Thiess Pty Ltd
[2016] FWC 341
•23 MARCH 2016
| [2016] FWC 341 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 10 - Application to vary transitional instrument to remove ambiguity - agreement
Thiess Pty Ltd
(AG2015/2235)
THIESS-AUSTRALIAN MINING LAKE VERMONT EMPLOYEE COLLECTIVE AGREEMENT 2008
Coal industry | |
DEPUTY PRESIDENT ASBURY | BRISBANE, 23 MARCH 2016 |
Application for variation of the Thiess - Australian Mining Lake Vermont Employee Collective Agreement 2008 – Approach to application for variation of Agreement to remove ambiguity or uncertainty – Relevance of conduct of parties – Ambiguity identified – Evidence does not establish objectively ascertainable mutual intention – No other grounds for exercise of discretion to vary Agreement – Application dismissed.
1. BACKGROUND
[1] Thiess Pty Ltd (Thiess) applies to the Fair Work Commission (the Commission) to vary the Thiess - Australian Mining Lake Vermont Employee Collective Agreement 2008 (the 2008 Agreement) to remove an ambiguity or uncertainty. The application is made pursuant to Schedule 3, Item 10 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act). Thiess seeks to vary clause 34 of the 2008 Agreement which deals with the subject of Inclement/Wet Weather.
[2] The 2008 Agreement was made under the Workplace Relations Act 1996 (the WR Act), and was an employee collective agreement that commenced operation on 21 January 2009. In accordance with clause 3.1, the 2008 Agreement remained in force for five years from the date of operation. The 2008 Agreement applied to Thiess and employees engaged on the Lake Vermont Project in the classifications prescribed. It replaced an earlier agreement known as the Thiess Australian Mining Lake Vermont Employer Greenfields Workplace Agreement (the Greenfields Agreement). Clause 31 of the Greenfields Agreement dealt with wet weather in identical terms to those in clause 34 of the 2008 Agreement.
[3] As a collective agreement made under the WR Act, the 2008 Agreement became a transitional instrument pursuant to Item 2, of Schedule 3, of the Transitional Act. The 2008 Agreement was subsequently replaced by the Thiess Mining Lake Vermont Mine Enterprise Agreement 2015 (the 2015 Agreement). I approved the 2015 Agreement on 16 July 2015 and it commenced operation on 23 July 2015. At that point, in accordance with Item 30, of Schedule 3, Part 5, of the Transitional Act, the 2008 Agreement ceased to cover the employees it had previously covered and can never cover those employees again. The 2015 Agreement deals with the subject of Inclement/Wet Weather at clause 35, in a manner that differs from the terms of the two earlier agreements.
[4] On 3 December 2014, Mr Paul Muldoon, an employee of Thiess applied to the Commission under s. 709 of the Act for the Commission to conduct a dispute resolution process under the Greenfield Agreement with respect to clause 31 of that Agreement. On 10 December 2014 the Construction, Forestry, Mining and Energy Union (the CFMEU) made a similar application with respect to clause 34 of the 2008 Agreement. As previously noted, the clauses, the subject of those dispute notifications, are in identical terms and deal with wet weather. The disputes related to the manner in which Thiess was implementing the wet weather clause.
[5] I dealt with the disputes and on 21 January 2015, issued a Statement and Recommendation in relation to the wet weather provisions in clause 34 of the 2008 Agreement in an attempt to resolve the disputes. In the Statement and Recommendation I interpreted the 2008 Agreement with respect to the operation of clause 34.1 in a manner contrary to the submissions of Thiess and Recommended that Thiess apply the clause in accordance with my interpretation. Thiess, as it is entitled to do, has not implemented the Recommendation I made.
[6] By the present application, Thiess seeks to vary clause 34.1 of the Agreement so that it operates in the manner contended for by Thiess, on the basis that Thiess asserts that the clause is ambiguous or uncertain. The CFMEU is covered by the 2015 Agreementand has members employed under the Agreement. The CFMEU also has a number of members who were employed under the 2008 Agreement. The CFMEU opposes the application for variation and contends that the provision is not ambiguous or uncertain and that the Commission should not exercise its discretion to vary the provision in any event. Neither party objected to the Commission as presently constituted dealing with the application to vary the 2008 Agreement.
2. VARIATION OF ENTERPRISE AGREEMENT TO REMOVE AMBIBUITY OR UNCERTAINTY
[7] By virtue of s.217 of the Act, the Commission may vary an enterprise agreement to remove an ambiguity or uncertainty. The application may be made by an employer, employee or employee organisation covered by the Agreement. A provision in an enterprise agreement is ambiguous if it is susceptible of more than one meaning 1 and not withstanding that the provision may be capable of interpretation. If it is not possible to put any definite meaning on a provision it is uncertain.2
[8] The approach to the application of s. 217 of the Act is for the Commission to identify whether there is ambiguity or uncertainty in an enterprise agreement and then decide whether the discretion should be exercised to remove it. The first part of the process involves the identification of a jurisdictional fact which enlivens the power of the Commission to exercise the discretion to resolve the ambiguity or uncertainty by varying the agreement. 3 A positive finding of ambiguity or uncertainty must be made before the power to vary an agreement can be exercised.4
[9] Identification of ambiguity or uncertainty involves an objective assessment of the words used in the provision under examination, having regard to their context, 5 in order to determine whether, on its proper construction, the wording of the provision is susceptible of more than one meaning.6 The Commission will generally err on the side of finding an ambiguity or uncertainty where there are rival contentions advanced and an arguable case is made out for more than one contention.7 However, a disagreement between parties to an agreement about how it applies in certain factual circumstances does not of itself found an application to vary the agreement on the grounds of ambiguity or uncertainty.8 As Senior Deputy President Williams observed in SJ Higgins and Others v CFMEU:
“…it is not enough that there are or there may be rival contentions as to the proper construction of the terms of an award or agreement. Nor is it enough that claims might have been made in the field for the application of a particular provision in circumstances [where the] applicability of the provision is disputed. Such contentions and claims may well be self serving.” 9
[10] The approach to construing an enterprise agreement was set out in a Decision of a Full Bench of the Commission in AMIEU v Golden Cockerel Pty Limited (Golden Cockerel). 10The principles established in the cases referred to in that decision, that are relevant in the present case can be summarised as follows:
• Construction of an agreement begins with a consideration of the ordinary meaning of its words; 11
• The agreement must be read as a whole 12 and regard must be had to the context and purpose of the provision being construed;13
• Context extends to the entire agreement, other associated documents or the ideas that gave rise to an expression in a document; 14
• The words used in an enterprise agreement should not be interpreted in a strict technical fashion, because those who framed the industrial instrument are often non-lawyers with a practical frame of mind, drafting words in the context of custom and practice in an industry or particular enterprise; 15
• The process of construction is an objective task and it is not appropriate to have regard to the subjective beliefs or expectations held by one party. The task is to identify the common intention of the parties as they have expressed it in the terms of their agreement; 16
• Search for evident purpose is permissible and meanings which avoid inconvenience or injustice may be reasonably strained for, however the task remains one of interpreting a document produced by others and not giving effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the agreement; 17
