Construction, Forestry, Mining and Energy Union v Giacci Bros Pty Ltd
[2012] FWA 8484
•11 OCTOBER 2012
Note: An appeal pursuant to s.604 (C2012/5719) was lodged against this decision.
[2012] FWA 8484 |
|
DECISION |
Fair Work Act 2009
s.437—Protected action
Construction, Forestry, Mining and Energy Union
v
Giacci Bros Pty Ltd
(B2012/1014)
COMMISSIONER ROBERTS | SYDNEY, 11 OCTOBER 2012 |
Proposed protected action ballot by employees of Giacci Bros Pty Ltd - jurisdictional objection - union eligibility rules examined - jurisdictional objection dismissed - protected action ballot approved.
[1] This decision concerns an application made by the Construction, Forestry, Mining and Energy Union (the CFMEU or the Union), pursuant to s.437 of the Fair Work Act 2009 (the Act), for a protected action ballot order in relation to employees of Giacci Bros Pty Ltd (Giacci or the Company), who are members of the CFMEU engaged in working for Giacci and based at the Newstan Colliery (Newstan) of Centennial Coal (Centennial).
[2] The application by the CFMEU was made on 17 September 2012 and first came before me in Sydney for hearing on 20 September 2012. The matter was then adjourned to 27 September 2012 to allow Giacci to bring witness evidence in relation to a jurisdictional objection. That objection is based on Giacci’s claim that the CFMEU does not have eligibility to enrol Giacci employees based at Newstan. Giacci therefore argues that the CFMEU does not have standing to bring its application pursuant to s.437 of the Act.
[3] Mr K Endacott represented the CFMEU with Mr G Sharp (Vice President of the CFMEU’s Northern District Branch) and Mr G McCorry represented Giacci, by permission. Sworn evidence was given by Mr Sharp and Mr P Stoimenoff (a CFMEU member working as an operator for Giacci and a CFMEU delegate) on behalf of the CFMEU and Mr N Drakeford (Northern Coal Services Manager for Centennial Coal), under summons, Mr G Somner (Logistics Manager) and Ms N Higgs (Human Resources Manager) gave sworn evidence for Giacci.
[4] Centennial is comprised of Centennial Newstan Pty Ltd, Centennial Mandalong Pty Ltd and Centennial Myuna Pty Ltd. The Group mines and processes black coal on its mining leases around the Fassifern area of the Hunter Valley in New South Wales. It has contracted Giacci to transport coal and associated by-products within and between its leases and to a much lesser extent to and from Eraring Power Station (Eraring). Schedule 2 of the Contract provides:
“1. Description of Services
1.1 This Agreement covers the provision of haulage of coal and the associated services as and when required for the following Mines:
a) Mandalong, Newstan, Awaba and Myuna mine sites as required.
b) Services include work at the Mine sites, haulage roads between the sites and Eraring Power Station; …”
[5] I note here that the Awaba and Myuna mines have closed down since the Contract was executed. That fact is only mentioned for the purpose of completeness and has no practical effect on my decision making.
[6] Giacci is, as a whole, a company engaged in bulk haulage by road transport. The bulk of its operations are in Western Australia, as is its Head Office. To fulfil its contract obligations to Centennial, Giacci operates a branch office located at Newstan. Some 37 employees of Giacci are based at Newstan and they work solely on duties associated with the Contract. Those employees do not perform any work for Giacci beyond that required by the Contract.
[7] The Contract between Giacci and Centennial has operated since 2002. Prior to that date, Ellisons Bulk Haulage Pty Ltd (Ellisons) had been contracted to haul coal from the Newstan mine to Eraring. Ellisons did not haul coal from or between other mines. 1 Giacci’s Newstan-based operation is its only business operating on the east coast of Australia.
[8] On 23 April 2012 Giacci issued a Notice of Employee Representational Rights (the Notice) to its employees at Newstan 2, which relevantly states:
“Giacci Bros Pty Ltd gives notice that it is bargaining in relation to an enterprise agreement (Giacci Bros Pty Ltd NSW Operations Enterprise Agreement 2012) which is proposed to cover employees that are employed by Giacci Bros Pty Ltd at its NSW Operations, in occupations covered by the Black Coal Modern Award 2010.”
[9] On 15 May 2012, Giacci wrote to Mr Stoimenoff 3. The letter relevantly said:
“A bargaining meeting has been scheduled for 1 pm Monday 21 May 2012 at the Newstan Collieries site. This meeting will be to carry out bargaining for the Giacci Bros Pty Ltd NSW Operations Enterprise Agreement 2012 which is proposed to cover employees that are employed by Giacci Bros Pty Ltd at its NSW Operations, in occupations covered by the Black Coal Modern Award.
As a nominated bargaining representative for negotiations pertaining to this agreement you are invited to attend this meeting. Your supervisor has been notified and arrangements will be made to allow you to attend if you would have normally been rostered on to work during this time.”
