Mr Troy Brown v Clermont Coal Operations Pty Ltd T/A Clermont Open Cut

[2015] FWC 3862

[2015] FWC 3862

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Troy Brown and Ors
v
Clermont Coal Operations Pty Ltd T/A Clermont Open Cut
(U2014/13979; U2014/13980; U2014/13981; U2014/13982; U2014/13983; U2014/13984)

VICE PRESIDENT CATANZARITI MELBOURNE, 1 SEPTEMBER 2015

Application for relief from unfair dismissal – genuine redundancies – whether redeployment to Respondent enterprise or associated entities was reasonable.

[1] The six applicants (Applicants) in these matters have applied for unfair dismissal remedies under s.394 of the Fair Work Act 2009 (the Act) in relation to their dismissals from employment with Clermont Coal Operations Pty Ltd T/A Clermont Open Cut (Respondent). Each of the Applicants was formerly employed in “production” roles at the Clermont Mine in central Queensland. The Respondent, in the face of the commercial challenge presented by an oversupply of coal in the market, engaged in a restructure of operations at the Clermont Mine in September 2014. The number of roles at the Clermont Mine was significantly reduced, and this led to the positions filled by the Applicants being declared redundant. The Applicants were not redeployed to other positions, and were dismissed on the grounds of redundancy effective from various dates between 10 - 17 November 2014. The Applicants contended that their dismissals were unfair, and seek the remedy of reinstatement.

[2] As the dismissals arose from a substantially common substratum of facts, the six applications were heard together, and evidence in each matter was treated as also being evidence in all the other matters.

[3] The matter was the subject of conciliation on 13 January 2015. The matter was not resolved and was consequently listed for hearing. At the hearing conducted on 9 – 12 June 2015 the Applicants were represented by Mr Crawshaw SC and the Respondent was represented Mr Murdoch QC. Prior to the hearing of the appeal, both counsels sought permission to appear for the parties. Given the complexity of the matter, and having regard to s.596 of the Act, permission was granted to both parties to be represented.

[4] Both the Applicant and Respondent filed lengthy written submissions in the Fair Work Commission (the Commission) prior to and after the hearing. I have taken all written and oral submissions, authorities, evidence and relevant material into account in writing this decision.

Questions to be determined

[5] Section 395 of the Act requires that four specified matters must be decided before the merits of the applications may be considered, as follows:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: for the definition of the consistent with the Small Business Fair Dismissal Code: see section 388.”

[6] There was no contest between the parties about the first three of those matters. I find that:

(a) all the applications were made within the period required by s 394(2);

(b) the Applicants were all persons protected from unfair dismissal; and

(c) the Respondent was not a “small business employer” as defined in s 23 of the Act, so that the Small Business fair Dismissal Code was inapplicable.

[7] The fourth matter required to be considered initially by s.396(d), and the sole question to be determined by the Commission in this matter was whether the dismissal of each of the Applicants was a case of “genuine redundancy”. Under s.385(d), a dismissal must be found not to be a case of “genuine redundancy” in order for the dismissal to be found to be unfair. Section 389 defines the meaning of “genuine redundancy” as follows:

“389 Meaning of genuine redundancy

(1) A person’s dismissal was a case of genuine redundancy if:

(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and

(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

(a) the employer’s enterprise; or

(b) the enterprise of an associated entity of the employer.”

[8] The parties agreed that the elements of the above definition in s.389(1) were satisfied. The issue to be determined before me was whether the dismissal of each of the Applicants was a case of genuine redundancy by reference to the existence, or non-existence, of the preconditions in section 389(2) of the Act.

[9] The Applicants contended that they could reasonably have been redeployed within the Respondent enterprise or the associated entities of the Respondent, and therefore that their dismissals were not cases of genuine redundancy under s.389(2). As such, the Applicants each sought the following remedy:

a. Reinstatement to their former position from date of dismissal with no loss of continuity or, subject to a deduction for any wages earned since termination, no loss of wages; or in the alternative

b. Re-employment in another position with the same, or comparable wages and conditions as their former positions, either with the respondent or an associated entity of the respondent; or in the alternative

c. Six months wages as compensation in lieu of reinstatement.

[10] The Respondent’s general position was that the redundancies were genuine and brought about as result of the change in operational requirements of the Respondent.

[11] The principles concerning the interpretation and application of s.389(2) have been stated in two Full Bench decisions, Ulan Coal Mines Ltd v Honeysett 1 and Technical and Further Education Commission t/a TAFE NSW v Pykett2. Those principles were summarised in Huang v Forgacs Engineering Pty Limited3 as follows:

“(1) The exclusion in s.389(2) poses a hypothetical question which must be answered by reference to all of the relevant circumstances. 4

(2) The question is concerned with circumstances which pertained at the time of the dismissal. 5

(3) In order to conclude that it would have been reasonable to redeploy the dismissed person, the Commission must find, on the balance of probabilities, that there was a job or a position or other work within the employer’s enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy the dismissed employee. 6

(4) A number of matters are capable of being relevant in answering the question, including the nature of any available position, the qualifications required to perform the job, the employee’s skills, qualifications and experience, the location of the job and the remuneration which it offered. 7”

[12] An additional proposition which was stated in Ulan was that, in relation to the reasonableness of redeployment to an associated entity, the degree of managerial integration between the different entities is likely to be a relevant consideration. 8 This proposition has been expanded in the recent decision of Pettet and Ors v Mr Arthur Coal in which Vice President Hatcher noted:

“The fact that associated entities are not managerially integrated will not necessarily mean in every case that redeployment to an associate entity would not be reasonable. It will depend on all the circumstances, including the overall size and structure of the business group as a whole, the nature of the business activities conducted by the relevant associated entities, their geographic proximity and the characteristics of the putative redeployment position.”

