Construction, Forestry, Mining and Energy Union v Fulton Hogan Construction Pty Ltd

[2017] FWC 4291

[2017] FWC 4291

FAIR WORK COMMISSION

REASONS FOR DETERMINATION

Fair Work Act 2009
s.739—Dispute resolution

Construction, Forestry, Mining and Energy Union
v
Fulton Hogan Construction Pty Ltd
(C2017/2459)

COMMISSIONER MCKENNA SYDNEY, 17 AUGUST 2017

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

[1] On 11 August 2017, I made a determination in relation to this dispute. My reasons for that determination follow.

Background

[2] On 10 May 2017, the Construction, Forestry, Mining and Energy Union (“the union”) made an application pursuant to s.739 of the Fair Work Act 2009 (“the Act”) concerning a dispute with Fulton Hogan Construction Pty Ltd (“the company”). Since lodgement, the dispute has had various listings and there was a state of fluidity concerning matters which were in dispute at different stages of the proceedings. Some matters in dispute eventually resolved by agreement. In the end, there relevantly remained one unresolved and time-sensitive aspect to the dispute involving an individual employee of the company named Paul Wright.

[3] The industrial instrument specifying the dispute resolution procedure is the Fulton Hogan Eastern Construction (NSW Civil Projects) Enterprise Agreement 2016 (“the Agreement”). Clause 48 of the Agreement bestows broad-ranging powers of dispute resolution in that it relevantly refers to a “concern or dispute”. By operation of clause 48(e), if the dispute remains unresolved, the Commission may arbitrate. Clause 48(f) provides that any decision by the Commission shall not be inconsistent with the National Code of Practice for the Construction Industry and the Australian Government Implementation Guidelines for the National Code of Practice for the Construction Industry, together with the NSW Code, the Implementation Guidelines or legislative obligations.

[4] At clause 61, the Agreement contains a provision in relation to supplementary labour. That clause reads, in part: “During times of project demobilisation and redeployment, the company will ensure supplementarylabour is demobilised prior to direct employees; except where specialist skills are required or where they are performing critical works that cannot be performed by the remaining workforce.” There are provisions of the Agreement to which the union referred in its submissions that may, on one view of it, be read in a way which could be considered to have a tandem operation which directly or indirectly complements the obligation in clause 61 that the company will, subject to the proviso also within that clause, ensure that supplementary is demobilised prior to direct employees. Those other provisions to which the union referred include clause 5 (Objectives), clause 58 (Consultation) and Appendix A.

[5] As a result of discussions in earlier proceedings, it was agreed that the matter should be listed for Conference and/or Hearing on 2 August 2017. By consent application, that Conference and/or Hearing was rescheduled to 8 August 2017. The parties devoted part of the time on 8 August 2017 to attempting to resolve the dispute - with partial success. As the dispute particularly concerning Mr Wright did not resolve on 8 August 2017, that aspect proceeded into arbitration later that day and continued into the following day.

[6] For its part, the union adduced evidence, viva voce, from Mr Wright and two officials of the union, namely, Dean Rielly and David Kelly. Much, but certainly not all, of the evidence adduced in the union’s case was hearsay - but was put forward as being the best knowledge the witnesses had as to matters which otherwise might more particularly be within the direct knowledge of the company. For its part, the company did not adduce any witness evidence. Reliance was principally placed by the company on a wages forecast document comprising three pages of spread sheets. That document, which was marked for identification, apparently was prepared on or about 2 July 2017, with its forecast running to 24 December 2017, concerning matters including projects, employment status, job classifications, finish dates, and the like. The closing oral submissions for the union and the company were characterised, even by each of the advocates themselves, as containing “evidence from the bar table”. The proceedings adjourned on the basis that written submissions concerning, particularly, a late-arising jurisdictional matter were to be filed and served by specified times and dates.

[7] I relisted the matter at 2.15pm on 11 August 2017 and made a statement about the course I proposed to adopt in circumstances that had arisen as a result of error on my part concerning the timing for the filing and service of written submissions, i.e. the timing for the final written submissions effectively coincided with the time and date concerning the impugned termination of Mr Wright’s employment by redundancy - with the result that any determination made thereafter would have been, in practical terms, otiose.

[8] Given the broad-ranging powers of dispute resolution in relation to the “concern or dispute” and the Commission’s powers of arbitration under the Agreement, and subject also to my consideration of the submissions of the union and the company concerning clause 48(f) of the Agreement, I considered as persuasive the union’s reference to and reliance upon the decision of Asbury DP in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd[2014] FWC 2062. I also considered it appropriate, in the exercise of discretion, to make the determination in the terms that issued rather than including the more ambitious matters addressed in the union’s proposed draft determination.