[10] Further meetings between Giacci and CFMEU representatives followed on 7 June, 5 July, 31 July and 17 September 2012. It was also on 17 September 2012 that the CFMEU lodged this application. The Notice was still in force and had not been withdrawn by Giacci when the matter first came before me for hearing on 20 September 2012 and Giacci notified its intention to raise a jurisdictional objection to the CFMEU’s application. During proceedings Giacci claimed that the Notice had been withdrawn and a new Notice issued, naming the Road Transport and Distribution Award 2010 (the Transport Award) as the relevant award to underpin negotiations for a new enterprise agreement. No documentation was tabled during proceedings to support the Company’s claims. The Company also stated during proceedings that no negotiations with the Transport Workers’ Union of Workers (the TWU) had yet occurred. There is also nothing before me which would indicate that any of the relevant Giacci employees are currently members of the TWU.
[11] The first enterprise agreement specifically covering Giacci’s employees based at Newstan was the Giacci Bros Pty Ltd NSW Operations Enterprise Agreement (Giacci Bros Agreement). The nominal expiry date of that agreement has passed. Neither the CFMEU nor the TWU were parties to that agreement. The bargaining initiated by Giacci on 23 April 2012 was intended to lead to the making of a new agreement.
[12] The agreed position between the CFMEU and Giacci is that, should Giacci’s jurisdictional objection be dismissed I would then move to consider the protected action ballot application without further input from the parties.
Evidence
Mr Somner
[13] Mr Somner gave evidence by telephone and submitted a witness statement. 4
[14] It was Mr Somner’s statement that the Company operates a bulk haulage business, mostly in Western Australia. “In NSW it hauls coal for the Centennial Coal group of companies.” He has worked for Giacci since December 2002. Prior to his employment with Giacci he was employed by Ellisons. Ellisons “had a contract to haul coal from the Newstan Colliery to the Eraring Power station.”
[15] Mr Somner’s statement went on to say that the witness statement of Mr Stoimenoff is accurate [with one minor variation as to equipment numbers] as to the operations of Giacci at Centennial. He went on to say that “the driver/operators on the site spend approximately 80 percent of their time driving the trucks and 20 percent operating the auxiliary plant. Those who are just drivers or plant operators spend all their time driving or operating plant.”
[16] In cross-examination, Mr Somner said:
- That his physical place of employment at Newstan. 5
- That he agreed that the members of the Union who would vote in any ballot also attend Newstan for work each day. 6
- That some employees only operate ancillary equipment and water trucks. 7
- That all Giacci employees in New South Wales are based at Newstan. 8
[17] In further cross-examination, Mr Somner was questioned in detail about the duties of individual named employees. I will not set out that material here but have paid regard to it.
[18] Mr Somner went on to say that Giacci’s five maintenance employees perform their work at a workshop located at the Newstan and only leave Newstan to perform work at the Cooranbong Colliery. 9
[19] Mr Somner was then questioned about his work with Ellisons from 1984 to 2002. He said that Ellisons did the same type of work that Giacci currently does “but they also worked their trucks out onto the public road, and they worked from other mines as well.” 10 Giacci employees rarely utilise public roads.11 He went on to say that the principal coal haulage that Giacci performs is from the Cooranbong/Mandalong Colliery to Newstan.12
[20] The following exchange occurred between Mr Endacott and Mr Somner in relation to the work performed by Ellisons and Giacci respectively:
“Endacott: Yes, so I put it to you now as compared to Ellisons the principal coal haulage you’re doing is from Cooranbong Colliery to the Newstan Colliery; that’s the vast majority of the coal you haul, is it not?
Somner: Yes it is.
Endacott: And Ellisons never did that, did they?
Somner: No they didn’t.
Endacott: And they couldn’t do it because there wasn’t even a haul road to do it?
Somner: Yes, that’s right.
Endacott: So it’s fair to say that the arrangements by which Ellisons operated are significantly different from the arrangements that Giacci has about hauling coal currently?
Somner: Yes, that’s right. There are portions of the job are still the same. We still cart coal, a certain amount of coal from Newstan back to the power station as did Ellisons.
Endacott: Yes?
Somner: And the coal handling on site at Newstan is very, very similar to what - the work that was done by Ellisons.
Endacott: But it’s fair to say that the coal haulage from Newstan to Eraring Power Station is just a minor part of the coal being hauled currently, isn’t it?
Somner: It is at present. Yes.
Endacott: Okay, and that has been happening for quite a number of years now?
Somner: Yes it has. Yes.” 13
[21] Mr Somner went on to say that he has been involved in enterprise agreement negotiations with the CFMEU and that the CFMEU has been bargaining genuinely. 14
Ms Higgs
[22] Ms Higgs gave sworn evidence and submitted a witness statement 15.