The Clermont Coal Open Cut Mine

[13] Clermont Mine is a large open cut coal mining operation located near the town of Clermont in central Queensland.

[14] Operations in Clermont Mine commenced in 2008. Prior to 1 June 2014, the Clermont Mine was operated by Rio Tinto Coal Australia Pty Ltd (Rio Tinto) and Clermont Coal was a Rio Tinto company. From 1 June 2014, Glencore Coal Assets Australia Pty Ltd (Glencore) commenced the operational management of Clermont Mine after the successful completion of a deal whereby Glencore and Sumitomo Corporation acquired Rio Tinto Coal Australia’s 50.1% shareholding of Clermont Coal. Clermont Mine is now operated by Clermont Coal, which is a wholly owned subsidiary of Glencore. Thus Clermont Coal is generally the employing entity of employees who perform work at Clermont Mine and as such is the former employee of the Applicants. It is not in dispute that Clermont Coal is an associated entity of Glencore pursuant to the definition of associated entity contained in section 50AAA of Corporations Act 2001. The Glencore website describes the operations of Glencore as follows:

“We are the world’s largest exporter of seaborne thermal coal used to generate electricity and one of the largest producers of coal used to make steel and other industrial applications. Our headquarters are in Sydney and we have interests in over 30 open cut and underground coal mines in Australia, South Africa and Columbia and exploration projects in British Columbia, Canada.”

[15] The Clermont Coal Enterprise Agreement 2012 (Agreement) applies to all Clermont Coal employees who are engaged in production and engineering roles at Clermont Mine. Prior to 14 November 2014, the Agreement applied to 454 employees at Clermont Mine. The Agreement now applies to 390 employees at Clermont Mine. Of the 390 enterprise agreement employees that currently remain at the mine, approximately 200 are engaged in production roles and 100 in maintenance roles.

[16] There are three main “departments” or work areas in production at the Clermont Mine:

1. Haulage and Dispatch;

2. Load and Dump; and

3. Drill and Blast.

[17] Prior to the restructure of Clermont Mine in September 2014, there was an additional department known as Mine Services, however the work previously performed by Mine Services has now been subsumed by Haulage and Dispatch.

[18] Clermont Coal utilised workers other than employees, to perform work at Clermont Mine in two ways:

(a) Workers who are employees of companies which are contracted to perform work at Clermont Mine. Clermont Mine utilises such contractors to perform a range of different work at Clermont Mine including specialist tasks; and

(b) Employees of labour hire companies (such a WorkPac) who are used to perform various tasks on site, including work requiring specialised skills. 9

The Applicants

[19] The relevant circumstances of the Applicants prior to dismissal were as follows:

(a) Troy Daniel Brown: Mr Brown commenced employment with the Rio Tinto at the Clermont Mine on 5 May 2012. At the time of his termination, Mr Brown was a Haul Truck operator working in B Crew. He was employed on a residential basis and at the time of termination was renting company owned housing in Clermont.

(b) Cambell Ernest Dews: Mr Dews commenced employment with Rio Tinto at the Clermont Mine on 6 December 2011. At the time of his termination, Mr Dews was a Haul Truck operator working in B Crew. He was employed on a Fly-In, Fly-Out (‘FIFO’) basis with his principal place of residence being located in the sunshine Coast in Queensland.

(c) Damien Ernest Mason: Mr Mason commenced employment with Rio Tinto at the Clermont Mine on 7 June 2013. At the time of his termination, Mr Mason was an Operator attached to C Crew in the Mine Services Department. Mr Mason was employed on a residential basis and at the time of termination was living in his own house in Clermont.

(d) Gregory Neil Holmes: Mr Holmes commenced employment with Riot Tinto at the Clermont Mine in August 2011. He was initially employed as a Shotfirer and was allocated to C Crew Drill and Blast. However, in late 2012 he was transferred out of Drill and Blast and allocated work as a Haul Truck Operator and he was in this position in B Crew at the time of his termination. Mr Holmes was employed on a FIFO basis, with his principal places of residence being located in Gympie in South East Queensland.

(e) Jeffrey Ernest Mason: Mr Mason commenced employment with Rio Tinto at the Clermont Mine on 21 July 2013. At the time of his termination, Mr Mason was an Operator attached to B Crew in the Mine Services Department. He was employed on a residential basis and at the time of termination, was living in his own house on the edge of Clermont.

