West gave evidence that the “issue” has become progressively worse and he, along with other Lodge members, received greater numbers of complaints. This issue became “significantly worse” when negotiations for a replacement agreement began in approximately November 2010.

[115] Mr West’s evidence was that because the 2007 Agreement was anticipated to be replaced it was “decided at the time” that the issue would be dealt with through enterprise bargaining for the replacement agreement.

Mr West’s evidence - Bargaining for 2012 Agreement

[116] Mr West gave specific evidence about the bargaining for the current 2012 Agreement.

[117] Mr West was involved in the bargaining as an employee representative. Mr West’s role included bargaining for both the main text of the Agreement and, more specifically, the wording for the Goonyella Riverside Schedule.

[118] Mr West stated that a decision was made, presumable by the Applicant and its representatives, that they would bargain for a term that would ensure this issue did not continue.

[119] Mr West stated that the Applicant Union originally sought to include a clause in the Goonyella Schedule based upon an example clause included in the 2007 Agreement that related to the Blackwater Mine.

[120] Mr West stated that it appeared to him that the Respondent’s representatives “quickly understood” 15 the time differences in getting from starting/finishing points to the work site, resulting from the larger size of the mine. Mr West stated that on or about 2 September 2011, it was agreed that the fairest way to deal with this issue was the resulting Goonyella Clause (extracted above). Mr West stated that Mr Peter Stelmach, Head of Employee Relations, and Mr Luke Cruwys, Senior HR Peak Downs Mine, were the representatives of the Respondent.

Mr West’s further evidence - subsequent to bargaining

[121] Mr West provided one example regarding what the Goonyella Clause was “designed to address” 16. Mr West stated as follows:

“Where a filter might be in the middle of an engine rebuild at the completion of a twelve (12) hour shift the clause was designed so that the fitter would, at the end of the twelve (12) hours, pass on information to the replacement fitter as to where the job was up to. The outgoing fitter would then be free to leave site.” 17

[122] When it became apparent that the 2012 Agreement would be approved by employee vote, Mr West sought a meeting with one of the Respondent’s Superintendents, who he stated he believed was Mr Mark Mellor. Mr West stated that his intention in seeking this meeting was to assess how Mr Mellor intended to apply the Goonyella Clause.

[123] Mr West’s evidence was that Mr Mellor stated he was unaware of the Goonyella Clause and that input from site had not been sought in developing the wording of the clause.

[124] Mr West stated that he explained to Mr Mellor the Union’s understanding of the Goonyella Clause and advised that if this caused issues with particular work areas on the mine, Mr Mellor and Mr West should discuss it at a further meeting to find possible solutions to this issue.

[125] Mr West stated that the final response he received was that the Respondent would do what the Agreement required them to do. Mr West’s evidence was that he made the Union’s position very clear, that being the Union would “work with them where possible to make the whole thing work smoothly” 18.

[126] Mr West gave evidence concerning a meeting of 5 November 2012 with Mr Justin Kindris, Coal Mining Superintendent. At this meeting clause 11.1(b) and the Goonyella Clause were discussed. Mr West stated that Mr Kindris made statements to the following effect:

“all hours worked beyond 12 hours, are in fact, overtime, and would be worked as if part of a normal shift.

12 hours was not the maximum shift length, merely the ordinary hour component of the shift” 19

[127] Subsequent to this meeting Mr West wrote to Mr Kindris advising that the Applicant formally raised a dispute under the Agreement. A copy of this letter was annexed to Mr West’s affidavit. 20 Specifically Mr West’s notification stated:

“Justin, my memory of that meeting was that you said “all hours worked beyond 12 hours, are in fact, overtime, and would be worked as if part of a normal shift.”

I believe this is in direct conflict with the 2012 EA clause 9, shift changeover, as it sets out the purpose of shiftchangeover.

You also said “12 hours was not the maxim (sic) shift length, merely the ordinary hour component of the shift.”

I do not believe this is the correct interpretation of clause 11.1(b). The time worked in excess of 12 hours, is for the purpose of conducting a Shift Changeover.” 21

[128] Mr West stated that he was made aware of similar issues occurring at Saraji Mine.

[129] A state level conference took place in relation to the dispute on 17 January 2013. This state level conference was in accordance with clause 37.10(c) of the Agreement. Mr Stephen Smyth, District President - CFMEU, confirmed in writing on 21 January 2013 that the outcome of that conference was that the matter would be progressed to the Commission for “an arbitrated decision”.

Mr Wayne Goulevitch

[130] Mr Goulevitch is employed by the Respondent at the Goonyella as a Production Employee, specifically a Pre-strip Operator.

[131] Mr Goulevitch has performed the role of Pre-strip Operator since approximately December 2009. Prior to this Mr Goulevitch was employed at Goonyella, but as an Operator for a labour hire company. Mr Goulevitch has also had various information technology roles with the Respondent.

[132] Mr Goulevitch’s role requires him to operate various types of machinery/vehicles. Generally this is a large Rear Dup Truck or a Dozer. In recent times this has more frequently been the operation of a Dozer.

[133] Mr Goulevitch gave evidence about the operations relating to Pre-strip. Mr Goulevitch stated that a Rear Dump Truck operates on a circuit. The circuit commences at the “dig face” (i.e. where the digging is occurring to get at the coal). The Rear Dump Trucks are loaded, by a Shovel/Excavator, with “overburden” (being material that lies above the coal that is removed so as to access/mine the coal). Once the Rear Dump Truck is loaded they transport the overburden material, on the circuit, to the “Dump” or “Tip head”.

[134] Once at the Tip head, the Rear Dump Truck releases its load of overburden. The overburden material is then “pushed” by the Dozer to store the overburden material in a safe and efficient manner. Once the Rear Dump Truck has released its load of overburden material it returns to the dig face to be reloaded and do another circuit.

[135] Mr Goulevitch stated that he ordinarily works 6.15 to 6.55 (am/pm). This is a total shift length of 12 hours and 40 minutes.

[136] Upon commencing his shift Mr Goulevitch stated that he report to Mine Operations for a prestart meeting. By this time he is dressed and ready to commence work and to perform an “Occupational Safety Performance Assessment Technology test”. He then travels to the mine site.

[137] Mr Goulevitch’s evidence is that the prestart meetings ordinarily take between 5 to 10 minutes. The material in these meetings is a briefing on safety and production matters delivered by a Supervisor. Also at these meetings an excel spreadsheet is displayed on a large board. Included in the material displayed via this projection is, so Mr Goulevitch stated, an instruction that ‘last loads’ will take place at 6.20 (am/pm). Mr Goulevitch explained that the ‘last load’ is the time when the last Read Dump Truck is loaded by a Shovel/Excavator.