• Regard may be had to evidence of the surrounding circumstances before the existence of ambiguity in an agreement is identified as an aide to interpreting the agreement for the purposes of determining whether an ambiguity exists, but cannot be used to contradict the language of the instrument;
• If ambiguity is identified extrinsic material may be used as contextual material to aide in the interpretation of the instrument. 18
[11] If the Commission is satisfied that there is an ambiguity or uncertainty in a provision of an agreement that is sought to be varied, the Commission must then decide whether to exercise the discretion in s.217 to vary the provision. In Re Australian and International Pilots Association 19 Vice President Watson held in relation to an earlier version of s.217 of the Act that:“The discretion of the Commission in the case of an ambiguity or uncertainty involves two questions. First, is it appropriate to vary the agreement? If so then secondly, what variations are appropriate? Similar considerations will often be relevant to both questions and hence the two questions frequently overlap. It is well established that a significant factor is the objectively ascertained mutual intention of the parties at the time the agreement was made. It is not appropriate to rewrite an agreement to install something that was not inherent to the agreement when it was made. These principles reflect the notion that an agreement is made by the parties usually without any arbitrated content or independently determined standards of industrial fairness. The exercise of the discretion conferred on the Commission in relation to an ambiguity or uncertainty does not give rise to a general discretion to determine a matter based on industrial fairness. The task is to place the parties in the position they intended by their agreement – insofar as the wording of the agreement does not reflect that intention. Although a significant factor, the objectively ascertained mutual intention of the parties is not the only consideration. However, it would be unusual for other considerations to weigh in favour of a variation that was inconsistent with the intention of the parties. 20
[12] Further, it has been observed that s.217 of the Act does not provide for variation of an agreement at large, but rather, permits variations directed solely at remedying an ambiguity or uncertainty. It is not an opportunity for the parties to an agreement to revisit the agreement generally or to make amendments that they consider necessary on other grounds such as operational requirements or fairness of the terms and conditions of the agreement. 21
[13] In the present case, the parties have put evidence before the Commission about their conduct after the agreement was made. It has been held that objectively ascertained mutual intention of the parties evinced by their conduct after an agreement is made is relevant to the exercise of the discretion of the Commission to vary the agreement to resolve ambiguity or uncertainty. 22
3. THE PROPOSED VARIATION
[14] Clause 34.1 of the 2008 Agreement is in the following terms:
“34. Inclement/Wet Weather
34.1 For employees who at the commencement of the shift on site, or where subsequently the site is inundated with rain and dependent on weather conditions, and where the supervisor has determined that normal operations will not proceed the employee/ Thiess has four (4) options subject to the supervisor requiring a small crew to operate equipment, man pumps, etc:
(a) To be paid four (4) hours, and then go home.
(b) To be paid for hours work for the shift beyond (4) hours and carry out duties on site as directed by the supervisor
(c) Stay for the full shift and be paid as a normal rostered shift.
(d) To take annual leave.”
[15] Thiess proposes to delete the existing sub-clause 34.1 and insert a new and revised sub-clause which states:
“34.1 Where at the commencement of the shift on site, or where subsequently the site is inundated with rain and dependent on weather conditions, and where the supervisor has determined that normal operations will not proceed, subject to the supervisor requiring a small crew to operate equipment, man pumps, etc:
(a) Where Thiess determines there is no work to be performed on site, the employee will be paid four (4) hours or the hours worked (whichever is the greater) and then the employee may choose one of two options:
(1) To go home and receive no further payment for the shift; or
(2) To go home and take annual leave for any hours unpaid.
(b) Where Thiess determines there is work to be performed on site, the employee will be paid for the hours worked for the shift (with a minimum payment of four (4) hours) and carry out duties on site as directed by the supervisor, and then may elect to take annual leave for any hours unpaid.”
[16] Thiess further proposes that the amendment to the Agreement should be approved with effect from 21 January 2009. According to Thiess, the proposed variation eliminates any uncertainty or ambiguity as to who chooses whether to continue work or not, and instead only gives an employee the option to (a) go home and receive no payment for the shift or( b) go home and take annual leave for the remaining shift hours. Consequently, Thiess will determine whether work can continue on site or not. If not, the employee cannot choose to remain on site and instead must elect option (a)(1) or (a)(2) above.
4. THIESS SUBMISSIONS AND EVIDENCE
[17] Thiess submits that the Commission must objectively decide whether the wording of clause 34 of the 2008 Agreement is susceptible of more than one meaning. If this is found to be the case, then it is submitted that the Commission should exercise its discretion under s.217 of the Act to vary sub-clause 34.1 of that Agreement.
[18] Thiess submits that there are at least two interpretations of sub-clause 34.1. Thiess interprets the clause to mean that Thiess can decide whether or not work will continue at the Lake Vermont site and employees can decide whether to take annual or unpaid leave for any remaining hours of the shift left over. However, the clause can also be interpreted to mean that the employees can elect to follow any of the four options under sub-clause 34.1, subject to Thiess’ right to require that a small crew remain on site. According to Thiess, this effectively means employees can also decide whether work can continue on the site or not.
[19] Thiess further submits that the Commission should exercise its discretion to resolve this ambiguity by varying the 2008 Agreement. Thiess argues that the Commission, in making its decision, should have regard to the mutual intention of the parties at the time the agreement was made. Thiess maintains that objectively, the mutual intention of the parties was for Thiess to determine what work could be performed on site, including whether work could be performed during inclement weather/wet weather. If work cannot be performed, Thiess argues that it is not the employees’ decision whether they can remain on site or not. Instead, it is up to supervisors to determine which employees are required to stay on site during such circumstances. Thiess argues this is how the section has always been applied since the 2008 Agreement and its predecessor agreement took effect, and submits that it is economically and logically unlikely that employees can decide:
• whether work can be performed due to wet weather;
• how long they can remain at work; and
• how long they can be paid for.
[20] Thiess also submits that any inconsistency in the way clause 34.1 of the 2008 Agreement has been applied in the past can be attributed to the fact that the workforce has increased over the years with the result that there was less opportunity for employees to be allocated tasks in the event of wet weather. Further, Thiess submits that the variation sought allows the company to operate more effectively and efficiently and allows employees to choose whether time away from work due to wet weather remains unpaid or paid through their annual leave. Thiess submits that The Commission can objectively determine the mutual intention of the parties and does not need to consider any evidence from those personally involved.
[21] Evidence in support of the application to vary the 2008 Agreement was given by:
• Mr Colin Norman Mulligan, Project General Manager and Site Senior Executive at Lake Vermont; and
• Mr Jeff Vivian Pattel, the Mining Manager at Lake Vermont.