(f) Glynis Sabbo: Ms Sabbo commenced employment with Rio Tinto at the Clermont Mine on 14 July 2008. She initially worked in an administrative role on site, but transferred to production duties as a member of the Drill and Blast Crew in September 2009 and at the time of termination she was in the role of Assistant Shotfirer in Drill and Blast Panel 2. Ms Sabbo was employed on a FIFO basis with her principal residence being located in Brisbane.

[20] I note that in relation to the scope of the contest between the parties, it was noted at the outset of the hearing, that the parties agreed that the question of the selection criteria and the matters arising in the selection process applied in selecting the Applicants for termination was not relevant to the current proceedings. 10 Accordingly, this decision will not traverse those matters relating to the process by which these Applicants were selected for involuntary redundancy.

The Mine Restructure

[21] On 1 September 2014, it was announced that a restructure would take place at Clermont Mine, and as a result of which, Clermont Mine would reduce its numbers by approximately 100 full time equivalents (including employees, staff and contractor employees).

[22] The Respondent’s evidence is that the decision to restructure the operations at Clermont Mine was made in light of a number of factors including the historically strong Australia dollar, lower coal prices and a weak tonnage market. This placed Clermont Mine under a high level of operating cost pressure. 11

[23] Mr Pretorius was the General Manager of Clermont Mine during this period and was instructed by Tony Galvin, Director of Open Cut Mines – Queensland (Glencore), to reduce manning levels.

[24] An industrial consultation process took place in relation to the proposed restructure. It commenced on 1 September and concluded in Early 2014.

[25] Ultimately, 101 employees, staff and contractors’ employees were removed from Clermont Mine as those jobs were no longer required to be performed by anyone because of changes in the operational requirements of Clermont Coal’s enterprises. The breakdown of these 101 persons was as follows:

(a) 26 employees in the Mining work area were made redundant by way of voluntary redundancies;

(b) 25 contractors were removed from Clermont Mine;

(c) 20 staff positions were removed from Clermont Mine by way of compulsory redundancies; and

(d) of those employees who were covered by the Agreement:

(i) there were 29 compulsory redundancies in Mining; and

(ii) there was 1 compulsory redundancy in infrastructure.

[26] It is not necessary to traverse the details of each step of the redundancy process as the Applicants do not dispute that:

(a) Clermont Coal no longer requires the jobs of the Applicants to be performed by anyone because of changes in the operational requirements of Clermont Coal’s enterprises; and

(b) Clermont Coal has complied with its obligations in the applicable instruments that applied to the employment of the Applicants to consult about the redundancies.

[27] The sole question to be determined is whether it would have been reasonable for the Applicants to have been redeployed within the enterprise of Clermont Coal or an associated entity for the purposes of section 389(2) of the Act.

Was it reasonable to redeploy the Applicants to Clermont or its associated entities?

[28] The Applicants submitted that the obligation of the Respondent to consider redeployment opportunities extended to a consideration of positions currently occupied by labour hire at the Clermont Mine, as well as positions currently occupied by labour hire at the associated entity of the Respondent, Collinsville Coal Pty Ltd.

[29] The Respondent agreed that it was its responsibility to make reasonable efforts to redeploy the Applicants within Clermont or its associate entities. However, the Respondent submitted that it is not permissible under s 389(2) to evaluate the reasonableness of displacing contractors in order to create redeployment opportunities and there is no evidence that vacancies existed other than those identified at two of the Respondent’s associated entities, Mt Isa and Abbot Point and these vacancies were put to the Applicants who chose not to pursue them.

[30] I will now turn to a consideration of these positions.

Should the Applicants’ have been redeployed to do work being performed by labour hire personnel at Clermont Mine?

[31] At the time of the Applicants dismissal, work was being performed by labour hire employees provided and employed by WorkPac at Clermont Mine and the labour hire workers were embedded into the four crews operating in production duties at the mine. The evidence before the Commission was that the labour hire workers used the same equipment as employees (except for scrapers). It was generally agreed that there was a portability of skills that would have enabled the Applicants to perform work being performed by labour hire workers in Haulage and Dispatch without significant retraining.

[32] The Applicants submitted that:

(a) There was an ‘arbitrary minimum quota system operating at Clermont Mine in respect to the utilisation of labour hire in production roles;

(b) There were “paltry efforts of the part of the Respondent in addressing the high level of labour hire in production roles at the time of termination of the Applicants…;

(c) The Respondent is “over-compensating in its use of labour hire in the order of 50-100% if its stated reason of leave coverage is to be believed.”

[33] In the Applicant’s submission, the Applicants had the necessary skills to be effectively redeployed into work being performed by labour hire. In summary they contend:

● Troy Brown, Campbell Dews and Greg Holmes are all qualified and were able to be redeployed into Haulage and Dispatch as Haul Truck Operators without any further training. Greg Holmes also has relevant competencies that would have enabled immediate redeployment into Drill and Blast as a shotfirer;

● Damien Mason and Jeffrey Mason are competent operators who have relevant competencies in Haul Trucks, loaders, bulldozers and excavators that are used in road maintenance on site. They could have been immediately redeployed into mine services work within Haulage and Dispatch or as Haul Truck Operators, with minimal training;

● Glynis Sabbo is skilled in the role of Assistant Shotfirer and the operation of smaller mine vehicles including Water Truck and the Caterpillar 914G Front End Load. Glynis Sabbo could have been redeployed in Drill & Blast with no further training, or with a reasonable amount of training, could have been placed in Haulage and Dispatch as a Haul Truck Operator.