[138] Once the prestart meeting is finalised the crew is transported to the worksite by bus. The travel time varies, dependent upon the precise location of the work on the mine.

[139] Upon arrival at the park up area the outgoing crew leave on the bus. The oncoming crew conduct prestart checks of the trucks and then commence the circuit (described above). Mr Goulevitch stated that when he works as a Dozer operator he is then further directed to start work on the Dozer. Mr Goulevitch stated that the travel time between the dig face, the dump and the park up area is approximately 20 minutes, but can be as much as 40 minutes, dependent upon the location at the mine site.

[140] Mr Goulevitch’s evidence was that if the travel time between the dig face and the park up area is 20 minutes this means that operators are not in a position to perform a shift changeover until 6.40 (am/pm). This is worked out on the basis that the direction from the Respondent is that the ‘last load’ is required to occur at 6.20 (am/pm) then 20 minutes travel to the park up area. On top of this is then the 10 to 20 minutes bus trip back to the start/finish point.

[141] Mr Goulevitch’s “understanding” is that the trucks should be parked up “at or by” 6.15 (am/pm), being after 12 hours of work. The outgoing crew then meets the oncoming crew and then travels to the start/finish point.

[142] Mr Goulevitch stated that his “understanding” is that the ‘last load’ should not occur after 12 hours of work. Where it does occur after 12 hours, Mr Goulevitch stated that it can delay the shift changeover by a considerable period of time.

[143] Mr Goulevitch gave evidence that he witnesses, on a daily basis, trucks operating after 6.15 (am/pm). The flow on effect is that Mr Goulevitch, as a Dozer operator, is required to continue operating the dozer after 6.15 (am/pm).

[144] Mr Goulevitch stated that the work he is “required to perform” after 6.15 (am/pm) is not a part of shift changeover or a hot seat change. He stated that there is no “hot seat changeover” for the Dozer as it is left at the Tip head until the replacement operator arrives.

Summary of Respondent submissions and evidence

[145] The Respondent identified that “[T]ime and distance is money” 22. In this regard the Respondent referred the Commission to the Australian Productivity Commission Inquiry Report into the Australian Black Coal Mining Industry.23 The Australian Productivity Commission Inquiry Report into the Australian Black Coal Mining Industry relevantly stated”

“Work practices are more efficient in the high performing mines in the sample. For example, staff in efficient mines use effective hot-seat changes...” 24

[146] The Respondent submitted that the time that equipment sits idle, and therefore unproductive, is lost time, and therefore lost money. Efficient shift changes, so the Respondent submitted, is the method by which the unproductive time is reduced to “an irreducible minimum” 25.

[147] The method that the Respondent has chosen to minimise unproductive periods, or one of the methods chosen, is to pay employees overtime so that their shifts overlap by 30 to 40 minutes. This overlap allows for a “hot seat changeover”.

[148] The Respondent submitted that the expectation is that employees on the outgoing crew continue work until the oncoming crew arrives to take over. The Respondent submitted that this usually takes 15 to 20 minutes. The outgoing crew then performs a handover and returns to the pre-start area to “knock off by the end of the extended shift length”.

[149] The Respondent submitted that the dispute, as notified, involves a claim that the Agreement does not permit the Respondent to manage shift changes in this way.

[150] The Respondent submitted that the Applicant’s position, as relates to the answer that to the question for arbitration, is that the answer to the question is “nothing”, that is, in no circumstances can further production work be directed at the “12 hour mark”. The Respondent submitted that this answer means that:

“truck operators cannot be required to start a cycle that will take them beyond 12 hours of driving, and operators of the draglines, dozers and drills cannot be required to continue working after the 12 hour mark.” 26

[151] The Respondent submitted that the plain language of the Agreement means the Applicant’s submissions cannot be accepted. The Respondent submitted that in relation to the example tasks in evidence by the Applicant, they are legitimately tasks that the Respondent may require their employees to undertake. Further, the Respondent submitted that such is explicitly in uniformity with the purpose of the rostered shift lengths under clause 11.2(b) (extracted above). The Respondent submitted that such action is “to enable a hot seat changeover/effective shift changeover to occur” and is for the purpose of maximising continuous operations.

[152] The Respondent submitted that the Applicant’s case “ignores” the whole purpose of extended shift lengths in the context of hot seat changeover/effective shift changeover; being to maximise continuous operations. The Respondent went so far as to submit that the Applicant’s submissions undermine continuous operations.

[153] If the Applicant was correct in its interpretation of the Agreement, then the Respondent submitted that the effect would be 15 to 30 minutes of idle equipment at every shift changeover. This, it was submitted, would have a significant, cumulative impact upon productivity at the mines.

[154] The Respondent submitted that to find as such would entrench inefficiency which, in light of the industrial context at the time of negotiations, was not agreed to.

[155] The Respondent submitted that the question for Arbitration should be resolved, to the effect of, the following:

“a) Subject to clause 4 of the Agreement, the company can require the employees to perform any tasks for the duration of a properly constituted rostered shift;

b) The rostered shifts under consideration, being extended shifts beyond 12 hours, are properly constituted in accordance with clause 11.2(b) of the Agreement;

c) Under the shift changeover clause in the site specific schedules, the shift changeovers will be conducted at the company’s direction to maximise continuous operations, and to that end employees may properly be required to continue to perform production tasks past the 12 hour mark until the on-coming crew arrive and are ready to begin work;

d) Under the last paragraph of the shift changeover clause in the site specific schedules, should the union have any concerns that any members are being disadvantaged by the “swings and roundabouts” arrangements contemplated therein, the union is able to have those concerns addressed by the orderly mechanisms in the disputes procedure.”

[156] The Respondent submitted an illustration of the dispute in terms of the Pre-strip operations of the mine, the biggest department at the mine, in terms of equipment and employees.

“The shovels are allocated to various parts of the mine and there are several trucks assigned to that shovel. That location could be anywhere between a few minutes from the pre-start area to 20 minutes away. The trucks drive circuits – taking a load of overburden under the shovel, dumping it at one of the dump locations around the circuit, then back to the shovel. Typically, these circuits take between 10 to 20 minutes, depending on how close the dump locations are to the shovel.

The operators should be back at the pre-start area by the scheduled finish time of their shift. So, for a 12.5 hour shift starting at 6.15 am, they should be back at the pre-start area by 6.45 pm.

It would be wasteful and inefficient to have an off-going truck driver taking 15 minutes to drive back to the pre-start area only for the on-coming truck driver to spend 15 minutes driving the truck back to the circuit. In that situation, the truck would have been on the move for 30 minutes without having done anything productive.

