Mr Dayne Everill v Whitehaven Coal Mining Limited T/A Narrabri Coal Operations

[2016] FWC 8079

[2016] FWC 8079

FAIR WORK COMMISSION

DECISION

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

Mr Dayne Everill
v
Whitehaven Coal Mining Limited T/A Narrabri Coal Operations
(C2016/6248)

Black coal mining industry

COMMISSIONER SAUNDERS SYDNEY, 9 NOVEMBER 2016

Application for the Commission to deal with a dispute in accordance with a dispute settlement procedure in an enterprise agreement - jurisdiction.

[1] Mr Everill is employed by Whitehaven Coal Mining Limited (Whitehaven) and undertakes production and engineering work in or about Whitehaven’s Narrabri mine. There is no dispute that the Whitehaven Underground Operations Enterprise Agreement 2012 (the Enterprise Agreement) applies to Mr Everill.

[2] Mr Everill has made an application (the Application) to the Fair Work Commission (the Commission) for it to deal with his dispute with Whitehaven in accordance with the dispute resolution clause (clause 16) in the Enterprise Agreement.

[3] There is an issue about whether the dispute between Mr Everill and Whitehaven, properly characterised, falls within the scope of disputes which may be dealt with in accordance with the dispute resolution procedure in the Enterprise Agreement. This decision deals solely with that question.

Legal principles concerning the proper characterisation of the dispute

[4] The Application has been made under section 739 of the Fair Work Act 2009 (Cth) (the Act). The test under section 739 of the Act is whether the dispute resolution clause “requires or allows” the Commission to deal with the dispute. It is therefore necessary to look at the text of the dispute resolution clause, understood in light of its industrial context and purpose, to determine whether the dispute, properly characterised, falls within it. 1

[5] The scope of a dispute settlement clause in an enterprise agreement should not be narrowly construed; “to do so would be contrary to the notion that certified agreements are intended to facilitate the harmonious working relationship of the parties during the operation of the agreement.” 2

[6] In characterising the nature of a dispute the Commission is not confined to the application filed to deal with the dispute. 3 The entire factual background is relevant, and may be ascertained from the submissions advanced by the parties on the question of jurisdiction.4 Further, a dispute may evolve during proceedings in the Commission. It may therefore be necessary in some cases when ascertaining the character of a dispute to have regard to both the nature of the dispute alleged in an originating application and the factual circumstances as they evolve.5

[7] It is also important to note that the character of the dispute is distinguishable from any relief which may be sought, or granted, following an arbitration of the dispute. 6 However, the relief sought may cast light on the true nature of the dispute in some cases.7

[8] If the Commission has jurisdiction to deal with the dispute, the nature of the relief that the Commission may grant in such circumstances will depend on the agreement of the parties as recorded in their enterprise agreement, provided that such relief is reasonably incidental to the application of the Enterprise Agreement to which the dispute relates. 8

What is the scope of disputes which may be dealt with under the dispute resolution clause in the Enterprise Agreement?

[9] Clause 16 of the Enterprise Agreement provides as follows:

“16. Dispute resolution procedure

16.1 Following the procedure

A dispute (or grievance) about the terms of this Agreement or the National Employment Standards in the FW Act, will be progressed through the steps outlined below. Either the Employee or Whitehaven may be represented by a representative or representatives of their choice during this procedure.

Whilst the procedure is being followed, work as usual must continue at the discretion of Whitehaven. Neither Whitehaven nor the Employee will be prejudiced by the continuation of this work. Whitehaven and the Employee agree to co-operate to ensure these procedures are followed as quickly as possible.

16.2 Steps for resolution

Step 1: The dispute will be discussed at the first instance between the Employee and the Employee’s Supervisor.

Step 2: If following Step 1, the Employee does not consider the dispute adequately resolved, the Employee must refer the dispute to the Department Manager within 7 days.

Step 3: If following Step 2, the Employee does not consider the dispute adequately resolved, the Employee may refer the dispute to the Whitehaven General Manager.

Step 4: If following Step 3, either party does not consider the dispute resolved, the parties may agree on the process to be utilised by Fair Work Australia for settlement of the dispute by mediation, conciliation and consent arbitration.