[34] The Respondent did not dispute the skill sets of the Applicants or the fact that they could have effectively worked in the roles suggested. The Respondent even agreed that the WorkPac labour hire personnel operated the same equipment as the operators directly employed by Clermont and worked side-by-side. 12 However, the Respondent’s evidence before the Commission was that the utilisation of the labour hire contractors was justified by the Respondent on operational grounds and these numbers could not be reduced such to allow the Applicants to be redeployed into those positions. Mr Pretorius gave evidence that he had adopted a business model prior to the restructure, that allocated the use of contractors for areas requiring specialised skills, the role of scrapers and to cover for absenteeism, particularly during periods of leave.

[35] With respect to leave, Mr Pretorius gave evidence that employees at Clermont are entitled to 21 days of annual leave, 10 days of sick leave, 2 days of long service leave and 2 days of other leave (such as special leave), which totals about 35 days of leave per year out of a total of 180 days worked, or about 20 per cent leave coverage. As such, the contractors were necessary to cover the gap. 13

[36] Mr Pretorius explained how the business model worked in practice during the hearing in some detail. 14 I also note that of the 25 contractors’ employees who were removed from Clermont Mine in the restructure, 14 employees of Clermont Coal were redeployed into roles which were formerly performed by contractors’ employees. The other 11 roles were removed from the business. The Respondent’s evidence was that no additional contractor employees were able to be displaced because Clermont Coal’s business model is such that it requires the use of contractors for the following reasons:

(a) At any given time, there are absences of employees due to paid and unpaid leave and training requirements. Contractors are engaged to cover these absences. However, to the extent that additional workers are engaged to fill in for leave, the demand often fluctuates. This makes it difficult from an operational and cost perspective to engage additional employees to cover absences, because it is difficult to predict with any degree of certainty the amount of absenteeism, and the number of roles required to be filled at any given time.

(b) The types of roles which are required to be performed by contractors changes depending on the operational requirements at a particular point in time. In this respect, contractors provide for a certain degree of operational flexibility.

(c) In some areas of Clermont Mine there are contractors who are engaged to perform specialised work.

(d) From time to time, Clermont Coal also requires contractors with specialised skills to perform relief work (for example, if an Open Cut Examiner is absent from work). 15

[37] Mr Pretorius used the example of using people from the Haulage crew to fill in if people were away from Load and Dump to illustrate why it was important to have contractors to fill in for people on leave. He explained that at Clermont mine there were only 6 main dig units so there was not a lot of Load and Dump employees compared to Haulage employees. If a Load and Dump employee is taken out, it will stop one of the operating loaders or dig units. However, if you take a person from Haulage, the impact on the business unit is not as severe. 16

[38] Mr Pretorius gave evidence that he created the business model prior to the 2014 restructure and it evolved over time and he noted that when he started at Clermont Mine, the ratio of contractors was much higher. He also gave evidence that 2014 was not the first restructure and he did a major restructure in 2012 where he took approximately 160 Workpac contractors out of the business and only a few staff so there were no employees covered by the Agreement taken out of the business. 17

[39] I accept Mr Pretorius’s evidence in respect of the reasons why it was not reasonable to reduce the amount of labour hire at the Clermont Mine to redeploy the Applicants. I consider that he gave frank and honest evidence about Clermont Mine’s business strategy. It is clear from the timeline of events that the business model was in place and implemented from some time before the redundancies and there is no evidence that it was an arbitrary quota in place or a mechanism by which the Respondent sought to deliberately minimise direct employment within Clermont. 18

[40] The Applicant notes that there have been previous cases where the Commission has considered whether it was reasonable to reduce labour hire to aid redeployment of surplus employees.  19 However, in general, the Commission is not charged with the task of criticising the legitimate business models of companies in exercising its discretion pursuant to s. 389(2) of the Act. The appropriate consideration is whether in the particular circumstances of this matter, it was reasonable to displace the existing labour hire workers at the Mine to make way for 29 surplus employees that were made redundant. The evidence before the Commission shows that Clermont Coal had a strategy of maintaining some labour hire workers in the business to provide a degree of flexibility to allow the business to respond to changes in its labour requirements and also to perform specialised work. The operations of a mine are of a nature where each task is interdependent and part of a complex programme so that if one unit is unable to complete a task in the sequence, the operational processes will be significantly affected.

[41] I find that in these circumstances, it was not reasonable to require the Respondent to reduce numbers of existing labour hire to free up positions to redeploy the Applicants at Clermont Mine. It would cause major operational difficulties for the respondent if they were not able to have the flexibility to cover employees on leave in a work environment where symbiotic processes mean that the absence of personnel can bring production to a standstill. Requiring the Respondent to alter its business model in circumstances where there was a legitimate operational strategy in place requiring a certain ratio of labour hire is not appropriate and cannot be characterised as a reasonable requirement to impose upon the Respondent.

