Mining and Energy Union v BHP Coal Pty Ltd
[2024] FWC 3399
•5 DECEMBER 2024
[2024] FWC 3399 FAIR WORK COMMISSION
DECISION Fair Work Act 2009
s.739 - Application to deal with a dispute
Mining and Energy Union
vBHP Coal Pty Ltd
(C2024/4351 & C2024/5178)
COMMISSIONER SIMPSON
BRISBANE, 5 DECEMBER 2024
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] – Whether Respondent has satisfied the requirements of clauses 14 and 11.5 of the BMA Enterprise Agreement 2022 – Whether the Respondent can proceed with the trial of the 7/7 Roster in the Load & Haul Department at Goonyella Riverside Mine.
[1] On 28 June 2024, the Mining and Energy Union (MEU / the Applicant) made an application to the Fair Work Commission (the Commission) under s.739 of the Fair Work Act 2009 (the Act) to deal with a dispute (C2024/4351) (first application).
[2] On 26 July 2024, the MEU made a separate application to the Commission under s. 739 of the Act to deal with a dispute (C2024/5178) (second application). The second application addressed similar issues to the first application however was filed following discussions between the parties as a means to resolve a dispute over a jurisdictional objection raised in relation application C2024/4351. The MEU seeks orders that the matter is arbitrated and determined by the Commission if the matter is not resolved by conciliation and a roster trial that has commenced be ceased due to:
· The Respondent having failed to comply with the steps required under Clause 11.5 and Clause 14 of the Agreement; and
· The trial is having or may have an effect on affected employees that is harsh, unreasonable or unjust.
[3] In the alternative the MEU seeks the trial to be amended to exclude Coal employees, because the trial is having or may have an effect on affected Coal employees that is harsh, unreasonable or unjust.
[4] BHP Coal Pty Ltd is the Respondent in both the first and second application (BHP / the Respondent).
[5] The relevant Enterprise Agreement is the BMA Enterprise Agreement 2022 (the BMA EA).
[6] The matters did not resolve at conference and the parties agreed for the Commission to move to the arbitration stage of the Dispute Resolution Procedure.
[7] Directions were issued for the filing of evidence and submissions, and the matter was listed for hearing before me on Wednesday 9 and Thursday 10 October 2024 at the Mackay Courthouse.
[8] At the Hearing the Applicant was represented by Mr Adam Jacka from the MEU and the Respondent was represented by Ms Catherine Pase, Counsel, instructed by Ms Leyla Dixon and Ms Bianca Laird of Minter Ellison Lawyers.
[9] The MEU relied on the witness statements and reply statements of Mr Darren Franklin (Machine Operator),[1] Mr Peter Johnstone (Mine Operator),[2] Mr Wayne Goulevitch (Mine Employee), [3] Mr Shawn Kenny (Mechanical Operator),[4] Mr Christopher Hubner (Mine Operator),[5] Mr Damien Kinnane (Mechanical Operator),[6] Mr Derrick Pagett (Mechanical Operator),[7] and Ms Cindy Stewart (Mine Operator).[8] Mr Pagett and Ms Stewart were not required for cross examination. The MEU also relied on its Outline of Submissions filed on 26 August 2024, and its Outline of Submissions in Reply filed on 27 September 2024 and closing oral submissions.
[10] The Respondent relied on the witness statements of Mr Mark Mellor (Load & Haul Superintendent)[9] and Mr Ryan Ferricks (Load & Haul Production Manager).[10] The Respondent also relied on its Outline of Submissions filed on 16 September 2024 and its closing oral submissions.
[11] The Respondent made a submission at the commencement of the hearing before any evidence was called, that the Commission hearing be split between making findings on the interpretation questions, to be followed by a separate hearing to determine any orders that might be made if necessary. The MEU opposed that course on the basis that it had initially sought urgent relief, and any further delay will mean the six-month roster trial will continue and may end before the dispute is finalised. For the reasons set out below I have determined it is unnecessary to split the proceedings.
The Dispute and Background
[12] The parties filed the following statement of facts agreed facts.
“STATEMENT OF AGREED FACTS
This statement of facts has been agreed between the parties and filed pursuant to Direction 8 of Commissioner Simpson's Directions dated 23 August 2024.
Agreed Facts
1. The BMA Enterprise Agreement 2022 (BMA EA) covers BHP Coal Pty Ltd (BHP Coal), the Mining and Energy Union (MEU) and the Employees employed at Goonyella Riverside Mine (GRM).
2. GRM is owned and operated by BHP Mitsubishi Alliance (BMA).
3. On 7 July 2024, BMA commenced implementation of a trial of a 7/7 Roster (7 days on/7 days off) at GRM for Employees working in the Load & Haul Department (Roster Trial).
4. The Load & Haul Department comprises the Pre-Strip and Coal Mining sub-departments.
5. Before the implementation of the Roster Trial, the GRM Load & Haul Department employees were working a Lifestyle Roster (5D/4N/2D/3N).
6. The Roster Trial was first raised with GRM Load & Haul Department employees in late September 2023 at pre-start meetings.
7. On 4 October 2023, BMA sent a letter to all GRM Load & Haul Department employees about the proposed 7/7 Roster.
8. In October 2023, BMA conducted a ballot at GRM about the proposed 7/7 Roster (October 2023 Ballot).
9. The results of the October 2023 Ballot were released on 19 October 2023 and were as follows:
(a) Overall “yes” vote – 45%;
(b) Overall “no” vote – 55%;
(c) Pre Strip “yes” vote – 51%;
(d) Coal Mining “yes” vote – 37%.
10. On 12 December 2023, representatives of the MEU (Simon West, GRM Lodge President and Wayne Goulevitch, (GRM Lodge Secretary) met with representatives of BMA (Vaughan Abrams, GRM Senior Site Executive and Mark Mellor, GRM Manager Load & Haul) to discuss the proposed 7/7 Roster.
11. On 14 December 2023, Mr Mellor sent an email to Mr West and Mr Goulevitch about the proposed 7/7 Roster:
“Hi Simon & Wayne,
Thank you for your time on Tuesday, to work with us on the 7/7 roster. As per our conversation, please find attached some dote points.
• After the Load and Haul 7/7 roster vote, it is clear that there is considerable interest in the team for the 7/7 roster arrangement.
• We are keen to facilitate a process where the majority of people are able to work a roster that suits them.
• Hence, after reviewing on how best to support the majority - intention is to transition Prestrip to a 7/7 roster and allow coal mining to remain on the current Lifestyle roster arrangement.
• An EOI process will be developed to allow people to move between the teams – with some limitations on skill requirements.
• A second vote will than be cast after this EOI for the prestrip team to formally transition to 7/7.
Regards,
Mark Mellor
Manager – Load and Haul (Acting)
BMA Goonyella Riverside Mine”
12. In January 2024, BHP Coal decided to include all Load & Haul Department employees in the proposed 7/7 Roster (both Pre-Strip and Coal Mining).
13. In April 2024, an anonymous survey of Load & Haul Department employees was conducted by BMA about the proposed 7/7 roster and rosters more generally.
14. In late April to early May 2024, BHP Coal conducted another ballot at GRM about the proposed 7/7 Roster (April 2024 Ballot).
15. The results of the April 2024 Ballot were released in early May and were as follows:
(a) Overall “yes” vote – 46%;
(b) Overall “no” vote – 54%.
16. On 22 May 2024, the MEU sent BMA a letter stating that the proposed 7/7 Roster was in dispute under the BMA EA.”
(footnote omitted)
[13] The dispute is related to the Clause 11.5 and 14 under the BMA EA. Clause 11.5 provides processes in the event that the agreement under Clause 14 with the majority of affected Employees is not reached. Clause 14 outlines steps that the employer must take when the employer proposes a change to work practices and/or arrangements.
[14] The 7/7 Roster Trial commenced on Sunday, 7 July 2024.
Questions for arbitration
[15] In its response to the MEU’s application on 9 August 2024 the Respondent proposed the following questions for arbitration:
“Question 1: Is the effect of the trial so unreasonable as to be contrary to the spirit of continuous improvement in accordance with the BMA EA?
Question 2: Can BHP Coal conduct a trial of the 7/7 roster in accordance with the BMA EA?”
[16] The MEU’s written submissions proposed that the questions for the Commission to determine are:
(a) Was the 7/7 Roster trial implemented by the Respondent in a way that is consistent with clause 11.5 of the Agreement? The MEU contends that the answer is “No”.
(b) Was the Respondent entitled to proceed with the trial of the 7/7 roster under clause 14 of the Agreement? The MEU contends that the answer is “No”.
(c) Is the trial of the 7/7 Roster having an effect on affected employees that is harsh, unreasonable or unjust for employees? The MEU contends that the answer is “Yes”.
[17] The MEU contends that if the answer is “No” to questions 3(a) and/or 3(b) and/or the answer to 3(c) is “Yes” the Commission should determine that the trial of the 7/7 Roster cease or be amended.
[18] In response to the MEU’s proposed questions for arbitration the Respondent submitted the following revised questions.
Question 1
Having regard to clauses 14 and 11.5 of the BMA Enterprise Agreement 2022, is BHP Coal Pty Ltd able to proceed with the trial of the 7/7 Roster in the Load & Haul Department at Goonyella Riverside Mine implemented on and from 7 July 2024?Question 2
Is the trial of the 7/7 Roster in the Load & Haul Department at Goonyella Riverside Mine implemented on and from 7 July 2024 having an effect on affected employees that is harsh, unreasonable or unjust and is that effect so unreasonable as to be contrary to the spirit of continuous improvement?Question 3
If the response to questions 1 and 2 is yes, should the trial of the 7/7 Roster in the Load & Haul Department at Goonyella Riverside Mine implemented on and from 7 July 2024 cease, be amended or not proceed in accordance with clause 14(f) of the BMA Enterprise Agreement 2022?[19] In its submissions in reply the MEU said it did not agree with the Respondent’s proposed amended questions. The MEU submitted the issue with the formulation of the questions by the Respondent is that the Commission has power to have regard to clause 11.5 or clause 14 independently, and the MEU did not prefer the questions being framed in a way that has regard to both clauses in the one question, being the Respondent’s proposed first question.
[20] The MEU submitted that the way they framed the question was that if the two processes have not been followed, that then flows into the consideration of harshness, unreasonableness or unjustness.
[21] The Respondent submitted it felt very strongly about the inclusion of the words in relation to continuous improvement.
CLAUSES IN BMA EA
[22] Clause 11.5 of the BMA EA reads as follows:
“11.5 Introduction of New Rosters and Changes To Roster Arrangements
The Company may introduce new rosters to meet the needs of the business and in so doing, will follow the process in this clause that facilitates changes in roster arrangements which affect existing Employees.
The parties acknowledge that there are a number of Employees who have genuinely and voluntarily adopted a commute lifestyle. These Employees normally reside remote from the Mine at which they are employed when not rostered to work and commute to the Mine of their employment for rostered-on shifts, before returning to their usual place of residence, on completion of their rostered shift cycle.
It is also acknowledged that Employees may be interested in working a different roster arrangement than those which have been developed and agreed to match the more traditional residential based lifestyle, where Employees reside in towns that service the Mine at which they are employed.
This clause 11.5 will not be used to introduce changes to Roster Arrangements, unless it is identified that a significant number of Employees desire such changes.
In the event that agreement with the majority of affected Employees, as provided for in clause 14, is not reached, the following processes will apply.
(a) In the event that the Company seeks to introduce a different roster to facilitate Employees’ preferred lifestyle arrangements the Company may trial and implement such new rosters in accordance with the requirements of the Continuous Improvement Clause (clause 14) of this Agreement, in addition to the specific requirements of this sub clause.
