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

[2012] FWA 3945

[2012] FWA 3945

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.531 - Application for an order where failure to notify or consult registered employee associations about dismissals

Construction, Forestry, Mining and Energy Union
v
BHP Coal Pty Ltd
(U2012/7173)

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
BHP Coal Pty Ltd
(U2012/7175)

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
v
BHP Coal Pty Ltd
(U2012/7178)

COMMISSIONER ROE MELBOURNE, 8 MAY 2012

Norwich Park Mine cessation of operations - orders sought under s.532.

[1] The Applications were made on 17 April 2012. The Applications relate to the announcement by the BHP Billiton Mitsubishi Alliance (BMA) on 11 April 2012 that they would cease operations at the Norwich Park mine as from 11 May 2012 and place the mine on care and maintenance.

[2] The matters were listed in Brisbane on 19 and 20 April 2012 along with other matters which related to a long running bargaining dispute between the three unions and BHP Coal Pty Ltd (BHP). BHP Coal Pty Ltd is the employing entity for BHP Billiton Mitsubishi Alliance (BMA) which operates seven coal mines in central Queensland’s Bowen Basin. The unions provided FWA and BHP with the statement of Norman Johnston, Secretary of the Norwich Park Lodge of the CFMEU. That statement together with its extensive attachments 1 provided information concerning the background to and the basis of the claim. I adjourned the hearing into a conference with the parties on 20 April 2012 in attempt to resolve the matter by conciliation. Arising from that conference the following Statement was issued.

“Without admission that there is jurisdiction for the matters to proceed BHP Coal will, in respect to Norwich Park:

a. continue to meet with the unions daily

b. at the 27 April meeting advise the unions of:

● The aggregate data concerning preferences 1 to 9 for each location and concerning voluntary redundancies

● The aggregate data on the numbers likely to receive each of their first preference, second preference and third preference

● As much information on the arrangements for care and maintenance of Norwich Park including staffing as is available at the time

c. Further consult at the 30 April meeting on that data. For logistical reasons there will be no notification of redeployments prior to 30 April.

The parties will report back to FWA on 4 May and these matters will be adjourned to that date.

Without prejudice to the position of the unions that redeployment should not occur prior to the completion of the consultation process they seek, there will be no notification of voluntary redundancies before 4 May 2012.”

[3] The parties were advised that a further conference would be held on 4 May 2012 and if the matter was not resolved then it may proceed to hearing at that time.

[4] A further conference was held on the morning of 4 May 2012. The parties and FWA were updated on the relevant events and correspondence which had occurred since 20 April 2012. The conference did not resolve the matter and the matter was then heard on the afternoon of 4 May 2012. I granted leave for Mr A Slevin to represent the CFMEU and the CEPU and for Mr F Parry to represent BHP.

[5] The unions proposed the following draft Orders. 2

“Draft Orders

Pursuant to s532 of the Fair Work Act 2009, Fair Work Australia Orders that:

1. BHP Coal Pty Ltd (the Respondent) disclose the following information to the Construction, Forestry, Mining and Energy Union, the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Applicant Unions):

a. The report or any other document recording the findings arising from the strategic review into the operations of the Norwich Park Mine conducted during February/March 2012;

b. Any document recording the Norwich Park 5 year plan;

c. A list of the vacant production and engineering positions at other mines to which the BHP Coal Pty Ltd Workplace Agreement 2007 applies;

d. A list of company accommodation available in the towns of Moranbah, Blackwater and Emerald.

2. The Construction, Forestry, Mining and Energy Union, the Applicant Unions give the Respondent an enforceable undertaking not to disclose any information provided under order 1 that is confidential or commercially sensitive.

3. Until 1 August 2012 or earlier order of Fair Work Australia, the Respondent refrain from:

a. Forcing employees to transfer to other mines;

b. Issuing notices of retrenchment to any employee covered by the BHP Coal Pty Ltd Workplace Agreement 2007 engaged to work at the Norwich Park Mine;

c. Forcing employees to vacate their current accommodation.

4. Until 1 August 2012 or earlier order of Fair Work Australia, the Respondent shall continue to pay employees in accordance with the arrangements that applied on or before 11 April 2012.

5. The Respondent meet in person with the Applicant Unions three times per week to consult on measures to avert or minimise the proposed dismissals arising from the decision to cease operations at the Norwich Park Mine.

6. Any dispute arising from the application of this order shall be referred to Fair Work Australia for determination.”

[6] The proposed Orders sought were further modified by the Applicant unions during the proceedings as follows:

• The unions wish to replace “Norwich Park” with “BMA” in Order 1(b).



• The unions seek that “on a weekly basis during the period of consultation” be added to Orders 1(c) and 1(d).



• The unions clarified that in respect to Order 3(a) they do not oppose voluntary transfers occurring.



• The unions clarified that in respect to Order 3(b) they do not oppose voluntary redundancies already offered from proceeding if accepted.



• The unions seek that Order 4 only applies to those who have not accepted a voluntary redundancy or redeployment/transfer.

The background and evidence.

[7] Evidence was given by Steven Pierce who is the Queensland Vice President of the CFMEU (Mining and Energy Division). 3 Mr Pierce adopted the statement of Norman Johnston.4 Mr Pierce provided a Statement which included 12 Attachments. BHP submitted a tracked changes version of one of those documents.5 BHP submitted a sample of the redeployment letters and information pack provided to Norwich Park employees being transferred to the Saraji Mine dated 2 May 20126 and similar material provided to those being transferred to the Blackwater Mine.7 BHP submitted a letter of 4 May 2012 from BHP to the CFMEU in response to correspondence from the CFMEU of 3 May 2012.8 BHP also provided an update dated 3 May 2012 of the advice sent to Centrelink.9 Evidence for BHP was given by senior human resources managers Ms Sonia Lewis and Mr Nick Lake. Mr Lake reports directly to the most senior executive in BHP Coal Pty Ltd, Mr Dumble. Ms Lewis reports to Mr Lake.

[8] BHP have decided that the closure of the mine will occur on 11 May 2012 and that all of the workers at the mine who are members of or eligible to be members of the three unions and who are covered by the BHP Coal Pty Ltd Workplace Agreement 2007 will be made redundant or will be redeployed from 12 May 2012. The unions and all relevant employees have been advised of this. Given this situation it is essential that I make a decision about the Applications for orders in this matter without delay. To do otherwise could have serious consequences for BHP, the unions and the employees. I have carefully considered all of the evidence and the submissions made. However, I do not canvass all the details of that evidence and the submissions in this decision.

[9] The evidence in the main consists of information concerning meetings and correspondence between the parties and notices issued by the parties. There is little factual contest between the parties. The only significant factual contest concerns whether or not BHP provided information to the unions at the meeting on 12 April 2012 (the day after the announcement that the mine would be closed) on the “cost per tonne” required for Norwich Park to operate profitably or required by BHP to retain or resume production.

[10] The Norwich Park mine has been in operation for a long time. Mr Johnston has worked there for 32 years. The BHP Coal Pty Ltd Workplace Agreement 2007 (the Agreement) applies to the production and engineering workers at the mine. The Agreement applies to approximately 315 direct employees of BHP covered by the Agreement. There are also approximately 140 employees whom BHP describe as “staff” who are not covered by the Agreement.