Accordingly, in pre-strip at all the mines, there are crib areas and places to park the trucks near the circuits where the trucks are working. The on-coming crew members get in a bus and meet them out there. The idea is to have the trucks continuing to work the circuit until the on-coming crew members are due to arrive at the crib area near the ramp. Typically, this is 15 to 20 minutes after the 12 hour mark. Given the configuration and location of the circuits, there will be many trucks out on circuit that can take a load after the 12 hour mark, complete their run and be back at the crib area in good time.²⁷ Then the off-going crew members get out of their truck and in the bus in time for the bus to make the trip back to the pre-start area by 6.45 pm.

In coal mining, trucks are not necessarily assigned to one shovel and one circuit. So they may park up at the go line or at other places around the mine. It all depends on where they are working around the shift changeover time. Dispatch supervisors monitor this with technology that calculates the time it will take trucks to get to particular points. Again, there are many situations where the operator continues to work the circuit past the ‘12 hour mark’ with plenty of time to be back at the go line before the end of their rostered shift.²⁸ Oncoming crew get into the trucks parked at the go line or drive out to where the truck is parked. In the latter situation, the off-going crew member takes the light vehicle back to the go line.

The CFMEU maintains that the ’12 hour mark’ of the shift should invariably be the last occasion on which any production tasks can be performed. No loads can be taken after that point. Indeed, the CFMEU suggests that truck drivers cannot start a cycle that would take them beyond 12 hours of driving.²⁹ The remaining time on the rostered shift can only be used to park up the equipment, wait for the on-coming crew member to arrive, have a shift changeover discussion (if required) and then head back to the pre-start area.

On the CFMEU’s interpretation, trucks in pre-shift and coal mining departments would be parked up and sitting around idle well before the on-coming crew arrived. In pre-strip and coal mining, trucks could be parked up and idle for anywhere between 15 to 35 minutes. Shovels would necessarily be idle too, as the trucks would not be serving them. The dragline would stop swinging loads on the hour, sitting idle for at least 30 minutes until the oncoming crew arrived and inspected the bucket.³⁰ The drillers would have the drills pulled up around 45 minutes before the hour, then complete the cleaning tasks by the 12 hour mark. No holes would be drilled for over an hour.³¹” 32

[157] The Respondent submitted that the result of this would be a “major adverse impact on productivity, and consequently on cost and profitability” 33.

[158] The Respondent submitted that the Commission should adopt a “purposive” approach to the construction of the Agreement rather than a narrow or pedantic approach. In this regard the Respondent also referred to the oft-cited authorities of Amcor Limited v Construction, Forestry, Mining and Energy Union 34(Amcor) and Kucks v CSR Limited35 (Kucks) which is cited, with approval, by Kirby J in Amcor.

[159] The Respondent submitted that the Commission was tasked with ascertaining the “industrial purpose” of the relevant clauses in this matter. The words of the Agreement, and the Agreement taken as a whole, provide the context. Further, the Respondent submitted that the words must be read in the industrial context in which the Agreement was made.

[160] Clause 11.1, in the Respondent’s submission, does no more than regulate the ordinary hours rather than the maximum hours, as was submitted by the Applicant. The Respondent submitted that there is no dispute that time worked beyond 12 hours in any one shift is not ordinary time and is treated and paid as overtime.

[161] Clause 11.2 deals with starting and finishing times of employees and, so the Respondent submitted, it has been implicitly acknowledged by the Applicant that, pursuant to clause 11.2(b), the Respondent can roster shift lengths beyond 12 hours. The Respondent submitted that it has done so for “many years”.

[162] The Respondent submitted that the Applicant submissions wrongly “equates and conflates” shift length with the type of duties to be performed while on that shift length.

[163] The Respondent concedes that if clause 11.2(b) is to impose any limitation it is:

“as to shift length - no longer than 12 hours and 45 minutes;

As to purpose of the shift length - to enable a hot seat changeover/effective shift changeover” 36

[164] The prescribed time limit of 12 hours and 45 minutes is, in the Respondent’s submission, consistent with the stated intent, in clause 11.2(b), that shifts will be limited to the “shortest practical” duration.

[165] The Respondent submitted that clause 11.2(b) imposes no restriction on the type of work that can be undertaken within the permitted shift length as long as it is set for the purpose of ensuring continuous production, by way of a hot seat changeover/effective shift changeover.

[166] The Respondent submitted that the only limitation on the type of work that can be required during a shift is in clause 4; being “reasonable and within the employee’s skill and competence”.

[167] The Respondent submitted that the site specific clauses (extracted above) do four things:

“(a) it states the purpose of a shift changeover (which explicitly includes handover, a hot seat change where necessary, and travel back to the start/finish place);

(b) it confirms that shift changeovers will occur at the company’s direction and will be conducted “to maximise continuous operations”;

(c) it allows employees to leave the site early if their hot seat changeover / effective shift changeover is completed in less time than that prescribed under the roster;

(d) it contemplates that there will be occasions when the shift changeover takes longer than the rostered shift finish time and provides there will be no additional payments for that unless authorised by the department manager.” 37

[168] The Respondent submitted that the evidence of the Applicant does not address how it is said that employees are being directed to carry out duties after 12 hours that are not for maximising continuous operations by way of a hot seat changeover.

[169] The Respondent submitted that an idle machine is clearly not described as a hot seat changeover or maximising continuous operations. The Respondent conceded, essentially, that if the type of duties required to be done after 12 hours was not related to the purpose of continuous operations and hot seat changeover, this would no longer be constituted for a relevant purpose pursuant to clause 11.2(b).

Respondent submissions on industrial context in which the Agreement was made

[170] The Respondent made specific submissions as to the industrial context in which the Agreement was made.

[171] The Respondent submitted that it has been consistent in its directing employees to work past the 12 hours mark to complete a hot seat changeover and in asserting its expectation that this was to occur (that is not to “park up” the equipment early). The Respondent submitted that the submissions and evidence of the Applicant to the contrary are not supported by the evidence. The Respondent submitted that the Applicant’s own evidence shows that the Respondent has communicated these expectations prior to the Agreement being made.

[172] The Respondent submitted that the evidence as to the negotiations for the Agreement show the basis upon which bargaining was resolved and established as follows:

“(a) at an early stage in the negotiations the company offered the 5% per annum increases under the Agreement;38

(b) in return the company wanted to maintain the ability to manage the operations efficiently and for everyone to work under clear rules;³⁹

(c) those priorities were clearly communicated and well known to the employees and their bargaining representatives;⁴⁰

(d) the issue of shift changeovers was scarcely mentioned in the main body negotiations;⁴¹

(e) the memorandum of understanding established a process whereby the enterprise agreement would wholly replace any previous customs and practices;⁴²

(f) it was therefore up to the union to seek inclusion in the enterprise agreement of any custom or practice in relation to shift changeovers that it wanted to preserve;⁴³

(g) the parties agreed to the shift changeover clause in the site specific schedules in the form originally drafted by the company;⁴⁴

(h) the CFMEU noted that the proposed clause was an ‘improvement’;⁴⁵

(i) the clause is an improvement for employees in that it specifically allowed them to leave site early without loss of pay if they were able to do their hot seat changeover and be back at the pre-start area before their rostered finish time.” 46

[173] In this context, the Respondent submitted, that it appeared “highly improbable” that the Respondent would have drafted a clause which introduced inefficient and unproductive shift changeover mechanisms.