[23] It was Ms Higgs’ statement that Giacci is a bulk haulage business largely operating in Western Australia. Its employees are predominantly truck drivers, “most of whom are multi-skilled and can and do operate auxiliary plant associated with the haulage operations. Workshop personnel responsible for the maintenance and repair of trucks and auxiliary plant make up approximately 11% percent of the wages employees.”
[24] Ms Higgs went on to say that the Company’s operations are controlled from its head office in Western Australia, to which local managers “submit weekly reports on operations, employee statistics, safety, repairs and maintenance carried out or required.”
[25] The Company has a number of registered and unregistered agreements with the TWU and registered agreements with employees. Ms Higgs believes that most of the Company’s employees at the Newstan site were members of the TWU in 2009 when the agreement referred to in Mr Sharp’s evidence (see paragraph 44 below) was negotiated, the local TWU organiser did not participate as such participation was opposed by Giacci employees.
[26] Ms Higgs’ statement goes on to deal with the contract between Centennial Newstan Pty Ltd, Centennial Mandalong Pty Ltd, Centennial Myuna Pty Ltd and the Company and standard letters of offer of employment for prospective employees of Giacci in New South Wales. Her statement also deals with the standard Position Descriptions for Giacci employees throughout Australia involved in driving haulage vehicles and operating auxiliary loading equipment. I have paid regard to that material and to the attachments to Ms Higgs’ statement.
[27] In cross-examination, Ms Higgs:
- Said that the Company’s only office in New South Wales is at Newstan and that all the individuals that the CFMEU seeks to have ballot commence and cease employment at Newstan each day. 16
- Agreed that Giacci employees based at Newstan perform work around the Colliery and the CHPP and haul coal between the Cooranbong/Mandalong mines to Newstan and to Eraring. 17
- Said that her belief is that “the whole company comes under the Road Transport and Distribution Award and that includes - because we cart - are ferrying mineral sands and coal and et cetera across the whole country. And I believe that it all comes under the same banner.” 18
- Said in relation to Giacci’s Newstan employees: “I believe that they support the coal industry. I don’t believe they’re working in the coal industry.” 19
- Said that she has attended about five negotiating sessions with Mr Sharp. 20
- Said that she was told by her predecessor that employees were covered by the Black Coal Mining Award. 21
- Said: “After I actually went to one of the meetings, one of the negotiations, I actually sought further legal advice because I believed that that wasn’t the case, and that - since then I’ve had advice that that isn’t the case. That it is the Road Transport Award.” 22
- Was asked: “But you’ve still been negotiating the agreement, haven’t you, under that?” and said: “Well, we’ve been bargaining in good faith since then. Yes.” 23
- Said that it was her intention to continue meetings with the CFMEU in the future. 24
- Said that future negotiations depended on the Tribunal’s determination on whether the Black Coal Mining Award was the relevant award to underpin an agreement. 25
- Said that a new notice of representational rights has now been issued “that actually does stipulate the Road Transport and Distribution Award and the Manufacturing Award.” 26
- Was questioned in relation to the CFMEU’s Rules.
- Did not agree that the CFMEU’s Rules entitle it to cover Giacci’s employees at Newstan. 27
- Said that Giacci has not been negotiating with the TWU in relation to Newstan. 28
- Said that the road used to haul coal from Cooranbong/Mandalong to Newstan is controlled by Eraring. 29
- Said that she “can’t comment on the day to day operations of the business.” 30
Mr Drakeford
[28] Mr Drakeford gave sworn evidence that he is responsible for the non-mining activities of Centennial relating to “trucking activities and coal preparation, plant, rejects and placement.” He has worked for Centennial for some 18 years and has dealt with both Ellisons and Giacci. Mr Drakeford was then questioned in some detail about the Ellisons contract.
[29] Mr Drakeford was further questioned about details of the Centennial mining leases which he said were generally for underground coal with the surface area being owned by others. 31
[30] In cross-examination, Mr Drakeford was questioned about the activities of Ellisons. He said that in the past Ellisons “carted coal from Eraring back to Newstan which came from the Cooranbong mine. They didn’t actually take it from the pit tops because we didn’t have the road.” He went on to say that the amount of coal now taken by Giacci between Newstan and Eraring is a greatly reduced amount. 32
[31] Mr Drakeford was further questioned about which roads were utilised currently by Giacci and the role performed by the Company.
[32] Mr Drakeford was asked: “If I’ve got this right, if Giacci didn’t perform the roles they perform, there wouldn’t be any sort of coal produced at Newstan, would there?” and said: “I think that goes without saying. We’re not paying them for nothing.” 33
[33] He went on to say that the coal from Cooranbong is not conveyed by truck to Eraring but by a belt. 34
[34] In re-examination, Mr Drakeford said that in his view the work performed by Ellisons and Giacci was “in essence … the same.” 35
Mr Stoimenoff
[35] Mr Stoimenoff gave sworn evidence and submitted a witness statement. 36
[36] It was Mr Stoimenoff’s statement that he is employed by Giacci “at Centennial Coal Mining Operations, specifically between Newstan Colliery and Cooranbong Colliery, located in the Northern District Coalfields near Fassifern in NSW.”