[11] I am satisfied from the evidence of Mr Lake that BHP’s BMA operations are profitable despite some recent deterioration in the situation due to a decline in coal export prices from their historic highs, floods, the high Australian dollar and significant industrial action associated with bargaining for a replacement of the Agreement. BHP was concerned about poor returns from the Norwich Park operations and commenced a strategic review on 8 February 2012. The unions were advised of the review but had no opportunity for input into the review.

[12] Mr Lake read the review report around 28 March 2012. The report included a number of options. One of those options was closure of the mine. Mr Lake instructed Ms Lewis and others to begin planning for the possibility that the closure option may be accepted and in particular to begin planning for a redeployment/redundancy process. Mr Lake says that he was advised by Mr Dumble on 8 April 2012 that the closure option had been approved.

[13] Employees and the unions were advised on 11 April 2012 that the review:

“concluded that in the current commercial environment, there are no immediate solutions that can stop the sustained losses. As a result, the mine will cease production indefinitely from 6pm on 11 May. Only critical activities to ensure safeguarding of assets will continue from this date, as will essential services such as health and safety and emergency response.” BHP also advised that “Following cessation of production, we will continue to study alternatives to return Norwich Park to sustainably profitable, low cost operation.” 10

BHP argue, and it was not contested by the unions, that the particular geology including the level of overburden at Norwich Park adds significantly to costs when compared to the other mines in the BMA operations. Employees were advised that:

“The review findings indicate that profitability can only be restored through a combination of significant changes to the mining processes. This will involve more selective mining of higher margin coal, reduced reliance on high cost truck shovel stripping, aligning production levels with low cost DRE capacity, rebuilding inventories in the mine to allow high productivity DRE performance, reducing maintenance and other costs, reducing overall head count and rebuilding capacity in the management team and broader organisation.” 11

[14] Employees were advised that there were no plans to sell the mine and “at this stage there are no plans to operate Norwich Park mine as a contractor operation”. Employees were advised that after the closure the work in respect of care and maintenance of the mine would only involve a small number of people and would be “through a contractor.” Employees were also advised that there would be no automatic return to Norwich Park for those redeployed in the event that Norwich Park reopens.

[15] BHP set out the process by which they intended to consult with employees and the unions “about measures to avert or minimise dismissals and measures to mitigate any adverse effects of any potential dismissals.” They set out a program of daily meetings with the unions. The evidence shows that those meetings mostly occurred and that they were generally of 30 to 45 minutes duration. BHP stated that they intended to consult with the unions “regarding the redeployment and voluntary redundancy implementation process and to provide regular updates on the progression of those processes.” 12

[16] BHP advised that it did not know how many dismissals would be required. They advised that it was their primary aim to redeploy employees to other BMA mines but that they would also seek expressions of interest in voluntary redundancies. BHP gave notice that if they could not achieve the outcome through transfer, redeployment and voluntary redundancies then involuntary redundancies may occur. BHP also advised that they had “in accordance with our obligations under the Fair Work Act 2009 (Cth)”advised Centrelink of the decision to cease operations at the mine, the economic, structural and commercial reasons for the proposed dismissals, the number and categories of employees likely to be affected and the time period over which BHP intends to carry out any dismissals. 13

[17] The notice to Centrelink stated that “dismissals from BHP Coal Pty Ltd may arise as a result of voluntary or forced redundancies (following a process of transfer and re-deployment in consultation with our employees and their representatives).” 14 The notice referred to 338 employees covered by the Agreement and 161 staff employees as being affected and that the number of dismissals if any would not be known until after the conclusion of the “consultation and redeployment program” which would occur over the next four weeks.

[18] Also attached to the 11 April 2012 notification was a document which outlined the steps in the redeployment and redundancy process. The document identified that Phase One of that process was for BHP to identify vacancies and opportunities at other mines and to seek employees preferences for voluntary redundancy or redeployment. Phase Two was to commence in the week beginning 23 April 2012 when all preferences would have been advised. BMA would then grant voluntary redundancies and “prepare and issue redeployment offer letters.” The next step was “receipt of employee acceptances for redeployment opportunities”. Following this BHP would “assess the need for involuntary redundancies”. 15

[19] The letters to individual employees also reflected this material and in particular that employees were required to express their preferences by 25 April 2012. The individual letters stated that:

“Should you accept a position with another mine, your salary and conditions will be aligned to the mine you relocate to. This will be outlined in a letter of offer you will be able to consider prior to accepting any relocation.” 16

Employees were provided with information about the roster patterns at the other sites and some information concerning accommodation and other matters.

[20] I consider that the evidence establishes that during the process from 11 April 2012 up until the hearing on 4 May 2012 BHP responded to many different matters raised by individual employees and by the unions. In response to issues raised BHP made some adjustments to the process and provided some additional information. For example:

• BHP agreed that employees could be accompanied by partners and union representatives at meetings to discuss their preferences.



• BHP agreed not to force redeployment to underground operations.



• BHP agreed to hold the consultation meetings with the unions at 9am instead of 10am as the senior CFMEU representative, Mr Crompton, worked night shift but BHP refused to move Mr Crompton to day shift.



• BHP agreed that positions required for care and maintenance in roles of the type currently covered by the Agreement would be first offered to existing employees. BHP advised that there were 10 such positions.



• BHP provided additional information in respect to matters such as apprentices and that there would be no gap in employment or pay if transfer was delayed.

[21] I consider that the evidence establishes that for BHP the main focus of their activity was:

• To seek that employees fill in the preference forms by 25 April 2012;



• To meet with employees individually prior to 25 April 2012 to assist them in filling out the form, to get better information about employees requirements and suitability, and to provide individual employees with information where available;



• To provide question/answer updates where required to frequently asked questions or matters raised by the unions at the short daily meetings;



• To seek to match available opportunities with employee preferences;



• To provide the unions with information on the aggregate outcomes of this process;



• To advise employees of the outcomes of the process.

[22] Consistent with the Statement issued on 20 April 2012 BHP provided aggregate data on employee preferences to the unions on 27 April 2012. However, BHP was not able to provide the aggregate data concerning the numbers likely to receive their first, second and third preferences until 30 April 2012. This data was further updated on 3 and 4 May 2012. 17

[23] The situation as at 4 May 2012 was that:

• BHP has advised that it will from 4 May 2012 tell the 87 employees who expressed Voluntary Redundancy as their first preference that they will accept those expressions of interest and those employees who confirm acceptance will be redundant effective 11 May 2012. There are a further six employees whose first preference was not accommodated by BHP and who sought Voluntary Redundancy as their second preference and BHP have advised that they will also accept these expressions of interest if those employees confirm that is their preference. BHP advised that they would be contacting those employees from 4 May 2012 and if they confirm their preference they will be redundant effective 11 May 2012.



• BHP has advised that the remaining 229 employees will be redeployed effective 12 May 2012 to other mines:



• 79% of those employees will be redeployed in accordance with their first preference;



• 20% will be redeployed in accordance with their second preference; and



• 1% will be redeployed in accordance with their third preference.



• BHP have advised that 147 employees sought as their first preference to be redeployed to Saraji or Peak Downs mines. 95% of these employees were accepted for redeployment in accordance with their first preference. These mines are relatively close to the town of Dysart, the closest town to the Norwich Park mine. Employees redeployed to these mines will be able to remain living in their current accommodation in Dysart.

