Construction, Forestry, Mining and Energy Union v Whitehaven Coal Limited

The Construction, Forestry, Mining and Energy Union (CFMEU) brought proceedings against Whitehaven Coal Mining Limited (Whitehaven) in the Federal Court of Australia. The dispute concerned Whitehaven's implementation of a restructure at its open-cut coal mines in New South Wales, which resulted in redundancies. The parties presented a Statement of Agreed Facts to the court, upon which the decision was based.

The court was required to determine whether Whitehaven had breached its obligations under the relevant enterprise agreements by failing to adequately consult with employees and the CFMEU before implementing the restructure and redundancies. Specifically, the court needed to consider the differing notification and consultation clauses within the Rocglen, Tarrawonga, and Maintenance Agreements, and whether Whitehaven's actions met the requirements of these clauses, particularly concerning the timing of notification and the nature of consultation. A further issue was whether Whitehaven had contravened the *Fair Work Act 2009* by failing to notify the Chief Executive Officer of Centrelink of the redundancies.

Emmett J found that Whitehaven had breached clause 26 of the Tarrawonga Agreement, which required consultation with employees as to the nature of major workplace changes and their likely consequences. The court determined that Whitehaven made a "definite decision" to implement the restructure on 21 March 2013, but did not notify or consult with the affected employees or the CFMEU until the following morning, after the decision had been finalised and preparations for implementation were underway. This timing meant that the consultation process, as contemplated by the agreement, did not occur prior to the decision being made. However, the court noted that the Rocglen and Maintenance Agreements did not impose a positive obligation to consult prior to a definite decision being made, only to notify. Regarding the *Fair Work Act 2009*, Whitehaven admitted to failing to notify Centrelink of the redundancies, as required by the Act, due to a lack of awareness of the obligation.

Whitehaven accepted that there was a genuine economic need for the redundancies. The court noted that Whitehaven had paid all statutory and contractual entitlements to the redundant employees and had also reached a confidential monetary settlement with the CFMEU in respect of claims for compensation for the failure to consult. Whitehaven also admitted liability for the failure to notify Centrelink.