[37] Mr Stoimenoff went on to say: “Whilst working for the Respondent I performed the role of a truck operator, hauling coal and operating the loader to load trucks with coal, coal trains and any other work required around the surface of the mine. The Respondent employs approximately 40 employees performing the same role as myself. Some of those employees, in addition to operating the trucks and loader, will operate dozers and in addition to hauling coal, haul chitter from the Newstan CHPP to the dump area or what is also chitter but is referred to as ‘middlings’. ‘Middlings’ is chitter that is trucked to the Cooranbong Colliery where it’s blended with the coal from the Mandalong Colliery for sale to the Eraring Power Station.”
[38] Mr Stoimenoff’s statement sets out the plant and equipment which Giacci utilises and how it is utilised. Mr Stoimenoff said:
“This equipment is permanently stored at the Newstan Colliery, other than one loader and one of the water carts which are stored at Cooranbong Colliery. The water carts are used for dust suppression at the Collieries and are operated by the Respondent’s employees. The only piece of equipment that leaves the minesite to perform its role is the road sweeper which is used at Newstan, Cooranbong, Mandalong, Myuna and Mannering Collieries, all of which are all owned by Centennial. The sweeper will travel between Newstan Colliery and Cooranbong Colliery via internal haul roads but will travel to the other Collieries using public roads when needed at those Collieries.
Centennial Coal Mining Operations has a series of Mining Leases, Collieries and CHPP’s that operate in close proximity.
I and the other employees commence employment each day at the Newstan Colliery. I and other employees conclude our shifts each day at Newstan Colliery. When performing coal haulage duties, I will operate a Volvo road train that is made up of two trailers and a dolly which I drive to the Cooranbong Colliery via internal haul road. The coal from the Mandalong Colliery is transported via conveyor belt underground through the Mandalong Colliery and old Cooranbong Colliery workings to the Cooranbong Colliery Surface. The coal is deposited on the Cooranbong Colliery’s surface on to the truck either through a bin system or a loader directly into the truck trailers. The truck is loaded using the Respondent’s loader which is operated by an employee of the Respondent.
The raw coal is hauled via the internal haul road to Centennial’s Newstan CHPP. This haulage occurs 24 hours per day, seven days per week. The coal is then dumped on the CHPP raw coal stockpile for coal handling and preparation. The Respondent manages the stockpile using dozers and loaders which are owned by the Respondent and operated by the Respondent’s employees. The stockpile is managed and the coal, when needed, is pushed into the hoppers for processing in the CHPP.
The clean coal from the CHPP falls into two bins, a high ash coal bin and a low ash coal bin. The coal is taken from the bins and is loaded directly from the bins onto the trailers of the trucks. The trucks are the same trucks that are used to haul the coal and the operators are the Respondent’s employees. The coal is transported to the loading point at the rail loop. The loading point at the rail loop is located at same process is followed for the high ash coal and the low ash coal.”
[39] Mr Stoimenoff’s statement goes on to deal with further details of Giacci’s operation at Centennial including the transport and disposal of chitter and middlings.
[40] “All of the employees of the Respondent perform similar work or the same work. All of the work occurs either at the Newstan Colliery, Cooranbong Colliery or on a private haul road on the Mining Leases owned by Centennial Coal Mining Operations. I and other [employees] commence employment at Newstan Colliery. In performing the required duties I and other employees are not required to transport any coal, chitter or ‘middlings’ on public roads.”
[41] Mr Stoimenoff went on to say that he and other employees of Giacci at Newstan received the Notice on 23 April 2012. He subsequently took part in bargaining negotiations in his capacity as the CFMEU delegate. “During the first couple of negotiations this was not an issue to the Respondent in that I believe the Respondent’s view was that the Black Coal Mining Industry Award was the appropriate Award.” Giacci later stated in a negotiating meeting that the Transport Award was the appropriate award.
[42] Mr Stoimenoff was not cross-examined.
Mr Sharp
[43] Mr Sharp gave sworn evidence and submitted a witness statement 37.
[44] It was Mr Sharp’s statement that he is the CFMEU’s Northern District Branch Official who has responsibility to represent the industrial interests of CFMEU members working for Giacci at Centennial. Part of that responsibility has been negotiations for an enterprise agreement to cover employees. The CFMEU has around 37 members employed by the Company and currently covered by the Giacci Bros Agreement, the nominal expiry date of which has passed. Negotiations for a new Agreement were held with Giacci on 21 May, 7 June, 5 July, 31 July and 17 September 2012.
[45] “During the course of the negotiations, the Union has made offers in an attempt to settle the form of the Enterprise Agreement. There remain differences between the parties in respect of the terms and conditions to apply to employees employed by the Company.”