(b) The Company will first gauge the support for changed roster arrangements amongst affected Employees in the “relevant work area” and other work areas working similar rosters where similar skills and competencies are utilised. In this clause 11.5(b):
1) “gauge” means a genuine attempt to determine the view of the majority of the affected Employees about proposed different roster(s) and their existing roster; and
2) A “relevant work area” means the work area in which the roster will be implemented as determined by the Company. The relevant work area may be any suitable Employee grouping, for example, an entire Functional Work Area, a sub set of a Functional Work Area, a single crew or other grouping. There will be no limitation on what the Company determines to be the relevant work area, however, ‘relevant work area’ is not intended to refer to the whole of a Mine and does not mean individual Employees.
(c) The information gained from the procedure in clause 11.5(b) will be incorporated in the “business reasons” for the proposed change to roster arrangements.
(d) In the event that an Employee, as a consequence of this process to introduce changed roster arrangements, is required to change from their current roster arrangement, the Employee may provide the Company with an expression of interest (EOI) to transfer to another work area which works the Employee’s current roster. The EOI period will open at the commencement of the implementation of a trial of the changed roster arrangement and remain open for one month after full implementation of the roster, following any trial period.
(e) Following any trial period, the Company will process EOI applications and seek to accommodate suitable alternative rosters for Employees as expeditiously as reasonably practicable, including but not limited to, transferring Employees between relevant work areas, where they have the majority of the relevant skills for the roles in the work areas to which they are seeking to be transferred, to accommodate a suitable alternative roster. The Company will process EOI applications earlier in exceptional circumstances, for example, where an Employee is unable to obtain childcare.
(f) Clauses 8.2(d) to (f) will be used to effect the transfer of Employees to give effect to Employee EOIs under this Clause. Where an Employee has the majority of relevant skills for the work area to which transfer is sought, the Employee will have preference over any other candidate whether internal or external.
(g) The right of an Employee to have their EOI processed under this clause will remain valid until the earlier of the Employee being offered a suitable alternative roster (and either accepting or refusing that offer), the nominal expiry date of this Agreement or the Employee withdrawing their EOI. Once withdrawn, an EOI cannot be resubmitted.”
[23] Clause 14 of the BMA EA reads as follows:
"14 Continuous Improvement
Where the Company proposes a change to work practices and/or arrangements, the following will occur:
(a) The affected Employees and, if they request, their Employee Representatives will be notified of the proposal, in writing, by the Company, which will include the business reasons supporting the proposals, as well as the necessary duration for gaining the required evidence for evaluating the success of the trial. A genuine attempt will be made by all parties to reach an agreement.
(b) If the majority of affected Employees agree, the proposal will be implemented.
(c) If there is no agreement, the Company may elect not to proceed with the proposal.
(d) If the Company elects to proceed, a trial may be implemented for a maximum period of up to six months depending on the nature of the proposal.
(e) At the end of the trial period either of the following may occur: either
1) the Company decides not to proceed with the proposal;
2) there will be full implementation.
(f) If once the Company has decided to implement a trial, the affected Employees are of the view that the trial is having/may have an effect on them, that is harsh, unreasonable or unjust, the affected Employees or if requested, their Employee Representatives, may progress the dispute to the FWC in accordance with the final step of the Dispute Settlement Procedure in clause 37.17 to seek to have the trial cease or amended or not proceed because of the existence of such an effect. Each party to the Agreement agrees to accept the outcome of the Dispute Settlement Procedure.
This provision is not to be used to preclude a trial from proceeding or continuing merely because the trial represents a change to previous circumstances, may involve a reduction in Employee earnings, or may be deemed to constitute a perceived inconvenience to Employees. This provision is only to be used to argue that the effect of any trial is so unreasonable as to be contrary to the spirit of continuous improvement.
(g) Notwithstanding (f) above, during the last four weeks of any trial, an affected Employee or if requested, their Employee Representative, may refer any disputed issue connected to the trial to the FWC through the final step of the Dispute Settlement Procedure. Each party to the Agreement agrees to accept the outcome of the Dispute Settlement Procedure.
(h) This provision will not be used to permit a proposal to be trialled which would involve a breach of occupational health and safety regulations.
(i) It is not the intention of this provision to reduce award standards or the terms and conditions of employment specified in this Agreement.
(j) The term “business reasons” as referred to in (a) above means an overview of the key financial and/or efficiency benefits that will accrue to the mine from the proposal. It does not mean a detailed business case.
EVIDENCE
Lifestyle Roster and 7/7 Roster
[24] Mr Ferricks, as the Load & Haul Production Manager of the Mine, said he has worked for BHP for approximately 24 years, and currently has general accountability of:
(a)350 BHP Coal employees which comprises 284 employees whose employment is governed by the BMA Enterprise Agreement 2022 (Agreement) and 51 employees whose employment is not governed by the Agreement;
(b)55 employees engaged by BHP Coal in the IROC (Integrated Remote Operations Centre) team located in Brisbane who are attached to crews within the Load & Haul Department at the Mine. While these employees have their own IROC supervisors, he has accountability for them while they perform work with site-based employees at the Mine; and
(c)249 workers (contractors) who perform Pre-Strip operations at the Mine.
[25] Mr Darren Franklin is employed as a Machine Operator, and said he currently drives machinery in the Coal Mining department. He said he is 55 and divorced with four children, with the two youngest children being 9 and 12. Mr Franklin said he has shared custody that is based on the Lifestyle Roster that he had worked on before the Respondent changed the roster to a 7/7 Roster. Mr Franklin said he lives in Mariam about a 15-minute drive to Mackay. He said it takes about two hours to drive each way to and from the Mine and because of the travel time he has a permanent room at the camp near the Mine.
[26] Mr Franklin said the Lifestyle Roster was made up of 12.5-hour shifts starting at 5.45am for the day and finishing at 6.15pm, or alternatively starting at 5.45pm each night shift, finishing at 6.15am. The first cycle started on Friday during the day, finishing Tuesday evening. Then they would have Wednesday, Thursday, Friday, Saturday and Sunday off. They would work four night shifts from Monday to Thursday and finish Friday morning.
[27] They then had Friday, Saturday, Sunday, Monday and Tuesday off. The next shifts on were day shift on a Wednesday and Thursday, finishing at 6.15pm on the Thursday day shift. There was a 24-hour break and then a start at 5.45pm on the Friday night shift to the Sunday night shift finishing on Monday morning. Mr Franklin said on the Lifestyle Roster they would only ever work a maximum of four nights in a row.
[28] Mr Franklin said his roster now is seven x 12.5-hour shifts on/seven x 12.5 hour shifts off. The roster cycle starts on a Wednesday day shift, finishing on the following Tuesday evening at 6.15pm. Mr Frankin said at the end of the seven-day shift cycle he returns to camp and rests for a minimum of four hours, although because he has a permanent room if he is fatigued, he stays at camp overnight and returns home in the morning.
[29] Mr Goulevitch said he is a member of the Queensland District Branch of the MEU and has been a member since 2010 and became Secretary of the Goonyella Riverside Lodge (Lodge) in or around February 2021. He said prior to becoming Secretary, he was an MEU delegate on C crew for about 8 years. He works as a digger operator in the Dig team on C crew.
[30] Mr Johnstone gave evidence for the MEU that this is the first time in almost 40 years at the Goonyella Riverside Mine that he has worked a 7/7 Roster. He said for afternoon shift or night shift he travels out from Mackay on the same day to commence work. For day shift he travels out the night before. At the end of his roster, he travels back to Mackay on the same day regardless of his shift. He said the travel time is approximately 2 ¾ hours. He said when he worked the Lifestyle Roster, he would carpool with a workmate and travel back and forth between Mackay for his days off.
[31] Mr Hubner said that prior to moving to the 7/7 Roster, he worked the Lifestyle Roster for approximately 8 years. He said he travels approximately 30 minutes from his home in Moranbah to the Mine and he returns home at the end of each shift.
[32] Mr Kinnane gave evidence that in 2007 he was employed by BHP at the Mine as a permanent employee in the role of Operator in the Coal Mining department at the Mine. In early 2019 he was elected to the role of MEU delegate for D Crew Coal Mining. He said he looks after a crew of about 40 MEU members in a range of matters. He lives in Moranbah with his wife and two children aged 8 and 12. He said his wife works full-time with WorkPac at Peak Downs. Mr Kinnane said he travels to and from the Mine for each shift with a work mate who also lives in Moranbah with his family. He said they take it in turns driving each week.
[33] Ms Cindy Stewart gave evidence that she has been continuously employed at the Mine since 2012 and resides in Moranbah with her partner. Ms Stewart said prior to the 7/7 Roster she worked a Lifestyle Roster for several years. Ms Stewart said she travels approximately 20 minutes from her home in Moranbah to the Mine.
[34] Mr Derrick Pagett said he commenced employment with BHP at the Mine in 2011 as an Operator in the Coal Mining department. He said between 2018 and 2022 he was the Union crew delegate. He said he drives to and from work by car and each trip is about 25 minutes. He said he lives in a house provided by BHP.
[35] Mr Mark Mellor, the Pre-Strip Superintendent in the Load and Haul department, said he reports to Mr Ferricks. He said he has approximately 16 direct reports and he oversees approximately 171 employees in the Pre-Strip department. Mr Mellor said as Load & Haul Production Manager Mr Ferricks had primary accountability for the roster change process. He agreed that Mr Matthew Line (the previous Coal Mining Superintendent within the Load and Haul department) left the Mine in about August 2024. He said Mr Line had 8 direct reports.
[36] Mr Mellor said as Superintendent of the department, along with Mr Line, he was involved in steps in the process including holding discussions with employees, other members of management and with the MEU.
[37] Mr Mellor said he also sent communications to employees within the Load & Haul department from time to time in consultation with Mr Ferricks and Mr Vaughn Abrams (General Manager and Site Senior Executive of the Mine).
[38] Mr Mellor said before the start of the roster change proposal process in October 2023, various employees within Load & Haul had directly approached him asking when Load & Haul would be moving to a 7/7 Roster, especially after contractor Pre-Strip workers (engaged by BUMA Australia) and Workshop 1 employees had moved to a 7/7 Roster. Mr Mellor said based on feedback from his direct reports, he said he was also aware that similar enquiries were made by other Load & Haul employees to their supervisors.
[39] Mr Mellor agreed that some people who had been employed by the Company had been told they will be working under a 7/7 Roster in the future as that was feedback that he had received.
Load & Haul roster arrangements
[40] Mr Ferricks explained that the Load & Haul Department comprises two sub-departments, being Pre-Strip and Coal Mining. He said Pre-Strip has three separate worker cohorts: BHP Coal employees, BUMA Australia workers (contractor) and BHP Operations Services workers (contractor). Mr Ferricks said Coal Mining is comprised mainly of BHP Coal employees and 11 workers (contractors) from WorkPac.
[41] Mr Ferricks said prior to the Roster Trial BHP Coal & Haul employees worked the Lifestyle Roster, and contracted workers employed by BUMA and BHP Operations Services within the Pre-Strip department work a 7/7 Roster.
[42] Mr Ferricks said on other parts of the Mine, Production (Draglines, Drill and Blast and CHPP), Mine Services (Earthworks), Fixed Plant Maintenance, and Mine Service Pumps worked to the Lifestyle Roster.
[43] He said a 7/7 Roster (Day/Night or Dayshift only) was currently worked in Production (Production Coordination Superintendents and CHPP Superintendents), Maintenance Mobile & Contracts (Maintenance Mid Trucks, Maintenance Ancillary and Maintenance Infield Response), Mine Scheduling, Engineering, Contact Fixed Plant Maintenance and IROC. He said Engineering, Managers and Support Staff and Mine Scheduling worked on a Monday to Friday Roster.