[24] Between 2 and 4 May 2012 BHP has written to each of the 229 employees it has decided to redeploy. 18 Those who have not received the written material are being advised by telephone. That letter states that “we are pleased to confirm you will redeployed” to X mine and sets out the position and the relevant roster and states when the employee is required to report to work at the new mine. The letter then sets out the particular schedule to the Agreement which will now apply to the employee.

“All other terms and conditions of your employment will remain unchanged and your prior service with the company will continue to be recognised without break in continuity for all purposes.”

[25] As discussed earlier the advice provided to each employee on 11 April 2012 when they were asked to fill in the preference form was:

“Should you accept a position with another mine, your salary and conditions will be aligned to the mine you relocate to. This will be outlined in a letter of offer you will be able to consider prior to accepting any relocation.”

[26] However, the letters of 2 and 4 May 2012 do not give employees any option to consider an offer prior to accepting any relocation. The letters are not phrased as provisional decisions. The letter is clearly phrased as a decision by BHP and does not suggest that there is any opportunity to review the matter. The letter concludes: “If you have any questions or would like to discuss your redeployment further, then please contact the Norwich Park Hotline.”

[27] The evidence established that some of the employees redeployed to mines such as Blackwater, where there is an accommodation shortage, may have to share accommodation or reside in temporary accommodation. Families may not be able to be accommodated.

Legislation.

[28] The relevant provisions of the existing legislation (the Fair Work Act 2009 (Cth) (the Act)) are as follows.

“Subdivision B—Failure to notify or consult registered employee associations

531 FWA may make orders where failure to notify or consult registered employee associations about dismissals

(1) FWA may make an order under subsection 532(1) if it is satisfied that:

(a) an employer has decided to dismiss 15 or more employees for reasons of an economic, technological, structural or similar nature, or for reasons including such reasons; and

(b) the employer has not complied with subsection (2) (which deals with notifying relevant registered employee associations) or subsection (3) (which deals with consulting relevant registered employee associations); and

(c) the employer could reasonably be expected to have known, when he or she made the decision, that one or more of the employees were members of a registered employee association.

Notifying relevant registered employee associations

(2) An employer complies with this subsection if:

(a) the employer notifies each registered employee association of which any of the employees was a member, and that was entitled to represent the industrial interests of that member, of the following:

(i) the proposed dismissals and the reasons for them;

(ii) the number and categories of employees likely to be affected;

(iii) the time when, or the period over which, the employer intends to carry out the dismissals; and

(b) the notice is given:

(i) as soon as practicable after making the decision; and

(ii) before dismissing an employee in accordance with the decision.

Consulting relevant registered employee associations

(3) An employer complies with this subsection if:

(a) the employer gives each registered employee association of which any of the employees was a member, and that was entitled to represent the industrial interests of that member, an opportunity to consult the employer on:

(i) measures to avert or minimise the proposed dismissals; and

(ii) measures (such as finding alternative employment) to mitigate the adverse effects of the proposed dismissals; and

(b) the opportunity is given:

(i) as soon as practicable after making the decision; and

(ii) before dismissing an employee in accordance with the decision.

532 Orders that FWA may make

(1) FWA may make whatever orders it considers appropriate, in the public interest, to put:

(a) the employees; and

(b) each registered employee association referred to in paragraph 531(2)(a) or (3)(a);

in the same position (as nearly as can be done) as if the employer had complied with subsections 531(2) and (3).

(2) FWA must not, under subsection (1), make orders for any of the following:

(a) reinstatement of an employee;

(b) withdrawal of a notice of dismissal if the notice period has not expired;

(c) payment of an amount in lieu of reinstatement;

(d) payment of severance pay;

(e) disclosure of confidential information or commercially sensitive information relating to the employer, unless the recipient of such information gives an enforceable undertaking not to disclose the information to any other person;

(f) disclosure of personal information relating to a particular employee, unless the employee has given written consent to the disclosure of the information and the disclosure is in accordance with that consent.

533 Application for FWA order

FWA may make the order only on application by:

(a) one of the employees; or

(b) a registered employee association referred to in paragraph 531(2)(a) or (3)(a); or

(c) any other registered employee association that is entitled to represent the industrial interests of one of the employees.”

[29] It is not in contention that the unions are able to make the Applications and have made the Applications in accordance with Section 533 of the Act. It is not in contention that the closure of the mine and any associated dismissals are “for reasons of an economic, technological, structural or similar nature, or for reasons including such reasons” as required by Section 531(1)(a). The unions do not argue that there is any breach of Section 531(2) but they argue that there has been a breach of Section 531(3) in that there has been a failure to provide an opportunity to consult on measures to avert, minimise and mitigate as soon as practicable after making the decision. It is not in contention that the unions are entitled to represent the industrial interests of the affected members and that most affected employees are in fact members of the unions.

[30] The relevant provisions under the Workplace Relations Act 1996 following the WorkChoices Amendments (Section 668 of that Act) were not materially different to Sections 531-533 of the current Act save for the use of the expression “has decided to terminate the employment” instead of “has decided to dismiss” and the expression “terminations” instead of “dismissals” and the expression “as soon as practicable after so deciding” instead of “as soon as practicable after making the decision”.

[31] The relevant provision prior to WorkChoices was Section 170GA of the Workplace Relations Act 1996. That provision was not materially different to the Work Choices provisions save for the absence of the restrictions concerning the nature of the Orders which can be made which is found in Section 532(2) of the current Act.

[32] The object of these provisions in the previous legislation was “to assist in giving effect to the Termination of Employment Convention” (Section 635(e) of the Workplace Relations Act 1996 (WorkChoices)). This linkage is not found in the present legislation however there is a general Object of the present legislation to “take into account Australia’s international labour obligations.” The relevant international labour obligation is as follows.

“Convention concerning termination of employment at the initiative of the employer

Article 13

1.     When the employer contemplates terminations for reasons of an economic, technological, structural or similar nature, the employer shall:

(a)       provide the workers’ representatives concerned in good time with relevant information including the reasons for the terminations contemplated, the number and categories of workers likely to be affected and the period over which the terminations are intended to be carried out;

(b)       give, in accordance with national law and practice, the workers’ representatives concerned, as early as possible, an opportunity for consultation on measures to be taken to avert or to minimise the terminations and measures to mitigate the adverse effects of any terminations on the workers concerned such as finding alternative employment.

2.     The applicability of paragraph 1 of this Article may be limited by the methods of implementation referred to in Article 1 of this Convention to cases in which the number of workers whose termination of employment is contemplated is at least a specified number or percentage of the workforce.

3.     For the purposes of this Article the term “the workers’ representatives concerned” means the workers’ representatives recognised as such by national law or practice, in conformity with the Workers’ Representatives Convention, 1971.”

Jurisdiction.

[33] BHP argue that the phrase “an employer has decided to dismiss 15 or more employees” in Section 531 only operates in the circumstances of this case from the date when BHP advised the unions that it intended to accept 87 voluntary redundancies. BHP has said that it is prepared to consult with the unions over the week between the notification of this decision on 4 May 2012 and 11 May 2012 when these notices of redundancy take effect.