[46] Mr Sharp’s statement went on to say that the Union has not pursued an agreement with the Company as a part of pattern bargaining nor sought an agreement which would contain non-permitted matters.
[47] In cross-examination, Mr Sharp said that he did not dispute that Giacci employees drive trucks but that some employees of Giacci spent most of their time on non-truck driving duties. 38 Mr Sharp was extensively questioned in relation to the Union’s Rules as they relate to eligibility for membership. In relation to this, Mr Sharp’s evidence was that he had a limited understanding of the Rules and seeks advice from others about the application of the Rules as they relate to recruitment of members39.
Assessment of the evidence
[48] I now turn to an assessment of the witness evidence in this case.
[49] The evidence of Mr Somner impressed me as being truthful but it was of little or no assistance to Giacci in its jurisdictional objection. Mr Somner specifically attested to the accuracy of the witness statement of Mr Stoimenoff and he further attested that he has been involved in enterprise agreement negotiations with the CFMEU and that the CFMEU has been bargaining genuinely. His evidence concerning his employment with Ellisons and Ellisons activities between 1984 and 2002 does not assist me in my deliberations beyond providing some background in this matter.
[50] The evidence of Ms Higgs I also believe was truthful. However, beyond introducing some documentary material, her evidence was of limited utility. Ms Higgs is based in Western Australia and she admitted in cross-examination that she was unable to comment on Giacci’s day to day operations at Newstan. The bulk of her evidence was based on a series of beliefs and understandings grounded in information supplied by others.
[51] The evidence of Mr Drakeford was also truthful in my view but again, does not constitute evidence which would go to support Giacci’s jurisdictional objection. In fact, his evidence was that if Giacci did not perform the role it carries out at Newstan, no coal would be produced.
[52] Mr Drakeford’s evidence about Ellisons, as with similar evidence from Mr Somner, does not assist me in my deliberations beyond providing some background in this matter.
[53] Mr Sharp’s evidence was truthful and to the point as to enterprise agreement negotiations between the CFMEU and Giacci.
[54] Mr Stoimenoff’s evidence, which was specifically supported by Mr Somner, was in my view both truthful and reliable in relation to negotiations between the CFMEU and Giacci and as to the operations of Giacci at Newstan. His evidence has been an important determinative factor in my deliberations. It is noteworthy that the evidence of Mr Stoimenoff was not challenged in cross-examination. I am comfortable to rely on the evidence of Mr Stoimenoff as to Giacci’s activities at Newstan and for Centennial and also his evidence as to the duties performed by Giacci employees based at Newstan.
Submissions
[55] The CFMEU filed an outline of submissions 40 and also made oral submissions. The Company made oral submissions. I have paid regard to the submissions by the parties and to the case law cited by each.
Conclusions and Findings
[56] The federal Rules of the CFMEU relevantly provide at Rule 2D:
“Without limiting the generality of the foregoing and without being limited thereby the Union shall also consist of an unlimited number of employees engaged in or in connection with the coal and shale industries together with such other persons whether employees in the industries or not as have been appointed officers and admitted as members.”
[57] The Rules of the Transitional State Union provide at 2E(b):
“(b) Without limiting the generality of the foregoing and without being limited thereby, the union shall also consist of an unlimited number of persons engaged in any capacity in connection with coal and shale mining; in connection with the coke industry, but excepting persons employed in the iron, steel and metal industries; and excepting also persons who are now members, or in the future may be eligible for membership of the United Collieries Staff Association of New South Wales; but as regards the last mentioned union, so as not to exclude lampmen and grooms.”
[58] The Black Coal Mining Industry Award 2010 provides at subclause 4.2:
“4.2 For the purposes of this award, black coal mining industry has the meaning applied by the courts and industrial tribunals, including the Coal Industry Tribunal. Subject to the foregoing, the black coal mining industry includes:
(a) the extraction or mining of black coal on a coal mining lease by means of underground or surface mining methods;
(b) the processing of black coal at a coal handling or coal processing plant on or adjacent to a coal mining lease;
(c) the transportation of black coal on a coal mining lease; and
(d) other work on a coal mining lease directly connected with the extraction, mining and processing of black coal.”
[59] The Award further provides at subclause 4.3:
“4.3 The black coal mining industry does not include:
(a) the mining of brown coal in conjunction with the operation of a power station;
(b) the work of employees employed in head offices or corporate administration offices (but excluding work in town offices associated with the day-to-day operation of a local mine or mines) of employers engaged in the black coal mining industry;
(c) the operation of a coal export terminal;
(d) construction work on or adjacent to a coal mine site;
(e) catering and other domestic services;
(f) haulage of coal off a coal mining lease (unless such haulage is to a wash plant or char plant in the vicinity of the mine); or
(g) the supply of shotfiring or other explosive services by an employer not otherwise engaged in the black coal mining industry.
