Construction Forestry Mining and Energy Union v Pacific Coal Ltd
[1999] FCA 414
•13 APRIL 1999
FEDERAL COURT OF AUSTRALIA
Construction Forestry Mining & Energy Union v Pacific Coal Ltd
[1999] FCA 414INDUSTRIAL LAW - application for penalties for alleged contravening conduct - whether the change in shift arrangements of employees who took part in industrial action operated to their injury or prejudice.
Workplace Relations Act 1996 (Cth)
Independent Education Union of Australia v Canonical Administration, Barkly Street, Bendigo (1997) 157 ALR 531
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION v PACIFIC COAL LTD (ACN 010 542 140)
QG146 OF 1998
COOPER J
BRISBANE
13 APRIL 1999
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
QG146 OF 1998
BETWEEN:
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
ApplicantAND:
PACIFIC COAL LTD (ACN 010 542 140)
RespondentJUDGE:
COOPER J
DATE OF ORDER:
13 APRIL 1999
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1. The application is dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
QG146 OF 1998
BETWEEN:
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
ApplicantAND:
PACIFIC COAL LTD (ACN 010 542 140)
Respondent
JUDGE:
COOPER J
DATE:
13 APRIL 1999
PLACE:
BRISBANE
REASONS FOR JUDGMENT
On 16 November 1998, the applicant trade union filed proceedings against the respondent employer alleging a contravention by the employer of s 170MU of the Workplace Relations Act 1996 (Cth) (“the Act). The parties resolved all matters between them save for the applicant seeking the imposition of a penalty for the alleged contravening conduct on the part of the respondent. The respondent denied that its conduct constituted a contravention of s 170MU of the Act and opposed the imposition of any penalty.
The principal acts giving rise to the issues are not in dispute. The respondent is the operator and employer of labour at the Meandu Mine at Tarong, Queensland. Since November 1995 the respondent had been party to a certified agreement with a number of unions including the applicant in respect of the employment and utilisation of labour at the mine. The certified agreement expired on 1 November 1998. The applicant and the respondent are parties to the Coal Mining Industry (Production and Engineering) Consolidated Award 1997 (“the Award”).
In February 1998 the respondent, in accordance with clause 24.2 of the Award, sought the agreement of employees for a change in shift arrangements from three eight hour to two twelve hour shifts per day. By the end of July 1998 only four employees had not agreed to work twelve hour shifts. Those employees who had agreed to the change were advised by Mr Baird, the respondent’s operations manager, that if employees wished to revert to an eight hour shift, then the respondent would agree to such a course. On the evidence, in the seven months from February 1998 one employee sought and was granted a reversion back to eight hour shifts.
On 22 July 1998 a Notice of Initiation of a Bargaining Period was served by the applicant on the respondent pursuant to s 170MI(2) of the Act. The notice was given in anticipation of the expiry of the then current certified agreement.
On 8 September 1998 the applicant, by letter of that date, notified the respondent of the intention of the respondent’s members to engage in industrial action in support of the making of a new agreement. The letter said :
“The General Manager
Pacific Coal Pty Ltd
GPO Box 391
BRISBANE QLD 4001Dear Sir
Re: Notification pursuant to the provisions of s 170MO of the Workplace Relations Act 1996
Pursuant to the above provision of the above Act, the Construction, Forestry, Mining and Energy Union (Mining and Energy Division), hereby gives formal notice of the intention of its members employed by Pacific Coal Pty Ltd at the Tarong (Meandu) Mine to engage in industrial action.
The industrial action is in support of the making of an agreement pursuant to the provisions of Division 3 of Part VIB of the Act.
The industrial action will commence from the commencement of the normal rostered shift commencing at or about 11.00 pm Sunday 13th September 1998.
The industrial action will take the form of:
(i) a ban on the working of rostered shifts in excess of eight (8) hours duration by employees, members of the Union, excluding those employees who normally work as Dragline Crew employees and Open Cut examiners; and
(ii) a ban by members of the Union from participating in information or briefing sessions conducted by management pertaining to the Company’s proposed Safety Net Award and Certified Agreement negotiations, unless such sessions are attended by representatives of the Tarong Union’s Single Bargaining Unit.