[22] Mr Mulligan has been employed in his role since July 2010. Thiess’ operations at Lake Vermont commenced on 23 September 2008. During his tenure at Lake Vermont, Mr Mulligan states that the “usual practice” is that once Thiess determined that normal operations cannot continue at the Mine, and employees cannot be utilised, the employees would be transported back to the camp attached to Lake Vermont. Where this occurs employees are paid for all hours worked, but otherwise a minimum of four hours.
[23] Mr Mulligan has been informed by Mr Simon Doward, the previous Project General Manager at Lake Vermont, and Mr Danny McCarthy, the previous General Manager for Mining at Lake Vermont, that in the early years of operations at Lake Vermont (September 2008) the Mine’s workforce was primarily made up of inexperienced mineworkers. As a result of this, during wet or inclement weather events, the inexperienced mineworkers were not taken back to Camp but rather spent time training in Mine Safe Operating Procedures (SOPs). This training was treated as work and paid for as such.
[24] Mr Mulligan also states that in the past, logistical difficulties (eg the presence of cleaning crews or sleeping mineworkers at Camp on the opposite shift to those returning) may have meant that in instances of wet or inclement weather, the return of employees to Camp was delayed. However, Mr Mulligan states that these logistical difficulties were resolved in mid-2012 at which time additional rooms at the Camp were constructed.
[25] At commencement of operations at Lake Vermont, mining crew sizes were at approximately 12 employees on each mining crew. Following 2009, the crew sizes increased and the training needs of mineworkers decreased as mineworkers became more experienced. Since 2014, crew sizes have been in the vicinity of 90 employees per crew. Since 1 January 2015, the average mining crew size has reduced to 84 employees. In his oral evidence, Mr Mulligan said that since he signed his statement, average crew size has increased again to 92 employees.
[26] Since Mr Mulligan started to work at Lake Vermont, he is aware of “many instances” where, during a wet weather event, the majority of the mining crew was transported back to the Camp because there was no meaningful work to be completed. Mr Mulligan states that this is particularly so since the increase in crew sizes. Employees in the Workshop or Coal Handling Preparation Plant would not be affected by wet weather events and would therefore continue work.
[27] Mr Mulligan was a bargaining representative for the 2015 Agreement. Negotiation for the 2015 Agreement commenced around 19 August 2013 by Thiess issuing employees a notice of employee representational rights. Prior to bargaining, Mr Mulligan states that Thiess identified the wet weather clause as being an area in which Thiess was willing to negotiate further. Thiess included in bargaining a claim to extend the minimum four hour wet weather payment to a six hour minimum. Mr Mulligan states that the intent of this extension in the minimum payment was to accommodate a minimum payment that represented half the duration of a standard 12 hour shift.
[28] Mr Mulligan states that in the fourth bargaining meeting, Mr Peter Fuss, former Human Resources Manager of Lake Vermont, acknowledged that the wording of clause 34 was not as clear as “we” would have preferred. Mr Fuss agreed to prepare a draft clause that clarified the terms of the clause but that did “not change the application of the clause”. Some of the employee bargaining representatives raised “full payment” for all wet weather events with a “small contingent” of the employee bargaining representatives indicating that they would be willing to consider Thiess’ proposal regarding the 6 hour minimum. Mr Mulligan’s recollection is that the wording of clause 34 was not raised as a general concern but recalls that one employee bargaining representative raised the issue that the wording of the clause should be improved.
[29] According to Mr Mulligan the CFMEU’s representative during bargaining, Mr Pierce, did not raise a concern in relation to wet weather payments or clause 34 specifically. Mr Mulligan recalls that Mr Pierce was “in general quiet” during discussions about wet weather. However, Mr Mulligan recalls that during a meeting in October or November 2013, Mr Pierce said words to the effect that the application of clause 34 “has always been the same and other mines also apply the same principles”. Mr Pierce specifically referred to South Walker Creek mine.
[30] On 13 November 2014, Thiess put an offer to employees that included an increase the minimum payment in respect of wet weather from four hours to six hours, or half a shift. A memorandum to all employees in relation to this offer stated:
“[Thiess] have offered to increase the minimum payment period from 4 hours to 6 hours and the current provisions for wet weather continue.”
[31] At the bargaining meeting that precipitated the offer to employees above, Mr Mulligan states that Thiess put the offer on the basis that the “current wet weather conditions...would remain the same”. At the subsequent bargaining meeting on 27 November 2014, employee bargaining representatives put their counter proposal of full payment during wet weather events. An agreement was eventually reached between the parties and resulted in the 2015 Agreement. As previously noted the wet weather clause in the 2015 Agreement differs from the previous iterations of the clause.
[32] Mr Mulligan states that during his tenure at Lake Vermont, clause 34.1 of the 2008 Agreement has been applied in a manner that is consistent with Thiess’ interpretation of the clause. That interpretation is, in circumstances of inclement or wet weather:
• Thiess determines whether there is other work that can be performed;
• If it is determined that there is no other work to be performed employees:
o Are paid for the hours worked or 4 hours (whichever is greater); and
o May elect to be paid as annual leave for the remainder of their shift, which is otherwise unpaid;
• Employees who remain at site are paid to perform work;
[33] Whether or not an employee remains on site and is paid to perform work, depends on Thiess having already determined that there is work to be completed on site. This work must be useful and meaningful work and may include training for employees. As recounted above, Mr Mulligan is aware that at the commencement of operations it was more common for employees to stay on site during a wet weather event and complete training.
[34] Not every wet weather event results in all operations at Lake Vermont ceasing. In considering whether to return employees to Camp, Mr Mulligan states that it is relevant to Thiess’ consideration what condition the mine operation is in after the rain event and how long it will take to restart work. Thiess will also consider whether meaningful work can be found in the maintenance and CHPP areas.
[35] Mr Mulligan’s view is that where Thiess has unilaterally determined that there is no work that can be performed, there is no ability for employees to choose to remain on site and be paid to work for the remainder of the shift. The ability of Thiess to operate effectively requires that employees of Thiess work under its instruction. If employees had the ability to choose whether they remain on site in circumstance where there is no meaningful work that can be performed, Thiess’ ability to operate is hindered. Similarly, where Thiess has determined that there is meaningful work to be completed employees cannot choose to leave the site without Thiess’ agreement. The only option available to employees under clause 34 is whether they are paid as annual leave for the remainder of a shift affected by a wet weather event or as unpaid leave.
[36] Supervisors of each crew have discretion to determine which employees are required to stay on site and work. This determination may result in some shifts remaining and only some employees on a crew remaining. Employees who are a part of the Emergency Response Team (the ERT) are required to remain on site at any time where operations continue.