[44] Mr Ferricks said a large portion of the workforce at the Mine currently work a 7/7 Roster and that the 7/7 Roster is a standard roster in the coal mining industry and is widely implemented at other BHP coal mines. Mr Ferricks was asked the approximate proportion of the Load & Haul workforce that are fly in fly out (FIFO) and drive in drive out (DID) and he said about 40%.
[45] Mr Goulevitch said he attends MEU QLD District meetings where a range of topics are discussed. He said at the meetings they share information about what is happening in different mining pits and to his knowledge the only BMA mine, apart from Goonyella Riverside now, where BHP employees were on a 7/7 Roster was Saraji, and the 7/7 Roster at Saraji only happened recently.
Reasons for introducing roster change
[46] Mr Ferricks said in 2023, he arrived at the view that BHP Coal should consider implementing a change from the Lifestyle Roster to a 7/7 Roster in the Load & Haul Department. He said his reasons for reaching this view were based on:
(a)the feedback provided through an Employee Perception Survey conducted in March and September 2023 at the Mine. This survey is conducted every 6 months where BHP Coal employees and contractor workers are invited to provide feedback about their working experience with BHP Coal and at the BMA Mine. In his first statement he said the feedback from the survey indicated that there was interest amongst the BHP Coal Load & Haul employee cohort for working a 7/7 Roster. In his supplementary statement he referred to the evidence of Mr Hubner and Mr Kenny and said there was no specific question in the EPS about changing to a 7/7 Roster. He said the free text feedback provided by some employees in those surveys noted a desire to change to a 7/7 Roster and it was this feedback he was referring to in his first statement.
(b)direct feedback he received from BHP Coal Load & Haul employees during field leadership activities at the Mine (where he visits and spends time with different crews within Load & Haul on a weekly basis);
(c)feedback provided to him from supervisors and superintendents within Load & Haul who had reported that BHP Coal Load & Haul employees had asked questions about, and expressed interest in, working a 7/7 Roster;
(d)the benefit in aligning the roster for all workers within Load & Haul in terms of team cohesion, improved working relationships and associated production benefits. For example, the IROC team which control trucks and provides technical support to Load & Haul workers currently work a 7/7 Roster. Under the Lifestyle Roster, BHP Coal Load & Haul employees are assigned a different IROC controller for each shift change (across a total of 3 shift changes if you are rostered on a night shift). Under the 7/7 Roster, workers have a dedicated IROC controller who is allocated to a crew for the entire 7-day roster period. He said he believed this continuity would lead to the development of stronger working relationships between IROC and site teams which in turn would encourage better communication and information sharing about optimising performance and improving safety; and
(e)business and efficiency drivers including:
(i)improved continuity of work as a result of fewer handovers between multiple crews which allows for continuous task allocation and task ownership; and
(ii)travel benefits for BHP Coal Load & Haul employees, including less travel for those who commute to the Mine from elsewhere.
[47] Mr Ferricks said prior to the notification of the roster change process, he had been engaging in discussions with Simon West (MEU Mine Lodge President) along with Mr Abrams about transitioning Load & Haul employees to a 7/7 Roster. He said as part of those discussions, one of the proposals discussed with the MEU (which he said the MEU had rejected at that time) was splitting up the Pre-Strip and Coal Mining sub-departments, such that Pre-Strip would go to a vote in relation to transitioning to the 7/7 Roster and Coal Mining would remain on the Lifestyle Roster.
[48] Mr Ferricks was asked in relation to the implementation of the 7/7 trial if he was the person with the authority. He said he is the decision maker for the department. Mr Goulevitch said the MEU had not rejected proposals to split Pre-Strip and Coal Mining and Mr West has never said to him that the MEU rejects such a proposal.
[49] Mr Johnstone in his reply statement said he disagreed with Mr Ferricks that there is a benefit in aligning the roster for all workers within Load & Haul in terms of team cohesion and improved working relationships. Mr Johnstone said he had only ever met one person from the IROC control room at their Pre-Start meeting.
[50] Mr Johnstone said his crew do as they are instructed by their supervisors. He said there is no cohesion or efficiency, and the entire workday is without any plan or direction. He said there is poor communication and crews take shortcuts. He said this has been the case for a long time and there has been no improvement since the roster change. He agreed these issues occurred under the Lifestyle Roster before the 7/7 Roster was introduced. He said he understood the Respondent might want to try a roster change to address these issues.
[51] Mr Hubner said he had seen Mr Ferricks in the field on one occasion approximately 18 months ago, when the Mine Manager, Vaughn Abrams, started at the mine. He said he had never seen him in the field for weekly field leadership activities.
[52] Mr Ferricks was asked when it was that he had direct feedback from Load & Haul employees during field leadership activities. He said recently they had Board visits, the Minerals Australia leadership team and the technical leadership team had come to site, and as part of that engagement they had field leadership activities with field officers. Mr Ferricks said the feedback from the field officers has been they wish to work a 7/7 Roster or are currently enjoying the 7/7 Roster. It was put to Mr Ferricks that not all said that, and he said everyone did.
[53] It was put to Mr Ferricks that MEU witnesses said they had never seen him, or they have seen him once very early on in the process. Mr Ferricks said he is the manager of 40% of the Mine and has over 400 people, direct reports plus CHTRS that are accountable to him plus SSHRS, IROC and OCS.
[54] It was put to Mr Ferricks that his evidence concerning the benefit of aligning the roster for all workers was not in the business reasons provided to employees as the reason to go ahead. Mr Ferricks said he linked that to continuity of work. He agreed it was not spelt out in that level of detail.
Meeting in September 2023
[55] Mr Goulevitch said in about late September 2023, he attended a meeting where Mr Line and Mr Mellor addressed all of the Extraction and Load & Haul employees on C Crew to inform them that they would be rolling out a vote to go to a 7/7 Roster. Mr Goulevitch said during the meeting Mr Mellor said words to the effect of “If you guys vote it down that will be it”. Mr Goulevitch said Mr Line and Mr Mellor took questions from employees. He said one topic discussed was annual leave and crew swaps. Mr Goulevitch recalled that Mr Mellor said that all annual leave would be honoured and where possible, people could swap crews to better suit their family and friends.
[56] Mr Mellor said important announcements are read from a pre-prepared script and he did not recall saying that “If you guys vote it down that will be it”. Mr Goulevitch responded in his reply evidence that Mr Mellor did say it and he said after the Company announced (later) it was going ahead with the 7/7 Roster many members of the MEU complained to him that Mr Mellor said the Company would not go ahead if a majority voted it down.
[57] In his oral evidence Mr Mellor said he did not recall being at a meeting with Mr Line and Mr Goulevitch. He agreed he attended meetings in September 2023 and spoke to crews about the 7/7 Roster process. Mr Mellor accepted that 4 or 5 MEU witnesses all say that he said the words as set out above. He continued to maintain that his recollection is he did not say those words, but he said he did talk about 50 + 1% and the requirement for that to proceed.
[58] Mr Frankin said in September 2023 he attended a crew meeting that was conducted by management and one of the agenda items was a proposed roster change from the Lifestyle Roster to a 7/7 Roster. He said his understanding from the meeting was that management said Pre-Strip and Coal would be separated. Pre-Strip would be going to a 7/7 Roster and Coal would not. He said they had a ‘meet and greet’ meeting in late 2023 with Vaughan Abrams, who was the new SSE and had just started. He attended the meeting to introduce himself and he was asked some questions about the 7/7 Roster. Mr Franklin said during the discussions he said words to the effect of “We won’t implement a roster if it is something the majority don’t want. There is no point implementing a roster that would make the majority of the workforce unhappy”.
[59] Mr Johnstone also recalled being at a Pre-Start meeting in late September 2023 where the company said it was considering rolling out a 7/7 Roster and putting it to a vote of members. He said they referred to the Pre-Strip section as Load & Haul and the Mining section as extraction and advised that the vote was to be conducted separately between the two sections. He said they were told that the vote would be anonymous.
[60] Mr Kenny said in about September 2023, he attended a Pre-Start meeting where his superintendent discussed changing their roster from the Lifestyle Roster to a 7/7 Roster. He said the superintendent stated that the Company would only change the roster if more than 50% of the workers voted for a 7/7 Roster.
[61] Mr Hubner also said he recalled at a Pre-Start meeting in late September 2023 where they were addressed by two superintendents who advised that there would be a vote of employees on moving to a 7/7 Roster. He said they were advised that the vote would be anonymous and if it was voted down then that a roster change would not be pursued by the Company. He said a handout was provided.
[62] Mr Hubner said in response to the evidence of Mr Mellor that he did recall Mr Mellor saying words to the effect that "if you guys vote it down that will be it.” He said Mr Mellor said words to the effect that the vote would only go through with 50 + 1%. He said he noted this in his diary and provided a copy of this diary page with his statement.
[63] Mr Kinnane said in September/October 2023, he attended a pre-start meeting with other workers in D crew Coal Mining. He said the meeting was also attended by Mark Mellor, Superintendent and Matt Line, Superintendent, for a 7/7 Roster presentation. He said they stated there was going to be a vote for the 7/7 Roster. Mr Kinnane said the main question from workers that came up in the meeting was if it gets voted down will the Company just bring the 7/7 Roster in under continuous improvement.
[64] Mr Kinnane said both Mark Mellor and Matt Line said words to the effect of “no the vote has to get up 50% plus one for it to get in. If it does not get that result, that will be the end of roster talks.” Mr Kinnane said they said this statement in front of the whole crew meeting. He said the discussions between Mark, Matt and the crew started to get a bit heated, so the meeting was stopped. He said everyone agreed that they would just wait for the outcome of vote and the meeting was closed.
[65] Ms Stewart also gave evidence that she recalled at a meeting that one of the superintendents said if the change was voted down it would not be pursued. Mr Pagett said he attended a meeting in about September 2023 with Vaughan Abrams, Ryan Ferricks and Matt Line and there was a lot of anguish at the meeting from workers who asked numerous questions. He said in the meeting management said there would be a vote on the 7/7 Roster.
4 October Notification of proposal
[66] Mr Goulevitch said on 4 October 2023, the Respondent sent an email to Extraction and Load & Haul employees stating that the Respondent proposed a change to the roster within Load & Haul from the Lifestyle Production Roster (5D/4N/2D/3N) to a 7 on 7 off day / night roster pattern. The shift duration and start time remained unchanged. He said the letter stated that the Company would ballot employees to have their say on whether they want to work the proposed 7 on 7 off day / night roster pattern.
[67] Mr Goulevitch accepted that the correspondence contained key reasons for the roster change including that the proposed roster results in only 1 round of night shifts over a roster cycle meaning less changeovers from day shift to night shift and no pyjama days. He accepted that is one mitigation of risk referred to in a document QGN 16 Guidance Note for Fatigue Risk Management. (Guidance Note 16).
[68] Mr Goulevitch was referred to a Table 1 titled Direct Risk Factors in Guidance Note 16 and risk levels. He agreed on the Lifestyle Roster there is a medium risk for fatigue because there are four consecutive night shifts, and there is control measures put in place to mitigate that risk. Mr Goulevitch agreed that the high risk associated with the 7 consecutive night shifts on the 7/7 Roster has a control measure to mitigate the risk such as the break after the roster being equal to the roster length.