Did the Respondent make reasonable efforts to redeploy the Applicant’s into an associated entity of Glencore?

[42] The Respondent accepts that it had a responsibility to assist employees affected by the restructure to find alternative employment within the Glencore group to the extent that it may have been available pursuant to section 398(2) of the Act. The Respondent’s evidence is that it conducted a questionnaire with the affected employees during which their preferences were noted. The Respondent undertook a matching process in relation to each vacancy which existed across the Glencore group. Opportunities in other areas, functions and assets of Glencore outside Clermont Coal were considered having regard to the skill and experience of employees and the preferences which they had notified in the questionnaire.

[43] A number of roles at two locations within the Glencore group were identified as being suitable, having regard to availability of positions, the Applicants’ skills and experience and the preferences they submitted. These roles were, Operator roles at Abbot Point Bulk Coal Terminal (Abbot Point) and Mount Isa Copper Mine (Mount Isa). While operators at these locations were subject to a different roster pattern and there were differences in the skills required to perform the work, the Respondent contended that the Operator Roles at Abbot Point and Mount Isa could have been performed by each of the Applicants with a reasonable period of retraining because they all had previous experience as Operators in a mining environment. 20

[44] At the site level, the redeployment process was managed by Ms Roberson, the Human Resources Superintendent of the Respondent. The evidence of the Respondent is that the matching process undertaken by human resources indicated that there were no other vacancies apart from those at Mount Isa and Abbot Point available within the Glencore group which could have been performed by the Applicants having regard to their skills and experience. 21

[45] In contrast, the Applicants contend that redeployment to the associated entity of the Respondent known as Collinsville Open Cut Mine (Collinsville) should have been an option that was open to the Applicants.

[46] I will now turn to a consideration of the issues with respect to these three associated entities.

Mount Isa and Abbot Point

[47] The evidence of the Respondent is that on an almost daily basis in the relevant period, Ms Roberson reported to Mr Pretorius on progress in relation to the redeployment of those employees who had been identified for compulsory redundancy and the potential opportunities for redeployment which had been identified, that is, Mount Isa and Abbot Point.

[48] The Applicants do not seek to argue that the Respondent should not have redeployed them to Mount Isa or Abbot Point. Rather, they argue that the way the Respondent carried out the exercise in relation to offering work at Mount Isa and Abbot Point demonstrates further evidence of it not acting reasonably in the circumstances by way of redeployment. In the Applicants’ submission, no real offer of redeployment was made by the Respondent because the offers were couched in terms of applying for the positions and attending interviews in relation to those positions. They rely on the authority in Ulan in submitting that a genuine or reasonable approach to redeployment involves something more than merely providing an opportunity to apply for existing vacancies on a competitive basis. 22

[49] The Respondent’s evidence is that despite a number of the Applicants showing some initial interest in the opportunities for redeployment to Operator roles at Abbot Point or Mount Isa, none of the Applicants actually pursued these opportunities.  23 The Respondent submitted that the Applicants would have received preferential treatment had they taken up the opportunities and the interview process was only to assess them for suitability. Moreover, redeployment into these roles did not involve a competitive recruitment exercise against external candidates. In support of this, the evidence of Ms Roberson was that other redundant employees from the Clermont mine that did apply were given preferential treatment for roles at Abbot Point or Mount Isa. These employees were required to attend an interview to confirm that they were suitable for the new position and to give them the opportunity to ask relevant questions about the position prior to deciding whether to pursue the opportunity. If there were more Clermont employees applying than there were positions available, the interviews were intended to be used to rank the Clermont employees, so that the highest ranked candidates would be selected. However, this never became necessary because only 3 employees from Clermont actually applied for redeployment at these sites. One was redeployed to Abbot Point and the other to Mount Isa. The third was deemed unsuitable for the position.

[50] During this process, Ms Roberson gave evidence that any concerned employees were told that applying for redeployment would not affect their redundancy entitlements and if they were unsuccessful, they would still receive their entitlements. The evidence of the Respondent is that employees were given information about the positions and it was arranged for a representative from Mount Isa and Abbot Point to telephone any interested applicants to provide them with more information. Anyone interested in applying for positions was told to do so by a specified timeframe and extensions of time for applications were granted in all cases where they were sought. 24

[51] During the hearing, the Applicants were all questioned about whether they were informed of redeployment opportunities at these two sites. As mentioned, they were all initially asked to fill out a redeployment questionnaire during a meeting with Ms Roberson to gauge their interest in redeployment. They were then all informed of opportunities but decided not to pursue them for a variety reasons. I will briefly outline the relevant evidence in respect to each Applicant and why they chose not to pursue the opportunities they were notified of by the Respondent.