Yours faithfully,
Andrew Vickers
DISTRICT PRESIDENT”On 14 September 1998 Mr Baird sent a memorandum to certain employees, who had requested that they be allowed to revert to eight hour shifts in accordance with his previous assurance in that regard. The memorandum stated :
“In honour of your request today that you would like to return to 8 hour shifts you will be assigned to day shift beginning tomorrow. Given that you have indicated that you will work between 7.00pm and 11.00pm tonight, please take a 10 hour break and be prepared to work again at 9.00am tomorrow. You may either work until 3.00pm or 5.00pm tomorrow but please let me know ahead of time what your decision will be.
Initially, the shift rotation will be day, night, afternoon rotating on a weekly basis. This is to honour an understanding among employees, that they could return to that pattern if they chose to withdraw from voluntary 12 hour shift arrangements. Please be advised that Tarong may choose to implement alternate 8 hour shift arrangements in the coming weeks. If and when this happens your crew will be briefed in advance, and you will be notified according to the existing industrial requirements.”
As a result of the industrial action as notified, all employees who were members of the applicant were rostered for eight hour shifts. The remaining employees of the respondent who had entered Australian Workplace Agreements with the respondent, and totalled eleven in number, remained working twelve hour shifts.
On 5 and 6 November 1998 the respondent advised employees that new shift arrangements comprising one twelve hour day shift and two eight hour afternoon and evening shifts, would be implemented on 16 November 1998.
On 11 November 1998 the applicant wrote to Mr Paul Davies of the respondent. Mr Davies was the officer responsible for employee relations and had the major responsibility for employee relations at the Tarong Mine for the last two years because of the illness of the onsite employee relations manager. The letter, so far as is relevant, said :
“I am instructed by my members employed at Tarong Coal of the management’s intention to require some of them, as yet unidentified, to commence working rotating night and afternoon shifts only effective Monday 16th November 1998. I understand that this requirement is a direct result of those members participating in protected industrial action in support of a new certified agreement at the Mine.
I seek your confirmation by 3.00 pm tomorrow, as to whether or not this proposition will be proceeded with.
In the event that no such confirmation is forthcoming, then it will be assumed that management is to proceed as advised verbally to employees.
You are advised that the CFMEU is of the view that any such action would be in breach of s 170MU of the Workplace Relations Act 1996 (Cth) and as such the CFMEU will take action pursuant to s 170ND and s 170NG to seek interlocutory relief.”
Mr Davies responded by letter dated 12 November 1998 :
“I have received your letter of 11 November 1998 regarding the introduction of new shift arrangements at Tarong.
These changes seek to improve efficiency at Tarong, by allocating all employees to the most effective shift configuration that is available under the Awards and Agreements at Tarong. Employees were advised of these changes last Friday (6 November), including the shift that they would move to from Monday 16 November.
The Company rejects any suggestion that these changes constitute a breach of the Act. This action has been taken in accordance with the relevant Award provisions. We note that your letter does not suggest that this shift change is in breach of the Award.
In these circumstances, the Company intends to implement the shift changes from Monday 16 November.”
On 16 November 1998 these proceedings were initiated.
Section 170MU of the Act is part of Division 8 of Part VIB which deals with negotiations for certified agreements under the Act. The section provides :
“170MU(1) An employer must not :
(a)dismiss an employee, injure an employee in his or her employment or alter the position of an employee to the employee’s prejudice; or
(b)threaten to dismiss an employee, injure an employee in his or her employment or alter the position of an employee to the employee’s prejudice;
wholly or partly because the employee is proposing to engage, is engaging, or has engaged, in protected action.
170MU(2) Subsection (1) of this section does not apply to any of the following actions taken by the employer:
(a) standing-down the employee;
(b)refusing to pay the employee where, under the common law, the employer is permitted to do so because the employee has not performed work as directed;
(c)action of the employer that is itself protected action.
