s.739 - Dispute resolution

Construction, Forestry, Maritime, Mining and Energy Union

Alleged dispute about any matters arising under the enterprise agreement and the NES; [s186(6)] - Construction of enterprise agreement - Incorporated material - Principles of construction - Common understanding.

• [1] The Construction, Forestry, Maritime, Mining and Energy Union - Mining and Energy Division (MEU) applied to the Fair Work Commission (Commission) pursuant to s. 739 of the Fair Work Act 2009 (Act) for the Commission to deal with a dispute under the dispute resolution procedure in the BMA Enterprise Agreement 2018 (2018 Agreement). The Respondent is BHP Coal Pty Ltd (BHP/the Company), the employer covered by the 2018 Agreement. The 2018 Agreement was approved by the Commission on 21 May 2018, commenced operation on 28 May 2018 and reached its nominal expiry date on 21 May 2021. This dispute notification was lodged in the Commission on 12 July 2022, prior to the approval of the current BMA Enterprise Agreement 2022 (2022 Agreement) on 13 January 2023.

• [2] The "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) have been granted permission to intervene in these proceedings. The AMWU and the CEPU were also covered by the 2018 Agreement. Permission was granted on the basis that the outcome of these proceedings directly affects the interests of the Unions and their members, and the interests of the two Unions in these proceedings align with those of the MEU. The MEU, AMWU and CEPU (collectively, the Unions) were bargaining representatives for, and are covered by, the 2018 Agreement and the 2022 Agreement.

• [3] The dispute concerns provisions of the 2018 Agreement, and the Moranbah Accommodation Agreement 2012 (the 2012 MAA). The provisions of the 2018 Agreement on which this dispute centres are included in the 2022 Agreement in identical terms. The 2012 MAA, which is incorporated into both the 2018 and the 2022 Agreements, provides inter alia that employees who live in a single person village (SPV) will pay a subsidised rate of $60 per week, which will be deducted from their post-tax salary. There is evidence that BHP entered into Rooming Accommodation Agreements (RAAs) under the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTRA Act), with employees accommodated in the SPV. The current practice is that employees occupy a particular room while they are rostered to work, and some employees reside in their allocated rooms in periods where they are rostered off and do not wish to travel to another location. When employees leave the SPV at times when they are rostered off, they leave personal possessions in their allocated rooms. Pursuant to the RAAs, BHP gives Entry Notices under the RRTA Act (Form 9) to employees when rooms are entered for the purposes of cleaning or maintenance.

• [4] On or around 11 November 2021, BHP gave notice to all residents of the SPVs at various locations that from 18 January 2022, the Company would cease the $60 per week deduction and issued employee residents in the SPV with a Notice to Leave (Form R12) pursuant to the RTRA Act, giving notice of the termination of RAAs. While employees were not required to leave their allocated rooms, the immediate effect of the termination of the RAAs, was that an Entry Notice under the RRTA Act (Form 9) would no longer be issued for cleaning and maintenance of the rooms. Witnesses who gave evidence on behalf of the Unions also expressed concern that BHP would implement "hot bedding" whereby employees' rooms may be provided to other employees or contractors when they were not on shift, or that BHP staff may enter their rooms without notice.

• [5] The Unions contend that clause 5.2 of the 2012 MAA imposes mandatory obligations on employees to pay, and BHP to deduct, a weekly payment of $60 from employees' salaries, in return for residence in the SPV. The MEU contends that the effect of a unilateral decision by BHP to end the RAA meant that residents of the SPV accommodation were no longer entitled to the legal protections available to them under the RTRA Act with respect to their rooming accommodation. The AMWU and CEPU similarly contend that clause 5.2 imposes obligations on both the employee and BHP - one to pay, and the other to accept - the $60 weekly payment and that this payment is rent. It is also contended that the intent of BHP in ceasing the deduction of $60 per week was to take steps to remove the continuing application of the RTRA Act and thereby to fundamentally change the rights of employees to their detriment.

• [6] BHP contends that the language of clause 5.2 is permissive and creates a right for BHP to deduct $60 per week from employees' wages, rather than an obligation and that BHP is entitled to waive that right. BHP also contends that there is nothing in the text of the 2012 MAA to suggest that clause 5.2 was intended to create benefits or rights for employees, whether directly or indirectly, including under the RTRA Act. Further, BHP contends that the 2012 MAA does not expressly or impliedly require BHP to provide "rooming accommodation" within the meaning of the RTRA Act.