[69] Mr Mellor said on 4 October 2023 affected employees were notified of the proposed change to move to a 7/7 Roster and of a ballot process allowing employees to have a say about the proposed roster change. Mr Mellor said he co-signed the communication with Mr Line. Mr Mellor said the communication was emailed to affected employees by Mr Line along with information about the ballot.
[70] Mr Ferricks said on 4 October 2023, Mr Line notified BHP Coal Load & Haul employees that the Respondent was proposing to change the current roster within Load & Haul meaning that BHP Coal Load & Haul employees (affected employees) would move from the Lifestyle Roster to a 7/7 Roster (after a roster change process under the BMA EA was completed). Mr Ferricks said the communication:
(a)invited affected employees to review the proposal and provide feedback to their supervisor by 10 October 2023;
(b)outlined next steps, including that a ballot would occur to give affected employees an opportunity to have their say on whether they were in favour of the proposal or not; and
(c)provided information about the ballot to be conducted by a third-party independent voting service, CorpVote.
[71] Mr Ferricks said he approved this communication going out to affected employees. He said during pre-start meetings between 3 October and 6 October 2023, on his instructions, Mr Line and Mr Mellor held in-person briefings with affected employees to explain the roster change proposal and the upcoming ballot and to allow employees to ask questions and provide feedback to the Respondent. Mr Ferricks said he is aware that these discussions took place because Mr Line and Mr Mellor told him they did. Mr Kinnane confirmed during his evidence that he received the correspondence at the time, which is the correspondence attached to the evidence of Mr Goulevitch.
First Ballot October 2023
[72] Mr Mellor said during pre-start meetings in the week of 4 October 2023 he discussed the roster change proposal and the upcoming ballot with affected employees within Pre-Strip, and he understood from discussions he had with Mr Line at the time, that he also discussed the proposals with affected employees of Coal Mining.
[73] Mr Ferricks said during pre-start meetings on 11 October 2023, on his instructions, Mr Line and Mr Mellor informed affected employees that the ballot for the proposed roster change had opened and they were encouraged to vote. He said he understood that CorpVote sent text messages to affected employees shortly after the meeting providing employees with details about the vote.
[74] Mr Franklin said in October 2023, the Respondent conducted a ballot of Pre-Strip and Coal and the results of the ballot were that the majority of employees did not want to move to a 7/7 Roster.
[75] Mr Frankin was referred to correspondence dated 3 October 2023 from Mr Mellor and Mr Line. Mr Franklin agreed he had seen the document before, and he was referred to the key reasons for the 7/7 Roster proposal in the document.
[76] Mr Johnstone said he received a vote by email in October 2023 and later in October 2023 they were advised of the results of the ballot during a Pre-Start meeting. He said they were told that the coal section voted the roster change down by about 60/40, and at that point they believed that the roster change would not go ahead.
[77] Mr Mellor said the outcome of the vote in October 2023 demonstrated that there was more interest within Pre-Strip (51% Yes Vote) than in Coal Mining (37% Yes vote) to move to a 7/7 Roster. Mr Ferricks said the vote was open for 7 days and closed on 11:59pm on 17 October 2023 After the vote closed, he received an official outcome of the October Vote from CorpVote which he provided with his evidence showing that 286 out of 291 affected employees participated in the October Vote, and the overall result was 45% 'Yes' in favour of the 7/7 Roster proposal and 55% 'No' not in favour of the 7/7 Roster proposal.
[78] He said within the 'Yes' votes in the voting cohort, the results were 51% 'Yes' in Pre-Strip and 37% 'Yes' in Coal Mining. Mr Ferricks said on 19 October 2023, he instructed supervisors to announce the outcome the October Vote during pre-start meetings.
[79] Mr Ferricks said he went on leave from 30 November to 2 January 2024, and he instructed Mr Mellor (who was to act in his role during his leave period) to continue progressing with the roster change proposal, in consultation with Mr Abrams, while he was away.
[80] Mr Goulevitch said on 19 October 2023, BMA notified employees that the ballot was unsuccessful.
[81] Mr Johnstone said he recalled after the vote went down Mr Line said words to the effect that would be the end of it. Mr Huber recalled in late October 2023 being advised of the results of the first ballot by Damien Kinnane, their Union Delegate.
[82] Mr Kinnane said in about October 2023, the Company advised D crew of the outcome of the vote for the 7/7 Roster. He said the Company split the result of vote between Pre-Strip and Coal Mining and a majority of Pre-Strip voted the 7/7 Roster up and a majority of Coal Mining voted the 7/7 Roster down.
12 December 2023 Meeting
[83] Mr Goulevitch said on 12 December 2023, he attended a meeting with Simon West Lodge President, Vaughan Abrams, and Mark Mellor to discuss the proposed roster.
[84] Mr Goulevitch said during the meeting the discussions included words to the following effect:
Mr Mellor: We want to split coal on the lifestyle roster and Pre-Strip on 7&7 using the current vote.
Mr West: That would fall outside the process of the Fair Work ruling of our last roster dispute.
Mr Abrams: What Simon said is right.
Mr West: We know that coal mining don’t want the new roster and Pre-Strip is 50/50. So then what if we do as Mark says and split coal mining and Prestrip and you have another vote solely of Pre-Strip following the process as set out by President Asbury?
Mr Mellor: Why do we need another vote?
Mr West: There are a number of couples who work onsite where one works on coal and the other on Pre-Strip. With the last vote those couples would have voted together but in a Pre-Strip only vote they might vote differently not wanting to be on a different roster.
Mr Mellor: I’m not comfortable with the margin and am not sure we get it across the line in a second vote.
Me: I’m very confident you have the numbers, we have done our own survey which largely followed your ballot. If you’re that worried about it, you could be open and honest with everyone and say, “look we are trying to get 7&7 into Pre-Strip, so we are looking for coal and Pre-Strip employees who would like to switch to coal on the lifestyle roster or Pre-Strip on 7&7 and as best we can we’ll facilitate the transfer”. That way you get people who don’t want 7&7 off Pre-Strip and more people who do move into Pre-Strip.
Mr Mellor: I’d be worried we couldn’t make the numbers work but I guess we could gauge that through an EOI process.
Mr Abrams: I’m happy to cut coal mining out of the roster ballot and have a process for moving between coal and Pre-Strip.
Mr West: Great, we have a monthly meeting coming up and this roster ballot is a hot topic is there any way you could put what we’ve agree down in an email so I can present it at the meeting?
Mr Mellor: Yeah, I can jot down a few dot points and send it through to you.
[85] Mr Mellor said that Mr Ferricks was on leave from late November 2023 to early January 2024. Mr Mellor said in his absence, along with Mr Abrams, he had accountability for progressing the roster change process.
[86] Mr Mellor said on 12 December 2023 he attended a meeting with Mr Goulevitch, Mr West, along with Mr Abrams, at the MEU offices. Mr Mellor said at the meeting they discussed various options for progressing the proposed roster change including:
(a)Splitting the Pre-Strip and Coal Mining sub-departments such that Pre-Strip would move to a 7/7 roster and Coal Mining would remain on the current Lifestyle Roster; and
(b)Facilitating an EOI process whereby affected employees in Pre-Strip and Coal Mining could switch crews depending on their roster preference.
[87] Mr Mellor said Mr West asked for some dot points in relation to what the roster proposal could look like which he could discuss further at the MEU’s upcoming AGM. Mr Goulevitch disputed this saying that Mr West requested Mr Mellor confirm their agreement that the Company was going ahead with a 7/7 only for Pre-Strip and not Coal Mining.
[88] Mr Mellor said that the reason they discussed the option of splitting sub-departments was because the ‘yes’ vote in Pre-Strip in the ballot was a majority (over 50%). Mr Mellor said he thought this option would facilitate moving forward with the implementation of the roster change within Pre-Strip (without having to go through a trial process) and this might be a better option than going through a roster change process for the whole department. Mr Mellor said this was just his view, and he had not discussed this view with Mr Ferricks or anyone else at that point.
[89] Mr Mellor said at no stage during the meeting did either he or Mr Abrams make a firm commitment or reach an agreement with the MEU about what steps the business would take moving forward. He said they were simply discussing options that the business would take away and consider.
[90] Mr Goulevitch disagreed, referring to his evidence in his first statement, and saying there was an agreement with the MEU about what steps the business would take moving forward and that is why Mr West asked for it in writing.
Emails 13 December 2023
[91] Mr Ferricks was referred to emails produced subject to an Order for production[11] between Mr Abrams and Ms Jacinta Gray and Mr Mellor, the final email copying in Mr Dean Bridge, emphasising that the second email stated “…we will be conducting a secondary vote and will not just be seeking to transition Prestrip straight off the bat.” It was put to Mr Ferricks that there was a commitment to go to a second vote with Pre-Strip. Mr Ferricks said the email was not addressed to the Union.
[92] It was put to Mr Ferricks that the words are the same as used in Mr Mellor’s email. Mr Ferricks said there is nothing about a second vote in Mr Mellor’s email. It was put to Mr Ferricks that is because the email says “..and allow coal mining to remain on the current Lifestyle roster arrangement.”
[93] Mr Ferricks repeated his evidence that he asked Mr Abrams and Mr Mellor if commitments were made, and the answer was no.
14 December 2023 Email
[94] Mr Mellor said following the meeting on 12 December he had further discussions with Mr Abrams and other internal stakeholders about the options discussed at the meeting, including splitting the sub-departments. Mr Mellor said it was agreed this would be the best way to progress the vote at this time but given the small margin of the majority ‘yes’ vote in Pre-Strip, they would need to conduct another vote once employees had been given a chance to transfer between sub-departments to check that there was still a majority ‘yes’ vote in Pre-Strip.
[95] Mr Mellor said on 14 December 2023, he sent the email (that is replicated in full in the Agreed Statement of Facts). Mr Mellor said the email was reviewed by Mr Abrams and other stakeholders prior to sending it to Mr West. Mr Mellor said as Mr Ferricks was on leave at the time for personal reasons, Mr Ferricks did not review this email, and he was not involved in any discussions with Mr Mellor, Mr Abrams or other stakeholders following the 12 December 2023 meeting.
MEU Lodge Meeting
[96] Mr Hubner said he attended a Lodge meeting at the leagues club in December 2023 where the roster change was discussed. He said it was mentioned that the company were trying to work out a way to implement the roster and the difficulties with this because Pre-Strip had voted for the change, but mining wanted to stay on the Lifestyle Roster. The company were trying to work out how they would keep the two departments separate. Mr Hubner said he personally was concerned how this would work. He said at this point there was an understanding that they would get the rosters that they wanted.
[97] It was put to Mr Hubner that he was aware that the MEU was proposing as part of this application that Pre-Strip and Coal Mining be on separate rosters and, was he not concerned about that? Mr Hubner said he was concerned about how they would go about it.
[98] Mr Kinnane said in late 2023, he attended a MEU Goonyella Riverside delegates meeting. He said Simon West chaired the meeting. He said the 7/7 Roster was discussed in the meeting. Mr Kinnane said Mr West said that he has discussed the 7/7 Roster with the Company and the outcome was that Pre-Strip would be going ahead with a 7/7 Roster and Coal Mining would stay on the Lifestyle Roster.
January 2024
[99] Mr Franklin said in January 2024, management from the Company said to employees that they intended to implement a 7/7 Roster for the Pre-Strip and Coal department. Mr Franklin said around that time management started to refer to them as one group called Load & Haul instead of separate Pre-Strip and Coal departments. He said he was very concerned about his custody agreement for his two youngest children. Mr Frankin said the Respondent stated the business reasons for the change were:
a. Improved continuity of work
b. Improved accountability and task ownership
c. Reduction in travel events and associated impacts for workers.
