Construction, Forestry, Mining and Energy Union v Thiess Pty Ltd

[2012] FWA 6985

[2012] FWA 6985

FAIR WORK AUSTRALIA

DECISION

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

Construction, Forestry, Mining and Energy Union
v
Thiess Pty Ltd
(C2012/4652)

Coal industry
SENIOR DEPUTY PRESIDENT HAMBERGER	SYDNEY, 21 AUGUST 2012

Jurisdiction; whether dispute pertains to enterprise agreement.

Introduction

[1] On 20 July 2012 the Construction, Forestry, Mining and Energy Union-Mining & Energy Division (CFMEU) filed a dispute under s.739 of the Fair Work Act 2009 (the Act) under the dispute resolution procedure in the Wilpinjong Coal Mine Enterprise Agreement 2012 (the 2012 agreement). The dispute related to disciplinary action taken by Thiess Pty Ltd (the respondent) against three of the CFMEU's members employed by the respondent at the Wilpinjong Coal Mine: Mr Suttor, Mr Nelson and Mr Sherbon (the employees). The action was taken in relation to an allegation that a bottle was thrown from a car in which the employees were travelling home from work on 19 April 2012. Mr Suttor was issued with a final written warning and Messrs. Nelson and Sherbon were issued with written warnings. The CFMEU indicated in its application to FWA that it regarded the allegations as unproven and maintained by the respondent without factual foundation. It asserted that the investigation of the allegations by the respondent had not been conducted in accordance with its policies, and that its findings were unfair and improperly made.

[2] A conciliation conference was held by telephone on 1 August 2012; however this did not resolve the dispute. The CFMEU indicated that it wished FWA to arbitrate the matter. The respondent objected that FWA did not have the jurisdiction to arbitrate the dispute. This decision concerns that jurisdictional objection. I have received written submissions from the CFMEU and the respondent on this issue and have decided to deal with it ‘on the papers’.

The agreement

[3] The dispute resolution procedure in the 2012 agreement is as follows:

‘7. Disputes Resolution Procedure

7.1 This clause deals with any dispute arising in relation to the National Employment Standards or pertaining to this Agreement or in the course of employment, in accordance with this clause.

7.2 It is the intention of the parties that all disputes arising out of the interpretation or application of this Agreement shall be dealt with at the local level to the maximum extent possible.

7.3 If a dispute arises there shall not be any stoppage of work either by the Company or Employee/s and work shall continue at the direction of management, subject to applicable workplace health and safety legislation.

7.4 (a) If a dispute arises, it shall in the first instance be discussed between the Employee and their supervisor.

(b) If the matter remains unresolved after completion of subclause 7.4 (a) it shall be referred to the Employee's department Manager (e.g. Manager Mining, Manager Maintenance, etc.), or their nominated representative. The Employee may elect to have a support person present, being any person employed by the Company and readily available.

(c) If the matter remains unresolved after completion of subclause 7.4(b) the dispute shall be put in writing by the person raising the dispute and be referred for further discussion between the Project General Manager and the Employee. The Employee may elect to have an Employee representative, being an Employee or Union District Official, to assist them to prepare the written dispute and to be present in discussions.

(d) If the matter remains unresolved after completion of subclause 7.4 {c) the dispute may be referred by either party to Fair Work Australia for conciliation.

(e) If, after completion of subclause 7.4 (d} the matter remains unresolved, then:

(i) Matters or issues relating to the National Employment Standards, or pertaining to this Agreement, may be referred by either the Employee or the Company, to Fair Work Australia for arbitration;

(ii) All other matters or issues which remain unresolved may only be the subject of arbitration by Fair Work Australia, on the further agreement of both the Employee and the Company to arbitration of the particular dispute.

(f) For the purpose of subclause 7.4 (d) & (e), the Company or Employee may appoint another person, organisation or association to accompany and/or represent them for the purpose of these clauses.

(g) By agreement between the parties any of the parties may bypass any of the above steps.’

[4] In its application to FWA, the CFMEU indicated that the dispute related to clause 5.2 of the 2012 agreement. That clause provides as follows:

‘5.2 This Agreement will be supported by policies and procedures determined by the Company, as amended from time to time. These policies and procedures will not reduce substantive entitlements contained in this Agreement but provide guidelines for the fair and efficient administration of the employment relationship and operations of the Company at the Mine and to support the Employees' contribution towards the achievement of the primary objectives of the Mine in relation to:

(a) Health, Safety, Environment and Community;

(b) Production and Efficiency;

(c) Cost Management; and

(d) Continuous Improvement.’

Which is the Relevant Agreement?

[5] The respondent submitted that the relevant industrial instrument for consideration of jurisdiction is the Thiess Wilpinjong Coal Mine Enterprise Agreement 2009 (the 2009 agreement). The 2012 agreement was approved by FWA on 31 May 2012 and came into force on 7 June 2012. The alleged bottle throwing incident, the investigation into the incident, and the warnings, all occurred prior to 7 June 2012.

[6] In accordance with s.58 of the Act only one enterprise agreement can apply to an employee at any one time. On 7 June 2012 the 2009 agreement ceased to apply to the employees and (in accordance with s.54) ceased to operate. The dispute was invoked by a letter from the District President of the CFMEU to the respondent on 15 June 2012. Given that this was more than a week after the 2009 agreement had ceased to operate, the CFMEU’s letter could not have invoked the dispute resolution procedure contained in the earlier agreement. I would add that while the alleged ‘bottle throwing’ incident and the associated disciplinary action took place prior to the replacement of the 2009 agreement, I can see no good reason why regard cannot be had to these events under a dispute notified under the 2012 agreement.