• [7] The dispute was not resolved by conciliation. Clause 8 of the 2012 MAA provided that "in the event a dispute arises pertaining to this Agreement, it will be dealt with in accordance with the dispute settlement procedure in the BMA Enterprise Agreement 2012 or any replacement enterprise agreement." Clause 34.2(e) of the 2018 Agreement further provides that any issues in relation to the application of the Accommodation Agreement to an individual is to be resolved pursuant to the dispute resolution procedures in clause 37. It is not in issue that this dispute pertains to the interpretation of clause 5.2 of the 2012 MAA and that the dispute resolution procedure in clause 37 of the BMA Agreement empowers the Commission to resolve this dispute by arbitration. The parties have agreed on the following question for determination:

"Can BHP lawfully cease the $60 per week deduction from post-tax salary of all employees residing in the SPV?"

• [8] In a Decision[1] issued on 21 August 2023, I determined that question should be answered in the negative. These are my reasons for that Decision.

• [9] Following a conciliation conference before the Commission on 28 July 2022, the parties engaged in a series of private discussions attempting to resolve all accommodation related issues and requested that the matter before the Commission be placed on hold, subject to the outcome of those discussions. On 2 December 2022, BHP advised that there remained one unresolved SPV matter and sought that the matter be determined by way of a hearing.

• [10] Directions were issued with the consent of the parties on 12 December 2022 requiring that the parties file and serve written outlines of submissions and statements of evidence outlining the evidence of each witness to be called at the hearing. BHP's material was also required to respond to the MEU's material and the MEU was directed to provide any further material in reply. All material was required to be filed and served prior to the hearing. The Directions further stated that witness statements were designed to take the place of evidence-in-chief and that leave must be sought at the hearing to adduce further evidence-in-chief.

• [11] On 14 December 2022, the AMWU, through its legal representative, corresponded with the Commission indicating that it had become aware of the present proceedings and that the subject matter of this dispute related to the same issue, the subject of a proceeding commenced by the AMWU in the Federal Court of Australia and seeking to intervene in the matter. On 15 December 2022, two Form F53 Notices were filed in the Commission indicating that the AMWU and the CEPU sought to be legally represented in the proceedings.

• [12] The AMWU and the CEPU filed submissions on 15 December 2022 seeking permission to intervene in these proceedings on the basis that being parties to the BMA Agreement, they had a direct interest in being heard in these proceedings and that any outcome in the Commission proceedings would be binding on the intervenors and their members, pursuant to clause 37.19(b) of the BMA Agreement. For the AMWU, it was further submitted that deferral of the proceedings before the Federal Court was warranted in light of the Commission proceedings. The AMWU and the CEPU sought permission to provide written submissions and evidence and to appear before the Commission in the substantive hearing.

• [13] On 20 December 2022, the MEU and BHP corresponded with the Commission confirming that no objection was raised with respect to the AMWU or CEPU intervening in these proceedings. I was satisfied, for the reasons outlined in the submissions, that permission should be granted for the AMWU and the CEPU to be heard and directions were issued requiring the intervenors to file and serve an outline of submissions and any material in reply.

• [14] The MEU provided the following evidence in support of its case:

• • A witness statement by Mr Barry Borellini,[2] a coal mine worker employed by BHP at the Goonyella Riverside Mine site and a resident of the SPV accommodation under the 2012 MAA since March 2012;
• • Documents annexed to MEU's Outline of Submissions.[3]

• [15] The intervenors provided the following evidence in support of their case:

• • A witness statement by Mr Darryl Piper,[4] a boilermaker employed by BHP Coal Pty Ltd T/A BHP Mitsubishi Alliance (a joint venture) and a resident of the Moranbah SPV accommodation.
• • A copy of a Rooming Accommodation Agreement (Form R18) entered into between BHP Coal Pty Ltd and Mr Daniel Farmer.[5]

• [16] BHP provided the following evidence in support of its case:

• • A witness statement by Mr Peter Stelmach,[6] who was the HR Manager of BHP between August 2009 and May 2013; and
• • A witness statement by Ms Licia McGroarty,[7] who was employed by BHP between August 2011 and November 2021 and was involved in the negotiation of the BMA Enterprise Agreement 2012 and the various Accommodation Agreements.

• [17] On 27 February 2023, the parties advised the Commission that none of the witnesses would be required for cross-examination at the hearing and the evidence of the parties was tendered without objection. A hearing was conducted by video link on 2 March 2023. Clause 37.18 of the BMA Agreement entitles the parties to be represented by a legal practitioner in arbitration proceedings before the Commission, and in any event, I would have granted permission under s. 596 of the FW Act on the basis that this dispute raises issues of complexity, particularly in relation to the interpretation of the Accommodation Agreement and its interaction with the RTRA Act. I was also satisfied that assistance from the legal representatives would enable the matter to be dealt with more efficiently and that no issues of unfairness arose.

• [18] At the hearing, the MEU was represented by its Senior Legal Officer, Mr C. Newman, the intervenors were represented by Mr L. Saunders of Counsel instructed by Maurice Blackburn, and BHP was represented by Mr I. Neil SC instructed by Herbert Smith Freehills.