Step 5: If following Step 4, where the dispute remains unresolved, Fair Work Australia may exercise any method of dispute resolution permitted by the Act that it considers appropriate to ensure the settlement of the dispute.”

[10] The reach of the dispute settlement procedure (clause 16) in the Enterprise Agreement is not unlimited. It prescribes procedures designed to resolve disputes (or grievances) about “the terms of this Agreement or the National Employment Standards in the FW Act”.

[11] The operation of clause 16 will only be attracted if the dispute (or grievance) can be linked in the requisite way to the terms of the Enterprise Agreement or the National Employment Standards. 9

[12] There is no suggestion in this case that the dispute the subject of the Application is in any way concerned with the National Employment Standards. The issue is whether the dispute is “about the terms” of the Enterprise Agreement.

[13] A dispute cannot be “about the terms” of the Enterprise Agreement unless the dispute has a relationship with the provisions of the Enterprise Agreement itself. 10 The nature of the relationship which is necessary to meet the test may be in issue in particular cases.11

What is the proper characterisation of the dispute between Mr Everill and Whitehaven?

[14] Section 1.4 of the Application identifies the dispute as one relating to clauses 5.1 and 8.1 and Schedule 2 of the Enterprise Agreement.

[15] The dispute is described in section 2.1 of the Application in the following way:

“1. The dispute concerns the true interpretation operation of the clauses set out in 1.4 of this application of the enterprise agreement.

2. The Applicant is an employee of the Respondent and has worked as a production employee since 2012. His classification for purposes of payment of wages for the relevant period is that of The Nominated Miner Driver/Shearer Driver.

3. The Applicant is a competent miner driver and receives the pay rate of $31.88 and the allowance of $11.66 for persons in that classification.

4. The Respondent issued the Applicant with a final warning on 30 August 2016. The warning was not justified as it principally related to an allegation the Applicant was not wearing a seatbelt. The Applicant wore a seatbelt at all times whilst the vehicle was in operation. Regardless of this, even if the warning was justified, it was not open to the Respondent under a true operation of the enterprise agreement to vary the Applicants classification and cease paying the Applicant the nominated miner driver’s allowance of $11.66. The Respondent is not paying the Applicant the correct rate of pay as provided for Clause 8.1 when read with Schedule 2 Rate of Pay.

5. A further aspect of the dispute is the operation of clause 5.1 Duties of Employees. This empowers the Applicant to “carry out any work within any their skills, training and knowledge… and carry out any work that the employee has the skills and competencies to perform and without demarcation…”.

6. The Respondent has quarantined/removed the shearer operator skill from the Applicant therefore limiting the work the Applicant can be directed to perform by the Respondent under clause 5.1 of the enterprise agreement. The Respondent under a true operation of this agreement can’t refuse to acknowledge the skills and competencies of an employee so as to limit the work the employee can be called upon to perform.”

[16] Mr Everill seeks the following relief in section 3.1 of the Application:

“The relief the Applicant seeks is a determination that the Applicants classification should not have been changed by the Respondent and the Respondent should not have removed his shearer driver competency. The Respondent was not permitted to do this under a true operation of the enterprise agreement. Whether or not the warning was valid and in the alternative if the Respondent is able to reduce the classification and rate of pay because of a valid warning then it should not have done so under the enterprise agreement as the warning is not valid.”

[17] In addition to considering the Application made by Mr Everill, in determining the proper characterisation of the dispute I have had regard to the written submissions filed on behalf of Whitehaven on 27 October 2016 and on behalf of Mr Everill on 31 October 2016.

[18] It appears uncontroversial from the Application and submissions filed on behalf of the parties that:

• Mr Everill was for some period of time classified as a Nominated Miner Driver, at which time he received the hourly rate of $31.88 plus the hourly allowance of $11.66 prescribed by Schedule 2 to the Enterprise Agreement;



• Whitehaven issued Mr Everill with a final warning on 30 August 2016 in relation to an allegation that Mr Everill was not wearing a seatbelt at a particular point in time;



• At some time after being issued with the final warning, Whitehaven changed Mr Everill’s classification from Nominated Miner Driver to Experienced Operator; and



• Because Mr Everill is classified as an Experienced Operator, he is now paid the hourly rate of $31.88 plus the hourly allowance of $7.29 prescribed by Schedule 2 to the Enterprise Agreement.