170MU(3) In proceedings under section 170NF for an alleged contravention of subsection (1) of this section, it is to be presumed, unless the employer proves otherwise, that the alleged conduct of the employer was carried out wholly or partly because the employee was proposing to engage, was engaging, or had engaged, in protected action.”
“Protected action” is industrial action which satisfies the requirements of s 170ML of the Act and which, is engaged in for the purpose of supporting or advancing claims made in respect of a proposed certified agreement. For so long as the industrial action is protected action, it is immune from legal action in respect of its occurrence or consequences as provided for in s 170MT of the Act.
Contravention of s 170MU exposes the contravener to a civil penalty (s 170ND and s 170NF of the Act).
The applicant contends that its members commenced industrial action on 13 September 1998, during the bargaining period, which was protected action within s 170ML(1). Whether or not this is correct is open to question. At the time the industrial action was taken, the current certified agreement remained in operation. Section 170MN(1) prohibits the taking of industrial action in support of the claims in the proposed new certified agreement until the existing agreement has passed its nominal expiry date. Industrial action taken in contravention of s 170MN(1) is not protected action (s 170MN(3) of the Act).
The respondent did not argue on the hearing that the industrial action was not protected action and appears to have been prepared to treat the continuing refusal to work longer than eight hour shifts as protected action on the expiry of the certified agreement on 1 November 1998.
The applicant submitted that it was entitled to rely upon the presumption in s 170MU(3) that the conduct in implementing the new shift arrangements was carried out wholly or partly because the employees who were engaged in eight hour afternoon and evening shifts were proposing, were engaging in, or had taken protected action. It was further submitted that I should infer that from the existing facts in any event.
The applicant’s position is that prior to introduction of the two twelve hour shifts the mine operated with rotating day, evening and night shifts of eight hours. When industrial action was taken against the respondent over the twelve hour shifts, the employees who were members of the applicant, reverted to these rotating day, evening and night eight hour shifts. The new shift arrangements, it was submitted, operated to the injury or prejudice of the employees in their employment because it denied them the benefit of a rotating day time shift which they had previously enjoyed. They were being punished in this way, it was submitted by counsel for the applicant, because they had taken industrial action. The less congenial shift arrangement, it was submitted, fell within s 170MU as injury or prejudice and in this regard the applicant relied upon the observations of Ryan J in Independent Education Union of Australia v Canonical Administration, Barkly Street, Bendigo (1997) 157 ALR 531 at 548, where his Honour said :-
“... As I perceive it, the purpose of that subsection [s 170MU(1)] is to ensure that the relationship of employer and employee can resume or continue unaffected after the conclusion of protected industrial action. Accordingly, the employer is prohibited from dismissing or demoting the employee for the proscribed reason. Similarly, the subsection precludes an employer from discriminating against an employee wholly or partly for the same reason, by, for example, the allocation of less congenial shifts or rosters or affording fewer opportunities for overtime than are extended to other employees.”
Section 170MU as a matter of construction has both a purposive and a causative element to it. The action of the employer must be taken with the purpose of dismissing, injuring or prejudicing the employee in his or her employment. That is, it must be taken for the purpose of consciously adversely affecting or harming the employee in the manner provided in the section. Further, the action must be taken on account of the fact that the employee has threatened to take, is taking, or has taken protected action.
The respondent’s position is that the decision to implement new shift arrangements were taken as management decisions in order to enable the mine to be operated with some degree of efficiency, having regard to the changed labour resources available to the respondent in consequence of the applicant’s members refusing to work shifts in excess of eight hours.
The reasons behind the introduction of the changed shift arrangements were contained in the affidavit of Mr Davies.
Mr Davies says that in the period from the commencement of the industrial action to November 1998, the respondent trialed a number of different shift arrangements in order to create a “sensible operational shift pattern”. Mr Davies explains the problems with the trialed shifts :
“14. ... The problems with those shift rosters were:
(a) on certain shifts there was the wrong mix of skills;
(b)on certain shifts there was the wrong number of operators for the equipment.