[100] Mr Franklin said management has not explained to him or at any meetings he attended with his work crew what the business reasons mean. Mr Franklin accepted the key reasons for the proposed changes were provided but he said a question-and-answer session would have been more beneficial. The key reasons in the letter were as follows:
·Employee interest in working a 7 on 7 off day / night roster arrangement for personal / lifestyle reasons.
·The Proposed Roster Change enables employees to have regular work and lifestyle routines, always starting and finishing on the same weekday each dayshift and nightshift swing.
·The Proposed Roster Change will not change the number of shifts completed annually (compared to the current Lifestyle Production roster).
·The Proposed Roster Change will not result in any change to your current salary or change any other pay conditions.
·The Proposed Roster Change results in more consecutive days at home.
·The Proposed Roster Change results in significantly less travel for those who commute. >25 less travel events in and out over a 12-month period.
·The Proposed Roster Change results in only 1 round of night shifts over a roster cycle meaning less changeovers from dayshift to night shift and no pyjama days.
·The Proposed Roster Change improves ability for employee development, upskilling and performing training.
·The Proposed Roster Change results in fewer handovers between multiple crews enabling the continuous allocation and task ownership for crews.
[101] Mr Johnstone said they were told in a Pre-Start meeting in January 2024 that the Company was going to conduct another vote on the roster change. Mr Johnstone said he recalled that himself and his work mates were unhappy about this as the previous vote had showed that the majority of employees did not want the change.
[102] Mr Kenny said in January 2024 he attended a pre-start meeting, and during the meeting his superintendent Matt Line stated that the Company was going ahead with a 7/7 Roster for Pre-Strip and Coal Mining. He said most of the crew were not happy and said that it was unfair to go ahead with the 7/7 Roster after the vote went down and they had been told if it went down the Company would not go ahead with a 7/7 Roster.
[103] Mr Hubner said in January 2024 he recalled being told in a Pre-Start meeting that the Company had decided to conduct another vote on the 7/7 Roster change. He said he was disappointed and felt let down by the company. He said he could not understand why the matter was being put to another vote when it had already been voted down.
[104] Ms Stewart said in January 2024 they were told at a pre-start meeting that the Respondent had changed their decision and another vote would be held on the 7/7 Roster change for Pre-Strip and Coal Mining and she said she was very upset about this decision.
[105] Mr Mellor said that following Mr Ferricks’ return from leave, he updated Mr Ferricks in relation to his meetings and correspondence with the MEU about the proposed roster change. Mr Mellor said during discussions with Mr Ferricks, they talked about options for progressing the roster change including splitting the Load & Haul Department and facilitating an EOI Process. Mr Mellor said he did not recall showing or sending the email of 14 December 2023 to Mr Ferricks.
[106] Mr Mellor said after discussion with Mr Ferricks and further reflection, it was decided to progress forward with a 7/7 Roster change with both Pre-Strip and Coal Mining sub-departments. He said because of this decision, it was not deemed necessary to take any further steps at that stage to facilitate an EOI process to allow affected employees to move between sub-departments.
[107] Mr Ferricks said upon his return from leave, he had various conversations with Mr Mellor, Mr Line and Mr Abrams about the discussions they had with the MEU during his absence and the status of the roster proposal process. Mr Ferricks said he understood from his conversations with Mr Mellor and Mr Abrams that:
(a)they attended a meeting with MEU representatives at the MEU's Lodge office on 12 December 2023;
(b)during the 12 December 2023 meeting:
(i)various options or ideas about progressing the roster change were discussed between the MEU and Mr Mellor/Mr Abrams, including:
A. the possibility of splitting up Load & Haul such that Pre-Strip would move to a 7/7 Roster while Coal Mining would remain on the Lifestyle Roster;
B. the possibility of splitting up teams within Pre-Strip and Coal Mining by dig units, such that some Pre-Strip and Coal Mining workers would work the 7/7 Roster, and others would remain on the Lifestyle Roster. For context, dig units are allocated teams within a crew where specific equipment is allocated to the unit and unit carries out work at a fixed area at the Mine. He understood this option was put forward by the MEU; and
(ii)no commitments had been made to the MEU in relation to the steps BHP Coal would take following the October Vote.
[108] Mr Ferricks said he is now aware that an email was sent from Mr Mellor to Mr West on 14 December 2023 indicating the Respondent’s intention at that time to transition Pre-Strip to a 7/7 Roster and to allow Coal Mining to remain on the Lifestyle Roster. Mr Ferricks said he was not aware of this email until sometime after he came back from leave.
[109] It was put to Mr Ferricks that Mr Mellor had authority to make an agreement at the 12 December meeting and he came back (from leave) and changed that. Mr Ferricks said he did a handover with Mr Mellor to ask where the process was at and then he spoke to Mr Abrams and he told Mr Ferricks that there were no commitments at that point made.
[110] It was put to Mr Ferricks there was an agreement, and he replied that he asked both Mr Mellor and Mr Abrams was there an agreement and they both said no. Mr Ferricks was referred to the email at paragraph 11 of the Statement of Agreed Facts. It was put to Mr Ferricks that there was not just a commitment, but an agreement. Mr Ferricks said technically whether it was an intention or an agreement, he did not know.
[111] Mr Ferricks said after considering the steps the Respondent should take after the October Vote (including in consultation with Mr Mellor, Mr Line and Mr Abrams and other relevant internal stakeholders), and noting that they had not achieved a majority yes vote to implement the roster change, he decided to progress the roster change proposal for the whole of the Load & Haul Department (Pre-Strip and Coal Mining) through the Continuous Improvement provisions in clause 14 of the Agreement. He said this meant working towards the potential implementation of a trial of the proposed roster.
[112] Mr Ferricks said he arrived at this decision based on the following considerations.
(a)He was concerned about the safety implications of splitting up Pre-Strip and Coal Mining in any way (especially into dig units but including as between sub-departments) after considering findings arising out of an ICAM report into a fatality at a BHP site in Western Australia. The ICAM report indicated that the deceased worker had multiple supervisors during the one shift and received conflicting instructions from those varied supervisors, such that there was not one person who had supervisory responsibility and safety accountability for the worker. He was concerned that in Load & Haul at the Mine, affected employees may be confused as to who their supervisor was on a given day when working the Lifestyle Roster;
(b)He was concerned that splitting up Load & Haul would be complicated to manage administratively (including from a payroll and leave perspective) and he wanted to take a 'one Department' approach; and
(c)The overall benefits of moving to a 7/7 Roster for Load & Haul and continued interest amongst affected employees that he was hearing on the ground for moving to that roster.
[113] Mr Goulevitch said in response to Mr Ferricks that the Respondent had been engaging with the MEU during the entire process up to that point. He said Mr Ferricks states that he consulted with internal stakeholders in making the decision to proceed with a roster change for Pre-Strip and Coal Mining. Mr Goulevitch said Mr Ferricks and the Company did not consult with employees or the MEU workplace representatives on the change of the decision to implement a 7/7 Roster for Pre-Strip and Coal Mining and there were no discussions with the MEU regarding Mr Ferrick’s considerations in his statement.
[114] Mr Goulevitch said Mr Ferricks did not discuss the safety implication of changing supervisors he raises in his statement. Mr Goulevitch said that the Company in 2023 changed the lines of supervision by combining Pre-Strip and Coal Mining into the Load & Haul Department. He said prior to the change they were separate departments, and around the same time in Pre-Strip they changed the lines of supervision from a location-based supervision to a function-based supervision.
[115] Mr Goulevitch said he is not aware of any risk assessments or ICAMs conducted to make this change or as part of the 7/7 Roster change. Mr Goulevitch said Mr Ferricks wanted to take a ‘one department’ approach, however Load & Haul are separate sub departments that work different hours, have different start times, different superintendents, different supervisors, different pay and often work in different parts of the mine.
[116] Mr Hubner said he disagreed with Mr Ferricks’ concerns that Load & Haul affected employees may be confused as to who their supervisor was on a given day when working the Lifestyle Roster. He said under the Lifestyle Roster they always commenced a shift with a startup meeting with their supervisor of the day. This meeting was compulsory. He said this is no different to what occurs now, and regardless of what they are doing for the day, the other crews they are mixing with, whether they are assisting labour hire employees, or working in another area of the mine, they are always aware of who their supervisor is for the day.
[117] Mr Kinnane said on the Lifestyle Roster all employees attended a Pre-Start meeting with their supervisor, and this was their supervisor for the entire shift. He said this is still the case on the 7/7 Roster. He said frequently they are moved around to fill gaps for absences in other departments and this is when they would have a change of supervisor.
25 January 2024 Phone call from Mr Ferricks to Mr West
[118] Mr Ferricks said on 25 January 2024 at 7.03am, he called Mr West on his mobile to inform him of his decision to progress the 7/7 Roster change process with the entire Load & Haul Department. He said during this conversation:
(a)he thanked Mr West for working on a number of proposals with Mr Mellor and Mr Abrams during his leave period.
(b)he referred back to his previous discussion with Mr West before he had gone on leave during which he had suggested splitting up the Pre-Strip and Coal Mining sub-departments, such that Pre-Strip would go to a vote about transitioning to the 7/7 Roster and Coal Mining would remain on the Lifestyle Roster.
(c)Mr West told him that while he was on leave, he had discussions with Mr Mellor and Mr Abrams about having some dig units on the 7/7 Roster and other dig units on the Lifestyle Roster. He also talked about the possibility of moving affected employees between Pre-Strip and Coal Mining based on skill set and employee preference, rather than going to a vote. In response, Mr Ferricks said he told Mr West that he had discussed these options with Mr Mellor on his return from leave and they both agreed that such an arrangement would not be workable.
(d)Mr Ferricks said he explained to Mr West that he had witnessed the splitting of crews and rosters by dig units at another mine and that the arrangement there had been 'messy' because it meant employees had multiple supervisors. Mr Ferricks said he explained that this was a safety concern for him, BHP Coal and BMA after the recent fatality in Western Australia where workers had multiple supervisors and had been receiving conflicting work directions. Mr Ferricks said he also explained to Mr West his views that it would be complex to administer from a HR perspective including in relation to managing leave and payroll.
(e)Mr Ferricks said in response, Mr West disagreed with his position (to which he said that he respected).
(f)Mr Ferricks said he informed Mr West that BHP Coal would be progressing the 7/7 Roster change proposal for all of the Load & Haul Department through the Continuous Improvement clause in the BMA EA. Mr Ferricks said in response, Mr West told him that he would 'block' any change by disputing the matter under the BMA EA. In response, Mr Ferricks said he asked how that would be possible if BHP Coal followed the required steps under the BMA EA to which he responded that he 'didn't know but would work it out'.
(g)Mr Ferricks said at the end of the call, he offered to consult with the MEU at a later date about the proposed roster change.
[119] Mr Ferricks said during the call, Mr West did not make mention of the email Mr Mellor sent to him on 14 December 2023, which Mr Ferricks said he had no knowledge of at that time. Mr Ferricks said he was aware that on 31 January 2024, Mr West sent an email to Mr Abrams expressing discontent with the Respondent’s decision to move to a vote for both Pre-Strip and Coal Mining cohorts within Load & Haul, and Mr Abrams forwarded him this email.
[120] Mr Goulevitch said on about 25 January 2024, he had a telephone conversation with Mr West, and Mr West said to him that he received a phone call from Mr Ferricks stating that the Company was proceeding with a ballot for a 7/7 Load & Haul roster that would apply to Pre-Strip and Coal Mining employees.
[121] Mr Goulevitch said on 31 January 2024, Mr West sent an email to Mr Abrams stating that the change of decision was a betrayal of trust and charter values of the company. The email stated that the MEU was very unhappy with BMA backflipping on the agreement reached on 12 December 2023. A copy of the letter was attached to his evidence.