[19] In my view, the proper characterisation of the dispute the subject of the Application is a dispute about:

(a) First, whether the warning issued to Mr Everill on 30 August 2016 was justified; and

(b) Secondly, regardless of whether the warning was justified, whether Whitehaven had the right, under the true operation of the Enterprise Agreement, to limit the work Mr Everill could be directed to perform and/or vary Mr Everill’s classification from Nominated Miner Driver to Experienced Operator and pay him an hourly allowance of $7.29, rather than $11.66.

Does the dispute, properly characterised, fall within the scope of the dispute resolution clause in the Enterprise Agreement?

[1] In my view, the second part 12 of the dispute is a dispute about the terms of the Enterprise Agreement, but the first part13 is not. I set out below my reasons for reaching these conclusions.

First part of the dispute – was the warning justified?

[2] No term of the Enterprise Agreement deals with warnings, disciplinary action or similar subject matters. Further, no policies of Whitehaven are incorporated by reference or otherwise into the Enterprise Agreement. Accordingly, whether the warning issued to Mr Everill on 30 August 2016 was justified is not a dispute about the terms of the Enterprise Agreement.

Second part of the dispute – did Whitehaven have the right to vary Mr Everill’s classification or limit the work he could be directed to perform?

[3] The question I need to consider at this stage is not whether Whitehaven had the right to limit the work Mr Everill could be directed to perform and/or vary Mr Everill’s classification (regardless of whether the warning was justified) and therefore pay him a lower hourly allowance, but whether such a dispute is properly characterised as a dispute about the terms of the Enterprise Agreement. Whether Whitehaven had such a right depends on the outcome of arguments Mr Everill has foreshadowed as to the proper construction of clauses 5.1 and 8.1 and Schedule 2 of the Enterprise Agreement. A dispute of that kind is clearly a dispute about the terms of the Enterprise Agreement.

Conclusion

[4] For the reasons set out above, I find that, regardless of whether the warning issued to Mr Everill by Whitehaven was justified, the dispute as to whether Whitehaven had the right, under the true operation of the Enterprise Agreement, to limit the work Mr Everill could be directed to perform and/or vary Mr Everill’s classification from Nominated Miner Driver to Experienced Operator and pay him an hourly allowance of $7.29, rather than $11.66, is a dispute about the terms of the Enterprise Agreement. It follows that the Commission has jurisdiction to deal with that part of the dispute the subject of the Application.

[5] The matter will be listed for conciliation shortly.

COMMISSIONER

 1   CEPU v Thiess Pty Ltd (2011) 212 IR 327 (CEPU vThiess) at [42] & [47]; see too CFMEU v AIRC [2001] HCA 16

 2   SDA v Big W Discount Department Stores PR924554 at [23]

 3   AMWU v Holden Limited PR940366 at [47]; MUA v ASP Shipping Management Pty Ltd[2015] FWC 4523 (ASP) at [23]

 4   AMWU v Holden Limited PR940366 at [47]; ASP at [23]

 5   ASP at [19] & [23]; R v Bain; Ex parte Cadbury Schweppes Australia Ltd (1984) 159 163 at 168; United Firefighters’ Union v Metropolitan Fire and Emergency Services Board PR973884

 6   MUA v Australian Plant Services Pty Ltd PR908236; ASP at [21]-[22]

 7   United Firefighters’ Union v Metropolitan Fire and Emergency Services Board PR973884 at [20]

 8   MUA v Australian Plant Services Pty Ltd PR908236 at [63]; Seven Network (Operations) Ltd v CPSU (2003) 122 IR 97 at [31]-[32]

 9   CEPU v Thiess at [47]; AMWU v Thiess at [21]

 10   Australian Municipal, Administrative, Clerical and Services Union v Automated Meter Reading Services PR922053 at [73]-[74]; Seven Network (Operations) Ltd v CPSU (2003) 122 IR 97 at [29]-[31]

 11   Alcoa of Australia Pty Ltd v Amalgamated Engineering Union (1965) 7 FLR 180 at 183

 12   See paragraph [19(b)] above

 13   See paragraph [19(a)] above

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