[52] Troy Brown had discussions with Ms Roberson after being advised of his redundancy. He was told about an opportunity at Mount Isa. He requested more time to speak to his wife and informed Ms Roberson on 29 October 2014 that he was not interested in the position due to having no underground experience, family responsibilities and no guarantee of a position if he applied. He confirmed at the hearing that the major reasons were family and financial commitments and his reallocation was not financially viable. 25 He was then told about another opportunity at Abbot Point to which he said he would get back to Ms Roberson by 4pm that afternoon. He says that he called back the following day after speaking to his wife and advised that he would not be applying for the position because of the remuneration, residential requirement and family responsibilities.26

[53] Gylnis Sabbo had discussions with Ms Roberson after being advised of her redundancy. She was told about an opportunity at Mount Isa on 21 October 2014 27 but said she needed more time to consider it and requested further information to which Ms Roberson responded. Ms Roberson’s evidence is that she left two voicemail messages and sent a follow up email to Ms Sabbo to which she did not reply. Ms Sabbo eventually indicated she was not interested. At the hearing and in her statement Ms Sabbo confirmed that this was because she thought the role was unsuitable as she did not have any underground experience. She was also told about another opportunity at Abbot Point on 30 October 2014 and she said she could be interested and would email Ms Roberson if she was. The Respondent’s evidence is that Ms Sabbo did not email her so Ms Roberson sent a follow up email and asked her to confirm by 4pm that afternoon that she was not interested. She never replied so it was assumed that she was not interested. In her statement Ms Sabbo says that she asked for more information to be emailed to her by Ms Roberson but did not receive it.28 At the hearing she confirmed that in any event she did not see the position as suitable to her because the roster was a lifestyle roster in comparison to the seven-on/seven-off roster that she had at Clermont.

[54] Jeffrey Mason had discussions with Ms Roberson after being advised of his redundancy. He said from the onset that he was not interested in relocating. He was informed of an opportunity at Mount Isa. He indicated that he might be interested but needed more time, which he was given. A few days later Ms Roberson had a further discussion in which he indicated he was not interested. In his statement he cited reasons for this as being because it was residential, not a guaranteed job, he had just bought a property in Clermont and had no underground experience. 29 Mr Currie of HR further contacted him about opportunities at Abbot Point but he indicated he was not interested as he was only willing to take a drive in/drive out role where he could commute from Clermont.

[55] Damien Mason had discussions with Ms Roberson upon being advised of his redundancy. He initially said he would consider relocating as he had previous skills in rural work and was interested in redeployment to an Operator role or a Boilermaker role on the basis that he was completing his Boilermaker qualifications. He was informed by Ms Roberson about an opportunity at Mount Isa on 29 October 2014 and he said he was interested but needed more time to talk to his wife. He then requested further information which was provided to him. He was contacted on 30 October 2014 by Ms Roberson who left a message and sent an email as a follow up. He was called on 31 October 2014 and also told about an opportunity at Abbot Point. He indicated that he was not interested in being redeployed to Mount Isa or Abbot Point. During the hearing he gave evidence that in relation to Mount Isa, he felt the position was uncertain. In relation to Abbot Point, he didn’t feel that he had sufficient time to consider it and at the time he was out of phone contact and his wife was relaying messages to him. He also gave evidence that he wanted to continue to live in Clermont and he owned a house there with his family and in his statement said that he didn’t want to relocate. 30

[56] Gregory Holmes had discussions with Ms Roberson after being advised of his redundancy. He said he was interested in redeployment to a shotfirer role or an operator role in Load and Dump and had a preference to be redeployed to a coal business and had previously acquired skills as a supervisor in Drill and Blast. Ms Roberson reviewed available positions but could not find any shotfirer roles. On 20 October 2014, he was told by Ms Roberson about an opportunity at Mount Isa. He said he was not interested in the position because he had no experience working underground, it was not a job offer but a vacancy, he did not want to relocate as he had a property in Gympie with his family and wanted to keep looking for work in the coal mining industry so he could continue to accrue industry long service leave.  31 He then sent an email requesting that he be given additional 48 hours to consider the opportunity. The request was granted. He then asked for further information which was sent to him however he never took any further steps. He was contacted about a week later by an HR manager of Glencore, Ms Grey, to let him know of opportunities at Abbot Point but was told they needed to know if he wished to apply by that day. He indicated that he needed to talk to his wife first. He later confirmed in writing he was not interested in the Abbot Point position as it was less money, he did not want to relocate his family and it was not a FIFO job.32

[57] Campbell Dews had discussion with Ms Roberson following his redundancy and he said that he was interested in redeployment to an operator role where he could base himself in Brisbane or Gold Coast. He was told about a Mount Isa role but said he was not interested as he was only interested in FIFO positions due to family commitments. 33 He then sent a follow up email saying he wanted more information and it was provided to him. Separately, Mr Currie told him about opportunities at Abbot Point. He said he may be interested but also said he was given insufficient time to consider the positions properly. At the hearing he gave evidence that the Mount Isa and Abbot Point opportunities did not meet his private requirements as they were both residential and he was looking for FIFO opportunities as he could not relocate his family and children. He had also never worked in an underground mine and did not want to.34

[58] During cross-examination of Ms Roberson, it was conceded that Ms Roberson did not inform the Applicants they would have received preferential treatment had they applied for any of the positions. 35 While it would have been desirable if the Applicants had been informed of this fact, I do not find that this is relevant to the question of the reasonableness of redeployment to the Respondent and its associated entities in circumstances where none of the Applicants even took the steps of applying for any of the opportunities in Mount Isa or Abbot Point. None of the Applicants cited the sole reason for not applying as having to do with concerns about whether they would be given preferential treatment.