[37] Mr Mulligan gave evidence about a number of examples of wet weather events. A timesheet for an employee for 11 February 2009 was tendered by Mr Mulligan showing that the employee took eight hours of “leave without pay”. Mr Mulligan states that this pay slip was consistent with a “protocol” of a minimum payment of 4 hours and the remainder of the shift as either annual leave or unpaid leave. Mr Mulligan also tendered a rainfall tracker showing that the day involved significant rainfall. Other time sheets were provided for the dates of 1 and 8 January 2010, 24 February 2013, 17 November 2013 and 15 August 2014. Those time sheets are said to demonstrate that employees took annual leave or unpaid leave during wet weather events and that on occasions when they worked only part of a shift were paid for a period of four hours or the actual period worked when that period exceed four hours. This information was obtained by Mr Mulligan instructing a Graduate HR Advisor at Lake Vermont to review Thiess’ business records and provide examples of previous wet weather events.
[38] Mr Mulligan is aware that disputes were raised in late 2014/early 2015 in relation to clause 34 and that this resulted in the Commission issuing a Recommendation. Prior to these disputes, Mr Mulligan said that no issue had been formally raised by any employee with respect to Thiess’ application of the wet weather clause. Mr Mulligan accepts that the issue has been informally raised in the past, usually during pre-start meetings. These informal disputes ordinarily related to complaints of “favouritism” in decisions of Supervisors selecting which employees would remain on site during wet weather events and which employees would return to Camp. Where issues of this nature were raised they were investigated but not substantiated.
[39] In respect to Mr Pierce’s evidence, Mr Mulligan states that he is aware of the operations at South Walker Creek Mine but considers that the wet weather clause in the applicable industrial instrument at that site is different to the clause in the 2008 Agreement. Further, the operations of South Walker Creek Mine are different to those of Lake Vermont. Mr Mulligan does not recall receiving Mr Wood’s correspondence referred to by Mr Pierce. Mr Mulligan’s enquiries have found no record of Mr Wood’s correspondence or any response from Thiess. Mr Mulligan does not agree that Thiess has changed the manner in which it applies clause 34.
[40] Under cross-examination, Mr Mulligan said that in a crew, 15-20% of workers are labour hire employees so that 60 employees on each crew are covered by the 2008 Agreement. Mr Mulligan agreed that he had no involvement in the negotiation of the 2008 Agreement. In relation to the examples of wet weather events provided in his statement, Mr Mulligan said that the HR Graduate who performed the analysis had been employed at the mine for less than six months and that the supporting documents for that analysis were not provided because they would have made the statement too lengthy. Mr Mulligan also agreed that information about whether employees left the site at the direction of supervisors or on their own account would be found in supervisors’ notes which had not been provided. Further, Mr Mulligan agreed that he was aware in 2013 and 2014 that employees disputed the manner in which Thiess was applying clause 34 of the 2008 Agreement and that 99 employees had signed a document indicating that they did not agree with Thiess’ interpretation of the provision. Mr Mulligan disagreed with the proposition that Thiess had changed its interpretation of clause 34 of the Agreement in 2013 and 2014.
[41] During re-examination, Mr Mulligan provided an explanation about the impact of rain events on the site, and in particular emphasised the large area involved and the fact that weather cells can affect some areas and not others. Mr Mulligan said that supervisors decide which employees with particular skills are required to remain on the site and the numbers that need to return to camp because they are not required. Mr Mulligan said that when the supervisor decides who is needed and who is not, there is a discussion with the employees concerned to determine who wants annual leave or unpaid leave and who wants to return to the camp. Some employees may choose to leave the site and take leave because they live a long way from the camp and will leave the site a few days before the end of their roster swing. The choice of employees to take leave – either paid or unpaid – is recorded on a form prior to departure from site. When employees are off site and cannot return they seek leave by telephone.
[42] Mr Pattel’s evidence is that he has been employed in his role since 2011. Prior to this Mr Pattel was a Senior Superintendent for approximately 12 months. Mr Pattel states that where rain has affected sections of the pit (or the entire pit) the affected areas are closed. Where rain has occurred, the superintendent will review rain forecasts to make an assessment of whether the rain will end prior to the end of shift. Where it appears that rain will continue until the end of shift crew members will “generally” be returned to Camp. If it is likely that the rain will cease prior to the end of shift, crew members may do training or wait in a safe area until the rain ceases. If the Superintendent is not on site (such as on night shift) then the relevant supervisor makes these determinations.
[43] Once the rain stops, an inspection of the pit is conducted to determine whether it is safe and whether work can proceed. In determining whether the site is safe and work can proceed, an assessment is made of what equipment may be needed to make areas safe which is then correlated with a list of employees who are competent to operate it. If there are multiple days of wet weather that stop work, Mr Pattel says that Thiess attempts to rotate employees who are able to remain on site and those that must return to Camp. This is subject to operational requirements and the skills and competencies of the employees.
[44] Mr Pattel states that employees may make a request to remain on site but whether the request is granted depends upon the skills and competencies of the employee and the work required by Thiess. Those employees who are returned to Camp and wish to return to site should work become available are asked to provide their phone number and room number so they can be contacted should work become available.
[45] Mr Pattel states that at ”no time” during his time at Lake Vermont have employees been able to make an election to remain at site or return to Camp, it has always been the decision of the supervisor and superintendent whether work would continue or cease and which employees would remain to complete any identified work.
[46] Mr Pattel also gave evidence in response to the evidence of Mr Hardwick, in relation to a number of shifts during which wet weather events occurred. Essentially, Mr Pattel said that shifts during which wet weather events occurred, outlined by Mr Hardwick, and for which Mr Hardwick was paid for the full shift, involved circumstances where employees were kept at the site in anticipation that they would be able to recommence work during the shift or where employees were performing work associated with de-watering the site, preparing haul roads for work to recommence or cleaning up. On some occasions outlined by Mr Hardwick employees were provided with training on the site and on other occasions some employees were sent back to camp because there was no work for them to do. Mr Pattel also listed a number of occasions where Mr Hardwick took leave without pay because there was no work for him to perform due to wet weather.
[47] Mr Pattel disputed Mr Hardwick’s evidence that the wet weather clause had operated differently since January 2014 and said that both before and after that date, wet weather events had been dealt with on a case by case basis as follows:
• If it is too dangerous for employees to come to site because of a wet weather event, Thiess supervisors meet the employees in town and take down their room numbers and contact details in case the weather changes and work becomes available.
• If it begins raining three-quarters of the way through a shift, employees may go to the Common Start Point (CSP) while an assessment is made regarding rain forecasts and conditions and/or an inspection of the pit is conducted. This could sometimes take until the end of the shift.
• If it rains and employees are commencing a shift they go to the CSP to await further instructions. If training is available this may occur, depending on employees’ current training requirements and the training materials available. Then, depending on the weather conditions and forecasts, employees may be sent back to camp, given other tasks or required to remain due to the prospect that work can be recommenced.