Does the Dispute Pertain to the Agreement?

[7] Ii is clear that the dispute - dealing as it does with the disciplining of the employees by their employer - arises ‘in the course of employment’. It thus generally comes within the ambit of the dispute resolution procedure. However while the procedure provides that all unresolved matters may be referred to FWA for conciliation, only disputes relating to the NES, or pertaining to the 2012 agreement itself, may be referred to FWA for arbitration. The NES are clearly not relevant. Given that the respondent does not consent to the matter being arbitrated, it is necessary to determine whether the issues in dispute pertain to the 2012 agreement.

[8] The CFMEU submitted that the dispute included an assertion that the respondent had failed to comply with clause 5.2 of the 2012 agreement in relation to the respondent’s investigation of the allegations against the employees. It argued that the effect of clause 5.2 was to incorporate the relevant policies and procedures into the agreement. It claimed that the respondent had failed to comply with its policies and procedures and in particular had not complied with them in a manner consistent with the fair and efficient administration of the employment relationship between the respondent and the employees.

[9] French J has observed that while in interpreting industrial instruments ‘fractured and illogical prose may be met by a generous and liberal approach to construction’ the starting point should be a consideration of the natural and ordinary meaning of the words used. 1

[10] In construing the effect of clause 5.2 one accordingly needs to read carefully the words used. The clause states that the agreement ‘will be supported by policies and procedures determined by the Company as amended from time to time.’ The use of the word ‘will’ implies that this is more than an ‘aspirational’ statement. It is a ‘substantive’ provision which amounts to a commitment that there will be policies and procedures which will ‘support’ the agreement. These policies and procedures ‘will not reduce substantive entitlements’ contained in the agreement ‘but provide guidelines for the fair and efficient administration of the employment relationship and operations of the Company ...’. A failure to provide such policies and procedures would be a failure to comply with the terms of the agreement. However the agreement is only to be ‘supported by’ these policies and procedures. In this context that would mean the agreement is to be ‘backed up’ or ‘assisted’ by the policies and procedures. That is quite different from saying those policies and procedures are incorporated into the agreement, such that a breach of those policies and procedures would amount to a breach of the agreement itself. Nor does clause 5.2 provide a binding commitment always to ‘fairly administer the employment relationship’ such that any allegation of unfair treatment would ipso facto amount to a dispute pertaining to the agreement. Rather there must be policies and procedures that provide guidelines for the fair and efficient administration of the employment relationship.

[11] In its written submissions the CFMEU expanded on the nature of the dispute. In particular it said:

‘The Applicant is able to bring evidence that the Respondent did not comply with its policies and procedures and in particular that they were not applied in a manner that is consistent with the fair and efficient administration of employment relationship between the Respondent and the members. In respect to the relevant investigation of and conclusions drawn by the Respondent on the allegations denied by our members, this evidence would include the following:

• Mr. Thorley, in breach of the Respondent's "Workplace Conduct Policy", bullied the three members and also their representative/s during the investigation. Mr. Thorley refused Mr. McPhee’s request to adjourn the meetings and to take the matter to a higher level of management. Mr. Thorley did not treat the members or their representative/s with dignity, courtesy or respect or make decisions relating to their employment based on the principles of fairness and merit in accordance with the objectives of the procedure.



• Mr. Thorley misapplied the Respondent’s Accountability and Personal Conduct Toolkit ("Toolkit") in his investigation because the alleged behaviour, if it occurred at all, did not breach or compromise any Thiess Standards/Procedures/Policies.



• The asserted incident was alleged to happen on a public road, about 20 minutes drive from the workplace and in the members’ own time/vehicle so it also did not have the requisite connection to employment to enable any discipline to be taken against the members even if the allegations were true. Further, Mr. Thorley did not allow the members to observe and understand how he over-laid the template of the Toolkit to the facts to enable an objective assessment of accountability to be established. The Applicant contends that they were not the facts at all, only Mr. Thorley’s conclusions based upon subjective bias.



• Mr Thorley did not comply with the Respondent’s Disciplinary & Termination Procedure in respect to the manner he conducted the investigation and recorded the warnings against the members. Further, he treated the members’ representative/s in a manner that was not consistent with any of the Respondent’s relevant policies and procedures.



• Mr. Thorley did not use correctly apply that Respondent’s policies and procedures as guidelines for the fair and efficient administration of employment relationship in respect to the three members or their union representative. His related behaviour, investigation, conclusions and the discipline he issued, themselves were improper under the Respondent’s policies and procedures.’

[12] This confirms that the dispute does not concern an allegation that the respondent has failed to adhere to its obligation under the agreement to maintain policies and procedures that support the agreement and provide guidelines for the fair and efficient administration of the employment relationship. Rather the dispute is about whether the respondent’s policies and procedures have been complied with and/or been applied in a fair manner. I have found that Clause 5.2 does not incorporate the policies and procedures into the agreement. Thus a dispute about a failure to comply with those policies and procedures is not a dispute pertaining to the agreement.

Conclusion

[13] The dispute does not concern matters or issues pertaining to the 2012 agreement. Given the lack of consent by the respondent, FWA has no jurisdiction to arbitrate the dispute. It is accordingly dismissed.

SENIOR DEPUTY PRESIDENT

Final written submissions:

2012
7 August

 1   City of Wanneroo v Holmes (1989) 30 IR 362

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