Respondent submissions as to impact of hot seat changeover

[174] The Respondent made submissions on the application of the relevant clauses, in relation to the impact on productivity and costs, as well as on employees.

[175] The Respondent referred to examples from the pre-strip operations to illustrate the effect of the Applicant’s interpretation of the provisions on Mine operations.

[176] The pre-strip operations are the biggest department at each of the Mines in terms of equipment and workers; ‘the classic truck and shovel operations’. The Respondent stated that the impact of the Applicant’s interpretation, would undermine continuous operations by having trucks, shovels, draglines and other equipment sit idle for between 15 to 30 minutes at every shift change over. The Respondent submitted:

“The CFMEU’s interpretation ignores the whole purpose of extended shift lengths and hot seat changeover/effective shift changeover which is to maximise continuous operations. Far from serving that purpose, the CFMEU’s interpretation would undermine it. The consequence of the CFMEU’s interpretation is that trucks, shovels, draglines and other equipment would sit idle for between 15 to 30 minutes at every shift change.47 This would have a very significant cumulative impact on productivity at the mines.48 It would entrench inefficiency on such a scale that, in light of the known industrial context at the time the Agreement was made, was not agreed.49 The unavoidable adverse effect on the cost and level of production would be highly significant.” 50

[177] The Respondent cited the cumulative impact of such would be a significant adverse effect on the cost and level of production, which would not have been contemplated or acquiesced to in the ‘known industrial context at the time the Agreement was made’. 51

[178] The Respondent described the practicalities of the relevant prestart operations as follows:

The operators should be back at the pre-start area by the scheduled finish time of their shift. So, for a 12.5 hour shift starting at 6.15 am, they should be back at the pre-start area by 6.45 pm.

Accordingly, in pre-strip at all the mines, there are crib areas and places to park the trucks near the circuits where the trucks are working. The on-coming crew members get in a bus and meet them out there. The idea is to have the trucks continuing to work the circuit until the on-coming crew members are due to arrive at the crib area near the ramp. Typically, this is 15 to 20 minutes after the 12 hour mark. Given the configuration and location of the circuits, there will be many trucks out on circuit that can take a load after the 12 hour mark, complete their run and be back at the crib area in good time.⁵² Then the off-going crew members get out of their truck and in the bus in time for the bus to make the trip back to the pre-start area by 6.45 pm.

In coal mining, trucks are not necessarily assigned to one shovel and one circuit. So they may park up at the go line or at other places around the mine. It all depends on where they are working around the shift changeover time. Dispatch supervisors monitor this with technology that calculates the time it will take trucks to get to particular points. Again, there are many situations where the operator continues to work the circuit past the ‘12 hour mark’ with plenty of time to be back at the go line before the end of their rostered shift.⁵³ Oncoming crew get into the trucks parked at the go line or drive out to where the truck is parked. In the latter situation, the off-going crew member takes the light vehicle back to the go line.

The CFMEU maintains that the ’12 hour mark’ of the shift should invariably be the last occasion on which any production tasks can be performed. No loads can be taken after that point. Indeed, the CFMEU suggests that truck drivers cannot start a cycle that would take them beyond 12 hours of driving.⁵⁴ The remaining time on the rostered shift can only be used to park up the equipment, wait for the on-coming crew member to arrive, have a shift changeover discussion (if required) and then head back to the pre-start area.

On the CFMEU’s interpretation, trucks in pre-shift and coal mining departments would be parked up and sitting around idle well before the on-coming crew arrived. In pre-strip and coal mining, trucks could be parked up and idle for anywhere between 15 to 35 minutes. Shovels would necessarily be idle too, as the trucks would not be serving them. The dragline would stop swinging loads on the hour, sitting idle for at least 30 minutes until the oncoming crew arrived and inspected the bucket.⁵⁵ The drillers would have the drills pulled up around 45 minutes before the hour, then complete the cleaning tasks by the 12 hour mark. No holes would be drilled for over an hour.⁵⁶” 57

[179] The Respondent submitted that there are 11 occasions per week where a shift changeover could occur (taking into account that there are 3 occasions per week where it is not possible to perform hot seat changeover due to first shift back on swing). On the assumption that downtime (ie time not in production) would equate to 20 minutes per shift changeover, 11 times per week, translated to a 2% loss of productive time, per week. The Respondent related this, in general terms, to the overhead costs incurred in operating a mine.

[180] The Respondent emphasised that the Agreement provides that where a hot seat changeover is affected in less time than was otherwise rostered the employee received a windfall of the difference in time, at overtime rates. Where the hot seat changeover takes longer than what was paid for, the Department Manager may approve payment for the time beyond the rostered shift finish time, but does not have to.

[181] The Respondent records the times at which employees leave site. By this data the Respondent submits that, contrary to the evidence of the Applicant’s witnesses, the employees often are ahead in this arrangement. For the three sites in question the Respondent submitted that the data evidenced that:

“(a) At the Goonyella Riverside Mine:

(i) 6% of all off-going coal mining operators, 58 4% of all off-going prestrip operators,59 2% of all off-going drill operators60 and 58% of all off-going dragline operators performed little or no work beyond the "12 hour mark"61; and

(ii) 90% of all off-going coal mining operators, 62 88% of all off-going prestrip operators,63 87% of all off-going drill operators64 and 36% of all off-going dragline operators65 left the mine after the "12 hour mark" but before the end of their rostered shift.

(b) At the Peak Downs Mine:

(i) 14.2% of all off-going prestrip operators, 66 42.4% of all off-going coal mining operators,67, 16.4% of all off-going drill operators68 and 52.6% of all off-going dragline operators69 performed little or no work beyond the "12 hour mark".

(ii) 83.4% of all off-going prestrip operators, 70 51% of all off-going coal mining operators71 and 67.8% of all off-going drill operators72 left the mine after the "12 hour mark" but before the end of their rostered shift.

[314] Mr Lawson gave similar evidence as each of the other Respondent witnesses stating that he had not, in his experience, had any issues with the changeover practices as they relate to the shovel and grader. The issue, according to Mr Lawson, is more in relation to the trucks working around the shovel and ensuring that these operators continue in their work until last loads at 5.50 (am/pm).