[48] Under cross-examination, Mr Pattel agreed that he was not employed by Thiess at Lake Vermont when the 2008 Agreement came into operation and was not involved in drafting the Agreement. Mr Pattel also agreed that he was not party to the discussions that superintendents or supervisors had with employees when wet weather events occurred and was told about those conversations by the supervisors and superintendents at the end of each shift. In response to the proposition that Mr Hardwick’s diary notes about wet weather events indicated that supervisors had given employees the option of staying on site or going back to camp, Mr Pattel said that he did not know how supervisors put this to employees and that he had no direct evidence in this regard.
5. CFMEU SUBMISSIONS
[49] The CFMEU submits that the evidence provided by Thiess regarding how clause 34.1 of the Agreement currently operates is incorrect. Instead, the evidence of Mr Hardwick states that during a wet weather event, employees would be instructed by their employer whether work would be performed or not. If work was stopped, management would decide which employees would be required to perform work for operational reasons. Employees who were not needed could then choose from the four options listed in sub-clause 34.1. Employees who left work were only paid for four hours or the time worked (whichever was greater) and could use annual leave for the remainder of their shift. Employees who decided to stay at work did not lose any pay. Mr Hardwick’s evidence is that this was the practice from the time he commenced employment at Lake Vermont in 2011 until January 2014. There is also evidence that employees disputed the way in which Thiess was applying the clause from 2013.
[50] The CFMEU submits that Thiess began giving directions to employees, which were contrary to the requirements of clause 34.1 of the 2008 Agreement, whereby employees who were not required on site due to wet weather would be sent on annual leave, instead of allowing both the employee and Thiess to decide which option would apply during a wet weather event.
[51] The CFMEU submits that the Commission must first decide whether there is an ambiguity or uncertainty within clause 34.1, and then whether the Commission should exercise its discretion to vary the Agreement, and in doing so must have regard to the mutual intention of the parties at the time the agreement was made. A mere disagreement over the meaning of the clause is not enough to establish an ambiguity or uncertainty, and if the clause was interpreted using ordinary words, no ambiguity would be found. Accordingly, if an objective analysis is applied, there is only one clear meaning for clause 34.1.
[52] The words “employees/Thiess” in clause 34.1 show that once the employer has determined a wet weather event and who is to remain on site, both employees and Thiess can decide which option to employ. There is no evidence to suggest that Thiess has the ability to direct employees as to which option to choose. In a Recommendation by the Commission, the Commission found that the clause operates to allow both employees and Thiess to determine which option to take. The CFMEU submits that this Recommendation carries significant weight.
[53] If the Commission finds that the clause is ambiguous or uncertain, the CFMEU submits that it should not vary the agreement to eliminate the uncertainty or ambiguity. In Betlana Highwall Mining Pty Ltd 23 it was held that the Commission cannot rewrite an agreement to add something that was not “inherent to the agreement when it was made”. Thiess’ witness statements do not give any indication or evidence as to the mutual intent of the parties in relation to clause 34.1 of the Agreement and therefore there is no evidence regarding the mutual intention of the parties at the time the agreement was made. Consequently, the Commission will be unable to decide if the proposed variation will remove something that was inherent to the agreement when it was made. The Commission should therefore not exercise its discretion to vary the clause.
[54] The CFMEU also submits that relying on the conduct of the parties after the agreement took effect does not provide evidence of what the mutual intention of the parties was. However, if the conduct of the parties is considered relevant, the evidence about the conduct is inconsistent. In this regard, there is a conflict between the evidence submitted by the CFMEU and Thiess. If the Commission finds that the conduct of the parties does give an indication as to the intent of the parties of the agreement then CFMEU submits that Thiess has not applied its interpretation of clause 34.1 of the Agreement consistently and this does not show the intent of the parties when the Agreement was made. Accordingly, the Commission should not exercise its discretion and should refuse the application for variation of the Agreement.
[55] In oral submissions for the CFMEU, Mr Newman contended that the fact that Thiess had not followed the Recommendation of the Commission in relation to the earlier dispute about the operation of clause 34.1 of the 2008 Agreement, indicated that the present application informs the background of the matter that the Commission should take into account, and evidences an ulterior and self-serving motive on the part of the Company. Mr Newman also submitted that:
“It’s ‘Nip it in the bud before it can go anywhere by the employees and snuff out their rights’ that’s the ulterior motive and purpose that Thiess have in making this application and we say it’s a self-serving one that the Commission should take into consideration.” 24
[56] Evidence in opposition to the application was given for the CFMEU by:
• Steve Pierce, District Vice President of the CFMEU (mining and energy division); and
• Chris Hardwick, Operator, employed by Thiess at Lake Vermont.
[57] Mr Pierce has responsibility for representing members of the CFMEU who are employed at Lake Vermont. According to Mr Pierce, clause 34 of the 2008 Agreement is similar to wet weather clauses in other agreements and is “almost identical” to the wet weather clause that applies at South Walker Creek Mine. The wet weather clauses in the South Walker Creek Mine Agreements from 2004, 2007 and 2011 were attached to Mr Pierce’s statement. Relevantly, the 2004 Agreement states if:
“...the site is inundated with rain and dependant on weather conditions, at the supervisor’s discretion and with mutual agreement, an employee has four (4) options...”
[58] The 2007 and 2011 South Walker Creek Agreements provide that if:
“...the site is inundated with rain and dependent on weather conditions, and where the supervisor has determined that normal operations will not proceed the employee has four (4) options subject to the supervisor requiring a small crew to operate equipment, man pumps, etc...”
[59] Mr Pierce states that in early May 2013 the then CFMEU representative at Lake Vermont, Mr Mark Woods, contacted Mr Pierce about a “decision” of Thiess to “send employees home without their consent under the wet weather clause”. Given Mr Pierce’s knowledge of similar clauses in other Agreements, and Mr Pierce’s involvement in bargaining for the 2008 Agreement, Mr Pierce took the view that clause 34 of the 2008 Agreement should operate in a “similar fashion” to wet weather clauses in other Agreements.
[60] Mr Pierce advised Mr Woods that he should dispute the issue with Thiess. Mr Pierce recalls that Mr Woods put the matter in dispute by corresponding with Mr Mulligan to state the CFMEU’s position in relation to the clause. Mr Pierce does not recall if Mr Woods received a response from Mr Mulligan but is aware that Mr Woods’ employment with Thiess ended, for unrelated reasons, shortly after the correspondence was sent. The next time the matter was raised was when Mr Hardwick, contacted Mr Pierce as a result of a further instance of wet weather at which time Thiess sent employees home without pay. Mr Pierce states:
“I recall that I provided Chris with the same advice as Mark that the wet weather clause did not allow employees to be sent back to camp, unless they were not required to perform duties and chose to do so”
[61] Following this, Mr Hardwick put the matter into dispute with Thiess. An application for the Commission to deal with a dispute arising under an Agreement followed.