NOTE: See, for example, decision of the Coal Industry Tribunal in Australian Collieries Staff Association and Queensland Coal Owners Association—No. 20 of 1980, 22 February 1982 [Print CR2997].”
[60] In Construction, Forestry, Mining and Energy Union v Daromin engineering Pty Ltd 41, Senior Deputy President Hamberger said: “Factors considered relevant by the Coal Industry Tribunal in the decision referred to in the note in determining whether employees were in the black coal mining industry included where the work was performed, whether there was a direct connection between the functions performed by the employees and the production of coal, and whether the employer was a coal mining company.”42
[61] During proceedings, Giacci relied heavily on comparisons between the role of Ellisons until 2002 and the alleged close similarity between that work and the work Giacci now performs. That reliance on the history of Ellisons is, in my view, entirely misplaced. Ellisons ceased its activities in the Fassifern area a decade ago and, in any event, on the totality of the material before me I am unable to conclude that the activities of Ellisons were equivalent to the current activities of Giacci at Newstan. Even if that conclusion is not entirely accurate, what concerns me in the making of this decision is what Giacci does for the Centennial Group in 2012. That determination necessarily involves an assessment of the relationship of Giacci and its employees to and in or in connection with the black coal industry. That assessment will reveal whether the CFMEU is entitled to enrol those Giacci employees as members. If it does, Giacci’s jurisdictional objection falls away and the standing of the CFMEU to make an application pursuant to s.437 of the Act is established.
[62] From the totality of the material and evidence before me, I have concluded that the Giacci employees based at Newstan are both employed in connection with the coal mining industry and employed in or around coal mines in the Northern District of New South Wales. The CFMEU’s coverage would arise under either its federal Rules or the Rules of the Transitional State Union. That conclusion appears self-evident from the evidence of Mr Stoimenoff and nothing was brought forward by the Company which could possibly dissuade me from that view. The evidence of Mr Stoimenoff as to the duties undertaken by the Giacci employees was usefully summarised in the CFMEU’s outline of submissions: 43
“An affidavit of Mr Peter Stoimenoff, an employee of the Employer and a member of the CFMEU who the Employer has been bargaining with, provides evidence as to the work that is undertaken by the employees of the Employer. In summation the evidence reveals the:-
a. Employees of the Employer haul coal from Cooranbong/Mandalong Colliery to the Newstan Colliery, specifically the CHPP at that Colliery. The haulage does not occur on public roads. The coal haulage occurs 24 hours per day, 7 days per week.
b. Employees of the Employer operate, in addition, dozers at the Newstan Colliery.
c. Employees of the Employer in addition operate dozers at the Cooranbong/Mandalong Colliery.
d. Employees of the Employer manage the stockpile of raw and processed coal at the Newstan Colliery.
e. Employees of the Employer manage the stockpile of chitter and ‘middlings’ at the Newstan Colliery.
f. Employees of the Employer maintain the stockpile at the Cooranbong/Mandalong Colliery.
g. Employees of the Employer only work at the Newstan Colliery and the Cooranbong/Mandalong Colliery or the private haul road in between the Collieries.
h. Employees commence and conclude employment each day at a Colliery.
i. Employees of the Employer cart chitter from the Newstan CHPP, in the Colliery, to the disposal areas on the Colliery.
j. Employees of the Employer cart ‘middlings’ (which is technically a very low grade form of coal) from the Newstan CHPP on the Newstan Colliery to the Cooranbong/Newstan Colliery.
k. Employees of the Employer operate water carts for dust suppression for the Newstan Colliery and for the Cooranbong/Mandalong Colliery.
l. Employees of the Employer operate excavators on the Newstan Colliery.
m. Employees of the Employer push coal at the Newstan CHPP and Newstan Colliery from coal produced at both Newstan Colliery and Cooranbong/Mandalong Colliery.
n. Employees of the Employer load train loaders at the loading point at the Newstan Colliery, which is coal from Newstan Colliery and Cooranbong/Mandalong Colliery.
o. Employees of the Employer never transport material on public roads.
p. The Employer’s operation is New South Wales based and is on the Newstan Colliery. The only operations with the Employer in New South Wales are the operations occurring at Newstan and Cooranbong/Mandalong Collieries, as set out above and as set out in the affidavit of Mr Stoimenoff.”
[63] Giacci has a workshop at Newstan which maintains equipment used on the coal minesites. Without the work of the Giacci employees, no coal will be produced. The evidence of Mr Drakeford makes this clear.
[64] Giacci, in part, also relies on its characterisation of itself as a bulk haulage operator. This is almost certainly the case when examining its activities in Western Australian but in its work for Centennial, it is carrying out work in connection with the coal industry only. The fact that Giacci’s Head Office is in Western Australia is irrelevant as is the management chain. It is clear to me that the operation based at Newstan is a distinct unit and can be considered in isolation in the context of the current proceedings. Giacci also appears to believe that it is significant that Centennial only holds rights to the underground coal resources on its leases and not most of the surface area of those leases. That argument is, in my view, irrelevant and a distraction.