[315] Mr Lawson also gave evidence as to estimated losses in production which may be occasioned if hot seat changeovers were not affected. Mr Lawson’s evidence is that on the basis of an estimate of machinery remaining idle for 35 minutes per shift, for the 11 shift changeovers that can occur, that would result in a 3.8% loss in production time.

[316] Mr Lawson concurred that the 12 hour and 40 minute shift system operates in “swings and roundabouts” being that in most cases employees are able to achieve a hot seat changeover and leave the mine prior to 6.15 (am/pm) (the rostered end to the shift). Mr Lawson conceded however that in some instances operators could be late but qualified it by saying that this would be “pretty rare”.

[317] Mr Lawson produced the TAMS data for his Department from 1 June 2013 to 31 August 2013 and stated his findings as follows:

“Approximately 4% of all off-going prestrip operators performed little or no work beyond the "12 hour mark";

On average, approximately 78% of all off-going prestrip operators left the Mine between approximately 5.45 am/pm and 6.15 am/pm;

The average exit time for all off-going prestrip operators during this period was 6.07 am after night shift; and

The average exit time for all off-going prestrip operators during this period was 6.06 pm after day shift.” 110

[318] Mr Lawson specifically gave evidence that he disagreed with the evidence of Mr Colquhoun asserting that there “were no instructions....which require employees to continue working after twelve hours on any one shift” 111. Mr Lawson reiterated his prior evidence that last loads have always been required at 5.50 (am/pm) but acknowledged that there has, in the recent years, been a slippage on this front. Any action/direction subsequent to these times has been simply, in Mr Lawson’s evidence, reinforcing the expectations that already existed.

[319] Mr Lawson also challenged the assertions of Mr Colquhoun, generally, throughout his statement. These matters are discussed further in the overall consideration of this matter. It is sufficient to note at this point that Mr Lawson disagrees with Mr Colquhoun generally that employees are finish late with any sort of regularity.

[320] Mr Slevin for the Applicant, identified in cross-examination a number of instances of employees working beyond 6.15 and an instance of a large group of employees leaving after the buses had left.

Mr Cleave Simpson

[321] Mr Simpson is employed by the Respondent as the Manager - Production Mining Operations at the Saraji Mine and has been in this position for approximately 14 months. Overall, Mr Simpson has been in the coal mining industry for 17 years.

[322] Mr Simpson’s evidence regarding the changeover operations at Saraji mine, generally conforms with that of the other Respondent witnesses.

[323] Mr Simpson stated that to the best of his recollection there has never been an occurrence where a coal mining operator has left Saraji after the end of their shift (ie 6.15 (am/pm)). Mr Simpson stated that he is currently not experiencing any issues with hot seat and effective shift changeover. Mr Simpson accepted that there is room for improvement, such as having changeovers occur at multiple locations, rather than simply at the Go-line and implementing changeovers on loaded trucks. These two processes are not in place at the moment.

[324] Mr Simpson also had the TAMS data collated for the period of 1 August 2013 to 31 August 2013 for production and engineering employees in the coal mining department. He stated his findings as follows:

“approximately 3% of all off-going coal mining operators performed little or no work beyond the "12 hour mark";

on average, approximately 88% of all off-going coal mining operators left the Mine between approximately 5.45 am/pm and 6.15 am/pm;

the average exit time for all off-going coal mining operators during this period was 6.04 am after night shift; and

the average exit time for all off-going coal mining operators during this period was 6.04 pm after day shift.” 112

[325] And in relation to drill operators as follows:

“15.7% of all off-going drill operators performed little or no work beyond the "12 hour mark";

on average, 72.4% of all off-going drill operators left the Mine between approximately 5.45 am/pm and 6.15 am/pm;

the average exit time for all off-going drill operators during this period was 5.57 am after night shift; and

the average exit time for all off-going drill operators during this period was 5.59 pm after day shift.” 113

[326] And in relation to dragline operators as follows:

“approximately 16% of all off-going dragline operators performed little or no work beyond the "12 hour mark";

on average, approximately 55% of all off-going dragline operators left the Mine between approximately 5.30 am/pm and 6.00 am/pm;

the average exit time for all off-going dragline operators during this period was 5.59 am after night shift; and

the average exit time for all off-going dragline operators during this period was 5.34 pm after day shift.” 114

[327] In relation to the specific issue surrounding the bus arrangements Mr Simpson stated that to the best of his knowledge there has never been an issue with employees missing the bus services. If there was Mr Simpson stated that he would make arrangements for the transportation of any employee who missed the service.

[328] Mr Simpson conceded in cross-examination:

“Indeed, the circuit times that you give are the ideal times. They're sort of the best time that you can do that circuit in?---I believe they were just a generalisation. I wouldn't even characterise them as the best time.” 115

[329] And further as to the effect of various measures on the changeover times:

“Would you agree with me that, with those factors that we've just spoken about - and I'll be more specific - and especially at changeover time, it's unusual to get a clear run at a circuit around that time, because these other factors are going to interfere and slow you down so that you don't do the circuit in the sort of estimated times that you put in your statement?---The potential impact to circuits is definitely increased at shift change.” 116

[330] And in relation to those employees leaving the mine after the end of their rostered shift:

“That of course leaves 9 per cent who are leaving after the 12 and a half hour mark. Is that the case?---Yes, sir.” 117

[331] And in relation to the TAMS data for the site at which Mr Simpson works:

“The group of employees in your data are EA employees, but they also include EA employees who are stepping up in a supervisory role?---Yes, sir.

And they have the different roster arrangements because of that step?---The roster is generally the same, but they will potentially be a little longer making their exit as they pass on more information to the oncoming shift and finishing up their paperwork.” 118

[332] And in relation to a specific instance raised with Mr Simpson, by Mr Slevin:

“Now, the last group in your annexure, the last group is this group who have exited between 6.15 and 6.24. There are 20 crew members there. They're EA employees who are leaving after the 12-and-a-half-hour mark. That's right, isn't it?---Yes, sir.” 119

Consideration

[333] This matter centres on the two competing interpretations of the Agreement provisions that relate to affecting a ‘hot seat changeover’ between shifts. Evidence was brought by both parties that highlighted the factual dispute about whether or not employees are actually working beyond their rostered shifts.

[334] It is not in dispute that employees, by the terms of the Agreement, are “rostered” for 12 hours and 40 minutes (as such length as is prescribed by the site-specific Schedule); and that employees may leave prior to the completion of this time, once the changeover is completed as per the site-specific Schedule provisions.