[62] In respect of bargaining for the Agreement, Mr Pierce’s diary notes show that on 2 October 2013, he attended a bargaining meeting for the 2015 Agreement. During bargaining for the new wet weather clause, some employee representatives were demanding an increase to wet weather payments so that regardless of the time worked employees would be paid for the entirety of their shift. Mr Pierce states that Thiess’ response was that the minimum would be increased from 4 hours to 6 hours but no further. Mr Pierce understands that Thiess also proposed that the word “employee” be removed so that Thiess had the sole right to determine if employees remained at work or returned to camp. Mr Pierce said that the response of CFMEU members at that point was that they might be agreeable to the increase from 4 hours to 6 but that they wished to review any proposed wording so that the obligations of the parties were clear.
[63] Mr Pierce tendered a letter dated 29 January 2015 sent to Thiess by the CFMEU under his signature, essentially noting that Thiess had not complied with the Commission’s Recommendation with respect to the dispute in relation to clause 34.1 of the 2008 Agreement. Appended to the letter is a Memorandum issued by Thiess to employees on 27 January 2015 stating that the Commission’s Statement and Recommendation is not binding and that Thiess was reviewing the Commission’s Statement to determine its position and would advise employees of that position when it was determined. The CFMEU’s letter goes on to state that the Memorandum from Thiess to its employees indicates that Thiess does not intend to follow the Recommendation and to indicate that further action would be taken by the Union to recover entitlements said to be due to employees under the 2008 Agreement and for contraventions of the Agreement as a result of Thiess’ application of the wet weather provisions. Mr Pierce said that he was not aware of any further correspondence being issued by Thiess in relation to this matter. The Union had determined that it would not take any further action in relation to the dispute until Thiess’ application to vary the 2008 Agreement was determined.
[64] Under cross-examination, Mr Pierce agreed that he was not able to provide any information in relation to the negotiations for the 2008 Agreement. Mr Pierce further agreed that insofar as the history of that Agreement was concerned, his capacity to talk about the 2008 Agreement was limited to what he inferred from his knowledge of the South Walker Creek Agreement and from information that was requested from the CFMEU by employees at Lake Vermont while the 2008 Agreement for that site was being negotiated.
[65] Mr Hardwick has worked for Thiess at Lake Vermont since approximately January of 2011.
[66] Mr Hardwick states:
“Since being employed at Lake Vermont I have been aware that the Agreement contains a “Wet Weather” clause that operated whenever management determined that there was a wet weather event.
When management determined that there was a wet weather event either before the commencement of shift or during the shift that required us to cease work, we would stop production and return to the Common Start Point (“CSP”).
At this stage our supervisors would meet with us and inform us of the plan for the rest of the shift. Usually they would have a list of tasks that were required to be performed for the rest of the shift and a list of employees to perform these tasks. These employees were then required for operational reasons to remain at the site.
If your name was not on the list to remain for operational reasons, you were then given the options that are found in the clause, to either remain on site and await tasks to perform, for example review SOPs or leave work and return to camp, or home if it was your last shift, and not be paid for the remainder of the shift but have the option to access leave for the period.
The only exception to the above was if the wet weather was declared before the first four hours of a shift. At this time we would usually be required to wait four hours before being given the option to leave. However, if we were on the last shift of our roster and there appeared to be no chance of production for the shift we would be allowed to leave site before the four hours to go home, but be paid for four hours and access our leave if we wished payment for the rest of the shift.”
[67] Mr Hardwick maintains a diary in which he makes notes of all shifts. Diary entries were tendered by Mr Hardwick for a range of dates between 2012 and 2014. Mr Hardwick states that his notes reveal that prior to 10 January 2014, when wet weather events occurred, he was able to remain at work and undertake either training or review Standard Operating Procedures (SOPs) on each occasion. Mr Hardwick states that he first became aware of Thiess’ changed approach on 10 January 2014. Mr Hardwick is now aware of an instance prior to 10 January 2014 on which employees were returned to Camp during a wet weather event, on 24 January 2013. Mr Hardwick is aware that Mr Woods initiated a dispute in relation to this day.
[68] On 10 January 2014, employees were notified at the pre-start meeting, by their Supervisor, Mr Les Johnson, that employees would work four hours and then be sent home. Mr Hardwick challenged Mr Johnson on this direction advising Mr Johnson that it was Mr Hardwick’s view that clause 34 of the Agreement required the agreement of employees and that Thiess could not unilaterally determine that employees must return to Camp or home. Mr Johnson left the prestart meeting to confirm Thiess’ position in respect of clause 34 and later return to confirm the position as previously stated.
[69] Following this, Mr Hardwick contacted Mr Pierce to discuss the matter. Mr Pierce conveyed to Mr Hardwick that Thiess’ interpretation of the clause was not correct. After four hours had passed, Mr Johnson directed employees to cease work and leave for the shift. Mr Hardwick again challenged Mr Johnson and queried what would happen if employees chose to remain. Mr Johnson advised that employees who remained would be dealt with. Mr Hardwick decided to comply with the direction rather than raise the possibility of performance management should he choose to remain on the site.
[70] Mr Hardwick pursued the dispute further and met with Mr Pattel on 22 January 2014. Mr Pattel conveyed Thiess’ position that the clause was to ensure that employees had meaningful work and be gainfully employed to remain at work. The dispute was not resolved and an application was made to the Commission, resulting in the Recommendation that I issued on 21 January 2015.
[71] Mr Hardwick, by reference to his notes, recalls the wet weather event of 24 February 2013 about which Mr Mulligan gave evidence. Mr Hardwick states that he remained at work on this particular shift and did not return to Camp. Mr Hardwick’s notes do not evidence that he was not requested to perform other work. Mr Hardwick assumes from his notes that he remained at work for the entire shift and was not required to perform any additional work. Mr Hardwick’s note states that he spent the shift at the CSP and was required to utilise a 9800 digger and a dozer for training.
[72] Similarly, on 17 November 2013, Mr Hardwick remained on site at the CSP and reviewed SOPs and undertook health and safety training. Mr Hardwick assumes that he remained for the entire shift as his notes don’t reflect otherwise. Mr Hardwick’s payslip does not reflect that there was any deduction from his pay for this period. Mr Hardwick has reviewed Mr Mulligan’s statement, and the examples of wet weather dates referred to, and states that while he does not doubt that some employees may have chosen to leave work early, it is Mr Hardwick’s belief that this would have been their choice and that some employees would have chosen to remain at work.
[73] Mr Hardwick does not agree with Mr Pattel’s understanding of the operation of clause 34.1 of the 2008 Agreement and states that it was never the case that employees were required return to Camp when the wet weather clause was invoked. Rather, employees would remain at the CSP and those employees not required to perform other work were given the option of returning to Camp or completing training.
[74] Under cross-examination, Mr Hardwick agreed that the size of the crews has varied and increased since his start date and that the mine is comprised of a number of pits, approximately 2.5 kilometres long which are located at a distance of some 3 kilometres from the CSP. Mr Hardwick also agreed that wet weather does not automatically result in a situation where no work can be performed and that there are a number of factors that determine whether or not work can be performed after a rain event. Further, Mr Hardwick agreed that attempts were made to get equipment running as soon as possible after a rain event and that employees may be held on site during a rain event so that work can resume at short notice.