[65] In Harnischfeger of Australia Pty Ltd v CFMEU 44, the Full Bench said in commenting on a decision of the High Court in R v Cohen Ex parte Motor Accidents Insurance Board45:
“[83] Significantly, the Court rejected an approach to the application of the eligibility rule to the business of the employer that required a whole company (or in this case Board) approach. The approach of the Court, as set out in the judgment of Mason J was as follows (at page 589):
‘It was argued for the Board that its functions under the Act should be considered, not in isolation, but in their totality and that, if this was done, it could not be said that the ‘business’ of the Board was that of insurance. The simple answer to this argument is that it is quite possible, as in the present case, for a person or body to be engaged in several activities, one of which can properly be described as ‘the business of insurance’. It is in my opinion, a misconceived approach to attempt to characterize the functions of the Board in their totality, and there is certainly nothing in the present case which warrants such an approach.’”
[66] The Full Bench went on to say, in considering the CFMEU’s eligibility rule:
“[85] Rule 2D is an industry rule and the discrimen of eligibility under such a rule is the industry of the employer. Hence the question here is whether the trade or business of Harnischfeger is ‘in or in connection with the coal and shale industries’. This is a question of fact and the answer is determined by the substantial character of the activities in which the employer is engaged.
[86] The substantial character of a business may be in or in connection with more than one industry. In such circumstances it is not necessary to decide which is predominant. Nor is it necessary for each group of activities that have a ‘substantial character’ to operate as distinct businesses or enterprises within the employer’s overall operation… [citations omitted]
[87] The final general observation we wish to make relates to the words ‘or in connection with’ in Rule 2D. As we have already noted, these are words of expansion and allow a finding of eligibility even if the employees in question are not ‘in’ the relevant industry. As Wilson J (with whom Deane and Dawson JJ agreed) said in the Argyle Diamond 46case:
‘The cases establish that one may be employed in connexion with the mining industry notwithstanding that one is merely developing the infrastructure which will be necessary to support the actual mining when it commences and notwithstanding that one is engaged, not in the process of extracting the ore from the mine, but in its subsequent treatment. A sufficient connexion may therefore be found in an occupation which takes place either before or after the actual work which itself identifies the industry in question.’”
[67] The Full Bench went on to say:
“[89] The work performed by the Appellant’s employees at coal mines is an integral part of the coal mining operations. It is clearly distinguishable from the provision of a service such as catering or laundry.”
These words can be properly adopted in the determination of the issue before me.
[68] The Full Bench went on to observe:
“[92] … In our view the application of the ‘substantial character’ test to this material supports a finding that Harnischfeger operates ‘in connection with’ the coal industry within the meaning of Rule 2D. The business activities that relate to the installation, servicing and maintenance of surface mining equipment support such a finding. As we have already observed it is not necessary to establish that those activities are the predominant activities performed by Harnischfeger or that a majority of Harnischfeger employees are engaged in such activities. Nor does it need to be established that these activities are performed as a discrete business within Harnischfeger’s overall operations. It is only necessary that the activities be substantial, and we are satisfied that such is the case.”
[69] All in all, I determine and find that the CFMEU is entitled to enrol any Giacci employee based at Newstan as a member and that the work performed by those employees falls within subclause 4.2 of the Black Coal Mining Industry Award 2010, most specifically under subclauses 4.2(c) and (d). None of the exclusions provided for in subclause 4.3 of the Black Coal Award, most specifically subclause 4.3(f), apply to Giacci’s work at Newstan. It is clear on the evidence and materials before me that the work performed by the Giacci employees based at Newstan is work in the coal industry and in connection with coal mining.
[70] The jurisdictional objection by Giacci is dismissed. In the context of these proceedings, it is not necessary for me to make any decision in relation to the TWU or its rules. However, for the sake of completeness, I also find that the Transport Award has no relation to the work performed by Giacci employees based at Newstan and could therefore not be used as a basis for an enterprise agreement covering those employees.
[71] Having found that the CFMEU is entitled to enrol the relevant Giacci employees as members and being satisfied that it has done so, it follows that the Union has standing to make the current application pursuant to s.437 of the Act. I will now turn my attention to whether that application should be granted or not and the terms of any order which may issue.
[72] Section 437 of the Act provides:
“437 Application for a protected action ballot order
Who may apply for a protected action ballot order
(1) A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to FWA for an order (a protected action ballot order) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement.
(2) Subsection (1) does not apply if the proposed enterprise agreement is:
(a) a greenfields agreement; or
(b) a multi-enterprise agreement.
Matters to be specified in application
(3) The application must specify:
(a) the group or groups of employees who are to be balloted; and
(b) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.
(4) If the applicant wishes a person other than the Australian Electoral Commission to be the protected action ballot agent for the protected action ballot, the application must specify the name of the person.