[59] Similarly, the Applicants all complained of not having a full list of their relevant skills recorded on their statement of training qualifications given to them by the Respondent. While this is regrettable and something that should be rectified by the Respondent to assist the Applicants is seeking future employment, it is not directly relevant to the question of reasonableness. The evidence before the Commission is that during the redundancy meeting, Ms Roberson went through a form asking the Applicants what sort of positions they would be interested in for redeployment and at the end of the meeting the Applicants reviewed and signed the form or made any amendments if required. 36 There is no evidence before the Commission that the Applicants missed out on relevant opportunities in the Respondent’s enterprise or the enterprise of its associate entities as a result of this administrative oversight. There is only evidence that notwithstanding the oversight, opportunities were offered to the Respondents and they chose not to pursue them largely due to issues of relocation. Where jobs did not exist and where those that did exist were undesirable to the candidates due to their location, the statement of training qualifications being accurate would not have altered the outcome. Moreover, the employees who were reconsidering employment provided their resumes which assumedly listed the skills that the Applicants believed they held and had they applied for any redeployment positions, their resumes would have been considered. In other words, this issue had no bearing on the ultimate outcome or the question before me.

[60] On the evidence before the Commission, I find that the Respondent made all reasonable efforts to offer redeployment options to the Applicants in these two associated entities. It is clear from the evidence of the Respondent in the statements of Ms Roberson and also during examination and cross-examination at the hearing, that that the human resources personal and management of the Respondent spent considerable time and resources to ensure that redeployment opportunities were systematically explored and presented to the Applicants. However, the Applicants chose not to pursue these opportunities for the various personal reasons outlined above.

Collinsville Open Cut Coal Mine

[61] The Collinsville Open Cut Mine (Collinsville) is operated by an associated entity of Glencore. The Mine is located near the town of Collinsville in the northern tip of the Bowen Basin. The employing entity of operator employees at the Collinsville Mine is Collinsville Coal Pty Ltd.

[62] Collinsville was previously a ‘whole of mine contractor operation’ operated by Thiess Pty Ltd, during which time there was a peak workforce of approximately 400 employees engaged at the mine. In September 2013, Glencore took over the operation of Collinsville and ceased contract mining arrangement with Thiess. Each of the prior employees of Thiess at Collinsville were subsequently made redundant by Thiess as a result of the loss of contract.

[63] Glencore re-commenced mining operations at Collinsville in January 2014. The mining operations commenced with a production workforce of 21 direct employees that were employed on 28 January 2014. Throughout 2014, the directly employed component of Collinsville production workforce never exceeded the initial intake of 21 employees, and by November 2014, had dropped to 16 directly engaged production employees in total, compared to 144 WorkPac labour hire operators engaged in production work on site.

[64] The evidence of the Respondent as to the mix of labour hire versus direct Glencore employees at Collinsville was adduced from Tony Galvin, the Director of Open Cut Mines – Queensland who had managerial responsibility over Collinsville Mine. Mr Galvin gave evidence that the business model at each Glencore mine matched the needs of that business. Collinsville had an initial workforce employed with a strategy to employ others as the operation built up. Mr Galvin gave evidence that the mix of direct versus labour hire at Collinsville being skewed in favour of labour hire was related to the making of the enterprise agreement known as the Collinsville Coal Operations Enterprise Agreement 2014 (‘the Collinsville Agreement’). 37 There was a deliberate decision made to restrict direct labour until after the Collinsville Agreement was secured. This was because they did not want to employ any direct employees until there was certainty as to the industrial instrument.38

[65] When questioned as to the rationale for continuing to maintain low numbers of direct employees after the Collinsville Agreement was passed, Mr Galvin gave evidence that as events transpired after all the agreement approvals had been finalised, due to downturn in the coal industry, employees who had left since the initial 21 had commenced had not been replaced and the number of contractors had been reduced.  39

[66] I accept Mr Galvin’s evidence in respect of the above. I found him to be a credible witness who gave frank and honest evidence as to the matters on which he was questioned. In these proceedings a large part of time has been spent on second guessing the industrial strategy at Collinsville. It is clear from the evidence that unrelated to any of the matters in these proceedings, a business decision was made from the inception of the Collinsville operation that no employees beyond the initial start-up group of 21 employees would be employed until the Collinsville Agreement was finally approved. The Respondent’s evidence demonstrates that at the time of the dismissals, there were no permanent positions available at Collinsville. 40 By the time the Collinsville Agreement was approved, the world had moved on and the industry context had dramatically shifted.