[75] In response to the proposition that the choice in clause 34.1 was for employees to take annual leave or leave without pay, Mr Hardwick said that before the dispute arose employees always had the option to leave the site or remain at work. Mr Hardwick said that his diary is a record of his movements at work and the reason for his movements. Mr Hardwick would record irregularities rather than regular occurrences and agreed that he would be more likely to record the fact that he had been sent home rather than that he had remained at work. Mr Hardwick also said that before the dispute about wet weather arose, he would not record that some employees needed to leave the site because at that point it was normal that employees had the choice about whether they left or stayed. Generally, Mr Hardwick would choose to stay at work.
[76] The diary entries referred to by Mr Hardwick in his statement relate to days on which wet weather events occurred when Mr Hardwick was on shift. Mr Hardwick agreed that a number of wet weather events recorded in his diary involved circumstances where employees remained on site because there was a possibility that work could recommence when rain stopped and that on a number of occasions work had recommenced. In relation to a diary entry on 15 July 2012, Mr Hardwick agreed that on that date the site was rained out so that no work could be performed and that he was engaged in a range of training activities for 6.75 hours and took annual leave for the duration of the shift. Mr Hardwick maintained that he was given the option of taking leave and took that option on this particular date, because he did not feel well and wanted to return to camp. Mr Hardwick also maintained that this was contrary to his usual practice of choosing to remain at work during wet weather events.
[77] In relation to diary entries for a number of dates in 2013, Mr Hardwick agreed that employees had been sent to or remained at the camp and were not given an option to stay on site. Mr Hardwick said that these dates were after a dispute had arisen about the manner in which Thiess was applying clause 34.1 of the 2008 Agreement. Mr Hardwick agreed that it was not until January 2014 that he had personally put the matter in dispute. Further, Mr Hardwick agreed that he would not have direct knowledge of whether particular employees elected to leave the site during wet weather events but maintained that prior to the incidents in 2013 when another employee put the matter into dispute and 2014 when Mr Hardwick disputed the application of clause 34.1 of the 2008 Agreement, he had always been given the option to stay on site or to leave the site and be paid annual leave or take unpaid leave.
6. CONSIDERATION
6.1 Is clause 34.1 of the 2008 Agreement ambiguous or uncertain?
[78] When the ordinary meaning of the words in clause 34.1 of the 2008 Agreement is considered, the meaning is not clear. Clause 34.1 of the 2008 Agreement provides for four options in the event of inclement or wet weather. The words of the Agreement are that: “the employee/Thiess has four (4) options, subject to the supervisor requiring a small crew to operate equipment, man pumps etc.” It is not clear whether the employees or Thiess have the right to determine which option will be exercised and in what circumstances.
[79] Unusually, there was no evidence from the parties about the context in which the 2008 Agreement was negotiated or objective background facts that may have been relevant to the construction of the Agreement. In the Statement and Recommendation I issued on 21 January 2015 in relation to a dispute about the application of clause 34.1 of the Agreement, I interpreted the clause and made a Recommendation in order to resolve a dispute in relation to the operation of the clause. The fact that the clause can be construed by reference to relevant principles means that it is not uncertain. However it does not mean that the clause is unambiguous.
[80] There are a number of possible meanings in relation to the proper construction of the clause. As outlined by Counsel for Thiess the possible meanings include that:
• The employee has four options;
• Thiess has four options;
• The employees and Thiess jointly have four options; or
• The employee has four options but those options only arise once the supervisor has determined to require a small crew to operate equipment and man pumps etc.
[81] Thiess contends that in the event of wet or inclement weather, it has the four options outlined in the clause and can require employees to remain on site to perform work or leave site when there is no work for them to perform. Employees required to leave site can then opt to take annual leave or unpaid leave for the remainder of the shift. The CFMEU contends that employees can elect any of the four options set out in the clause, including choosing to stay on the site and be paid for a full shift, regardless of whether Thiess determines that there is work for them to do. According to the CFMEU, the options of employees are subject only to Thiess having the right to require employees who might wish to leave site to remain at work.
[82] In my view, this case involves more than rival contentions about the operation of the clause or claims made in the field for the application of provisions where their applicability is disputed. There is no basis to find that Thiess is advancing a contention for a purpose that is self-serving. While it is the case that the CFMEU has foreshadowed further action in relation to breach of the Agreement and claims for employees to be reimbursed for leave that they have allegedly been required to take, there is no evidence that any such claims have been quantified or articulated. There was no evidence before me upon which I could find that there are claims that could be “snuffed out” if the amendment sought by Thiess was granted. At best there are potential claims that could not proceed and that is not a basis to find some ulterior or self-serving motive on the part of Thiess in seeking the variations.
[83] The drafting of the clause leaves much to be desired and its terms are susceptible of more than one meaning. In my view, an arguable case can be made out for both of the major contentions and there are a number of additional possibilities that are also arguable. Accordingly, I find that the clause is ambiguous and the power of the Commission to exercise the discretion to amend the clause to remedy the ambiguity is enlivened.
6.2 Is it appropriate to vary the 2008 Agreement?
[84] As previously noted, the objectively ascertained mutual intention of the parties is relevant to the exercise of the discretion to vary an agreement to remove ambiguity or uncertainty. In the present case, there was evidence from both parties about the way in which clause 34.1 of the Agreement had been applied. In this regard, the evidence of Mr Hardwick was directed at establishing that there had been a change to the manner in which Thiess has applied the clause. Mr Hardwick’s evidence is that prior to 2014 (or 2013), employees were always given an option as to whether they wished to remain on the site in the event of wet weather and undertake training or reviewing standard operating procedures and that at some point Thiess changed its practice and required employees to leave the site and take annual leave or unpaid leave.
[85] The evidence of witnesses for Thiess is that clause 34.1 of the Agreement has been applied consistently with Thiess’ right to direct employees as to which of the four options they take in the event or wet weather. In summary, that evidence is that at or around the time the Agreement was made:
• Crew sizes were smaller;
• There were a number of new employees who required training in the operation of various machines or tasks and standard operating procedures;
• The camp was smaller and sending employees back to camp would risk disturbing employees on other shifts who were sleeping; and
• There were many instances of wet weather events where employees were held at the site in anticipation that work could recommence during the shift.
[86] Mr Hardwick was adamant that prior to 2014 he had always been given the option to remain at work and be paid for the full shift or to return to camp and take paid or unpaid leave. There is no basis for preferring the evidence of witnesses for Thiess about how the wet weather provisions of the 2008 Agreement operated over that of Mr Hardwick or vice versa.
