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

[2015] FWC 1918

[2015] FWC 1918 [Note: An appeal pursuant to s.604 (C2015/2341) was lodged against this decision - refer to Full Bench decision dated 10 April 2015 [[2015] FWCFB 2460] for result of appeal.]

FAIR WORK COMMISSION

DECISION

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

Mr Troy Brown
v
Clermont Coal Operations Pty Ltd T/A Clermont Open Cut
(U2014/13979)

Mr Campbell Dews
v
Clermont Coal Operations Pty Ltd T/A Clermont Open Cut
(U2014/13980)

Mr Damien Mason
v
Clermont Coal Operations Pty Ltd T/A Clermont Open Cut
(U2014/13981)

Mr Gregory Holmes
v
Clermont Coal Operations Pty Ltd T/A Clermont Open Cut
(U2014/13982)

Mr Jeffrey Mason
v
Clermont Coal Operations Pty Ltd T/A Clermont Open Cut
(U2014/13983)

Ms Glynis Sabbo
v
Clermont Coal Operations Pty Ltd T/A Clermont Open Cut
(U2014/13984)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 19 MARCH 2015

Application for relief from unfair dismissal - orders for production.

[1] The applicants sought orders for the production of documents directed to Clermont Coal Pty Ltd and a number of its associated entities. The parties to whom the proposed orders were directed (the respondents to this application) objected to the orders being made and the matter was set down for a mention to determine if the orders should be granted.

[2] Mr Chris Murdoch of Counsel was given permission to appear for the parties against whom the orders were sought because I considered the matter involved some complexity and it would enable the matter to be dealt with more efficiently. Mr Alex Bukarica of the CFMEU who appeared for the applicants did not oppose permission being granted.

Relevance

[3] The respondents objected to orders 1-7 directed to Collinsville Coal Operations Pty Ltd and Glencore Coal Queensland Pty Ltd (the Collinsville orders) which were in identical terms. It further objected to orders 3-4 of the orders directed to Clermont Coal Pty Ltd and Clermont Coal Operations Pty Ltd (the Clermont orders).

[4] The parties are in dispute as to whether it would have been reasonable in all the circumstances to redeploy the employees within the employer’s enterprise or the enterprise of an associated entity of the employer. 1

[5] It was submitted by the respondents that the applicants contend that s.389(2) of the Fair Work Act 2009 requires the Fair Work Commission to consider whether redeployment to work being performed by contractors would be reasonable.

[6] The respondents contend that the test for genuine redundancy under s.389(2) does not require consideration of the reasonableness of an employer or the enterprise of an associated entity of the employer engaging contactors as opposed to employees. Rather it submitted that the consideration is limited to deployment to available positions, which does not include positions occupied by contractors or employees of contractors.

[7] It submitted that it would be illogical if s.389(1) permitted an employee to be made redundant because the job he or she was doing was contracted out and the assessment of the reasonableness of redeployment could include consideration of positions occupied or planned to be occupied by contractors or employees of contractors.

[8] I accept that this question has not been determined by a Full Bench of the Commission. In Technical and Further Education Commission v Pykett 2 the Full Bench said “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.”3

[9] In Teterin and ors v Resource Pacific Pty Ltd 4 the Full Bench did not question the approach of the member at first instance to consider work performed by contractors when he concluded that redeployment was not reasonable.

[10] The proposition put by the respondents is absolute. It submits that the Commission could never consider the reasonableness of redeployment to a position filled or proposed to be filled by a contactor or an employee of a contractor. One only needs to consider the situation where an employer has a number of positions that it intended having done by labour hire workers but circumstances changed and before it engaged the labour hire workers it had to make employees who could do the job redundant. On the interpretation put by the respondents, the Commission could never consider if it would have been reasonable for the employer to redeploy the employees to those positions. The question of the reasonableness of the redeployment must be determined on the evidence before the Commission. I do not consider it appropriate to determine this matter at this stage of the proceedings. This issue is legitimately in dispute between the parties.

The scope of the roles

[11] The employees are seeking documents about production and engineering roles. Production and engineering employees are defined in the orders as employees engaged in positions, classifications or jobs that are covered by Schedule A and Schedule B of the Black Coal Mining Industry Award 2010 regardless of whether the Award applies to the employees or not.

[12] Mr Murdoch submitted that the definition was too wide as it described a broader class of employees than operators and administration. Hence irrelevant documents are being sought.

[13] Mr Murdoch submitted that the employees were engaged as operators, apart from Ms Glynis Sabbo who had a background in administration, and the employees were only interested in redeployment to operator positions.

[14] Mr Bukarica conceded that the scope was too wide. He submitted that it should not include what he described as engineering/trade work. It is not clear how the removal of the word engineering from the definition in the order would make this clear. Further in relation to Schedule B, he submitted the roles should be limited to administrative work covered by Schedule B.