[67] I do not find that in these circumstances it was reasonable for the Respondent’s associated entity to create positions where there were none, or to displace existing contractors or completely change its employment strategy in order to accommodate the Applicants. 41 It is not appropriate for the Commission to second guess a legitimate industrial strategy of an associated entity of a party to a dispute, particularly where that industrial strategy had nothing to do with the redundancies that occurred at Clermont. The timeline of events and the evidence before the Commission makes that very clear.

[68] I note that the parties have advanced submissions as to issues of construction with respect to the question of whether work undertaken by contractors for employers or associated entities is outside the scope of redeployment for the purposes of s 389(2) of the Act. The Applicants are of the view that it is not outside the scope of consideration and the Applicants could and should have been redeployed into positions occupied by contractors at Clermont or Collinsville mines. The Respondent is of the view that such considerations are not permissible pursuant to s 389(2) of the Act. It is unnecessary for me to make findings on this point in circumstances where I have found that it was not reasonable for the Respondent to redeploy the Applicants to Clermont or Collinsville mines. There may be some limited circumstances in which it is appropriate for the Commission to consider work undertaken by contractors for employers or associated entities for the purposes of s 389(2) of the Act. However, I am not satisfied that it would have been reasonable in all of the circumstances for any of the Applicants to have been redeployed within the Respondent’s enterprise at Clermont or the enterprise of the associated entity of the Respondent, Collinsville.

[69] I find that the Respondent made reasonable efforts to redeploy the Applicants to Mount Isa and Abbot Point but the Applicants chose not to engage with the process of redeployment to these positions for various reasons, most commonly because they were not interested in relocation to these positions. I also note that there is no evidence before the Commission that the Applicants were targeted in any way and their redundancy occurred against a backdrop of some 101 redundancies at Clermont during a downturn in the coal industry in Australia.

Conclusion

[70] I find that the Applicants’ dismissals were cases of genuine redundancy and therefore cannot have been unfair under s.385 of the Act. Accordingly the applications must be dismissed.

VICE PRESIDENT

Appearances:

S Crawshaw SC and Mr Bukarica for the Applicants.

J Murdoch QC and S Meehan for the Respondent.

Hearing details:

9-12 June

Brisbane

2015.

 1   [2010] FWAFB 7578, 199 IR 363

 2   [2014] FWCFB 714, 240 IR 130

 3   [2014] FWC 2264 at [34]

 4   Ulan Coal Mines Ltd v Honeysett [2010] FWAFB 7578, 199 IR 363 at [26]

 5   Ibid at [28]; Technical and Further Education Commission t/a TAFE NSW v Pykett[2014] FWCFB 714, 240 IR 130 at [24].

 6   Pykett at [36]

 7   Ulan at [28]

 8   Ulan at [27]

 9   Supplementary Witness Statement of Dawid Daniel Pretorius, 16 March 2015.

 10   Transcript 9 June 2015, at PN22 - PN23.

 11 Witness Statement of Dawid Pretorius at [18].

 12   PN1902 - 1910

 13   PN1964

 14   Transcript PN 1964-2031.

 15   Witness Statement of Dawid Daniel Pretorius at paragraphs 46-47; Transcripts PN 1964-2031.

 16   PN 2004-2005.

 17   PN 2006 – 2008.

 18   PN1984-1987, PN2006.

 19   Pettet and Ors v Mr Arthur Coal Pty Ltd[2015] FWC 2851 at 47-48

 20   Witness Statement of Jessie Roberson, paragraphs 64.

 21   Witness Statement of Jessie Roberson, paragraphs 7-24

 22   Ulan at paragraph [34]

 23   Supplementary Witness Statement of Jessie Roberson, 16 March 2015, paragraph 77-79.

 24   Ibid, paragraphs 81-83.

 25   PN 1526 – 1528.

 26   Reply Witness Statement of Troy Daniel Brown, 16 March 2015, paragraph 15.

 27   Reply Witness Statement of Glynis Sabbo, 16 March 2015, paragraph 5.

 28   Witness Statement of Glynis Sabbo, 24 February 2015, paragraph 47.

 29   Witness Statement of Jeffrey Ernest Mason, 24 February 2015, paragraph 50.

 30   PN 987-1011 and Statement of Damien Earnest Mason at paragraph 48.

 31   Witness Statement of Gregory Neil Holmes, 24 February 2015, paragraph 36.

 32   Ibid at paragraph 37

 33   Witness Statement of Campbell Ernest Dews, 24 February 2015, paragraph 38.

 34   PN1341

 35   PN1665 – 1668.

 36   PN1715 - 1720

 37   PN 285

 38   PN 447-450 and PN 739 and PN 759.

 39   PN548-557

 40   Witness Statement of Leanne O’Donoghue, 23 February 2015, paragraph 32.

 41   Teterin, Ronald Legget, Danny Garaty, Steven O’Donnell, Phillip Gardner, Joseph Fogg, Michael Bower, Anthony Anderson, Jason James, Micahel Roe, Paul Watkins, Peter Lye v Resource Pacific Pty Limited t/a Ravensworth Underground Mine[2014] FWC 1578 at [17].

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