[34] Mr Lake gave evidence that the notification to Centrelink on 11 April 2012 was out of an “abundance of caution” and that he now believed that BHP had no obligation to notify as there were no dismissals at that time. Mr Lake gave evidence that BHP had not told the unions prior to the Applications being made pursuant to Section 531 that contrary to the advice in the letters of 11 and 12 April 2012 there was no obligation to consult. The evidence of Mr Lake as to when he changed his view about this question was unconvincing. I am satisfied that on 11 April 2012 BHP was of the view that they had obligations to consult with the unions pursuant to Section 531 of the Act as a consequence of the announcement of the intention to close the mine.

[35] The unions argue that the relevant decision is the decision to close the mine announced on 11 April 2012. That decision was a decision which was anticipated to lead to the dismissal of 15 or more employees and BHP correctly advised Centrelink of this and in doing so told Centrelink and the affected employees that it was doing this consistent with its obligations under Section 530 of the Act. That notice to Centerlink stated that “BHP Coal Pty Ltd give notice under Section 530(1) of the Fair Work Act 2009 that BHP Coal Pty Ltd proposes to dismiss the employment of 15 or more of its employees.” The unions argue that the dismissal of at least 15 employees was not just a remote possibility as a result of the closure of the mine but an inevitability. I accept the unions’ submission having regard to the number of employees involved, the difficulty of matching the personal circumstances of all those employees with suitable opportunities for redeployment, and the fact that the mines other than Saraji and Peak Downs are not within a reasonable distance of the employees’ residences in Dysart.

[36] The Agreement provides in Clause 13 for the redeployment of workers to other mines in circumstances where there are surplus employees at a particular mine. The unions argue that Clause 13.5 requires the company to utilise natural attrition and voluntary redundancy first, then utilise internal redeployment within the mine and then transfer of employees between mines. In support of this the unions referred to custom and practice and note that Clause 13.7 refers to the alternatives in Clause 13.5 as “the above steps.” BHP argues that they are not steps but options which are not required to be followed in a particular order. Clause 13 provides that where redeployment is to a mine outside a reasonable distance from the employee’s residence then the employee is to be given reasonable relocation and removal assistance.

[37] Although Clause 13 allows for redeployment to a mine outside of a reasonable distance from the employee’s residence, Clause 8 of the Agreement makes it clear that an employee who refuses such redeployment is in fact made redundant or dismissed at the initiative of the employer. However, under the Agreement such an employee receives a significantly lesser redundancy benefit than other employees made redundant. However, that benefit still exceeds the National Employment Standards. Hence, where BHP propose to redeploy an employee to a mine outside a reasonable distance from the employee’s residence a consultation and review process will have a significant potential to avoid dismissals. The absence of an opportunity to consult in this situation prior to a final decision about redeployment or redundancy would not be consistent with the requirements under Section 531(3). There are approximately 80 employees who have been advised that they will be redeployed to locations outside a reasonable distance from the employee’s residence.

[38] BHP in its advice to employees and the unions on 11 April 2012 made it clear that the process would enable employees to express their preferences and then to consider any offer and accept or reject that offer. The redeployment letters provided to employees on 2 to 4 May 2012 are not letters of offer or provisional decisions open to further consideration and discussion but are decisions and instructions to redeploy.

[39] The Full Bench of the AIRC, Justice Ross, Senior Deputy President MacBean and Commissioner Deegan, in CFMEU v Newcastle Wallsend Coal Company Pty 19 considered the consultation requirements in the earlier but similar provisions of the Workplace Relations Act 1996. The relevant part of that decision is as follows:

“73. In circumstances where the respondent had made an `irrevocable decision' to place the mine on care and maintenance indefinitely and consequently to terminate the employee's employment, any subsequent offer to consult cannot be said to satisfy the requirements of s.170GA(1)(b).

74. Section 170GA(1)(a) speaks in terms of providing an opportunity to consult with the employer on, among other things, `measures to avert ... the terminations'. After 3 July 1998 any consultation with the respondent about measures to avert the terminations was rendered nugatory by the fact that the respondent had already made an `irrevocable decision' to terminate the employees' employment.

75. In our view the opportunity to consult envisaged by s.170GA(1)(b) must be a real opportunity not simply an after thought. As the Privy Council said in Port Louis Corporation v Attorney General of Mauritius:

"The requirement of consultation is never to be treated perfunctorily or as a mere formality."

76. In the context of a case concerning the statutory obligation to consult in relation to decisions regarding variations in public transport routes Sachs LJ observed:

"Consultations can be of very real value in enabling points of view to be put forward which can be met by modifications of a scheme and sometimes even by its withdrawal. I start accordingly from the viewpoint that any right to be consulted is something that is indeed valuable and should be implemented by giving those who have the right an opportunity to be heard at the formative stage of proposals - before the mind of the executive becomes unduly fixed."

77. We are also supported in this regard by the decision of Munro J in PKIU v Federal Capital Press of Australia Ltd. In that case his Honour was dealing with an application under s.170GB for an order under s.170GA. At p5 of the decision his Honour observes:

"... Mr Cahill contended that subparagraph (b) had not been complied with by the company. Before terminating an employee's employment pursuant to the decision, the employer had not given the PKIU an opportunity to consult with it on measures to avert the termination, or about measures to mitigate the adverse affects of the termination or terminations.

On a provisional basis I incline to the view that there is substance in the contention made by Mr Cahill. However, that substance derives almost entirely from my reading of subsection 170GA(1)(b)(i) to require that in this instance FCP consult with the PKIU about measures "to avert the termination" to the extent of consulting about averting the decision to contract out.

In other words, I read subsection 170GA(1)(b) as requiring the employer to discuss in effect the commercial decision in consequence of which the need for redundancies has arisen. If I am correct in reading subsection 170GA(1)(b) as going that far, then it could be said properly that in this instance the employer has not consulted about that decision in any meaningful way, and certainly not in a way which could be said to have been designed to avert it. It is common ground that the employer has outright refused to discuss the decision and has indicated that it is irreversible."

78. Unlike the Federal Capital Press case the respondent in the proceedings before us did not refuse to discuss the decision to terminate the employee's employment. But any offer to consult in relation to the matter was in the context that the respondent had already made an irrevocable decision. In these circumstances the respondent had not, to use his Honour's words, consulted about the decision in any meaningful way.

79. Nor do we think that the offer to consult made on 2 July 1998 satisfied the requirements of s.170GA(1)(b). An offer made the day before an irrevocable decision is taken to terminate the employees' employment does not, in the circumstances of this case, constitute a real or meaningful offer to consult.”

[40] For reasons discussed earlier the changes in the legislation do not affect these conclusions. The changes in the legislation affect the Orders which may be made.

[41] It is abundantly clear when considering the legislation in its context including the Termination Consultation and Redundancy (TCR) test cases and the international convention that the purpose of this provision is about enhancement of employment security. It is to provide unions as the representative of affected employees with an opportunity to consult the employer in the expectation that this might lead to better job security outcomes. That is, the right to have the opportunity to consult may lead to job losses being avoided all together, or to the number of job losses being reduced and or to the effects of job loss being mitigated through redeployment or alternative employment or other support measures. The employment security purpose cannot be achieved unless the opportunity to consult occurs as soon as practicable. In the international convention this is at the contemplative stage. In the TCR decisions and in the Act this is as soon as practical after making the decision.

[42] The Newcastle Wallsend Full Bench decision establishes that the provision requires that the employer discuss the commercial decision in consequence of which the need for redundancies has arisen.