Note: The protected action ballot agent will be the Australian Electoral Commission unless FWA specifies another person in the protected action ballot order as the protected action ballot agent (see subsection 443(4)).
(5) A group of employees specified under paragraph (3)(a) is taken to include only employees who:
(a) will be covered by the proposed enterprise agreement; and
(b) are represented by a bargaining representative who is an applicant for the protected action ballot order.
Documents to accompany application
(6) The application must be accompanied by any documents and other information prescribed by the regulations.”
[73] Pursuant to s.437 of the Act, I am satisfied that the CFMEU has standing to make the application and that the application complies with the requirements of the section.
[74] The CFMEU Draft Order seeks:
“The following questions shall be put to the employees in the ballot:
Question 1:
Do you, for the purpose of advancing claims in the negotiation of an Enterprise Agreement with Giacci Bros Pty Ltd,authorize industrial action in the form of an unlimited number of stoppages of work, including consecutive stoppages of work, of two (2) hours in duration?
Question 2:
Do you, for the purpose of advancing claims in the negotiation of an Enterprise Agreement, with Giacci Bros Pty Ltd,authorize industrial action in the form of an unlimited number of stoppages of work, including consecutive stoppages of work, of twenty four (24) hours and thirty (30) minutes in duration?
Question 3:
Do you, for the purpose of advancing claims in the negotiation of an Enterprise Agreement with Giacci Bros Pty Ltd,authorize industrial action in the form of an unlimited number of bans and stoppages, including consecutive bans and stoppages, on the loading of trains of two (2) hours, twenty four (24) hours and forty eight (48) hours in duration?
Question 4:
Do you, for the purpose of advancing claims in the negotiation of an Enterprise Agreement with Giacci Bros Pty Ltd,authorize industrial action in the form of an unlimited number of bans and stoppages, including consecutive bans and stoppages, on the operation of the Dozer(s) of two (2) hours, twenty four (24) hours and forty eight (48) hours in duration?
Question 5:
Do you, for the purpose of advancing claims in the negotiation of an Enterprise Agreement with Giacci Bros Pty Ltd,authorize industrial action in the form of an unlimited number of bans and stoppages, including consecutive bans and stoppages, on the operation of the Chitter Truck(s) of two (2) hours, twenty four (24) hours and forty eight (48) hours in duration?
Question 6:
Do you, for the purpose of advancing claims in the negotiation of an Enterprise Agreement, with Giacci Bros Pty Ltd,authorize industrial action in the form of a ban on the working of weekend overtime?”
[75] Section 443 of the Act relevantly provides:
“(1) FWA must make a protected action ballot order in relation to a proposed enterprise agreement if:
(a) an application has been made under section 437; and
(b) FWA is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.
(2) FWA must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).
(3) A protected action ballot order must specify the following:
(a) the name of each applicant for the order;
(b) the group or groups of employees who are to be balloted;
(c) the date by which voting in the protected action ballot closes;
(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.”
[76] I am satisfied that the CFMEU has been bargaining genuinely with Giacci and I find that the ballot order sought by the CFMEU should be approved.
COMMISSIONER
Appearances:
K Endacott for the Construction, Forestry, Mining and Energy Union.
G McCorry for Giacci Bros Pty Ltd.
Hearing details:
2012.
Sydney:
September 20, 27.
1 See Exhibit Giacci 1.
2 See Attachment PS1 to Exhibit CFMEU 2.
3 See Attachment PS2 to Exhibit CFMEU 2.
4 Exhibit Giacci 1.
5 Transcript PN176.
6 Transcript PNs179-180.
7 Transcript PNs186-188.
8 Transcript PN196.
9 Transcript PNs211-217.
10 Transcript PN224.
11 Transcript PN226.
12 Transcript PN227.
13 Transcript PNs236-242.
14 Transcript PNs243-246.
15 Exhibit Giacci 2.
16 Transcript PNs276-282.
17 Transcript PNs283-285.
18 Transcript PN298.
19 Transcript PN301.
20 Transcript PNs314-315.
21 Transcript PN317.
22 Transcript PN318.
23 Transcript PN319.
24 Transcript PNs320-324.
25 Transcript PN325.
26 Transcript PN329.
27 Transcript PNs401-403.
28 Transcript PN407.
29 Transcript PNs428-429.
30 Transcript PN438.
31 Transcript PN571 and following.
32 Transcript PN601.
33 Transcript PN639.
34 Transcript PNs642-643.
35 Transcript PN668.
36 Exhibit CFMEU 2.
37 Exhibit CFMEU 3.
38 Transcript PNs810-811.
39 Transcript PN821.
40 Exhibit CFMEU 4.
41 PR527349, 7 August 2012.
42 Ibid at para 14.
43 See Exhibit CFMEU 4.
44 PR963826 per Ross VP, Ives SDP and Foggo C at para 83.
45 (1979) 141 CLR 577.
46 (1985) 159 CLR 323.
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