Construction, Forestry, Mining and Energy Union v Hay Point Services Pty Ltd

[2012] FWA 4606

Note: An appeal pursuant to s.604 (C2012/4420) was lodged against this decision - refer to Full Bench decision dated 25 October 2012 [[2012] FWAFB 9173] for result of appeal.

[2012] FWA 4606

FAIR WORK AUSTRALIA

DECISION

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

Construction, Forestry, Mining and Energy Union
v
Hay Point Services Pty Ltd
(C2012/2854)

Coal industry
COMMISSIONER SPENCER	BRISBANE, 13 JUNE 2012

Alleged dispute concerning clauses 10, 16 and 22 - policies and procedures, health safety environment and community and disputes resolutions respectively.

[1] This decision relates to a jurisdictional objection made by Hay Point Services Pty Ltd (Hay Point/the Respondent) with respect to an application by the Construction, Forestry, Mining and Energy Union (CFMEU/the Applicant) made pursuant to s.739 of the Fair Work Act 2009 (the Act). The application alleged a dispute in relation to provisions of the Hay Point Services Pty Ltd Enterprise Agreement 2010 (the Agreement). The Applicant stated the dispute related to the Respondents implementation of a replacement Drug and Alcohol Policy and the flawed use of the Community Health Environment Safety and Security Committee (CHESS) to introduce the policy.

[2] The Applicant submitted the matters in dispute related to clause 10 (Policies and procedures), clause 16 (Health, Safety, Environment and Community) and clause 22 (Disputes resolution) of the Agreement.

[3] The matter was listed for a dispute conference before Fair Work Australia (FWA) as currently constituted. At this conference the Respondent objected to conciliation on the basis that FWA did not have jurisdiction to progress the matter, as the dispute was not brought pursuant to clause 22 of the disputes procedure of the Agreement. That is, the Respondent stated it was not a dispute over the application of provisions of the Agreement. The Respondent submitted that the issues raised in the application were not matters arising under the Agreement but were matters covered by separate policies to the Agreement, excluded by clause 10. In addition the Respondent argued the matters in dispute, were the subject of management prerogative.

[4] Directions were set of the filing of an agreed Statements of Fact and submissions and the matter was listed for hearing.

[5] Whilst not all the submissions and materials have been referred to in this decision, all of such have been considered.

[6] The Respondent was represented by Ms Amanda Threlfall of the CFMEU. The Applicant was represented by Mr Ian Humphreys of Ashurst Australia.

Relevant legislation

739 Disputes dealt with by FWA

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

(2) FWA must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:

(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to FWA dealing with the matter; or

(b) a determination under the Public Service Act 1999 authorises FWA to deal with the matter.

Note: This does not prevent FWA from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)).

(3) In dealing with a dispute, FWA must not exercise any powers limited by the term.

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

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

(5) Despite subsection (4), FWA must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.

(6) FWA may deal with a dispute only on application by a party to the dispute.

Relevant sections of the Agreement

10 Policies and Procedures

This Agreement is supplemented by HPS’ policies and procedures.

Employees are required to comply with all relevant policies and procedures, however they do not form part of this agreement.

HPS’ obligation is to ensure employees are aware of and understand policies and procedures that apply to them. Training will be provided as required.

HPS’ policies and procedures shall be available to employees via accessible hard copy or electronic form.

16 Health, Safety, Environment and Community

16.1 Preamble

Appropriate behaviour related to Health, Safety, Environment and Community (HSEC) performance is a fundamental condition and expectation of employment.

HPS has a responsibility to provide a safe and healthy working environment that is free from harm to personnel, the environment and our host communities.

Employees have a responsibility for their own safety and the safety of others within the workplace and the environmental impacts associated with their activities.

These are requirements of the Workplace Health & Safety Act and the Environmental Protection Act.

(a) All employees must use their best endeavours to work in a safe and sustainable manner. Behaviours that represent this are:

(i) Compliance to site safety rules and only performing safe acts;

(ii) Active participation in and use of HSEC systems;

(iii) Looking out for others, assisting with their safety and wellbeing;

(iv) Showing safety leadership following safety policy and procedure and having zero tolerance of unsafe acts;

(v) Positive contribution to continuous improvement in HSEC performance.

(b) Employees who fail to use their best endeavours to work in such a manner are a risk to themself and to others and will not be tolerated.

In addition, the parties will not tolerate any employee, contractor or visitor on site who enters the workplace whilst under the influence of alcohol or other drugs or engages in their consumption while at work.

(c) It is acknowledged that a flagrant or intentional abuse or disrespect for HSEC policies, procedures and rules will lead to disciplinary action up to an including termination.

16.2 Community Health Environment Safety and Security Committee (CHESS)

The parties to this Agreement are fully committed to a workplace that:

(a) Embraces and supports our local community;

(b) Monitors and improves the health and wellbeing of our employees and their families;

(c) Monitors and improves the environmental performance of our operations;

(d) Ensures the safety of all employees and all contractors and visitors to the Hay Point site; and

(e) Effectively manages the security of the Hay Point site.

As part of this commitment, parties agree to maintain and effectively utilise a Committee (the CHESS Committee) in accordance with its charter and constitution.