• [19] The 2018 Agreement contains provisions at clause 34 dealing with "Accommodation and Commute Arrangements". In summary, clause 34.1 sets out the overriding principles and objectives that govern these arrangements. Clause 34.2 details the accommodation arrangements and refers to the four Accommodation Agreements, which are incorporated into the BMA Agreement in accordance with s. 257(b) of the FW Act, which provides that "...an enterprise agreement may incorporate material contained in an instrument or other writing... as in force from time to time". Clause 34.3 outlines the commute arrangements and clause 34.4 details the process by which the Accommodation Agreements may be varied. Relevant provisions of clause 34 are as follows:

(1) Access accommodation in accordance with clause 34.2; or

(2) Access a commute arrangement in accordance with clause 34.3.

(b) The objective of these principles is to increase the pool of available housing for Employees and their families. These principles will be included in the development of the Accommodation Agreements referenced at clause 34.2(a).

(c) In the event an Employee elects to change their accommodation arrangements by acceptance of an offer from the Company:

(1) if the Employee owns their home, the Employee will be eligible to move into the single person's village at the subsidised rate where:

(A) the Employee elects to offer their house/unit to the Company to lease and the Company agrees that the house/unit is at a standard appropriate for such leasing; or

(B) the Company elects to buy the Employee's house/unit and this is acceptable to the Employee.

(2) if the Employee elects to sell their house/unit on the open market, without first offering it to the Company to purchase at market value, the Employee will be eligible to move into the single person's village or other suitable accommodation at the subsidised rate, where the Employee vacates the house/unit.

(3) if the Employee resides in a Company-subsidised house and elects to change to commute arrangements, the Employee will be required to vacate the house and will be eligible to move into the single person's village or other suitable accommodation at a subsidised rate.

(4) if the Employee resides in a house/unit owned by a third party which attracts a Company rental subsidy and they elect to change to commute arrangements and move into the single person's village or other suitable accommodation, they will be eligible for a subsidised rate.

(d) The availability of each arrangement may be limited by the availability of suitable accommodation and/or transport."

(a) Employees will be entitled to accommodation in accordance with the following relevant Accommodation Agreement, which may be amended from time to time in accordance with clause 34.4 and consistent with the principles set out in clause 34.1:

(b) The Accommodation Agreements in clause 34.2(a) are incorporated into this Agreement in accordance with section 257(b) of the Act and can be amended separately to this Agreement in accordance with clause 34.4 below.

(c) An Employee may access accommodation which is not regulated by the Accommodation Agreements in clause 34.2(a), and in those circumstances the Employee will receive no less than the same subsidy they would be entitled to under the relevant Accommodation Agreement if living in the single persons village.

(d) Where a Party to this Agreement believes that one of the above Accommodation Agreements at clause 34.2(a) is not being adhered to, a meeting between the Parties may be called. Neither Party may unreasonably refuse to participate in such a meeting.

(e) Any issues arising in relation to the application of the Accommodation Agreements to an individual may be processed through the disputes settlement procedure contained in this Agreement at clause 37.

(f) Access to accommodation, other than in accordance with clause 34.2(c), is subject to the rest of the provisions of this clause 34 (i.e., an Employee will not be entitled to accommodation under clause 34.2 if employed subject to a commute arrangement under clause 34.3).

(g) It is fundamental to the operation of this clause 34 that:

(1) the Accommodation Agreements can be amended from time to time by the parties to those Accommodation Agreements in accordance with the process in clause 34.4; and

(2) the Accommodation Agreements (and any amendments from time to time) take effect separately to this Enterprise Agreement and in their own right as contemplated by the Accommodation Agreements.

(a) Commute arrangements will be provided independent of roster, based on operational need.

(b) Where the Company offers commute arrangements, as amended from time to time, the following principles will apply:

(1) Subject to 34.3(b)(2) and availability of housing, all Employees will have the option to choose whether to access commute or residential options. This is a choice to be exercised by individual Employees.

(2) Where particular circumstances require, the Company may make commute arrangements a precondition of employment for new Employees. For example, this includes in-sourcing of currently outsourced/contracted operations. However, where an Employee's circumstances change, they may apply to access other residential arrangements in accordance with the applicable Accommodation Agreement under clause 34.2(a).

(c) For Employees who commute, the Company will provide village accommodation or other suitable accommodation at a subsidised rate, as nominated by the Company and subject to availability, in accordance with clause 34.1(b).

(d) Appropriate travel arrangements will be put in place for commuting Employees as follows:

(a) The Parties acknowledge that the Accommodation Agreements may be replaced or amended from time to time by agreement between the parties to the Accommodation Agreements, in accordance with the variation procedure prescribed under the relevant Accommodation Agreement.