[335] On the Applicant’s case the Respondent is not entitled to direct any employee to perform ‘new’ production work beyond 12 ordinary hours. Alternatively the Applicant objected to the rostered shift length being extended by default; that is, requiring employees to complete a shift changeover to extend production work rather than simply to effect the shift changeover.

[336] The parties are not in dispute regarding the relevant principles of interpretation. The authorities of Amcor and Kucks are the guiding authorities as to the construction of industrial instruments. Justice Kirby in Amcor stated:

“The nature of the document, the manner of its expression, the context in which it operated and the industrial purpose it served combine to suggest that the construction to be given to cl 55.1.1 should not be a strict one but one that contributes to a sensible industrial outcome such as should be attributed to the parties who negotiated and executed the Agreement. Approaching the interpretation of the clause in that way accords with the proper way, adopted by this Court, of interpreting industrial instruments and especially certified agreements. I agree with the following passage in the reasons of Madgwick J in Kucks v CSR Ltd, where his Honour observed:

‘It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.’” 120

[337] The Commission notes that the evidence filed by the parties has been of assistance in understanding the context and mechanics of the dispute as well as the practical concerns of the parties in relation to the shift changeover and the mine site operations. The Commission’s task however, is to construe the Agreement, in accordance with the principles applicable to interpretation of industrial instruments, and to take into account a sensible industrial outcome in interpreting the Agreement. This task permits that the Commission have regard to the words of the Agreement, the nature of the document, the manner of expression, the context in which it operates, how it was developed by the parties and its industrial purpose. The Commission must not take a narrow or pedantic approach in its interpretation. Such a position is not in dispute between the parties. The use of the intended meaning of the phrases must be an objective intention.

[338] The question for Arbitration starts from the premise that employees are rostered to work for more than 12 hours; the question is posed in the context of employees “who work rostered shifts in excess of 12 hours”. The question requires a consideration of whether there is a difference (and if so, if it is permitted) between the work directed to be undertaken prior to and following the “12 hour mark”, in terms of achieving a hot seat changeover.

[339] The evidence of the Respondent was that specific directions and arrangements are made by the Respondent, in reliance on real time data and current conditions to, as far as practicable, have employees finished and back at the start/finish point prior to the conclusion of the rostered shift. For example the evidence of Mr Sampson, was that employees, in the specific scenario referred to, are directed to “pull up” at 5.50 (am/pm), being at the 11 hour and 50 minute mark, to commence cleaning and pack-up etc. However, the Applicant relies on the Agreement to require that the Respondent achieve the handover in the ‘shortest practical duration’.

[340] It seems that the Applicant’s contention is that, immediately upon the 12 hour mark, employees should be ready to provide handover notes and travel to the start/finish point. The effect of this contention is that the employees would, in practice, stop production/substantive work prior to the 12 hour mark with sufficient time to do any end of shift tasks and excluding production activities. The employees, on this submission, would potentially sit idle waiting for the on-coming crew so that the off-going employees can provide handover notes and then travel back to start/finish place.

[341] The Respondent submitted that the Applicant’s construction of clause 11.1(b) “conflates” the use of the word “ordinary” within clause 11.1(b), with the concept of “total” hours. This conflation ignores the ordinary industrial concepts of “ordinary” hours versus “overtime” hours. This second concept of “total” hours not exceeding any more than 12 hours is not to be found in the Agreement.

[342] The Respondent referred to a number of provisions of the Agreement (as included above) which, they argue, gives rise to a conclusion that shift length (as opposed to maximum ordinary hours) can extend beyond 12 hours with the inclusion of other concepts. As an example, the Respondent relied upon clause 9.3 and the addition of rostered overtime, to as indicating that more than “ordinary hours” make up the full rostered shift.

[343] The starting point to interpret the Agreement and the practical conduct permitted to achieve a hot seat changeover must be the words of the Agreement. Clause 11.1(b) (extracted above) provides that the “ordinary working hours on any shift” must be no more than 12 hours. The word “ordinary” has a specific industrial meaning. It does not mean that any work cannot continue for more than 12 hours in any circumstance. The parties have agreed on the properly constituted rostered shift, as per clauses 11.1 and 11.2. The shift arrangements are agreed and the only issue arising from these provisions is that within the agreed shift, clause 11.2(b) refers to the Respondent’s intention to “limit the shift lengths to the shortest practical duration to effect the hot seat changeover”, therefore bringing into focus the effective shift changeover.

[344] It is clear that the total agreed shift is for 12 ordinary hours of work and the further period of rostered overtime. The word “ordinary”, in clause 11.1(b), means ordinary time work, as opposed to overtime. Significant evidence and comprehensive statistical information and submissions were provided on work up to and after the 12 hour mark. Mr Slevin in cross-examination, of various witnesses, identified within the TAMS data, limited instances where employees were at the mine site, beyond the rostered shift. Specific evidence of the circumstances of such instances, and why employees were delayed was not definitively provided. However, it was emphasised by the Respondent that, where employees were so delayed, supervisors were directed to pay further overtime. There was no material to suggest that such payment was not occurring.

[345] The Applicant submitted that clause 11.2 is concerned with start and finish times, whereas clause 11.2(b) operates to establish a unilateral ability for the Respondent to extend “agreed” shift lengths. This right to extend was said to be limited to effect a hot seat changeover/effective changeover. Importantly to the issues in this dispute, the Applicant submitted that the right of the employer to extend shift lengths was further limited such that “[e]mployees will not be required to work a shift, including a hot seat changeover/effective shift changeover, of greater than 12 hours 45 minutes”. The Applicant emphasised that the shift extension permitted by clause 11.2(b) is limited as submitted.

[346] The Respondent submitted that clause 11.2 dealt with shift length. The Respondent accepted that the effect of clause 11.2 was that no shift could be longer than 12 hours and 45 minutes. The Respondent submitted that the error that arises in the Applicant’s submission was that there has been no shift extension as per clause 11.2(b) by the Respondent. The shifts that are under consideration in this matter are those shifts that are enshrined in the relevant site-specific Schedules and were agreed at the time of the bargaining for the Agreement.

[347] The Respondent strongly argued that there had been no shift extension, such that any alleged limitation upon the shifts was engaged. This is a fundamental issue in the Respondent’s submission. The Respondent went so far as to submit that the concept of “shift changeover”, given the error in the Applicant’s approach to clause 11.2(b), becomes extraneous to the concept of shift duration. The shifts currently utilised have been agreed.

[348] The Commission agrees with the Respondent. The Applicant has not relied upon any unilateral exercise of the right conferred upon the Respondent by clause 11.2(b). The current shift lengths are those lengths that are agreed, and were agreed at the time of negotiating the Agreement. Clause 11.2(b) of the Agreement has not been engaged and reliance upon that clause as giving rise to a distinction between “ordinary hours” before the “12 hour mark” and those rostered hours after the “12 hour mark” is misplaced.