16.3 Employee Health Medical

As part of the employee Health and Wellbeing program each employee is able to participate in a standard medical check annually. All appointments and tests associated with the medical check are paid for by HPS. HPS will provide the medical check format but the employee may elect to use their own private Doctor or alternatively use HPS' appointed Medical Advisor(s).

HPS receives no results or information from these health medicals. Medical records are covered by the Privacy Act and your medical provider is required to manage patient records in accordance with the Privacy Act.

16.4 Confidentiality

Where HPS or the Hay Point Site (through the CHESS committee) has introduced health and wellbeing initiatives that may involve the collection of personal health or medical information such information will:

(a) Be kept confidential between the employee and the health/medical provider unless written consent is given to use it for other purposes;

(b) Be collected and stored in accordance with the guidelines of the Privacy Act;

(c) Where information is to be used for site health monitoring purposes the intended use of the results will be disclosed before an employee commits to participate.

22 Disputes Resolution

It is the intention of all parties to work together in a cooperative manner. In the event of a dispute relating to a matter arising under this agreement or in relation to the NES all attempts will be made to discuss and resolve the issue at the local level using this disputes procedure. Either party involved may appoint an onsite representative for the purposes of the internal dispute resolution procedure, and/or an external representative for the external processes.

(a) Internal Process

(i) Level 1 - When a matter arises, it shall, in the first instance be discussed between the employee and their immediate supervisor.

(ii) Level 2 - if the matter is unable to be resolvbed the employer may escalate it to the Department Manager level.

(iii) Level 3 - if the matter is unable to be resolved the employee may escalate it to the level of site General Manager.

If the matter is of a nature that it affects more than one employee, it may be referred directly to the Department Manager or General Manager.

22.2 External Process - Level 1

If all internal discussion has not brought about a resolution in a reasonable timeframe then either the employer or employee may request to involve others external to the Hay Point site to assist in resolving the matter. Such persons are at the choice of HPS and/or the employee.

22.3 External Process - Level 2

(a) If either party (being HPS or employee(s)), having formally sought resolution through an external conference, is not satisfied that the matter is being dealt with as expeditiously as possible, or is not satisfied with the outcome, then either party may refer this matter to FWA (or its replacement) for conciliation or arbitration.

(b) Provided that all the above Steps have been exhausted, the parties may refer the matter to FWA to:

(i) Resolve the dispute as FWA considers appropriate (including by mediation, conciliation, expressing an opinion or making a recommendation); and

(ii) If FWA is unable to resolve the dispute at the first stage, FWA may then:

- arbitrate the dispute; and

- make a determination that is binding on the parties, subject to any appeal.

(c) During any proceedings before FWA under this clause (including conciliation), either party may choose to be represented by a legal practitioner.

(d) Where FWA issues a decision in writing under this clause, it shall be binding on the parties and persons bound by the Agreement in accordance with its terms.

While the parties are trying to resolve the dispute using the procedures in this term:

(a) an employee must continue to perform his or her work as he or she would normally unless he or she has a reasonable concern about an imminent risk to his or her health or safety; and

(b) an employee must comply with a direction given by the employer to perform other available work at the same workplace, unless:

(i) the work is not safe: or

(ii) applicable occupational health and safety legislation would not permit the work to be performed; or

(iii) the work is not appropriate for the employee to perform; or

(iv) there are other reasonable grounds for the employee to refuse to comply with the direction.

Background

[7] Hay Point is a coal export port owned and operated by BHP Billiton Mitsubishi Alliance (BMA).

[8] In summary terms in the statement of facts, the parties agreed that the relevant parts of the Agreement clauses stated that:

“(c) provides, at clause 10, that:

(i) the Agreement is to be supplemented by HPS's policies and procedures;

(ii) employees are required to comply with all relevant policies and procedures, however they do not form part of the Agreement;

(iii) Hay Point has an obligation to ensure employee are aware of and understand policies and procedures that apply to them, with training to be provided as required;

(iv) Hay Point's policies and procedures shall be available to employees via accessible hard copy or electronic form.

(d) provides relevantly, at clause 16, that the parties (to the Agreement) agree to maintain and effectively utilise a Committee (the CHESS committee) in accordance with its charter and constitution.

(e) provides, at clause 22, that in the event of a dispute relating to a matter arising under the agreement, all attempts will be made to discuss and resolve the Issues at the local level using the disputes procedure contained In the Agreement.” 1

[9] Further the parties referred to the CHESS Committee charter and constitution, that

“The Charter provides relevantly (at page 6) that:

(a) the CHESS committee will reach decision through consensus, by which everyone:

(i) has input;

(ii) Is heard and considered;

(iii) agrees with the reasonableness of the option; and

(iv) can actively support the decision.

(b) recommendations and/or proposals from the CHESS committee shall be presented to the Hay Point management team for final decision.” 2

[10] The statement of facts sets out that the Respondent in May 2011 commenced a review of its Fitness for Work Policy (FFW Policy). The review did not involve the Applicant until 28 May 2011.