[43] The legislation identifies the trigger as being when the employer “has decided to dismiss 15 or more employees for reasons of an economic, technological, structural or similar nature.” This cannot be read as narrowly as requiring that the employer has made an irrevocable decision to make a change the consequence of which is that a specified number of employees will be made redundant. The purpose of the consultation is to allow for the possibility of a variation to the decision and/or to the number of employees affected. Any other reading would mean that consultation will generally be meaningless as there would be very little or no prospect of averting the redundancies.

[44] However, this legislative provision is not, as in the TCR test cases or in the consultation provisions required in Awards and Agreements, about any workplace changes that are likely to have a significant effect on employees. Dismissal of 15 or more employees has to be the anticipated consequence of the decision made or there is no jurisdiction for Orders under Section 531 of the Act. There will be circumstances where the employment consequences of a restructuring decision by an employer are not sufficiently clear to trigger the requirement to notify and consult pursuant to Section 531. In those circumstances the trigger for notification and consultation under this provision may be at a later date when more than 15 redundancies is an anticipated consequence.

[45] Having considered the evidence in the particular circumstances of this case I am satisfied that BHP was right when on 11 April 2012 they were of the view that they had obligations to consult with the unions pursuant to Section 531 of the Act as a consequence of the announcement of the intention to close the mine. I am satisfied that an anticipated consequence of the decision to close the mine was that 15 or more employees would be dismissed. It may be that all concerned hoped that this anticipated consequence of the decision to close the mine could be avoided through consultation with the affected unions and employees. The unions also had a right to be consulted about alternatives to avoid the closure of the mine as a way of avoiding the anticipated redundancies.

[46] In the Newcastle Wallsend case the Full Bench decided that in the circumstances of that case that the date of the termination was the date that the notice period expired not the date notice was given. That is the requirement to consult before terminating an employee was a requirement to consult before the date the termination took effect. That is also the circumstance in this case.

[47] 11 May 2012 is therefore the date of the dismissals and redeployments in respect of those employees given notice from 2 May 2012 onwards of voluntary redundancy or transfer. However, the legislation has been varied since the Newcastle Wallsend case to provide that Orders cannot be made for the reinstatement of an employee or to require withdrawal of a notice of dismissal if the notice period has not expired. This adds weight to the conclusion in the Newcastle Wallsend case that the decision referred to in the expression “an employer has decided to dismiss 15 or more employees” must be read as inclusive of the broader decision concerning restructuring which it is anticipated will result in 15 or more redundancies.

[48] This case is distinguishable from the Newcastle Wallsend case because in that case the date of the announcement concerning the mine closure and the date of the notice of the dismissals was the same. The Full Bench found that consultation could not effectively occur after the company had made an irrevocable decision to proceed with the mine closure and associated redundancies. On 11 April 2012 BHP announced the mine closure and advised all employees that they would be redeployed or made redundant by 11 May 2012. However, the outcome for particular employees was not specified.

[49] In the circumstances of this case the situation similar to that in the Newcastle Wallsend case is applicable from 2 May 2012. From that date BHP has made an irrevocable decision to close the mine and has decided to advise employees that they will be redeployed or made redundant effective from 11 or 12 May 2012. BHP argues that 2 May 2012 is the date from when the obligation to provide the opportunity to consult is effective. I consider that the Newcastle Wallsend decision is authority for the proposition that the offer to consult from 4 May 2012 onwards in those circumstances does not meet the requirements of Section 531(3)(a) and (b) of the Act. 20 BHP has at 2 May 2012 made an irrevocable decision to close the mine and to proceed with associated notified individual redundancies and redeployments which employees have been advised are effective from 11 or 12 May 2012. In these circumstances the offer by BHP to consult between 4 May 2012 and 11 May 2012 does not constitute an opportunity to consult which meets the requirements of Section 531(3)(a) and (b) of the Act. There is no genuine opportunity for the unions to influence the outcomes. On the other hand if I am correct and the obligation to provide the opportunity to consult arose in this case from 11 April 2012 then to the extent that I find the opportunity to consult has not been provided as at 2 May 2012 then it follows that there has not been an opportunity to consult which meets the requirements of Section 531(3)(a) and (b) of the Act.

[50] I am satisfied that BHP in announcing the decision to close the mine has decided to dismiss 15 or more employees for reasons of an economic, technological, structural or similar nature or for reasons including those reasons. I am satisfied that this occurred on 11 April 2012 but if I am wrong about this it is conceded by BHP that the requirement in Section 531(1)(a) was met from 2 May 2012.

[51] The nature of consultation required is set out in the extract from the Newcastle Wallsend Full Bench quoted earlier. The unions also referred to the Federal Court decision of Justice Logan in the Queensland Rail case. 21

[52] The decision of Justice Logan was subject to an appeal. Mr Parry for BHP urged my attention to Paragraph 30 of the appeal decision of Chief Justice Keane and Justice Marshall. 22 That paragraph read in the context of the preceding paragraph makes it clear that the contravention was not the failure of the employer to consult with the unions about the privatisation, given that was not a decision made by the employer, but “the exigencies of implementing that decision necessarily gave rise to matters for decision by the appellants which fell within the scope of the consultation obligations.”

[53] The appeal court adopted an approach that there would no longer be any scope for consultation about the change proposal if the employer was able to vary the terms and conditions of employment prior to the consultation. The court adopted the approach that the words “if adopted” were implied in the phrase “proposed changes which will have an impact on employees’ terms and conditions of employment.” 23 The appeal court also concluded that the obligation to consult must arise prior to the decision to invite the acceptance by employees of changes to the terms and conditions of their employment.24 This is consistent with the approach adopted by the Newcastle Wallsend Full Bench. The Full Bench also adopted a similar approach to the phrase “an employer has decided to terminate the employment of 15 or more employees.” That phrase should be read as meaning “an employer has made a decision which if adopted will result in the termination of 15 or more employees”.

[54] The appeal court did not disturb the findings concerning the meaning of consultation in the decision of Justice Logan. Those findings are consistent with the following statements of principle by Commissioner Smith in CEPU v Optus Administration Pty Ltd. 25

“The Oxford English Dictionary defines consult as: “To take counsel together, deliberate, confer,…to seek advice from…to confer about, deliberate upon, debate, discuss, consider… to meditate, plan, devise, contrive…” This is language which connotes active the participation by the parties to the consultation. Consultation is directed towards making an informed decision where the views of the stakeholders can be given mature reflection.

As was stated by Toohey J in TVW Enterprises Ltd V Duffy and others:

Consultation is no empty term. “The requirement of consultation is never to be treated perfunctorily or as a mere formality” (Port Louis Corporation v Attorney-General of Mauritius (1965) AC 1111 at 1124). That decision and others eg Rollo v Minister of Town Planning (1048) 1 All ER 13 at 17 and Sinfield v London Transport Executive (1970) Ch 550 at 558 make it clear that a responsibility to consult carries a responsibility to give those consulted an opportunity to be heard and to express their views so that they may be taken into account.

In Vodafone I made the following observations:

In deciding whether or not to make the orders sought I have considered the importance of consultation. Consultation is not perfunctory advice on what is about to happen. This is common misconception. Consultation is providing the individual, or other relevant persons, with a bone fide opportunity to influence the decision maker. Section 170GA(1)(b) of the Act speaks of measures to avert or minimise terminations or to mitigate the adverse effects of the terminations. Consultation is not joint decision making or even a negative or frustrating barrier to the prerogative of management to make decisions. Consultation allows the decision making process to be informed, particularly as it may affect the employment prospects of individuals.