[9] I have noted earlier the characteristics of cases that were advanced, respectively, by the union and the company. While the respective cases may have been imperfect, considered in an evidentiary sense, the Commission is not bound by the rules of evidence; and there was sufficient in the union’s case to raise reasonable issue about the company’s approach to the letter and spirit of the Agreement in relation to Mr Wright (and also, I am bound to note, in the context of him being considered to be, in his capacity as a union delegate who has raised safety and other issues, a “troublemaker”) and, relevantly as to this dispute, an employee who would not be considered by the company for redeployment when the project in which he was engaged completed (and insufficient in the company’s case to dispel such matters that were raised by the union).

[10] I have heard entirely unchallenged/uncontested evidence in two separate disputes proceedings about what was said concerning Mr Wright in such respects and, in this present dispute, relevantly in the context that he would not be considered by the company for redeployment. In a decision concerning an earlier dispute involving the parties, being a dispute turning on issues different from those arising in the present proceedings (Construction, Forestry, Mining and Energy Union v Fulton Hogan Construction Pty Ltd[2017] FWC 3411), I commented as follows:

“[30] I should make a comment about an employee/union delegate who gave evidence in the proceedings, Mr Wright. There was some suggestion in the proceedings that Mr Wright was considered to have given evidence “against” Fulton Hogan. As Mr Wright noted in his evidence:

“I don’t regard myself as acting against the Company at all. I’m actually committed to Fulton Hogan. I work hard and I want the Company to do well. I don’t see how wanting subcontractors to be safe and professional is acting against the Company”.

[31] Mr Wright raised other matters in his evidence about past instances related to, for example, employees of subcontractors undertaking work without due regard for workplace safety measures such as personal protective equipment. Mr Wright was plainly sincere in the concerns to which he referred and in his wish for such matters to be properly assessed by Fulton Hogan. Raising such matters, by bringing them to Fulton Hogan’s attention, squarely goes to Fulton Hogan’s interests as well as to the workers to whom Mr Wright made reference in his evidence. Mr Wright’s evidence was not evidence “against” the company.

[32] I accept without hesitation Mr Wright’s evidence that he raised matters in good faith. If it is the case that Mr Wright is now seen by Fulton Hogan as “a troublemaker”, that is plainly not the case. Indeed, Mr Wright has been responsibly endeavouring in his role as “a carpenter, as a leading hand and as a Union delegate” to draw attention to matters of concern which may not have been picked-up through Fulton Hogan’s own vetting mechanisms. Mr Wright’s evidence was that “All I want is for the Company to work with us when an issue comes up.” As to this, I observe there would be clear benefit in both the CFMEU and Fulton Hogan seeking to address matters with respect to subcontracting companies which are not properly attending their own responsibilities as employers when undertaking work on Fulton Hogan projects. This is so regardless of whether a subcontractor’s failure to attend to its obligations arise from inadvertence or arise from reasons which are less-benign than mere inadvertence.”

[11] I do not accept the company’s characterisation of the union’s application for a determination concerning Mr Wright to amount to some form of “reverse discrimination” in seeking something above and beyond what applied in relation to other of its employees by seeking more beneficial or specialised treatment for Mr Wright solely or principally because of his status of union delegate. The effect of what was being sought by the union was to achieve the outcome of proper/equal treatment as between employees, unaffected by the perception of Mr Wright being a union “troublemaker” who would not, as a corollary, be considered for redeployment or be redeployed when the project on which he was working completed – and Mr Wright is, having been re-engaged previously by the company, considered to be a capable and hard-working employee. I am of the view that there was some lack of appetite by the company to meaningfully consider Mr Wright for redeployment – and I say that where it is also to be acknowledged that a number of jobs were concluding or about to conclude. In circumstances where the project on which Mr Wright was working was rapidly drawing to a conclusion and having regard to the provisions of clause 61 of the Agreement, it remains unsatisfactorily explained why, for example, it was the case that the company should during timeframes relevant to this dispute:

(a) have been engaging labour hire companies’ employees and directly employing labour hire employees (the company’s spread sheets were unclear as to which employees were relevantly involved and the timing thereto); and/or

(b) not have offered redeployment opportunities to Mr Wright when, for instance –

(i) two employees who had been offered certain redeployments were unsuitable for those redeployments due to exigencies relating to clearances (and, in turn, were then given different positions inter-State with the company), that potentially would have been suitable for next offer to Mr Wright; and

(ii) an employee/work colleague of Mr Wright (who resigned) declined a redeployment offer that potentially would have been suitable for next offer to Mr Wright.

[12] It is quite unsatisfactory, given the agreement recorded in the transcript (at a time when the company was represented by an agent, rather than by an in-house representative) of the Commission proceedings of 18 May 2017, that the company failed to adhere to a commitment to provide certain information to the union by the specified date. The provision of such information presumptively would have assisted, in a timely way, with the proactive identification of potential redeployment opportunities including through consultation of the type envisaged by clause 58 of the Agreement for a range of employees, including, but not limited to, Mr Wright. The effect of the union’s submissions was that the failure to provide such information engineered a situation, or at least had a similar outcome or result, whereby proper consultation about matters did not and could not occur, and defeated potential opportunities as to the proper engagement of clause 61 of the Agreement. While I do not draw any conclusions about whether, in relation to the circumstances relevant to the proposed redundancy of Mr Wright, the company had made a decision to introduce major workplace change within the meaning of clause 58, I would accept that the timing and circumstances of the company’s provision of certain information to the union or the employees themselves was not conducive to productive discussions concerning, among other employees, Mr Wright.