[11] The Respondent sought the Applicant’s feedback to a marked up version of the FFW Policy in October 2011. The Applicant raised concerns with the FFW Policy and it was the subject of a meeting between the parties at a SBU meeting on 16 November 2011. The SBU wanted the method of testing changed from using urine testing to saliva testing. The SBU also raised concerns regarding the maintenance of confidentiality of employees medication information of the tests were conducted by site security personnel:

[12] By email dated 9 January 2012 the Respondent informed the Applicant that:

“(a) the method of testing would not be changed from urine testing to saliva testing;

(b) confidentiality would be ensured through a number of controls, including the procedure, appropriate training for personnel performing the testing, secure filing, and the updated medical declaration process; and

(c) that the Respondent would proceed with the changes and would conduct communications across site.” 3

[13] By email dated 13 January 2012 the Applicant informed the Respondent that:

“(a) It was not satisfied that its concerns regarding the FFW Policy had been adequately addressed; and

(b) it wished to progress the matter to the external process of the Dispute Resolution Procedure.” 4

[14] By letter dated 25 January 2012, the Applicant informed the Respondent that it believed the Applicant was in breach of clause 16 of the Agreement, specifically:

“(a) clause 16.1(a)(ii)- active participation in and use of HSEC systems;

(b) clause 16.l(a)(v) - positive contribution to continuous improvement in HSEC performance;

(c) clause 16.2(b) - monitors and Improves the health and wellbeing of employees and their families; and

(d) clause 16.4- confidentiality.” 5

[15] The Respondent sought detail in writing as to how the matter could be dealt with pursuant to clause 22, ‘the disputes procedure’ and how clause 16 had not been complied with.

[16] In late January 2012, the Respondent commenced meeting with employees to discuss the proposed revisions to the FFW policy. Based on the feedback received from employees, slight amendments were made to the FFW to provide for greater clarity. By letter dated 1 February 2012 the Applicant requested the Respondent to reconsider its stance on the FFW Policy, failing which the Applicant stated the matter would be referred to FWA.

[17] By email dated 2 February 2012, the Respondent informed the Applicant that:

(a) it was comfortable with its position with respect to the FFW Policy;

(b) there were no legitimate grounds for a dispute under the Agreement; and

(c) It intended to continue with implementation of the FFW Policy.

[18] In early February 2012, the Respondent finalised the FFW Policy that would be implemented at Hay Point. The Applicant was not involved in the finalisation of the FFW Policy. On 28 February 2012, the Applicant filed an application for FWA to deal with a dispute. 6

Summary of the Applicant’s submissions on jurisdiction

[19] The Applicant stated that under clause 10 of the agreement, the Respondent is obligated to ensure employees are aware of and understand policies and procedures that apply to them. The Applicant argued that the Respondent had failed to notify all employees at Hay Point about the contents of the FFW policy and the date of its implementation. In addition, the Applicant stated the Respondent failed to make the FFW policy accessible to employees in hard copy or electronic form and the Respondent was unable to answer questions from employees in relation to the FFW policy; and they had not offered appropriate training to employees on the FFW policy. 7

[20] In assessing the application of clause 10 the Applicant referred to the principles of construction that a broad view should be taken; 8 regarding aspirational clauses.9

[21] The Applicant referred to the particular words in clause 10; “obligation, ensure, will and shall” and that these imposed a contractual obligation on the parties, rather than simply an aspirational statement. 10 Further, the Applicant stated the words of clause 10 should be interpreted by giving them their ordinary English meaning.11 The Applicant referred to ASU v ATO12, in which the Full Bench noted that the word ‘ensure’ means “to pledge one’s faith to a person for the execution of a promise.”13 Accordingly the Applicant submitted:

“The health and safety clause in the Full Bench decision of Shop, Distributive and Allied Employees Association (SDA) v Big W Discount Department Stores has similar wording to clause 16.2 of the agreement. Clause 16.2 (a) to (e) of the agreement lists the aims of the health and safety commitment. As in SDA v Big W Discount Department Stores, a dispute about how the commitment to workplace health and safety is to be achieved is a dispute over the application of clause 16.2.” 14

[22] With respect to clause 16 - Health, safety environment and community, the Applicant stated that the policy is a review pursuant to clause 6 of the FFW Policy. Further, the Applicant stated the parties via clause 16.2 agreed to utilise the CHESS committee as part of their commitment to health and safety; and that Fitness for Work policies that incorporated drug testing procedures form part of health and safety as covered in clause 16 of the Agreement. The CHESS committee has elected representatives of the Unions.

[23] The Applicant stated there was a connection between clause 16.2 and the claims made in the elements in dispute.

[24] The Applicant stated:

“The health and safety clause in the Full Bench decision of Shop, Distributive and Allied Employees Association (SDA) v Big W Discount Department Stores has similar wording to clause 16.2 of the agreement. Clause 16.2 (a) to (e) of the agreement lists the aims of the health and safety commitment. As in SDA v Big W Discount Department Stores, a dispute about how the commitment to workplace health and safety is to be achieved is a dispute over the application of clause 16.2.

Although policies do not form part of the agreement under clause 10, the FFW policy has legal effect as a breach under the FFW policy may result in disciplinary proceedings under the agreement. Even though the dispute requires an assessment of the FFW policy, clause 16.2 provides a foundation for the dispute and the jurisdiction of the Tribunal is enlivened.

...