[122] Mr Kinnane said in early 2024, he attended a MEU Goonyella Riverside delegates meeting and at the meeting Simon West stated the company wanted to take the 7/7 Roster to a vote again for Pre-Strip and Coal Mining. Mr Kinnane said following the meeting, Mr West sent an email to the Company stating that MEU disputed doing the vote again.
Payroll System Outages and Truck Collision
[123] Mr Ferricks said following the discussions with the MEU in January 2024, there was some delay before further steps were taken to progress the roster change proposal because:
(a) there was planned payroll system outages and updates such that any major change to roster arrangements could not be accommodated during this transition period; and
(b) he prioritised managing a safety investigation into a truck collision at the Mine which occurred shortly after his telephone call with Mr West on 25 January 2024.
March 2024
[124] Mr Johnstone said at a Pre-Start meeting in March 2024 the vote for the 7/7 Roster was discussed again, and they were addressed by a superintendent who told them that the company would cater for anyone who had family commitments that were impacted by the change. He said they were advised that under a clause in the BMA EA they only needed to get 30% of the votes to introduce the change. He said they were told that the sections would be voting together, and he said it appeared that the company were trying to combine the numbers to get the vote over the line.
April 2024 Survey
[125] Mr Johnstone said in April 2024 he received a survey from BHP about the 7/7 Roster. He said they were advised that the Roster Trial would be proceeding and the vote for the roster change began at the end of April 2024.
[126] Mr Goulevitch said on 9 April 2024, Mr Mellor was present for their pre-start meeting. Mr Goulevitch said the purpose of a pre-start meeting is to share any operational or safety issues that the oncoming crew should know about. The Company will also share information on the Goonyella 600 which is the number of banked cubic meters (BCM) they need to dig.
[127] Mr Goulevitch said during the pre-start his supervisor Mr Anthony read out an Information Brief titled “GRM Load and Haul – 7/7 Roster”. Mr Goulevitch said he was also handed an anonymous survey to fill out. The survey had six questions.
[128] Mr Hubner said in early April 2024 they were advised by Mr Line at a Pre-Start meeting that the roster change was going back to a vote. He said that only 30% of employees needed to vote it up and that they would be bringing it in as a trial anyway. Mr Hubner said Mr Line said that he did not agree with the vote and that he was only passing a message on. Mr Hubner said he appeared to be very anxious addressing the workforce and left a survey of 6 questions on the table for them to complete. Mr Hubner’s evidence was to the effect that his answers to the survey favoured the Lifestyle Roster, and they did not receive any feedback on the results of the survey.
[129] Mr Ferricks said in his supplementary statement the reference to discussions with the MEU in January 2024 was intended to solely be a reference to the telephone discussion with Mr West on 25 January 2024. Mr Ferricks said on 8 April 2024, he notified affected employees by email that:
(a) in order to advance a roster trial consideration process, it was appropriate for affected employees to provide further feedback on their preferred rosters and lifestyle arrangements and run a second vote to gauge support for the 7/7 Roster; and so
(b) an anonymous survey would be made available at pre-start meetings for affected employees to provide feedback to BHP Coal on the proposed 7/7 Roster, the existing Lifestyle Roster or any different roster that may facilitate their preferred lifestyle arrangements (Survey).
[130] Mr Ferricks said during pre-start meetings between 9 and 16 April 2024, in accordance with his instructions, he is aware Mr Line and Mr Mellor:
(a) distributed paper copies of the Survey to affected employees individually by hand;
(b) explained that the purpose of the Survey process was to seek additional feedback on the affected employees’ preferred roster arrangements to facilitate their preferred lifestyle arrangements; and
(c) asked affected employees to respond in writing to the Survey (on an anonymous basis) and return their written response directly to either Mr Mellor or Mr Line at the end of each pre-start meeting.
[131] The survey questions were as follows:
Question 1: Will a 7-7 roster facilitate your preferred lifestyle arrangements?
[Yes/No]
Question 2: Will you spend less time travelling on a 7-7 roster over a 12-month period?
[Yes/No]
Question 3: Will you incur less travel cots on a 7-7 roster over a 12-month period?
[Yes/No]
Question 4: Does your current roster facilitate your preferred lifestyle arrangements?
[Yes/No]
Question 5: Is there a different roster that would better meet your preferred lifestyle
arrangements?
Question 6: Is there anything else you would like to add?
[132] Mr Ferricks was asked if Mr Mellor and Mr Line would have delegated what he instructed them to do to supervisors. He said potentially but accepted that he didn’t know. He agreed this was the process of gauging support.
[133] Mr Ferricks said 166 affected employees completed and returned the Survey, and a review of the Survey responses revealed that the majority of affected employees (over 50%) who participated in the Survey responded that:
(a) a 7/7 Roster would facilitate their preferred lifestyle arrangements;
(b) employees would spend less time travelling on a 7-7 Roster over a 12-month period;
(c) employees would incur less travel costs on a 7-7 Roster over a 12-month period.
[134] Mr Ferricks provided with his evidence survey responses and a spreadsheet compiling the Survey responses to the four “yes/no” questions. It was put to Mr Ferricks that he could not be certain if some employees may have been missed in this process. Mr Ferricks said the feedback was that people did get the survey. He said he was kept abreast of the surveys coming back and he was satisfied that all the crews were getting surveys. Mr Ferricks agreed that 57% of employees completed the survey. It was put to Mr Ferricks that only 28% of the whole workforce said they supported the 7/7 Roster. Mr Ferricks said it was a voluntary survey, and they were not policed to hand the survey back.
[135] Mr Goulevitcvh said he answered ‘No’ to questions 1 to 3, and ‘Yes’ to question 4. In response to question 4 he stated, “My preference would be our old roster with a PJ day each round”. He said his response to question 6 was “I think it is deplorable the company are pushing a roster that Guidance Note 16 says is the worst for fatigue. I think the last 2 hours of the last shift is on 7&7 should be paid but allocated to travel to increase adherence to JMPs”.
[136] Mr Goulevitch said on 11 April 2024 Mr West sent an email to BMA stating that a Work Pac employee had been provided with access to the 7/7 Roster survey.
[137] Mr Goulevitch said in the meeting he attended there was no request or direction to fill out the Survey at the end of the pre-start meeting. He said he was able to take the Survey away and fill it out later and he completed the Survey later in the night shift and handed it back to his supervisor at some stage during the shift. He said Mr Ferricks’ attachment to his evidence states the Surveys didn’t need to be returned until 17 April, 10 days after it was first announced.
[138] Mr Goulevitch said in the Survey results attached to Mr Ferricks’ statement, when the responses to question 4 of the Survey are tallied, the Survey also says that the majority of affected employees said that the current roster (Lifestyle Roster) facilitated their preferred lifestyle arrangements, contradicting the results of question 1, and Mr Ferricks did not include this in his statement or explain why the results of one question were used instead of the other.
[139] Mr Goulevitch said he submitted his survey “ref 223” and noted that his results, attached to his First Statement are not recorded in the spreadsheet compiling the survey results which is attached to Mr Ferricks’ statement. Mr Goulevitch responded to Mr Ferricks’ evidence by saying that the survey questions were designed to take into account an employee’s preferred lifestyle and refers in particular to questions 1 and 4, and Mr Goulevitch said Mr Ferricks neglects to mention that in question 5 the majority of employees taking the survey also responded that the current roster (Lifestyle) did facilitate their lifestyle and yet the Respondent implemented the change to a 7/7 Roster.
April 2024 emails between Mr West to Mr Ferricks and notification of second vote
[140] Mr Ferricks said on 13 April 2024, he received an email from Mr West asking him what provision in the Agreement the business was currently using with regard to this proposed roster
change. Mr Ferricks said on 15 April 2024, he responded to Mr West confirming that:
(a) BHP Coal intended 'to progress using the continuous improvement provisions to advance consideration of a 7/7 roster trial for both Coal Mining and Pre-Strip areas';
(b) BHP Coal was therefore 'gauging support amongst the affected workers, and giving these workers a further opportunity to express views about the proposed roster, existing roster or another roster through an anonymous survey';
(c) affected employees would then be 'balloted in the coming weeks to determine whether a significant number of workers desire to change to a 7/7 roster'; and
(d) the Survey process was otherwise 'consistent with the provisions of clause 14 and 11.5 of the EA'.
[141] Mr Ferricks said on 26 April 2024, Mr Mellor and Mr Line notified affected employees that the Respondent was proceeding with a vote to determine whether, following the October Vote from the previous year, a significant number of affected employees desired a change to the 7/7 Roster. He said the communication:
(a) outlined the employee feedback received about the 7/7 Roster obtained from the Survey process;
(b) indicated that a further vote would occur to allow employees to have a say on whether or not they support a 7/7 Roster; and
(c) stated that:
(i) if a significant number of affected employees (>30%) supported the 7/7 Roster, the business may proceed with a trial of that Roster of no more than 6 months;
(ii) if a significant number of affected employees supported a 7/7 Roster and if the business decided to implement a trial, business reasons for the trial and further details of what the trial would look like, would be communicated to affected employees.
[142] Mr Ferricks said the second vote opened on 29 April 2024 and closed on 5 May 2024 and following the April Vote, he received an official outcome of the Vote from CorpVote, and 46% of 273 affected employees voted Yes to the statement that a 7/7 Roster would meet their preferred lifestyle arrangements.
[143] Mr Ferricks was asked why the correspondence provided to staff on 26 April 2024 referred to a significant number of employees as 30%. Mr Ferricks said it based on a previous ruling by the Commission and was part of legal advice he had received.
Notice of Result of April Vote and Feedback before Roster Trial
[432] The Respondent’s correspondence of 3 October 2023 set out under the heading of key reasons in that correspondence nine dot points. Those key reasons and nine dot points are the business reasons for the roster proposal and that satisfies the definition of “business reasons” in clause 14(j). Clause 14(j) is clear a detailed business case is not required. This is an overview of the key financial and efficiency benefits that the Respondent said will accrue to the mine from the proposal. It is unnecessary for the Commission to examine whether the business reasons do or do not support the roster trial proceeding.
14(a) Genuine attempt to reach agreement
[433] I agree to some extent with the Respondent’s submissions about the meaning of the last sentence in clause 14(a) as I have already accepted it is not a consultative term in the same sense as clause 15. I do not agree that the genuine attempt to reach an agreement is satisfied for the Company’s part merely by the Company conducting a ballot by an independent third party. However, I agree that the clause is not intended to operate in a manner importing all of the consultative or engagement processes that are required in for example an assessment of whether employees genuinely agree to an enterprise agreement.
[434] It requires an assessment of whether the parties were genuine in their attempt to reach agreement. To find a party was not genuine in its attempt to reach agreement, may require a finding that the party had some other objective or motivation, other than making an attempt to reach an agreement.
[435] The MEU points to a number of what it said are relevant factors that support a conclusion that the Respondent was not making a genuine attempt to reach an agreement. This included:
·The Respondent planning well in advance of the October 2023 notification that it was going to proceed to a 7/7 Roster trial;
·The evidence of Mr Mellor that staff were being told when hired that they were going to be on a 7/7 Roster;
·Mr Mellor, despite denying it, telling employees if the first vote was voted down the roster will not go ahead;
·The Respondent reaching an agreement with the MEU at a meeting on 12 December 2023 and confirming the agreement in an email on 14 December, and reneging on the agreement on 25 January 2024;
·Mr Ferricks despite having the authority to do so, refusing to move to a state level conference under the dispute settlement procedure which the MEU described as a delaying tactic;
·The Respondent persisting with its proposal after the first ballot despite the majority of Load & Haul employees not agreeing to the change;
·Minimal contact between the Respondent and the MEU before the announcement of the second ballot.