[349] The Applicant’s submission continued that, when read together, clause 11 and the site-specific schedules, provide for an extension of agreed shift lengths to allow certain things to occur; as defined by the schedules. There was a “clear distinction” between the work performed “on shift” as opposed to the “extension of the shift”.

[350] The Respondent submitted that the site-specific Schedules, apart from having no or limited application as a result of the finding on clause 11.2(b) above, do not have the effect contended for by the Applicant. The Respondent submitted that the schedules have two functions: regulating the way in which shift changeover is to be conducted, and enacting the “swings and roundabouts” 121 arrangements.

[351] It is at this point that the Respondent submitted that clause 4 (extracted above) of the body of the Agreement was concerned; particularly clause 4.4. This clause obliges employees to work in accordance with their roster and as directed. The “roster” is the roster, as agreed, in the site-specific schedules. This clause alone, so it was submitted, regulates how and when work is to be performed. This clause meant that the “illusory” 12 hour mark could not be found to exist in the Agreement.

[352] Further, the Respondent submitted that the effect of clause 4.4 was strengthened by clause 1.8 (extracted above). Clause 1.8 established that any inconsistency that might exist between the site-specific schedules and the main body of the Agreement was to be resolved in favour of the main body of the Agreement. Although the Respondent submitted that this issue did not arise in the event that their primary submission was accepted, it was submitted that this was also a matter that the Commission should consider in accepting the primary proposition put forward by the Respondent.

[353] The Respondent submitted that should it be incorrect in relation to the other points, the Applicant’s position is wholly defeated by the necessary conflict that arises, and the direction given by clauses 1.8 and 4.4 as to how that conflict is resolved.

[354] This approach to the interpretation is adopted by the Commission. The Applicant’s contention that these clauses do not assist in the interpretation of the matter at hand cannot be accepted. The principles of construction are clear, and are agreed between the parties, and require that the provisions be considered in their context and as a whole. The dispute as notified, alleges a limitation upon the Respondent’s right to direct employees to undertake production work, a clause of the Agreement directing otherwise is clearly relevant to a consideration of the dispute.

[355] It is not in dispute that the provisions of the Agreement enable employees to pass over operational and safety information etc and to undertake travel to and from the start/finish place (see for example Schedule 4, Clause 9). The dispute lies in the words of the site-specific clauses and what work is contemplated to “effect a hot seat changeover”.

[356] The Applicant accepted that the Respondent may direct employees to undertake a shift changeover, including effecting a hot seat changeover, for the purpose of maximising continuous operations. 122 The evidence presented in this matter was not persuasive in demonstrating that the work directions of the Respondent were not for the purpose of maximising continuous operations, and achieving a hot seat changeover within the parameters of the provision.

[357] Whilst the Applicant submitted that “hot seat change” does not encompass production work, the Applicant has not clearly articulated an alternate meaning to the phrase or a suggested practical operation. The Applicant’s suggestion that a hot seat changeover cannot include” new” production work, does not accord with the practice of a hot seat changeover. The very nature of a “hot seat change” is that it involves continuous operations. The contention of the Applicant does not “maximis[e] continuous operations”. The industrially sensible outcome and the industrial context of this Agreement is that maximising continuous operations is a significant issue and the fundamental goal of mining. I cannot accept that the phrase “hot seat changeover” does not include a continuity of production work, in the sense that such work is for the purpose of “maximising continuous operations”, which is the basis of why a “hot seat changeover” is desirable; to minimise disruption to productivity.

[358] The TAMS data clearly showed that, in the main, hot seat changeovers were being completed within the agreed roster length; even though on some occasions employees are working beyond the rostered shift length; for work in these minority of instances, employees received payment for such further limited period.

[359] Further, it is important to note that the agreed wording of the Schedules, provides that “[S]hift changeovers will occur at the Company’s direction and will be conducted to maximise continuous operations”. The evidence is that work directions are based on real time information and site conditions and are made to ensure maximum productivity is achieved by achieving effective shift changeovers and to do so in the “shortest practical duration”.

Conclusion

[360] The Commission finds that employees are obliged under the Agreement to work their rostered shifts and, additionally, to work as directed: refer clause 4.4. Having acknowledged this, the protective provisions in the Schedules particularising the mechanics of a hot seat changeover, cannot be ignored. Recognising that employees have worked 12 hours, the parties put in place an agreed set of arrangements to change shifts.

[361] Clause 11.2(b) of the Agreement, in terms of the shift length, has not been engaged in the circumstances presented to the Commission for consideration. It cannot be concluded on the material presented that there has been a shift extension. However, as stated, the Respondent has an obligation to observe the “intention” in clause 11.2(b) to limit shift lengths to the shortest practical duration to achieve the hot seat changeover. Therefore, shift changeover should be completed in the shortest practical duration, this was the agreed intention; work directions should be effected to achieve this. On the material, this approach appeared to be occurring in practice and the “swings and roundabouts” approach was accommodating average deviations.

[362] In summary, the parties have agreed the specific shift lengths applicable to employees, and have captured those shift lengths in the site-specific schedules. No marker is contained in the Agreement which explicitly or implicitly limits the work that can be done beyond the “12 hour mark”.

[363] However, the Respondent conceded that shift lengths of greater than 12 hours and 45 minutes were not permissible under the Agreement. The parties have agreed shift lengths approaching the 12 hour and 45 minute limit. The necessary implication is that the Respondent is obliged, given their position in relation to controlling and monitoring the work of employees, to manage this appropriately, to ensure effective changeovers are achieved to ‘limit shift lengths to the shortest practical duration to achieve a hot seat changeover’.

[364] The question for arbitration is therefore answered as follows:

Question:

In what circumstances does the BMA Enterprise Agreement 2012 allow the Company to require employees who work rostered shifts in excess of 12 hours at Saraji, Goonyella Riverside and Peak Downs Mines to perform production work after the 12 hour mark?

Answer:

There is no restriction in the BMA Enterprise Agreement 2012 upon employees performing production work after the 12 hour mark, in circumstances where the production work is a continuation of the work already commenced prior to the 12 hour mark or new production work where such is in connection with achieving a hot seat changeover. Such work must be consistent with maximising continuous operations and affecting a hot seat changeover.

[365] For the aforementioned reasons, I Order accordingly.

COMMISSIONER

1 PN15 - PN22.

2 PN73 - PN119.

3 Applicant outline of submissions at 10 citing clause 11.2(b) of the Agreement.

4 Applicant outline of submissions at paragraph 35.

5 Applicant closing submissions at paragraph 88.

6 Respondent outline of submissions at paragraph 9.

7 (1996) 66 IR 182 at page 184.