The Safety Committee Charter and Procedure states that the aim of the CHESS committee is to assist in the development and implementation of strategy and policy for management of health, safety, environment, community and security (HSECS) at the Hay Point Coal Terminal. This includes the development and implementation of the FFW policy.” 15

[25] The Applicant submitted that the previous FFW Policies were drafted in consultation between the SBU, CHESS committee and the Respondent. Further the Applicant stated the Respondent initially consulted with the CHESS committee and the SBU and some amendments were made to the FFW Policy. The Applicant stated that this process by the Respondent confirmed that the review of the FFW Policy was a health and safety matter as per clause 16.2.

[26] The Applicant stated that when agreement could not be reached the Respondent discontinued the discussions on the FFW Policy with the CHESS committee and the SBU. Then in early February 2012, the Respondent unilaterally finalised the FFW Policy. The Applicant stated this was not an appropriate application of clause 16.2.

[27] With respect to clause 16.4 the Applicant stated:

“Clause 16.4 applies where the Respondent has introduced a health and well being initiative (through the CHESS Committee) involving the collection of personal health or medical information.

The Respondent initially introduced the FFW policy through the CHESS Committee. Clause 16.4 applies as the FFW policy involves the collection of personal health or medical information.

Under clause 16.4, the information will be kept confidential between the health/medical provider and be stored and collected in accordance with the Privacy Act. It is not a discretionary obligation. It is mandatory that the Respondent ensure that the information remain confidential and be stored and collected in accordance with the Privacy Act.

The Applicant again relies on the observations of Chief Justice Black in SDA v Big W Discount Department Stores about aspirational clauses or statements. Clause 16.4 contains a decisive statement. The language used, such as the word “will”, imposes a contractual obligation on the Respondent to ensure confidentiality. Clause 16.4 is not an aspirational statement.

The Applicant’s preference is for the Respondent to implement oral testing. Oral fluid testing is also the preferred method of drug and alcohol testing at other BMA sites.

Oral testing is less evasive and time consuming. It enables all employees to attend safe start meetings and there is no adverse effect on shift hot seat change. Oral testing ensures there will be full shift numbers available for line handling operations.” 16

[28] The Applicant stated that an independent pathology company should be utilised to administer the urine testing and maintain individual records off site.

[29] The Applicant stated that the dispute, is a dispute over the application of provisions of the Agreement, and the disputes procedure in the Agreement, allows for the Tribunal to arbitrate the matter pursuant to s.739(4).

Summary of the Respondent’s submissions on jurisdiction

[30] The Respondent did not consider the Tribunal’s jurisdiction was enlivened as this was not a dispute over the application of clauses of the Agreement.

[31] The Respondent stated:

“Hay Point Services Pty Ltd ("Hay Point") has modified its Fitness for Work Policy ("FFW Policy") by changing the drug and alcohol testing process on site. This modification occurred to accommodate the introduction of TAMS and new functionality and resourcing.

Historically, QML was engaged by Hay Point to attend at site and randomly select employees and contractors to undergo drug and alcohol testing. Whereas QML once attended site once a week, in more recent times QML could only attend site every few weeks due to resourcing issues.

Due to the introduction of a Training and Access Management System (commonly referred to as "TAMS") on site, there are now additional security staff resources on site who can conduct drug and alcohol testing on a more regular basis.

Hay Point started consulting with the SBU last year, by providing a marked up version of the FFW Policy for review and seeking the SBU's input and feedback on the changes.

The SBU has informed Hay Point that:

(a) the testing medium should be saliva, not urine; and

(b) site security contractors should not conduct the testing.

Hay Point informed the SBU that urine testing would remain, and that appropriately qualified and trained site security contractors will conduct the testing in accordance with the applicable Australian Standard.” 17

[32] Predominantly the Respondent stated that the development of the FFW Policy is not a matter that arises under the Agreement. The Respondent stated that policy matters are excluded by clause 10 from the Agreement.

[33] The Respondent submitted that clause 16.2 established the CHESS committee. However the CHESS procedure does not form part of the Agreement. The Respondent argued:

“When distilled down, the nub of the Dispute is that agreement was not reached between the SBU and management before the FFW Policy was implemented. The SBU want agreement, not just consultation. The CHESS Procedure does not require an agreement to be reached. The CHESS Committee may make recommendations and/or proposals to management for consideration, but ultimately management has the power to make a final decision regarding those matters.

Hay Point management has consulted with the workforce and the CHESS Committee and has fulfilled its obligations in this regard.” 18

[34] Further, the Respondent took issue with the relief sought by the Applicant in terms of the 8 “determinations” they sought in the dispute Application as follows:

“(1) That the Respondent breached their obligations under clause 10 of the agreement by failing to notify all employees that a new fitness for work policy will apply to them from 01 March 2012 and to ensure that they understand the contents of the new policy;

(2) That the Respondent breached clause 16.2 of the agreement by failing to utilise the CHESS Committee in developing the new fitness for work policy;

(3) That the Respondent consult with the SBU and the CHESS Committee over the contents of the new fitness for work policy;

(4) That the new fitness for work policy does not apply on site from 01 March 2012;

(5) That the new fitness for work policy is not apply on site until the SBU, CHESS Committee and the Respondent agrees to the contents of the policy;

(6) That the existing fitness for work policy continues to apply on site until the new policy is agreed to by the SBU, CHESS Committee and the Respondent;