The opportunity to seek to avoid or mitigate the effects of a termination cannot be underestimated by those who wield power over those and their families who will be the subject of the exercise of that power.

…..

This is not to deny the right of Optus to make a decision that it needs to terminate the employment of persons for economic and/or structural reasons, but having so decided, consultation can only be effective if an opportunity is given to persuade the decision maker on matters of implementation which may then give rise to measures comprehended by s.170GA(1)(b). There is a qualitative difference between contributing to the decision making process and seeking to alter or overturn a decision already made. As the Full Bench in TCR observed:

However, we would indicate that we are not opposed to the concept of a timetable for discussions on the provision is suitable material. Indeed, we feel that sufficient time must be allowed and sufficient material provided if discussions are to be satisfactory. Nevertheless, we are not prepared to award general and detailed provisions such as those set out in the union claim.”

Consideration.

[55] The unions in various meetings and correspondence during the process claimed that BHP had either failed to respond or had not adequately responded to requests for information or to proposals made to reduce or mitigate the adverse effects of the mine closure announcement. The unions regard the consultation process as being largely one where BHP have been telling the unions what they will do and when they will do it.

[56] I do not intend to canvass all of those points. In some cases I reject the evidence and submissions of the unions and am satisfied by the evidence and submissions of BHP that responses or adequate responses were provided. In some cases there is obviously a need for ongoing consultation but there is no reason to believe that such consultation will not occur. This relates to matters such as bonuses to be paid upon transfer, rate of pay for accumulated current year leave entitlements, some accommodation issues and bus arrangements for those transferring to Peak Downs.

[57] I consider the major issues raised by the unions concerning the absence of an opportunity to consult as specified in Section 531(3) which need to be considered further to be:

• Requests for information about the basis for the decision to close the mine so that the unions could be in a position to put forward proposals which could either lead to consideration of alternatives to closure whilst addressing BMA’s operational requirements, or which could lead to maximising the number of employees retained at Norwich Park in the event of closure or reduced operations, or which could lead to a reduction in the length of time of any closure or reduced operations.



• Requests for information and consultation about the care and maintenance positions remaining at Norwich Park and that those positions should be available for redeployment.



• Requests for information and consultation about a list of vacant production positions at other mine sites operated by the company.



• Requests for information about available accommodation and accommodation arrangements where employees were considering redeployment to mines other than Saraji or Peak Downs.



• Request for information and consultation concerning an opportunity for those who seek a review of the individual redeployment or voluntary redundancy decisions advised to employees from 2 May 2012 onwards.

[58] I am satisfied that the following is a fair reading of the evidence as to the approach BHP adopted to consultation with the unions:

• BHP have communicated that the decision to close the mine is irrevocable and that therefore no purpose is served by further consultation and information about the basis for the closure decision. BHP have resisted requests for further information about the basis for the closure decision and the conditions under which the mine might reopen and there is no evidence that any further information has been provided since 12 April 2012.



• BHP have sought advice from each employee as to whether they wish to be redeployed, and if so to which mine, and/or whether they seek Voluntary Redundancy. BHP has then, through one on one discussions, ascertained relevant information which it will take into account in deciding what position in what mine an employee should be redeployed to. BHP have through this individual consultation process, taken into account individual employee needs in determining redeployments.



• BHP have kept the unions informed about the redeployment process and have answered general questions about the process. However, BHP have consistently refused to give the unions or employees information about available positions and or accommodation or to consult with the unions about these matters.



• BHP’s response to many of the issues raised by the unions and many requests for information has been that this can be discussed with individual employees and their representatives in the one on one discussions.



• BHP have through this approach minimised the capacity for unions to influence the process or to formulate proposals or have proposals considered which might reduce the impact of the decision to close the mine. The unions have not been consulted about available positions and have been advised but not consulted about the process for determining how employees will be allocated to those positions.

Consultation and information concerning the preference and selection process

[59] Some of the union concerns about the failure to consult collectively rather than individually about the available positions and allocation to them may be resolved if the process originally advised to employees on 11 April 2012 was implemented. That is, if employees had an opportunity to consider and then accept or seek review of the initial proposed redeployment.

[60] The unions had at various times sought that employees should get feedback before a decision is made and that employees should be able to review their preferences. The unions argue that this is necessary because employees and their unions did not have full information about the shifts, position and accommodation available to them when they specified their preference. The unions submit that employees were asked to make an irrevocable decision by expressing their preference within 14 days of receiving the advice about the mine closure without access to adequate information or without the unions having an opportunity to consult collectively on their behalf about the process which might minimise the adverse impact of the decision and associated dismissals. BHP made it very clear that the preference was about which mine was preferred. Consequently there was no capacity on the preference form for an employee to specify a particular position or to qualify that their preference only operated if accommodation of the required standard was available. BHP refused to make available lists of vacant positions and hence employees did not know what positions were available when making their preference. BHP did make it clear that there were a significant number of positions available at Saraji and Peak Downs. BHP said that they would take into account individual needs identified through the one on one interviews. BHP also gave evidence that in some cases they have created extra positions to accommodate or retain employees.

[61] BHP advised on 26 April 2012 that: 26

“If the redeployed position will place the employee in a position of hardship or if there has been a significant change in the employee circumstances, BMA will offer the employee a follow-up meeting to discuss the availability of other redeployment opportunities in accordance with their remaining preferences and or within the BHP Billiton Group generally. At that meeting, the employee can raise any concerns, including particular hardships which may affect their redeployment and may express interest in voluntary redundancy.”

[62] The unions were not consulted about this proposal and in the absence of information about vacant positions it is unlikely that such consultation with the unions could be effective. The 26 April 2012 advice does not change the position that effectively employees were asked to make an irrevocable decision when they submitted their preferences. The 26 April 2012 advice does not provide a clear right to review as it is constrained to situations where BHP believe there is hardship or significant change in circumstances. The redeployment letters sent to employees make no mention of any right to review. There is only one week between the time of notification of redeployed positions and the date of their effect. This is not adequate time for an opportunity to consult about the process and it is difficult to see how it is adequate time to effectively review. More relevantly the unions have not had the opportunity to be consulted about the process and have not had the relevant information to enable them to effectively consult.

[63] The unions requested on 12 April 2012 and on many subsequent occasions to be provide with a list of vacant production positions at other mine sites operated by the company. The company responded that they would determine what jobs needed to be filled and who was suitable to fill them. BHP made it clear that the process was not designed to allow employees to know where the vacancies (including job type and roster position) are before completing their preference forms. However, BHP did make a full list of vacant positions available for the affected “staff” employees.

[64] Ms Lewis gave evidence that the vacancy list does exist but that the list changes each day, in some cases by up to 50 positions a week.

[65] I am satisfied that the unions and employees were advised that there were a significant number of vacancies at Saraji and Peak Down mines. Transfer to these mines does not require employees to shift from their accommodation in Dysart. I doubt that there are major problems with the process for the 140 employees for whom these mines were their first preference and who have had that preference accepted. I accept that there may be some issues about the nature of the particular job and shift arrangements and the provision of vacancy information and consultation with the unions may have ameliorated some adverse effects of the closure and associated dismissals. However, I doubt that the outcomes for these employees would have been significantly different if the unions had received the information and consultation sought.