[87] Thiess contends that it is objectively ascertainable from the evidence about the conduct of the parties, that the clause has been applied consistently with the interpretation it contends for evincing their mutual intent and that this is a basis for the Commission to exercise the discretion to vary the Agreement to remove ambiguity. I do not accept that submission. There is no basis for preferring the evidence of witnesses for Thiess about how the wet weather provisions of the 2008 Agreement operated over that of Mr Hardwick, or vice versa. If all of the evidence is accepted, it is equally probable the parties had competing assumptions and that the clause has operated in a manner which did not cause either party to question their competing assumptions about its meaning.
[88] The evidence establishes that in some wet weather events, Supervisors held all or the majority of employees on the site in anticipation that work would recommence during the rostered hours of the shift. It is not in dispute that Thiess had the right to require all or some employees to remain on the site, regardless of whether or not they wished to do so. If employees left the site because there was no work for them to perform, the evidence does not establish that they did so because they accepted that Thiess could require them to take paid or unpaid leave when they did not wish to do so. It is equally probable that until the 2013 and 2014 issues arose, Supervisors and employees were able to reach consensus about who would remain at work and who would take paid or unpaid leave on particular occasions. The evidence does not objectively establish that employees accepted that Thiess had the right to direct them to take paid or unpaid leave. At best, it establishes that the requirements of Thiess with respect to numbers of employees who would remain on the site were able to be accommodated because sufficient numbers of employees wished to remain and others wished to leave.
[89] At best, the evidence establishes that Thiess required some but not all employees to stay at the site. Some employees chose to leave the site because they wanted to return to their homes (rather than the camp) in circumstances where they were close to completing a roster swing and did not want to be stuck at the camp for a period when they were rostered off and could have been at home. Other employees may have chosen to go back to the camp or to stay on site and perform work that was available or to undertake training activities. Rather than being in agreement about how the clause operated, it is equally probable that the parties were operating on entirely different assumptions 25 because no issue arose. No issue arose due to the interplay of factors during the period in which the provision operated such as: the size of the workforce, the size of the camp, the extent of the wet weather events, the need for employees to be trained (or their desire to take the opportunity to be trained) and the wishes of some employees to avail themselves of an opportunity to leave the site when a wet weather event occurred.
[90] The clause is not unworkable. It has worked and if there are difficulties with its operation, those difficulties have arisen because of changes in circumstances of the kind described above. The clause operates on the first shift where wet weather occurs. It qualifies the general right that Thiess has to stand down employees found in clause 8 of the 2008 Agreement while giving Thiess the right to retain at least a core workforce, in cases where extreme weather events may lead to a desire on the part of the employees to leave a remote location and return to their homes rather than remain in a camp. There is nothing unusual or extraordinary about such a clause or the way in which it operated.
[91] I do not accept that the evidence about conduct of the parties objectively establishes their mutual intention about the way in which clause 34.1 would operate at the time the Agreement was made. I am also not persuaded that there are other factors that weigh in favour of the discretion to vary the Agreement being exercised. Thiess seeks a retrospective variation and submits that the effect of the variation will be for a fixed and closed period between the commencement of the 2008 Agreement and the commencement of the 2015 Agreement at which point the 2008 Agreement ceased to operate. In my view this is at best a neutral factor and it could equally be argued that there is no compelling need for the variation to be made in circumstances where the 2008 Agreement has ceased to operate and any exposure to claims for breach of that Agreement is limited to a defined period.
[92] It is also the case that notwithstanding that the CFMEU has yet to quantify or articulate claims for breach of the 2008 Agreement, the variation would effectively remove the rights of employees who may be in dispute to make claims for leave they contend they have been wrongfully required to take. The variation would remove the ability of such employees to have the Court decide on the proper construction of the disputed clause in circumstances where the Dispute Resolution Procedure does not employer the Commission to make a binding Decision on this question. Those rights would be removed in circumstances where the evidence does not objectively establish the mutual intention of the parties to the Agreement about the way in which the clause would operate.
[93] In all of the circumstances, this is not an appropriate case in which the discretion to vary an agreement to resolve an ambiguity should be exercised. It is not necessary to consider whether the variation sought by Thiess is appropriate. However, if I was required to consider the proposed variation it is arguable that it also lacks clarity.
[94] The application for variation of the Thiess-Australian Mining Lake Vermont Employee Collective Agreement 2008 is dismissed and an Order to that effect will issue with this Decision.
DEPUTY PRESIDENT
1 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1981-1982) 149 CLR 337 at 350 per Mason J.
2 Meehan v Jones (1981-1982) 149 CLR 571 at 578 per Gibbs CJ.
3 Re: Tenix Defence Systems Enterprise Agreement PR917548 at [33] – [35] per Ross VP, O’Callaghan SDP and Foggo C.
4 CoInvest v Visionstream (2004) 134 IR 43 at 55 per Ross VP, Ives DP and Blair C.
5 Grocon Constructors Pty Ltd v Construction, Forestry, Mining and Energy Union AG812496 PR924146 at [18] per Ross VP.
6 Re Linfox - CFMEU (CSR Timber) Enterprise Agreement 1997 Print Q2603, 30 June 1998, per Munro J.
7 Grocon Constructors Pty Ltd v Construction, Forestry, Mining and Energy Union AG812496 PR924146 at [20] per Ross VP citing Re: Victorian Public Transport Enterprise Agreement 1994, Print M2454, 7 June 1995 per Ross VP, Polites SDP and Grimshaw C at p. 4; Re CFMEU Appeal, Print R2431, 25 February 1999 per Harrison SDP, Drake DP and Larkin C at para 13; Re Tenix Defence Systems Pty Limited Certified Agreement 2001-2004, Print PR917548, 9 May 2002 per Ross VP, O'Callaghan SDP and Foggo C.
8 Construction, Forestry, Mining and Energy Union 175/99 N Print R2431 per Harrison SDP, Drake SDP and Larkin C.
9 PR903843 at [7].
10 [2014] FWCFB 7447.
11 City of Wanneroo v Australian Administrative Clerical and Services Union (2006) 153 IR 426
12 Amcor Limited v CFMEU and Ors [2005] HCA 10.
13 Short v Hercus (1993) 40 FCR 511 at 518.
14 Ibid.
15 Bond & Co Ltd (in liquidation) v McKenzie (1929) 28 AR 499.
16 Toll FGCT Pty Limited v Alphapham Pty Ltd (2004) 219 CLR 165 (at 179).
17 (1996) 66 IR 182.
18 [2014] FWCFB 7447 at [30].
19 (2007) 162 IR 121.
20 Ibid at [16] – [17].
21 Workplace Law Fair Work Fair Work Act, LexisNexis Butterworths 2009.
22 Telstra Corporate Group Enterprise Agreement PR954989 14 January 2005 at [47] per Ross VP, Lacy SDP and Smith C; Tenix Defence Pty Limited Certified Agreement 2001-2004 PR917548 9 May 2002 at [28], [32] and [54] per Ross VP, O’Callaghan SDP and Foggo C.
23 PR932468 at [23].
24 Transcript of proceedings 3 November 2015 PN1290.
25 See Tenix op cit at [102].
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