(7) That the Respondent ensure that any drug and alcohol testing comply with the confidentiality obligations under clause 16.4 of the agreement; and

(8) That the Respondent breached clause 22 of the agreement by refusing to recognise the dispute as a matter arising under the agreement.” 19

[35] The Respondent argued that the Applicant sought determinations that the Respondent had breached the Agreement and that this fell within section 50 of the Act, a civil remedy provision, applicable pursuant to s.539, to a decision of the Court. The Respondent referred to Media, Entertainment and Arts Alliance v Australian Broadcasting Corporation, where Smith C noted the following when invited to make orders in relation to remedy regarding the use of an enterprise agreement:

“In my view, the role of the Commission in these matters is not to purport to enforce an agreement but simply to determine how the Agreement is to operate in particular circumstances. Action in relation to breach of the Agreement and the enforcement remedies are a matter for a court of competent jurisdiction.” 20

[36] The Respondent also referred to the decision of Mason CJ, Brennan, Deane, Dawson and Toohey JJ in Re Cram; Ex parte Newcastle Wallsend Coal Co Pty Ltd:

“Indeed, a tribunal may find it necessary to form an opinion as to the existing legal rights of the parties as a step in arriving at the ultimate conclusions on which the tribunal bases the making of an award intended to regulate the future rights of the parties ... Of course, the formation of such an opinion does not bind the parties and cannot operate as a binding declaration of rights.” 21

[37] The Respondent submitted that in view of these case authorities, the determinations 1, 2 and 8 as sought by the Applicant (set out above) were beyond power.

[38] The Respondent conceded it is obliged to comply with 16.4, but that it was not within power of FWA to issue a ‘determination’ for the Respondent to comply. Further the Respondent submitted that the Agreement does not require the Respondent to achieve the agreement of the CHESS committee or SBU to apply FFW Policy. This would be imposing an additional obligation which would limit its right to manage. The Respondent submitted it only had an obligation to consult, which it pointed out had occurred. The Respondent submitted that consultation does not mean agreement.

Considerations

[39] The submissions of the Respondent regarding the determinations sought by the Applicant have been considered. This decision only relates to whether FWA has power to, in the first instance, conciliate a dispute application seeking resolution of the matters in dispute. It is not necessary to make determinations in regard to the alleged non-compliance with provisions of the Agreement. This decision only considers whether FWA has jurisdiction in relation to this matter; that is whether it is a dispute over the application of provisions of the Agreement. The disputes procedure in clause 22 provides FWA with jurisdiction to deal with a dispute where there is a dispute over the application over a provision of the Agreement. The Applicant contends those relevant provisions to the dispute are clause 10 - Policies and procedures and clause 16 - Health, safety, environment and community.

[40] In considering whether there is a connection between the Agreement provisions and the matters in dispute; I refer to the case law relevant to the construction of clauses. I addressed this case law in a prior jurisdictional decision; Brewer v Suncorp Staff Pty Limited 22 as follows:

[35] In the Full Bench decision of Shop, Distributive and Allied Employees Association (SDA) v Big W Discount Department Stores (PR924554), the Full Bench found that they considered the Commissioner at first instance construed the dispute narrowly as the ‘the alleged refusal of Big W to provide anti-fatigue matting for an SDA members, engaged as door greeters at the Broadmeadows and Forest Hills stores’ did give rise to a dispute under the health and safety provision of the Agreement. The Full Bench concluded that in their view it was a dispute more broadly about occupational health and safety and the provision of safe and healthy working conditions. The Full Bench set out that the dispute application referred to the steps taken to resolve the dispute, and clearly disclosed the discomfort experienced by a member of staff acting as a door greeter and that she had supplied her own anti-fatigue matting and had been requested by management to remove such. She had in response received a doctor’s certificate advising her to use anti-fatigue matting.

[36] The Full Bench set out that the provision of anti-fatigue matting is better regarded as the means of resolving the dispute, rather than as characterising the dispute and that the dispute, is a dispute over the application of the Agreement, which required a consideration of the terms of sub clauses 2.6(a) and 2.6(b) of the Agreement, in relation to occupational health and safety under that Agreement. 23

...

[38] The Full Bench confirmed the Appellant’s contention that clause 2.6(a) imposed an obligation on Big W to achieve and maintain healthy and safe working conditions by abiding by all relevant occupational health and safety legislation. The Full Bench did note that clause 2.6(b) set out the aims of the commitment, expressed in sub clause 2.6(a). There is no such detail in the provision in the current Suncorp Agreement, however the Full Bench in considering clause 2.6, set out in relation to the Big W Agreement, that the Agreement plainly commits the parties to working towards and maintaining a healthy and safe work environment. As per that decision, a dispute about how the commitment to workplace health and safety is to be achieved, is a dispute over the application of the agreement. Accordingly, in line with that, in the current circumstances, even though the dispute requires an assessment of the application of a performance management system or something else that may be found in a policy or guideline outside the Agreement, the Agreement provision, wherein the employer has made a commitment in the clause to the provision of a safe and healthy working environment for employees provides a foundation for the assessment of the health and safety particulars of this dispute via clause 23. Therefore, jurisdiction of the Tribunal is enlivened.

...