[66] However, in respect to the 7 employees who unsuccessfully sought redeployment to those mines as their first preference there may be greater questions. If the unions were informed about available vacancies they may be able to assist BHP to reduce the adverse impacts of the mine closure for those employees and avoid the dismissal of those employees.

[67] Similarly a number of employees who have been selected for redeployment to other more distant mines may face significant accommodation issues. BHP may well have individually advised employees of some of the relevant issues at the time employees made their preferences. However, the nature of these issues is that family and other circumstances can change and preferences can be affected by the availability of further information. If more information was provided to the unions and further consultation occurred about accommodation availability and options the outcomes could be influenced in a way that assists BHP to reduce the adverse impacts of the mine closure for those employees and related proposed dismissals. As discussed earlier, an employee who declines the redeployment direction issued between 2 and 4 May 2012 in these circumstances may be redundant. BHPs failure to provide such information and the opportunity for consultation was a failure to consult as soon as practicable after making the decision. The opportunity to consult could reduce the numbers and or mitigate the adverse effect of the closure and proposed dismissals.

[68] Employees were advised of the proposed redeployments and voluntary redundancy acceptances from 2 May 2012 onwards. The evidence is that some will not receive advice prior to 8 May 2012. The effective date of these changes to employment arrangements is 12 May 2012. I am satisfied that the period between the receipt of the notice and the date of effect is not sufficient for the opportunity for consultation to occur consistent with the advice given to employees and the unions on 11 April 2012 in the event that an employee has a concern about the notice and seeks a review of that notice and consideration of an alternative outcome which avoids redundancy. There should be an opportunity for consultation with the unions about the process to be followed and available options and then with the individual employees and their representatives about the particular cases. This is necessary if there is to be an opportunity for the unions to consult with BHP about measures to avoid and reduce the dismissals and mitigate the adverse effects of the proposed dismissals.

[69] I consider that to put the unions and the employees in the same position (as nearly as can be done) as if the employer had complied with subsections 531(3) requires that there should be an opportunity for consultation about the process to be utilised to review redeployment and or voluntary redundancy options for those employees who do not accept the redeployment or voluntary redundancy decisions advised to them after 2 May 2012 and seek a review of those decisions. This consultation cannot occur without the provision of a current list of the vacant production and engineering positions at other mines and vacant accommodation. This information should be regularly updated during the consultation process. This would give the unions an opportunity to consult about avoidance of dismissals and mitigation of the effects of the closure and associated dismissals. It is also essential for this consultation that aggregate data on redeployment and voluntary redundancy preferences, offers, acceptances, rejections and requests for review be provided to the unions and be regularly updated during the consultation process.

[70] The closure of the mine and the implementation of the notified redundancies and redeployments, some of which if rejected could also lead to redundancies, are scheduled to take place in two or three days. I do not consider that this time frame is adequate for such consultation to occur. BHP gave evidence that many employees were happy with the redeployment decisions advised from 2 May 2012 onwards. I expect that many employees will accept the redeployment and voluntary redundancy decisions made and there is no barrier to this occurring. I am also mindful of potential costs of delay to BHP. I consider an additional week to 18 May 2012 to be the absolute minimum practical time to allow for initial consultation. In that initial period there should not be any involuntary redundancies or forced transfers of those who do not accept their redeployment or who seek review of their redeployment. I consider that there should then be a further period of three weeks to 8 June 2012 during which the opportunity for consultation should continue supported by the relevant information. There is the prospect that further consultation could avoid dismissals and mitigate the effects of the closure and associated dismissals. I consider that regular meetings should be required but of course those meetings can be cancelled by agreement.

Consultation and information concerning the mine closure

[71] The unions requested on 12 April 2012 and on many subsequent occasions that they be provided with details regarding the cash costs of the mine and how much BMA were getting per tonne of coal. Mr Pierce for the unions gave evidence that BHP has repeatedly refused to provide the information sought and told the unions it was not relevant as the decision to close the mine was irrevocable. The witnesses for BHP gave evidence that at the meeting on 12 April 2012 Mr Evans for BHP did say that the information sought was not relevant but on the third occasion the matter was raised Mr Evans did say that $80 per tonne cost was the level BHP had identified as required for effective operations. Even if I accept the evidence of BHP on this matter I am satisfied that the information is not particularly useful to enable the unions to develop alternative proposals without information on the current cost per tonne. It was confirmed that this information was not provided to or known to the unions.

[72] Mr Lake gave evidence that BMA has a rolling five year plan. The unions sought orders that access be provided to this document.

[73] I am satisfied that the unions were provided with some general information about the reasons for the closure. This was sufficient for the unions to be able to raise alternatives to the closure in general terms. I accept that those alternatives could not be detailed without provision of more detailed information about current costs versus required costs and the provision of more detailed information concerning the options considered by BHP in the review report. There is no evidence that the unions have proposed alternatives to the closure or have advised BHP that they are prepared to look at changed arrangements to decrease the costs of operation.

[74] I am satisfied that if there is to be an opportunity for the unions to consult with BHP about measures to avoid and reduce the dismissals and mitigate the adverse effects of the proposed dismissals, it is necessary for the unions to be provided with adequate information about the reasons for the decision to close the mine and what would be required for effective operations to resume. This information is necessary for the unions to be in a position to put forward alternatives which may avoid or reduce the need for dismissals and mitigate the adverse effects. BHPs failure to provide such information was a failure to consult as soon as practicable after making the decision.

[75] In respect to the nature of the information which should be available to the unions, BHP argues that the review report sought does not contain the decision to close the mine and that the release of this report during the current climate of industrial disputation would be inappropriate. BHP argues that there is no evidence before me that the 5 year BMA plan has any relevance.

[76] I accept that the unions are not responsible for the delays in this matter being determined, however, given that the process has proceeded to the point it has I consider that no Orders that I might make at this time are likely to lead to serious consideration by BHP of alternatives to the mine closure. Despite finding that the failure to provide information has resulted in a failure to provide an opportunity to consult in breach of Section 531(3), and after taking into account the submissions of BHP, I do not consider it appropriate to make the Orders sought by the unions in respect to the review report or the 5 year BMA plan.

Consultation and information about remaining jobs at Norwich Park

[77] The unions requested on 12 April 2012 and on subsequent occasions information in respect to the nature of the work and equipment required for care and maintenance. In addition to general matters the unions raised the need for a pumping crew; arrangements for cleaning, security and plumbing; annual leave coverage; and arrangements for rehabilitation work.

[78] BHP first provided details of the care and maintenance positions in accordance with the Statement of 20 April 2012 on 27 April 2012. Prior to that date BHP had advised that they were considering what was required, that there would be limited work, that the work would be intermittent, and that the work would be performed by contractors. On 27 April 2012 the unions were advised that there would be ten positions and that the roles would be 35 hours per week Monday to Friday with variable workload which may include periods of stand down due to inactivity. BHP agreed to provide further information about the process for filing these roles on 30 April 2012.