[13] I otherwise note the terms of clause 58 of the Agreement concerning consultation provides as follows:

“58 CONSULTATION

Where the Company is considering and prior to any decision on the introduction of major workplace changes that are likely to have a significant effect on Employees, the Company will notify and consult with the Employees and their representative/s.

The Company will recognise the representative/s and consult in good faith in relation to such proposed changes.

Provided however this clause shall not be construed as providing any rights which are inconsistent with s 194(f) or (g) of the Fair Work Act.

The obligation to notify and consult includes providing all relevant details to the Employees and their representative/s in writing with:

(a) The nature of the changes, any proposed timing of the changes and the expected likely effect on Employees.

(b) Any measures the Company is proposing to take to avert or mitigate any adverse effects of such changes on Employees.

(c) Any other matters related to the changes which may affect the Employees.

In this clause major workplace changes that are likely to have a significant effect on Employees includes:

(a) Changes to composition, operation or size of the workforce or the skills required of Employees.

(b) Elimination or reduction of job opportunities (including promotion/tenure)

(c) Alteration of hours

(d) Retraining, relocation and or restructuring.

(e) Changes to the legal or operational structure of the Company or business, including changes to business ownership or control.

(f) Changes to drug and alcohol program.”

[14] The company would be well-advised to pay close attention in the future (as against what I am aware has unfolded over the time this dispute has been before the Commission) to its clause 58 obligation to notify and consult, including providing all relevant details to the employees and their representative/s in writing as to the matters specified in that consultation clause. I accept the union’s submissions that it should not have been the case that it should have been put to seeking to have to obtain such information through notices to produce and the like, given the nature of the positive obligations on the company under the Agreement.

[15] Matters identified in the spread sheets relied on by the company did not contain information that was current as of the time of the hearing or which, it seemed to me, could be relied upon in demonstration of its contention that there was no (or had been no) suitable redeployment for Mr Wright within the meaning of clause 61 of the Agreement. It is the company’s contention that a genuine redundancy is involved in relation to Mr Wright given the completion of work on the project in question. A redundancy/genuine redundancy is not, however, necessarily a type of self-executing matter of the type suggested by the company – and in this case there are provisions within the Agreement which interact with such matters. While I do not have an unfair dismissal application before me, it is apposite in such respects to note, for example, the comments of the Full Bench in Technical and Further Education Commission T/A TAFE NSW v Pykett[2014] FWCFB 714, where the following was said as to genuine redundancy within the meaning of Part 3-2 of the Act:

“[36] … For the purposes of s.389(2) the Commission must find, on the balance of probabilities, that there was a job or a position or other work within the employer’s enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy the dismissed employee. There must also be an appropriate evidentiary basis for such a finding. Such an interpretation is consistent with the ordinary and natural meaning of the words in the subsection; the Explanatory Memorandum and Full Bench authority. We acknowledge that the facts relevant to such a finding will usually be peculiarly within the knowledge of the employer respondent, not the dismissed employee. If an employer wishes to rely on the ‘genuine redundancy’ exclusion then it would ordinarily be expected to adduce evidence as to the following matters:

(i) that the employer no longer required the dismissed employee’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise;

(ii) whether there was any obligation in an applicable modern award or enterprise agreement to consult about the redundancy and whether the employer complied with that obligation; and

(iii) whether there was a job or a position or other work within the employer’s enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy the dismissed employer.

[37] The evidence in relation to (iii) would usually include canvassing the steps taken by the employer to identify other work which could be performed by the dismissed employee.” (my underlining)

Conclusion

[16] Having regard to matters including the foregoing, I issued the determination in question on 11 August 2017.

[17] It may be fully anticipated, given the flavour of the submissions of the respective parties and correspondence, that further proceedings - of one description or another (appeal, adverse action, unfair dismissal) - will be initiated by either or both parties. Such approaches are, of course, the prerogative of the parties. However, further proceedings could, I would hope, be averted by a constructive approach to matters.

[18] I note also that the company has new projects that are upcoming, albeit not immediately. In the context of those new projects, consideration might fruitfully be given to discussing a range of potential options concerning not only Mr Wright but also those other employees (not the subject of the present dispute) that the company has indicated will be made redundant in the next few weeks.

[19] With the issuing of the earlier determination and now the reasons for the determination, however, these proceedings are concluded.

COMMISSIONER

Appearances:

M Aird for the Construction, Forestry, Mining and Energy Union.

R Baonza for Fulton Hogan Construction Pty Ltd.

Hearing details:

2017.

Sydney:

August 8, 9

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