[40] The decision in ASU v ATO (PR961315), also turns on whether an agreement provision gives rise to a binding obligation. In that matter, the Full Bench set out that the critical question at the proceedings in the first instance is whether the clause 118 of the ATO Agreement created an obligation and was enforceable as a clause of the ATO Agreement to properly apply the ATO misconduct procedures. I adopt the approach taken by the Full Bench in that matter in confirming the approach to the interpretation of the industrial instrument as set out by Madgwick J in Kucks v CSR Ltd:

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

But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.”..... 24

[41] Relevantly clause 118 of the ATO Agreement provided a commitment, which is analogous to the commitment expressed in the current matter in clause 23:

“The ATO is committed to ensuring that all employees are aware of and comply with the standards of conduct as detailed in the APS Code of Conduct in the Public Service Act 1999, and that the ATO procedure “Managing Misconduct in the ATO” is properly applied.”

[42] Importantly at paragraph 62 the Full Bench stated:

“It seems to us that in the context of this matter the expression “committed to ensuring” evinces an intention to create an obligation, enforceable as a clause of the ATO Agreement, to properly apply the Misconduct Procedures. As the Deputy President pointed out in the decision subject to appeal, one of the meanings of the word ‘commit’ is to “bind by pledge or assurance”. We also note that the word “ensuring” is a derivative of the word ‘ensure’, which means, among other things, “to pledge one’s faith to a person for the execution of a promise”.⁴³ Hence, adopting the ordinary meaning of the words in the expression “committed to ensuring” suggests a binding obligation. The context within which the ATO Agreement was negotiated and the legislative context in which it sits also support that conclusion.” 25

[43] The Full Bench further stated that the fact that the commitment in clause 118 is expressed by the ATO alone and not as a mutually agreed term is of little weight. In addition at paragraph 65 the Full Bench sets out:

‘The second reason given is that the ATO’s Misconduct Procedures are enforceable by other means and hence it was unnecessary for them to be given force by the ATO Agreement. We accept that this is so, but it does not follow that the availability of alternative remedies means that the parties agreed that clause 118 would have no legal effect.’ 26

[41] Clause 10 ‘Policies and Procedures’ of the Agreement in part states: ‘HPS’ obligation is to ensure employees are:

“...aware of and understand policies and procedures that apply to them. Training will be provided as required.

HPS’ policies and procedures shall be available to employees via accessible hard copy or electronic form.”

[42] Whilst Clause 10 excludes the policies and procedures; Clause 10 sets out obligations for the Respondent’s conduct in regard to training employees on the policies and providing hard copies of them. The Applicant submits that this was not done.

[43] Clause 16 also provides obligations for the parties to the agreement as follows:

“16 Health, Safety, Environment and Community...

16.1 Preamble

...

Appropriate behaviour related to Health, Safety, Environment and Community (HSEC) performance is a fundamental condition and expectation of employment.

HPS has a responsibility to provide a safe and healthy working environment that is free from harm to personnel, the environment and our host communities.

Employees have a responsibility for their own safety and the safety of others within the workplace and the environmental impacts associated with their activities.”

[44] Clause 16.1(a) and (b) sets out the obligations for employees, and via Clause 16.1(c), that non-performance of such by employees will lead to the disciplinary action. Clause 16.2 sets the obligation to utilise the CHESS Committee; in accordance with the separate Charter. Clause 16.4 sets out the obligation on the Respondent to maintain the ‘confidentiality’ of collected personal health and medical information.

[45] In assessing whether this is a dispute over the application of provisions of the agreement; I rely on the summary of the case law as I set out in Brewer v Suncorp Staff Pty Limited:

[31] ... I refer to the principles of construction as SDP Lacy did, in Alcoa Australia Ltd v Automotive, Food, Metal, Engineering Printing and Kindred Industries Union 27, that is; the case authorities make it clear that it is inappropriate to take a narrow approach to the characterisation and construction of the facts that constitute a dispute. Furthermore, narrow or pedantic approaches to the interpretation of an agreement or award are to be avoided. However in that matter SDP Lacy could not provide any foundation upon which the dispute, as characterised, enlivened the jurisdiction of the Commission.28

[32] In the current matter the Applicant argued that the jurisdiction of the Tribunal is enlivened on the basis that the Respondent has provided a commitment in clause 23 to the provision of a safe workplace. Further that there is an obligation in clause 23(b) on the part of the Respondent for the Applicant’s supervision. The Applicant also argued that clause 23(b), a requirement, for the supervisor to meet their obligation to take reasonable care of the health and safety of others, that may be affected by his actions.

[33] The Applicant argued that the Tribunal’s jurisdiction is enlivened as the Respondent has committed to an obligation, on the interpretation of clause [16] in accordance with the case authorities as set out below. That is; a contractual obligation arises from the words of clause 23 in terms of ‘the group is committed to the provision of a safe and healthy work environment for employees...’ and further in relation to the supervisor’s obligation and clause 23(b). They argue a nexus between those words in clause 23 and the allegations of the Applicant, in relation of the conduct of the supervisor, and in relation to her treatment at the workplace. The Applicant claimed the treatment referred to involved the performance management and the supervisor’s allocation of work or work direction and the Applicant as a result of such, becoming ill.