15. The most productive use of equipment at Tarong mine occurs when eight trucks are run continuously during the shifts. A consequence of the roster changes referred to above was that there was an imbalance between employees and vehicles. Generally speaking, it became a very inefficient and unproductive operation. It became apparent to me that the mine could not continue to operate under such a shift pattern regime.
16. The company has continued to adjust the shift arrangements to make them as effective as possible. Among other things, the company has attempted to balance the number of employees in crews, it has used employees from other areas on production and it has established two large production crews. The latter was done with a view to having at least two of the three shifts as efficient as the company could achieve under those conditions.
17. After trying as many options as we reasonably could, none of them overcame the basic problem caused by the combination of a 12 hour shift and three 8 hour shifts. That is, there were still 15 interruptions on a 24 hour period.”
Mr Davies, under cross-examination by Mr Logan, counsel for the applicant, explained further that once the twelve hour shifts and eight hour shifts were combined :
“... That then gave us some problems in the organisation because we didn’t have enough people to effectively run our 12-hour roster and we also had substantial differences in the number of employees who were on site at any one time. We had a number of changes within the rotating eight-hour roster such as moving the number of employees allocated to particular shifts so that we could bulk up crews in an attempt to effectively operate the organisation whilst those employees stayed on that eight-hour roster, consistent with our undertaking. That became impossible to productively do that ...”
The solution, as far as the respondent was concerned, was to combine the twelve hour shifts into one twelve hour day shift and combine the three eight hour shifts into two eight hour afternoon and evening shifts.
In oral evidence and under cross-examination, Mr Davies further explained why the respondent chose to run the single twelve hour shift as a day shift. It did this because the shift would be involved in hauling dirt, not coal. This meant the coal plant was available for maintenance work. The majority of the maintenance workforce operated on day shifts. It also meant that the shift could work without a supervisor as the mine superintendent worked day shift and could fulfil this function. There were other reasons for the twelve hour shift operating during the day. Firstly, the respondent had a policy, based on safety considerations, of not requiring employees in this area of operations to work consecutive twelve hour night shifts. Secondly, hauling dirt during the day required less support, such as water trucks, which fitted with a smaller number of employees operating the day shift.
Mr Davies denied under cross-examination that the rosters were to punish those employees who had taken industrial action or to act as an incentive to them to sign Australian Workplace Agreements, to get access to the day work shifts.
I accept the evidence of Mr Davies as to the purpose behind the proposed implementation of the particular roster arrangements in November 1998. I find that the proposed arrangements were not intended to operate to injure or prejudice any members of the applicant employed at the mine because of past or present industrial action taken by them in refusing to work shifts in excess of eight hours. It is of some significance that other arrangements were considered, trialed and found wanting before the proposed arrangements were fixed upon. The arrangements fixed upon are rational and directed to demonstrable management goals rather than an arbitrary imposition of a roster which has no discernible purpose other than to prejudice one element of the respondent’s workforce.
There is one further matter which touches upon the question of the injury or prejudice claimed. That is, the Award makes no specific provisions for rotating day, evening, night shifts. Rather, under the Award loadings are payable to employees who work afternoon and night shifts. These loadings are fifteen and twenty-five percent respectively. They are payable to compensate for any loss of congeniality from working such shifts and for any domestic dislocation that working such shifts may involve. However, where the operational requirements of a particular work situation require that such shifts be worked, to operate the shifts in such a way and to pay the loadings, without more, does not bespeak prejudice or injury to the employee working those shifts in his or her employment.
The purpose of the respondent in proposing in November 1998 the shift arrangements which it did, does not contravene s 170MU(1) of the Act.
The application is dismissed.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper.
Associate:
Dated: 13 April 1999
Counsel for the Applicant:
J Logan
Solicitor for the Applicant:
Nall Payne
Counsel for the Respondent:
G C Martin SC
Solicitor for the Respondent:
Freehill Hollingdale & Page
Date of Hearing:
8 February 1999
Date of Judgment:
13 April 1999
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