[15] I accept Mr Murdoch’s submissions. The respondents should not be required to provide documents in relation to positions that the parties agree it would not be reasonable to redeploy employees to because they do not have the skills and competence to perform even with a reasonable period of retraining.

[16] Mr Murdoch proposed amendments to these orders. I do not consider those amendments reflect the proper scope of the roles that should be considered. Redeployment is not restricted to employees current roles nor to roles they may have expressed interest in at the time.

Timing

[17] The employees seek documents for the period:

• 1 January 2014 to 31 December 2014



• 1 January 2014 to 23 February 2015



• 1 September 2014 to 23 February 2015



• 1 September 2014 to 31 December 2014

[18] Mr Murdoch submitted that the relevant time was 1 September 2014 to 30 November 2014. This is because the time at which redeployment must be considered commences when there has been a decision that the job done by the employee is no longer required. Mr Bukarica advised that the time frame was broader because of the change in the public position in relation to the Collinsville mine. In January 2014, a spokesperson announced that the Collinsville mine had an initial start up of around 20 employees which will grow to 250 employees by year’s end, including a component of labour hire workers and other contractors. Ms Leanne O’Donoghue filed a witness statement in the proceedings in which she stated that at 18 February 2014 there were 16 wages employees and 52 staff employees engaged at Collinsville and 2 apprentices and 2 vacation students. Mr Bukarica said that the time span was set to seek documents about why they changed their approach to direct employment at Collinsville.

[19] It is clear that the relevant time to determine if there are redeployment opportunities is in the period after the decision has been taken to make the positions redundant and when the particular employee is dismissed or shortly after.

[20] I do not accept that documents for the periods sought by the employees are relevant. Even if there had been a decision to change the employment mix at the Collinsville mine, and that is not clear on the evidence I have been taken to, I do not see how this is relevant to the issue to be determined by the Commission. The employees contend that they should have been redeployed to do work currently being done by contractors or allocated to be done by contractors. I accept that documents which show what work was being performed or planned to be performed by contractors at the relevant time are relevant documents. Documents which show what work was to be performed by contractors before the decision was made and after the employee’s employment was terminated are not relevant.

[21] I would restrict any orders to the period 1 September 2014 - 30 November 2014.

Fishing

[22] Mr Murdoch submitted that in relation to the Collinsville orders, the applicants are fishing. It was said that the applicants have a suspicion that the respondents have structured their workforce in such a way as to avoid the need to redeploy employees as part of a broader industrial strategy.

[23] Mr Bukarica said the reason for the change in the mix of categories of employees is relevant to the reasonableness of the redeployment.

[24] I do not accept Mr Murdoch’s submissions. It is clear that the reasonableness of the redeployment is a matter the Commission must consider. The evidence in relation to both the redeployment opportunities and the reasonableness of redeployment is generally in the possession of the employer and its associated entities. The respondents have submitted and called evidence that redeployment was not reasonable. The employees are not fishing when they seek the production of documents to challenge this contention.

Confidentiality

[25] Objection was taken to orders 1, 5 and 6 of the Collinsville orders on the basis that the documents contain commercially sensitive material. Further objection was taken to the production of these documents on the basis that they would reveal the internal deliberations as to the industrial strategy or policy of these parties.

[26] To the extent that the documents contain confidential information, the documents must first be produced to the Commission. That is the appropriate time for confidential documents to be identified. The Commission may make orders under s.593 or s.594 in relation to confidential documents.

[27] I am unable to agree with Mr Murdoch that order 1, which seeks information about the total number of employees required to attain optimum direct workforce level at Collinsville, would reveal the internal deliberations as to the industrial strategy or policy of these parties.

[28] In relation to orders 5 and 6, which seek documents going to the consideration given by the respondents to the mix of direct employees as opposed to contractors or labour hire employees, I consider that these documents may reveal the internal deliberations as to the industrial strategy or policy of these parties.

[29] At the hearing, Mr Bukarica advised that he was not in a position to address the submissions about internal deliberations. I will provide Mr Bukarica with an opportunity to address this issue and provide Mr Murdoch with an opportunity to reply if Mr Bukarica wishes to press for production of the documents in these categories. However that does not need to delay the production of the remaining documents.

Conclusion

[30] I am not prepared to issue the orders in their current form. Mr Bukarica is directed to provide orders for production which are consistent with the reasons for this decision. Those orders for production should be provided by noon on 20 March 2015. I will provide the respondents with two weeks to produce the documents. At the same time as the documents are produced to the Commission, the respondents should file and serve any orders in relation to any identified confidential documents that they propose the Commission make in relation to access to or publication of those documents.

DEPUTY PRESIDENT

Appearances:

A. Bukarica for the applicants.

C. Murdoch of Counsel for the respondents.

Hearing details:

2015.

Melbourne, Sydney and Brisbane, by telephone:

18 March.

 1   s.389

 2   [2014] FWCFB 714

 3   Ibid at [36]

 4   [2014] FWCFB 4125

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