[34] Those matters in terms of allocation of work or performance management are issues covered under the Respondent’s policies and guidelines and are not specific matters which form provisions of the Agreement. Therefore there cannot be a dispute over the application of a provision of the Agreement that enlivens the jurisdiction for this dispute. However actions falling from conduct that gives rise to matters under the Agreement’s health and safety provision can give rise to a dispute.

[35] In the Full Bench decision of Shop, Distributive and Allied Employees Association (SDA) v Big W Discount Department Stores (PR924554), the Full Bench found that they considered the Commissioner at first instance construed the dispute narrowly as the ‘the alleged refusal of Big W to provide anti-fatigue matting for an SDA members, engaged as door greeters at the Broadmeadows and Forest Hills stores’ did give rise to a dispute under the health and safety provision of the Agreement. The Full Bench concluded that in their view it was a dispute more broadly about occupational health and safety and the provision of safe and healthy working conditions. The Full Bench set out that the dispute application referred to the steps taken to resolve the dispute, and clearly disclosed the discomfort experienced by a member of staff acting as a door greeter and that she had supplied her own anti-fatigue matting and had been requested by management to remove such. She had in response received a doctor’s certificate advising her to use anti-fatigue matting.

[36] The Full Bench set out that the provision of anti-fatigue matting is better regarded as the means of resolving the dispute, rather than as characterising the dispute and that the dispute, is a dispute over the application of the Agreement, which required a consideration of the terms of sub clauses 2.6(a) and 2.6(b) of the Agreement, in relation to occupational health and safety under that Agreement.

[37] The health and safety clause in the matter was in similar terms to that of the current matter. Clause 2.6 (Occupational Health and Safety) of that Agreement at clause 2.6(a) stated ‘Big W, it’s associates and the SDA are committed to achieving and maintaining healthy and safe working conditions in all Big W workplaces by abiding by all relevant occupational health and safety legislation.’ Clause 2.6(b) progressed to ‘this commitment will have the following objectives; 1. To control workplace health hazards at their stores; 2. To reduce the incidents and cost of occupational injury and disease; 3. To provide an occupational rehabilitation system for workers affected by occupational injury or illness.’

[38] The Full Bench confirmed the Appellant’s contention that clause 2.6(a) imposed an obligation on Big W to achieve and maintain healthy and safe working conditions by abiding by all relevant occupational health and safety legislation. The Full Bench did note that clause 2.6(b) set out the aims of the commitment, expressed in sub clause 2.6(a)...  29

...

[40] The decision in ASU v ATO (PR961315), also turns on whether an agreement provision gives rise to a binding obligation. In that matter, the Full Bench set out that the critical question at the proceedings in the first instance is whether the clause 118 of the ATO Agreement created an obligation and was enforceable as a clause of the ATO Agreement to properly apply the ATO misconduct procedures. I adopt the approach taken by the Full Bench in that matter in confirming the approach to the interpretation of the industrial instrument as set out by Madgwick J in Kucks v CSR Ltd:

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

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

..... 30

[41] Relevantly clause 118 of the ATO Agreement provided a commitment, which is analogous to the commitment expressed in the current matter in clause 23:

“The ATO is committed to ensuring that all employees are aware of and comply with the standards of conduct as detailed in the APS Code of Conduct in the Public Service Act 1999, and that the ATO procedure “Managing Misconduct in the ATO” is properly applied.”

[42] Importantly at paragraph 62 the Full Bench stated:

‘It seems to us that in the context of this matter the expression “committed to ensuring” evinces an intention to create an obligation, enforceable as a clause of the ATO Agreement, to properly apply the Misconduct Procedures. As the Deputy President pointed out in the decision subject to appeal, one of the meanings of the word ‘commit’ is to “bind by pledge or assurance”. We also note that the word “ensuring” is a derivative of the word ‘ensure’, which means, among other things, “to pledge one’s faith to a person for the execution of a promise”.⁴³ Hence, adopting the ordinary meaning of the words in the expression “committed to ensuring” suggests a binding obligation. The context within which the ATO Agreement was negotiated and the legislative context in which it sits also support that conclusion.’ 31

[43] The Full Bench further stated that the fact that the commitment in clause 118 is expressed by the ATO alone and not as a mutually agreed term is of little weight. In addition at paragraph 65 the Full Bench sets out:

‘The second reason given is that the ATO’s Misconduct Procedures are enforceable by other means and hence it was unnecessary for them to be given force by the ATO Agreement. We accept that this is so, but it does not follow that the availability of alternative remedies means that the parties agreed that clause 118 would have no legal effect.’ 32

[46] On the basis of the authorities (as set out) the wording in clauses 10 and 16 provide require a further examination of these clauses. The Health and Safety clause in the current matter, as per the authorities, goes beyond a mere aspirational clause to a contractual obligation. The Policies and Procedures Clause and the Confidentiality clauses also provide obligations for the Respondent under the Agreement.

[47] The clauses are more than a statement of intent; that do not create obligations. The difference in the nature of clauses; those being a statement of intent and those providing obligations as follows:

[45] I have considered the Respondent’s argument that the statement in clause 23 is a statement of intent, that does not create an obligation but a description of the intention. As set out by Commissioner Smith in the matter of Finance Sector Union of Australia v National Australia Bank Limited (PR982592) as follows:

‘......