8 (2005) 222 CLR 241 at [96].

9 Applicant outline of submissions at 33.

10 Statement Paul Guinea, attachment PG1.

11 Statement of Simon West at paragraph 13.

12 Ibid at 14.

13 Ibid annexure SRW1.

14 Ibid annexure SRW1.

15 Ibid at 21.

16 Ibid at 23.

17 Ibid at 23.

18 Ibid at 27.

19 Ibid at 28.

20 Ibid annexure SRW2.

21 Ibid annexure SRW2.

22 Respondent outline of submissions at 1.

23 Australian Productivity Commission Inquiry Report into the Australian Black Coal Mining Industry, 1999, volume 2, page 5.

24 Ibid.

25 Ibid at 2.

26 Ibid at 6.

27 See in particular the witness statements of Amos Lawson (Saraji pre-strip) and Joshua Burke (Goonyella Riverside pre-strip).

28 See in particular the witness statement of Justin Kinderis (Goonyella Riverside coal mining) at [28]-[32].

29 CFMEU outline at [13].

30 Witness Statement of Tyson Hammer at [13(f)].

31 Witness Statement of Justin Sampson at [20], [23] to [26] and [30].

32 Respondent outline of submissions at 11-17.

33 Ibid at 18.

34 [2005] HCA 10.

35 (1996) 66 IR 182.

36 Respondent outline of submissions at 27.

37 Ibid at 31.

38 Witness Statement of Peter Stelmach at [17].

39 Witness Statement of Peter Stelmach at [18]- [19] and [35].

40 Witness Statement of Peter Stelmach at [20].

41 Witness Statement of Peter Stelmach at [25].

42 Witness Statement of Peter Stelmach at [39].

43 Witness Statement of Peter Stelmach at [46].

44 Witness Statement of Peter Stelmach at [36].

45 Witness Statement of Peter Stelmach at [45].

46 Respondent outline of submissions at 36.

47 Witness Statement of Justin Kinderis at [43], Amos Lawson at [19] and [22], Joshua Burke at [28] and Cleave Simpson at [33].

48 Witness Statement of Justin Kinderis at [44], Daniel Iliffe at [37], Amos Lawson at [22], Joshua Burke at [31], Cleave Simpson at [33] and [34].

49 See in particular the statement of Peter Stelmach.

50 Respondent outline of submissions at 9.

51 In this regard the Respondent relied upon the statement of Peter Stelmach.

52 See in particular the witness statements of Amos Lawson (Saraji pre-strip) and Joshua Burke (Goonyella Riverside pre-strip).

53 See in particular the witness statement of Justin Kinderis (Goonyella Riverside coal mining) at [28]-[32].

54 CFMEU outline at [13].

55 Witness Statement of Tyson Hammer at [13(f)].

56 Witness Statement of Justin Sampson at [20], [23] to [26] and [30].

57 Respondent outline of submissions at paragraphs 11 to 17.

58 Witness Statement of Justin Kinderis at [38].

59 Witness Statement of Joshua Burke at [33].

60 Witness Statement of Justin Sampson at [27].

61 Witness Statement of Tyson Hammer at [18].

62 Witness Statement of Justin Kinderis at [38].

63 Witness Statement of Joshua Burke at [33].

64 Witness Statement of Justin Sampson at [27].

65 Witness Statement of Tyson Hammer at [18].

66 Witness Statement of Daniel Iliffe at [18].

67 Witness Statement of Daniel Iliffe at [27].

68 Witness Statement of Daniel Iliffe at [31].

69 Witness Statement of Daniel Iliffe at [37].

70 Witness Statement of Daniel Iliffe at [18].

71 Witness Statement of Daniel Iliffe at [27].

72 Witness Statement of Daniel Iliffe at [31].

73 Witness Statement of Cleave Simpson at [16].

74 Witness Statement of Amos Lawson at [25]

75 Witness Statement of Cleave Simpson at [23].

76 Witness Statement of Cleave Simpson at [31].

77 Witness Statement of Cleave Simpson at [16].

78 Witness Statement of Amos Lawson at [25]

79 Witness Statement of Cleave Simpson at [23].

80 Witness Statement of Cleave Simpson at [31].

81 Respondent outline of submissions at [43].

82 Witness Statement of Peter Stelmach at [23].

83 Witness Statement of Peter Stelmach at [25].

84 Witness Statement of Peter Stelmach, Annexure PS-3.

85 Witness Statement of Peter Stelmach at [34].

86 Witness Statement of Peter Stelmach at [46].

87 Witness Statement of Justin Kinderis at [19].

88 Witness Statement of Justin Kinderis at [33].

89 Witness Statement of Justin Kinderis at [38].

90 Witness Statement of Justin Kinderis at [28].

91 Witness Statement of Justin Kinderis at JPK-4.

92 PN1249.

93 PN1292.

94 PN1352 - PN1356.

95 Witness Statement of Justin Sampson, annexure JRS-2.

96 Witness Statement of Justin Sampson at [27].

97 Witness Statement of Tyson Hammer at [13].

98 Witness Statement of Tyson Hammer annexure TJH-1.

99 Witness Statement of Tyson Hammer at [17].

100 Witness Statement of Tyson Hammer at [18].

101 Witness Statement of Joshua Burke at [33].

102 Witness Statement of Mr Daniel Iliffe at [18].

103 Witness Statement of Mr Daniel Iliffe at [27].

104 Witness Statement of Mr Daniel Iliffe at [31].

105 Witness Statement of Mr Daniel Iliffe at [36].

106 Witness Statement of Mr Daniel Iliffe at [17].

107 Witness Statement of Mr Daniel Iliffe at [23].

108 Witness Statement of Mr Daniel Iliffe at [30].

109 Witness Statement of Mr Daniel Iliffe at [36].

110 Witness Statement of Mr Amos Lawson at [25].

111 Witness Statement of Kurt Colquhoun at [7].

112 Witness Statement of Cleave Simpson at [16].

113 Witness Statement of Cleave Simpson at [23].

114 Witness Statement of Cleave Simpson at [31].

115 PN2019.

116 PN2041.

117 PN2046.

118 PN2057 - PN2058.

119 PN2063.

120 Amcor Limited v Construction, Forestry, Mining and Energy Union [205] HCA 10 at [96].

121 Whereby employees receive payment for the entire rostered shift regardless of whether the employee ceases work, performs the shift changeover and leaves the minesite prior to the expiration of the rostered shift.

122 Applicant’s outline of closing submissions at paragraph 36.

Printed by authority of the Commonwealth Government Printer

[2014] FWC 1049

12 FEBRUARY 2014