The Respondent planning well in advance
[436] I am not inclined to accept that Mr Ferricks’ evidence that he arrived at a view in 2023 that the Respondent should consider a change to a 7/7 Roster without being more specific about when he arrived at that view, or that the Respondent was planning to implement a 7/7 Roster well in advance supports a conclusion that the Respondent was not making a genuine attempt to reach an agreement on its proposed 7/7 Roster. Mr Ferricks set out a series of reasons for arriving at that view in 2023 in his evidence, and it was my impression he genuinely held those views.
[437] The unchallenged evidence of Mr Ferricks is that before 4 October 2023 he was engaging in discussions with Mr West about the 7/7 Roster proposal, and as part of those discussions the option was floated of splitting Pre-Strip and Coal Mining and this was rejected by the MEU. Mr Goulevitch said Mr West never said this to him, however Mr West has not been called to give evidence to refute that assertion of Mr Ferricks.
Staff being told when hired they were going to be working on a 7/7 Roster
[438] The MEU also referred to the evidence of Mr Mellor that he agreed staff were being told when hired that they were going to be on a 7/7 Roster. Mr Mellors evidence is that this was what he had heard from others, not that he was doing it himself. There was no direct evidence from anyone directly involved in recruitment of new staff to shed further light on this issue. I do not intend to afford it any significant weight.
If the first vote is voted down the roster will not go ahead
[439] The weight of the evidence supports that conclusion that, contrary to Mr Mellor’s evidence, it is more likely than not that he did say at a September 2023 meeting with affected employees words to the effect of “If you guys vote it down that will be it”. When the Respondent subsequently announced a second vote several months later the evidence shows this eroded trust between the Respondent and the MEU. However unwise Mr Mellor making the statement at the time was, it does not follow that therefore it tends to prove the Respondent was not genuinely attempting to reach an agreement.
Alleged agreement at a meeting on 12 December 2023
[440] Much has also been made of whether an agreement had been reached at the meeting of 12 December 2023 between the Respondent and the MEU, the MEU maintaining an agreement was reached, and both Mr Mellor and Mr Ferricks refuting that. It is clear from the terms of the email of 14 November 2023 Mr Mellor sent to Mr West and Mr Goulevitch that the Respondent was telling the MEU that it intended at that point in time to proceed down the course of splitting Pre-Strip and Coal Mining.
[441] Mr Goulevitch provided a lengthy record of his recollection of what was said at the meeting on 12 December 2023. He said in his evidence this record in his statement reflected notes he took however he did not produce the notes. Neither Mr West nor Mr Abrams were called to give evidence. Mr Mellor’s evidence was that there was no commitment made at the meeting. Mr Ferricks said both Mr Mellor and Mr Adams had told him no agreement was made.
[442] If the words as included in Mr Goulevitch’s evidence are to be accepted as accurate they tend to support the conclusion the parties had reached an understanding at that point in time. Included in those words are the words Mr Goulevitch attributed to Mr West that he said “...is there any way you could put what we’ve agreed down in an email so I can present it at a meeting?...”
[443] The evidence tends to support the conclusion that after some discussion, and toward the conclusion of the meeting, the representatives of the Respondent communicated an intention to the representatives of the MEU that the Respondent would proceed to conduct a ballot of Pre-Strip employees and exclude Coal Mining employees, and the representatives of the MEU at the meeting were supportive of this and asked for the proposal in an email to present back to a Lodge meeting. Mr Goulevitch’s recollection included the following exchange:
Mr Abrams: I’m happy to cut coal mining out of the roster ballot and have a process for moving between coal and Pre-Strip.
Mr West: Great, we have a monthly meeting coming up and this roster ballot is a hot topic is there any way you could put what we’ve agree down in an email so I can present it at the meeting?
Mr Mellor: Yeah, I can jot down a few dot points and send it through to you.
[444] In Mr West’s letter to Mr Ferricks over five months later on 22 May 2024, he referred to the 12 December 2023 meeting and said that he “..stated in the meeting that the Lodge was meeting with MEU members on 14th December 2023 and as the roster change was a major issue for the Lodge membership, that would be an important item to be discussed at the meeting with Lodge membership..”
[445] Later in the same letter he went on to say as follows:
“On 14th December 2023, I attended a meeting with Mr. Goulevitch and the Lodge membership. At the meeting I read the email from Mr. Mellor confirming our agreement out loud to the Lodge membership. Based on Mr. Mellor’s email there were no issues raised at the Lodge meeting concerning the proposed Load and Haul roster change…”
[446] Mr West did not give evidence at the hearing. The evidence of what occurred at the Lodge meeting, although scant, appears to be what Mr West reported back as being the Respondent’s intention at the time concerning the 7/7 Roster. Mr West had Mr Mellor’s email by that stage to read to the meeting. There was no evidence there was any of kind of formal endorsement or rejection by the Lodge meeting of the position that Mr West described as an agreement. Mr Hubner said in his evidence concerning the Lodge meeting that he personally was concerned how this would work, however he also said at that point, there was an understanding that they would get the rosters that they wanted.
[447] Mr Kinnane said that in late 2023, he attended an MEU Goonyella Riverside delegates meeting where Mr West chaired the meeting and the 7/7 Roster was discussed in the meeting. It is not entirely clear whether this was referring to the same Lodge meeting however Mr Kinnane said Mr West said that he has discussed the 7/7 Roster with the Company and the outcome was that Pre-Strip would be going ahead with a 7/7 Roster and Coal Mining would stay on the Lifestyle Roster. Mr West’s letter of 22 May 2024 simply states as set out above that he read the email and there were no issues raised.
[448] Mr Goulevitch provided that what was said was a record of a conversation that occurred between himself, Mr West, Mr Ferricks and note taker Mr Dobie on 25 June 2024. Mr Goulevitch’s recollection included the following exchange between Mr Ferricks and Mr West.
“Mr Ferricks: In your meeting with Vaughn and Mark you wanted to split prestrip up per dig unit, that isn’t going to work.
Mr West: That is what we proposed at the start of the meeting but ultimately agreed to split coal mining out of the 7&7 vote.”
[449] During the course of his cross-examination Mr Goulevitch accepted that several elements of his written recollection of this meeting were incorrect.This tends to caste at least some doubt on the accuracy of other parts of his recollection of the discussion in this meeting more generally, however on his recollection of the 25 June 2024 meeting Mr West accepted that more than one option was explored in the course of the 12 December 2023 meeting, and has at least some correlation with the tenor of Mr Mellor’s evidence that options were being discussed and no commitments were made.
[450] There is no evidence of the MEU ever reverting to the Respondent about what resulted from Mr West presenting Mr Mellor’s 14 December email to the monthly Lodge meeting. There does not appear to have been any other communication between the MEU and the Respondent about the 7/7 Roster issue before Mr Ferricks communicated to Mr West on 25 January 2024 the Respondent had decided not to split Load & Haul as previously discussed on 12 December, and the decision was instead to continue down the earlier path of a 7/7 Roster for all of Load & Haul which had been the position at the time of the October 2023 vote.
[451] Had there been an intention to formalise an agreement between the MEU and the Respondent it would be expected there would have been more than Mr Mellor’s email. The evidence tends more to indicate that the proper characterisation of the outcome of the 12 December meeting as communicated in Mr Mellor’s email was that the Respondent was communicating their stated intention to the MEU at that point in time, and the MEU representatives were indicating they would be in agreement with that intention, and that they would then take that back to a Lodge meeting for discussion with members.
[452] The fact that Mr West said what was discussed at the meeting on 12 December needed to be reported to the Lodge also tends to suggest there was no formal ratified agreement at the meeting itself. The fact that no formal response ever came back to the Respondent from the Lodge meeting tends to support the conclusion that the proposal could not properly be characterised as a formal agreement being reached between Respondent and the MEU at the 12 December meeting, as the MEU has portrayed it, and is better described as being what the Respondent intended to do at that point in time, that the MEU representatives were indicating they expected the proposal would be acceptable if it proceeded subject to discussions with members. I do not accept that either side were bound by what occurred at the 12 December 2023 meeting.
[453] Despite the Respondent’s stated intention at the time falling short of a formal agreement with the MEU, there is no doubt that the Respondent’s subsequent change in direction was a major disappointment for the MEU, given splitting the group appears from the evidence to have been a more palatable outcome for more of the affected employee group and the MEU membership, who themselves are divided on the issue. I also accept that the way the matter was handled by Mr Mellor and Mr Abrams at the time would have undermined trust between them and the MEU.
[454] However, again, despite the shortcomings in how the matter was handled, and the fact this change in direction was damaging to levels of trust with the MEU, these events do not support a conclusion that the Respondent was not genuinely attempting to reach an agreement over its notified proposal.
Refusing to bypass steps in the dispute settlement procedure
[455] The MEU submitted Mr Ferricks said he was the one with the authority in relation to the issue and Mr Ferricks refusing to move to a state level conference in the dispute settlement procedure was a delaying tactic. I do not accept on the evidence that the fact of Mr Ferricks not agreeing to bypass steps in the dispute settlement procedure supports a conclusion that he deliberately engaged in delay so that he could get the trial up and running before the dispute could be finalised.
[456] Whilst it may be possible this was motivating factor for Mr Ferricks not agreeing, it is equally possible he remained hopeful a resolution could still be found between the parties themselves and that was the reason for his wanting to follow each step. On balance, I am not persuaded to afford the issue any significant weight.
The Respondent persisting after the first ballot
[457] The MEU argument on this point is that the Respondent refused to accept the view of the majority of Load & Haul because the October 2023 vote did not achieve a majority, and this factor indicates it was not genuine in attempting to reach agreement. The conduct of the survey, and the taking of a second vote by an independent third party supports a contrary view. The circumstances also must be viewed in their proper context. As was explained in the following observation in the decision of then Deputy President Asbury in CFMMEU v BHP Coal Pty Ltd[2019] FWC 2825 in the later part of paragraph 122:
“[122] ……
Seen in this light, the new clause 11.5 in the 2012 Agreement introduced the concept that absent majority agreement a roster change could not be trialled unless a significant number of employees agreed and the new roster facilitated employee lifestyle arrangement. This was arguably an improvement on the previous provisions of clause 16 of the 2007 Agreement from the perspective of the SBU and a compromise on the part of BMA.”
[458] The Respondent was always aware it did not need a majority but required a significant number to trial the roster. Pressing on despite the first unsuccessful ballot does not mean the Respondent was not genuine in attempting to reach agreement, however ultimately, even if it failed to obtain a majority on a second attempt, the terms of the BMA EA make clear further attempts were not necessarily futile if they did not obtain majority support.
Minimal contact between the Respondent and the MEU
[459] The MEU also points to there being little discussion between the MEU and the Respondent between 25 January 2024 and the notification of the dispute on 22 May 2024. The MEU accepted in closing that there was an interaction between Mr Ferricks and Mr West on 13 and 15 April 2024. The MEU submitted the reason for the interaction was the commencement of the survey by the Company without consulting the MEU. As has already been determined, clause 14 is not a consultation clause as clause 15 is. There was evidence of reasons for delay following the 25 January 2024 conversation including the safety incident.
[460] The Respondent engaged with the MEU as part of the dispute resolution steps between 22 May 2024 to when the trial was implemented in July 2024. Having considered the evidence overall the evidence supports the conclusion that the Respondent did make a genuine attempt to reach an agreement.