Clauses in agreements are put there for a purpose. The question is whether or not a clause has any real work to do. Sometimes these clauses are referred to as aspirational clauses.

‘In Shop, Distributive and Allied Employees Association v Big W Discount Department Stores 5 the Full Bench found that the clause in relation to occupational health and safety went beyond an aspirational concept and committed parties to pursuing a particular outcome. The language used in clause 22 of the Agreement uses the words “committed” and “ensure”. I am satisfied that the language of the Agreement permits an examination of the factual circumstances to allow conclusions to be reached about the commitments given.

It appears that the actions of NAB may be tested against these commitments and therefore the character of the dispute is easily identified.

To the extent that these clauses are said to be aspirational, I adopt, with respect, the observations of His Honour Chief Justice Black:

The difficulty is that the statement in issue is not explicitly contractual in its language and could be seen as merely aspirational. It appears in a document of mixed content and purposes and, although these include contractual purposes, at least the primary repository of the employment contract is unambiguously elsewhere. The context is, however, decisive. In the context of WWU as a whole, if the statement that the firm “will take every practicable step to provide and maintain a safe and healthy work environment for all people” were no more than an aspirational representation, imposing no obligation on the maker, it would be seen as an exercise in hypocrisy. The statement is a reflection of, and is central to, WWU’s expression of the “culture” of the firm and its approach to its staff, and its aspirations about the approach its employees will take to each other. The language used, taken in the context as a whole, points to the statement embodying a contractual obligation and the trial judge was correct in holding that it was a term of the contract.

.......’ 33

[48] On that basis; that the clauses provide obligations, such as, the employees are to be trained in the policies and to receive a ‘hard copy’ of the policy. The Health and Safety clause is more than aspirational; it is framed as an expectation and condition of employment. The Respondent and employees are responsible to provide a safe and healthy working environment is set out in clause 16.1. Clause 16.2 provides the commitment to using the CHESS; but only in accordance with the Charter. A dispute conference would assess with the parties whether the circumstances of the dispute; utilised the CHESS appropriately. Even though the Charter of the CHESS is separate to the Agreement; the Charter on the utilisation of the Committee is directly drawn up by the clause.

[49] The factual circumstances of the Applicant’s grievance regarding the nominated clauses (as set out) come within the ambit of matters to be considered via the disputes procedure. The dispute is a dispute over the application of the party’s commitments in the clauses in the Agreement (as referred to). Accordingly the dispute is over the application of a clause in the agreement, therefore the jurisdiction of FWA is enlivened and the matter will be listed for conciliation. A separate listing will issue.

COMMISSIONER

 1   Agreed statement of facts, [4].

 2   Agreed statement of facts, [6].

 3   Agreed statement of facts, [11].

 4   Agreed statement of facts, [12].

 5   Agreed statement of facts, [14].

 6 Agreed statement of facts, [17]-[20].

 7   Applicant submissions dated 11 April 2012, [6].

 8   Alcoa Australia Ltd v Automotive, Food, Metal, Engineering Printing and Kindred Union (PR964895), 15 November 2005, [37].

 9   Finance Sector Union of Australia v National Australia Bank Limited[2008] AIRC 1174.

 10   Applicant submissions dated 11 April 2012, [9].

 11   Australian Municipal, Administrative, Clerical and Services Union v Australian Taxation Office and another (PR961315).

 12   Australian Municipal, Administrative, Clerical and Services Union v Australian Taxation Office and another (PR961315).

 13   The Oxford Dictionary (1978) Volume III at p.205 as cited in Australian Municipal, Administrative, Clerical and Services Union v Australian Taxation Office and another (PR961315), [62].

 14   Applicant submissions dated 11 April 2012, [25].

 15 Applicant submissions dated 11 April 2012, [25]-[29].

 16 Applicant submissions dated 11 April 2012, [36]-[41].

 17   Respondent submissions dated 26 March 2012, [1].

 18   Respondent submissions dated 26 March 2012, [1].

 19   Originating CFMEU application, filed in FWA 28 February 2012.

 20   Media, Entertainment and Arts Alliance v Australian Broadcasting Corproation (PR961251) 11 August 2005, at [82].

 21 (1987) 163 CLR 140 at [149].

 22   [2011] FWA 7334

 23   Brewer v Suncorp Staff Pty Limited [2011] FWA 7334

 24   Kucks v CSR Ltd (1996) 66 IR 182, 184

 25   Australian Municipal, Administrative, Clerical and Services Union v Australian Taxation Office and another (PR961315) [62]

 26   Australian Municipal, Administrative, Clerical and Services Union v Australian Taxation Office and another (PR961315) [65]

 27   (PR964895) AIRC 980, 15 November 2005 at paragraph 37

 28   (PR964895) AIRC 980, 15 November 2005

 29   Brewer v Suncorp Staff Pty Limited [2011] FWA 7334, [31] - [38]

 30   Kucks v CSR Ltd (1996) 66 IR 182, 184

 31   Australian Municipal, Administrative, Clerical and Services Union v Australian Taxation Office and another (PR961315) [62]

 32   Australian Municipal, Administrative, Clerical and Services Union v Australian Taxation Office and another (PR961315) [65]

 33   Finance Sector Union of Australia v National Australia Bank Limited [2008] AIRC 1174 - 29 July 2008 [18-21]

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