[79] On 30 April 2012 BHP changed its position concerning the filling of these roles and accepted that it was possible for Norwich Park employees to be first offered the positions. BHP advised that:

“Noting that the roles will be on lower salary than current roles at Norwich Park Mine, BMA does not regard these roles as equivalent for the purpose of redeployment. However, employees who would prefer one of these roles to their redeployment option (or VR if granted) can submit an expression of interest. BMA will seek Expressions of Interest from employees in filling these roles later this week or early next week after we have completed processing the employee preference forms. An outline description of the roles to be performed will be included when BMA seeks Expressions of Interest.” 27

On 1 May 2012 this was further clarified by making it clear that “if there is not sufficient interest from permanent employees, we will consider the use of contractors in performing these tasks.” 28

[80] Expressions of interest had not been called for at the time of the hearing on 4 May 2012.

[81] BHP advised that there was no requirement for a specific pumping crew. BHP advised that cleaning, security and plumbing had not traditionally been covered by the Agreement and would continue to be performed by contractors.

[82] It is not clear how the expression of interest process in respect to these roles interrelates with the redeployment process more generally. The unions are seeking further consultation about the nature of the roles and about the cleaning, security, rehabilitation and plumbing work.

[83] I am satisfied that the evidence shows that BHP has to some extent informed the unions but has not consulted with the unions about the remaining jobs at Norwich Park and the arrangements for them.

[84] It is self evident that consultation and information about remaining jobs and job opportunities at Norwich Park Mine is a critical element of any opportunity to consult about mitigation and avoidance of likely dismissals and their adverse effect arising from the closure decision.

[85] I am satisfied that BHP has not provided the relevant information or consulted about these matters. I am also satisfied that consultation is unable to be effectively concluded by 11 May 2012 given that the lack of information and consultation concerning the details of the Expression of Interest process for the 10 positions and their interrelationship with the redeployments and voluntary redundancies advised to employees from 2 May 2012 onwards.

[86] I consider that to put the unions and the employees in the same position (as nearly as can be done) as if the employer had complied with subsections 531(3) requires that there should be an opportunity for consultation about the employment arrangements to be utilised in respect to work required to be performed at the Norwich Park Mine following the cessation of mining operations including but not limited to the number of employees required, the employer, the shift arrangements, and the expressions of interest process. This consultation cannot occur without the provision of information as to the anticipated labour requirements for care and maintenance at the Norwich Park Mine following closure.

[87] I consider an additional week to 18 May 2012 to be the absolute minimum practical time to allow for initial consultation. In that initial period there should not be any involuntary redundancies or forced transfers of those who do not accept their redeployment or who seek review of their redeployment. I consider that there should then be a further period of three weeks to 8 June 2012 during which the opportunity for consultation should continue supported by the relevant information. I consider that regular meetings should be required but of course those meetings can be cancelled by agreement.

Conclusions.

[88] I am satisfied that BHP has not provided the unions with an opportunity to consult the employer on measures to avert or minimise the proposed dismissals or on measures to mitigate the adverse effects of the proposed dismissals as soon as practical after making the decision which it was anticipated will result in 15 or more redundancies.

[89] Some consultation has taken place, however, there are some critical aspects where that opportunity has not been provided which I have outlined earlier.

[90] I consider that it is appropriate and in the public interest to make Orders in these circumstances to put the unions and the employees in the same position (as nearly as can be done) as if the employer had complied with subsections 531(3). The closure of the mine will have a significant impact on the town of Dysart. It is in the public interest that the unions, on behalf of employees collectively, have the opportunity to seek to minimise that impact in consultation with BHP. I do not consider that the Orders sought by the unions are the appropriate Orders. I consider that the Orders should relate to the failures to consult or provide information that I have specifically addressed earlier. I will Order as follows [PR523558]:

Pursuant to s532 of the Fair Work Act 2009, Fair Work Australia Orders that:

1. BHP Coal Pty Ltd (the Respondent) disclose the following information to the Construction, Forestry, Mining and Energy Union, the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Applicant Unions):

• The currently anticipated labour requirements for care and maintenance at the Norwich Park Mine following closure including but not limited to security, plumbing, rehabilitation, cleaning, and maintenance;



• A list of the vacant production and engineering positions at other mines to which the BHP Coal Pty Ltd Workplace Agreement 2007 applies on a weekly basis over the next four weeks;



• A list of company accommodation available in the towns of Moranbah, Blackwater and Emerald on a weekly basis over the next four weeks;



• Aggregate data on redeployment and voluntary redundancy preferences, offers, acceptances, rejections and requests for review updated on a weekly basis until 8 June 2012.

2. The Applicant Unions give the Respondent an enforceable undertaking not to disclose any information provided under Order 1 that is confidential or commercially sensitive.

3. Until 18 May 2012 or earlier Order of Fair Work Australia, the Respondent refrain from:

• Forcing employees who raise concerns about the redeployment or voluntary redundancy decisions advised to them after 2 May 2012 to transfer to other mines;



• Issuing notices of involuntary retrenchment to any employee covered by the BHP Coal Pty Ltd Workplace Agreement 2007 engaged to work at the Norwich Park Mine.

4. The Respondent meet in person with the Applicant Unions three times per week during the period to 8 June 2012 to consult on measures to avert or minimise the proposed dismissals arising from the decision to cease operations at the Norwich Park Mine including but not limited to:

• The process to be utilised to review redeployment and or voluntary redundancy options for those employees who raise concerns about the redeployment or voluntary redundancy decisions advised to them after 2 May 2012.



• The employment arrangements to be utilised in respect to work required to be performed at the Norwich Park Mine following the cessation of mining operations including but not limited to the number of employees required, the employer, the shift arrangements, and the expressions of interest process.

5. Any dispute arising from the application of this order shall be referred to Fair Work Australia for determination.

COMMISSIONER

Appearances:

Mr A Slevin with Ms J Hobson appeared for the CFMEU and the CEPU.

Ms J Campbell appeared for the AMWU.

Mr F Parry with Mr J Forbes appeared for BHP Coal.

Hearing details:

2012
Brisbane
May 4

 1   Exhibit Unions 3, attachments NF1 to NJ7.

 2   Exhibit Unions 1.

 3   Exhibit Unions 2.

 4   Exhibit Unions 3.

 5   Exhibit BHP 1.

 6   Exhibit BHP 2.

 7   Exhibit BHP 3.

 8   Exhibit BHP 4.

 9   Exhibit BHP 5.

 10   Exhibit Unions 3, attachment NJ1.

 11   Ibid.

 12   Ibid.

 13   Ibid.

 14   Ibid.

 15   Ibid.

 16   Ibid.

 17   Exhibit Unions 2, attachment SP12, and Exhibit BHP 4.

 18   Exhibit BHP 2 and Exhibit BHP 3.

 19   Print R0234, Ross VP, MacBean SDP and Deegan C, 21 December 1998.

 20   Print R0234, Ross VP, MacBean SDP and Deegan C, 21 December 1998 at paras 73 and 74.

 21 [2010] FCA 591.

 22 [2010] FCAFC 150.

 23 [2010] FCAFC 150 at para 35.

 24 [2010] FCAFC 150 at para 36.

 25   PR912122, 4 December 2001 per Smith C.

 26   Exhibit Unions 2, attachment SP6.

 27   Exhibit Unions 2, attachment SP8, and Exhibit BHP 1.

 28   Exhibit Unions 2, attachment SP10.

Printed by authority of the Commonwealth Government Printer

<Price code G, PR523528>