11(a) Insufficient Detail to establish significant number desire the change
[461] The MEU submitted the Respondent did not provide sufficient details of the first and second ballot results to demonstrate the number of employees who desire a roster change to the 7/7 Roster and there was no information stating how many employees voted in each ballot and the results of each employee’s vote in the ballot.
[462] The MEU submitted then Deputy President Asbury’s determination in CFMMEU v BHP Coal Pty Ltd [2019] FWC 2825 that as a general rule 30% is a significant number for the purposes of clause 11.5 was qualified by the Deputy President at paragraph [124] by saying it may vary depending on the group.
[463] The MEU submitted the ballot result of 37% for Coal employees in October 2023 and a greater majority of employees not supporting the 7/7 Roster in the April 2024 vote, with no results being declared for the two groups as per the previous ballot, results in a conclusion the Respondent has not obtained a significant number.
[464] The Respondent said a significant number of affected who desired a change to a 7/7 Roster was clearly identified in the October 2023 and April 2024 votes and, calculating not just on those who voted but on affected employees, 44% desired change. The Respondent submitted 44% is a significant number and while it is not a majority it does not have to be. The Respondent relies on the decision of then Deputy President Asbury’s 2019 decision at paragraph 126. I adopt her reasoning at paragraph [123] and [124] of the 2019 decision and accept the evidence establishes in this case that a significant number of affected employees desire the change to a 7/7 Roster.
11(a) Employees preferred lifestyle arrangements
[465] I agree with the Respondent’s primary argument that the expression “Employees’ preferred lifestyle arrangements” in clause 11.5(a) is about commuting, and the issue of residential versus commute lifestyles. When the whole of the introductory section of clause 11.5 is read leading up to clause 11.5(a), and each of the subclauses are then read in the context of the whole of the clause including the introductory section, it is reasonably plain that a roster change that can facilitate a commuting lifestyle is what the clause was primarily directed to address, and to facilitate such a roster contingent on all the steps required being met. It seems uncontroversial from the evidence that a 7/7 Roster is generally preferred by the majority of commuting employees at the Mine over the Lifestyle Roster. On that basis it is clear the 7/7 Roster trial is a case of the Respondent seeking to facilitate those employees’ preferred lifestyle arrangements. This seems logical in circumstances where it is clear when clause 11.5 and clause 14 are read together that the BMA EA quite intentionally permits a roster trial to proceed despite majority support not being able to be obtained under clause 14, on the condition that all of the requirements of both clause 14 and 11.5 are met.
[466] If that is wrong then I would still be of the view that the proposed 7/7 Roster does facilitate employees’ preferred lifestyle arrangements as a significant proportion of the affected employees voted in favour of the roster trial and voted yes to question 4 on the survey forms. As the Respondent submitted, employees’ preferred lifestyle arrangements are not exclusive to one roster, and it is sensible to interpret the clause 11.5(a) as accepting on the evidence that the 7/7 Roster does facilitate employees’ preferred lifestyle arrangements.
11.5(b) Gauging Support
[467] The MEU submitted the Respondent did not genuinely gauge the support for the roster change amongst affected workers, citing the survey being anonymous, limited to six questions, and not being provided to other employees with similar skills and competencies to Pre-Strip and Coal mining working in other areas at the mine on a Lifestyle Roster and a 7/7 Roster. It also submitted contract employees working on the site had access to the survey.
[468] Mr Ferricks gave evidence that there are no other work areas in the mine where similar skills and competencies are utilised and his evidence was not challenged in cross examination. The evidence of the MEU witnesses did not establish his evidence on this point was incorrect. He particularly referred to the differences in skills and competencies with regard to AH.
[469] The Respondent submitted the issue of relevant work area was also up for determination in then Deputy President Asbury’s roster change decision and at paragraph 98 of her decision it was found the relevant work area means the work area in which the roster will be implemented as determined by the Company. The Respondent said on that basis there is no point in talking about what a significant number is in respect of Coal Mining versus Pre-Strip.
[470] The evidence supports the conclusion that by conducting the two independent votes and conducting the anonymous survey process the Respondent did gauge the support as required by clause 11.5(b) as it made a genuine attempt to determine the views of the majority of affected employees about the proposed different roster and their existing roster.
11.5(c)Incorporation of Information
[471] The MEU argued that the Respondent did not incorporate the information gained from the procedure in clause 11.5(b) into the business reasons as pursuant to clause 11.5(c) and referred to the business reasons not changing.
[472] The Respondent said the information gathered was already incorporated and confirmed its position, therefore the business reasons notified on 14 May did incorporate feedback. The 14 May communication confirmed the business reasons, including reduction in travel, which was informed by the survey. I am satisfied feedback was incorporated.
11(d) The EOI Process
[473] The MEU submitted the Respondent did not commence the EOI process at the commencement of the 7/7 Roster trial and it has not received any information about the EOI process for the proposed roster change and when it will commence. The MEU said clause 11.5(b), when read in context with the third paragraph of clause 11.5, shows the purpose of clause 11.5(b) includes facilitating the EOI process for an employee to transfer to another work area which works the employee’s current roster.
[474] The evidence shows since May 2024 and through June 2024 employees were notified about the opportunity to submit an EOI to transfer to another work area. The 27 June 2024 communication notified of the option. This was repeated on 14 September 2024. I am satisfied the requirements of clause 11(d) have been satisfied.
14(f) Trial so unreasonable as to contrary to the spirit of continuous improvement
[475] I am inclined to the view that the harshness, unjustness or unreasonableness is referring to the impact on the work group overall, and not on individual employees, as a basis to cease or amend the trial, as the BMA EA provides a capacity for individuals to bring disputes about their specific circumstances separately to the consideration of whether the trial is harsh unjust or unreasonable on the workgroup overall.
[476] However, it is unnecessary for me to determine either of the interpretation points raised by the Respondent as to whether clause 14(f) of the BMA EA relates to the effects of the Roster Trial, and not the effects of any step in the roster change process, or whether the consideration in relation to being harsh, unreasonable or unjust must relate to the whole group of affected employees for reasons set out below.
[477] Clause 14(f) states that it is not to be used to preclude the Roster Trial from proceeding or continuing merely because the Trial represents a change to previous circumstances or may be deemed to constitute a perceived inconvenience to employees.
[478] The MEU has submitted that in the absence of a definition in the Agreement the phrase “spirit of continuous improvement” clause 14(f) understood in the light of its industrial context and purpose is a consideration of the business needs of the Company balanced by the facilitation of employee’s preferred lifestyle arrangements. Such a consideration in the industrial context of the current dispute before the Commission includes an assessment of whether the purported business reasons for the Company to proceed with a roster change are sound, and logical.
[479] The MEU said at the commencement of the trial there was no sound or logical reasons to support the decision to proceed with the 7/7 Roster trial and it is proceeding in a manner that is so unreasonable as to be contrary to the spirit of continuous improvement. I agree with the Respondent’s submission that it is not for the Commission to objectively assess whether the business will achieve the efficiencies that the Respondent believes it will through the roster trial. The Respondent has provided its business reasons to the affected employees throughout the roster change process.
[480] I have concluded on the evidence that despite the roster having adverse impacts on some individuals who have given evidence in this matter, a risk assessment and control process was completed before the trial commenced and the 7/7 Roster has met applicable fatigue management standards and requirements to ensure it is in compliance. As the Respondent submitted, no witness for the MEU said they had to stop work because of fatigue since the 7/7 Roster trial commenced.
[481] The 7/7 Roster operates in the mining industry and already operates for many employees at the Mine and in other mines. It is favoured by some employees and facilitates some employees’ preferred lifestyle.
[482] The BMA EA provides an ability for individual affected employees to raise any individual issue connected with the Roster Trial through the dispute settlement procedure process, as provided in clause 14(g), and this can be raised during the last four weeks of the Roster Trial which will be available shortly after the issuing of this decision.
[483] I accept on the evidence the trial relates to both employee lifestyle arrangements and the pursuit of productivity gains. The trial of the 7/7 Roster is not so unreasonable as to be contrary to the spirit of continuous improvement.
[484] The MEU is trying to balance the interests of members whose interests are in competition. The Roster Trial has caused considerable inconvenience for some affected employees as is set out in the evidence. The evidence also supports the conclusion that the 7/7 Roster is desired and popular with others.
[485] Despite criticisms of certain individual representatives of the Respondent in this decision, I have been unable to conclude that the Respondent has failed to comply with the requirements of the steps it is required to follow in either of clause 14 or 11.5 of the BMA EA. If I am wrong about that, then the evidence also supports the conclusion that to the extent that I may have reached a wrong conclusion in relation to some aspect of the required steps, overall, it appears such a failure would not warrant the exercise of my discretion to cease, amend or not proceed with the roster trial.
[486] The roster trial commenced in early July 2024 and is due to be concluded in early January 2025. Even if such an order were made at this late stage in the trial it is highly likely that it will only delay the inevitable, in that the Respondent will seek to address whatever procedural failure that may have been identified and would seek to recommence the trial again. The commuting workforce, which is a significant proportion of the workforce, will continue to want to work to a 7/7 Roster and they are the group of employees to whom clause 11.5 is directed.
CONCLUSION
[487] The parties were unable to agree on the answers to the questions for arbitration. On the basis of the conclusions above and to overcome the disagreement between the parties over the drafting of the questions and whether the formulation of the questions are appropriate, I am content to answer questions in relation to clauses 11.5 and 14 separately and taken together.
1.Was the 7/7 Roster trial implemented by the Respondent in a way that is consistent with clause 11.5 of the Agreement?
Yes
2.Was the Respondent entitled to proceed with the trial of the 7/7 Roster under clause 14 of the Agreement?
Yes
3.Having regard to clauses 14 and 11.5 of the BMA Enterprise Agreement 2022 taken together, is BHP Coal Pty Ltd able to proceed with the trial of the 7/7 Roster in the Load & Haul Department at Goonyella Riverside Mine implemented on and from 7 July 2024?
Yes
4.Is the trial of the 7/7 Roster in the Load & Haul Department at Goonyella Riverside Mine implemented on and from 7 July 2024 having an effect on affected employees that is harsh, unreasonable or unjust and is that effect so unreasonable as to be contrary to the spirit of continuous improvement?
No
COMMISSIONER
Appearances:
A Jacka of the MEU
C Pase, Counsel, instructed by L Dixon and B Laird, Minter Ellison Lawyers.Hearing details:
2024
Mackay[1] Exhibit 1 - Statement of Darren Franklin; Exhibit 2 - Statement in reply of Darren Franklin.
[2] Exhibit 3 - Statement of Peter Johnstone; Exhibit 4 - Statement in reply of Peter Johnstone.
[3] Exhibit 5 - Statement of Wayne Goulevitch; Exhibit 6 - Statement in reply of Wayne Goulevitch.
[4] Exhibit 7 - Statement of Shawn Kenny; Exhibit 8 - Statement in reply of Shawn Kenny.
[5] Exhibit 9 - Statement of Christopher Hubner; Exhibit 10 - Statement in reply of Christopher Hubner.
[6] Exhibit 11 Statement of Damien Kinnane; Exhibit 12 – Statement in reply of Damien Kinanne.
[7] Exhibit 18 Statement of Derrick Pagett; Exhibit 19 Statement in reply of Derrick Pagett.
[8] Exhibit 20 Statement of Cindy Stewart; Exhibit 21 Statement in reply of Cindy Stewart.
[9] Exhibit 13 - Statement of Mark Mellor.
[10] Exhibit 14 - Statement of Ryan Ferricks; Exhibit 15 - Supplementary statement of Ryan Ferricks.
[11] Exhibit 17 - Emails of 13 and 18 December 2023.
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