(b) Discussions between the Company and the Unions to vary the terms of each of the above Accommodation Agreements will include Employee Representatives from each applicable Mine.

(c) A variation to an Accommodation Agreement can be sought by either party where supported by appropriate justification.

(d) It is not intended that the Parties will seek to vary an Accommodation Agreement for an individual Employee's particular circumstances.

(e) Neither party can unreasonably refuse to participate in discussions where a reasonable justification has been presented."

• [20] The title page of the 2012 MAA bears the names:

"BHP Coal Pty Ltd and Broadmeadow Mine Services Pty Ltd

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia"

• [21] A "NOTE FOR EMPLOYEES" on the title page states:

"This is the Moranbah Accommodation Agreement 2012 as referred to in clause 34 of the BMA Enterprise Agreement 2012.

The terms of this Accommodation Agreement will be binding on BMA when employees approve the BMA Enterprise Agreement 2012.

BMA proposes that BMA and the union parties sign this Accommodation Agreement when the BMA Enterprise Agreement 2012 is approved by Employees."

"1. The Company is the employer of employees at Goonyella Riverside, Peak Downs and Broadmeadow Mines. These Mines are managed by the BHP Billiton Mitsubishi Alliance, a joint venture between the BHP Billiton group and the Mitsubishi group.

1. The CFMEU, AMWU and CEPU (collectively referred to as "the Unions") are entitled to represent the industrial interests of employees at Goonyella Riverside, Peak Downs and Broadmeadow Mines.

1. The Unions were bargaining representatives under s 176 of the Fair Work Act 2009 (Cth) (FW Act) in bargaining for the BMA Enterprise Agreement 2012. The CFMEU was the bargaining representative under s 176 of the FW Act in bargaining for the Broadmeadow Mine Enterprise Agreement 2012.

1. The parties have agreed to incorporate this agreement under s 257(b) of the FW Act in the BMA Enterprise Agreement 2012.

1. It is fundamental to the operation of the accommodation and commute arrangements clause in the BMA Enterprise Agreement 2012 that this Agreement can be amended from time to time by the parties in accordance with the terms of this Agreement and the process specified in the accommodation and commute arrangements clause of the BMA Enterprise Agreement 2012."

• [23] Clause 1 sets out the objective purpose of the Accommodation Agreement. Clause 2 explains the interaction between the 2012 Accommodation Agreement and previous iterations of accommodation arrangements. Clause 3 is a dictionary clause which provides definitions of the various terms used in the Accommodation Agreement. These clauses are set out below:

This Accommodation Agreement has been developed by the parties. having regard to the principles in clause 34.1 of the BMA Enterprise Agreement 2012 and for Goonyella Riverside and Peak Downs Employees, is subject to clauses 34.2 and 34.3 of that Enterprise Agreement.

The purpose of this Agreement is to provide eligible Employees with a range of company subsidised accommodation options. Nothing in this Agreement limits an Employee's ability to enter into alternative arrangements with the Company, pursuant to clause 34.2(c) of the BMA Enterprise Agreement 2012 and where agreed between the Company and an Employee."

This Agreement commences operation upon approval of the BMA Enterprise Agreement 2012 (Commencement Date) and unless otherwise expressly stated, this Agreement replaces all previous agreements between the parties.

The conditions under Previous Accommodation Arrangements that applied to Employees as at the Commencement Date will continue to apply to those Employees until such time that they access a benefit under this Agreement.

Employees residing in Company controlled properties (CCPs), third party rental properties and SPV accommodation will continue to pay their current rent/rate if less than the rent/rate prescribed in this Agreement, or if greater than the rent/rate prescribed in this Agreement, their rent/rate will reduce to that prescribed rent/rate.

Employees currently living in the Town and participating in a Home Ownership Scheme remain bound by the caveat conditions relating to the lump sum payment received."

Dependent Child: A child who lives with an Employee in Town, is dependent on that Employee and does not receive income in his or her own right and who:

(a) that Employee has legal responsibility of, either alone or jointly with another person for that child's day-to-day care; or

(b) is wholly or substantially in that Employee's care.

Company Controlled Property (CCP): A Unit or House that is owned or directly leased by the Company in Town.

Couple: An Employee who lives with another person who he or she is in a relationship with and who both intend to live in the Town.

Previous Accommodation Arrangements: Any Home Ownership Scheme agreement or the previous Moranbah Accommodation Agreement which applied to an Employee as at the Commencement Date of this Agreement.

Single Person: A person who does not live in Town together with:

(a) another person who he or she is in a relationship with; and/or

(b) any Dependent Child.

Town: Within an area of 40km from the town centre of Moranbah.

Unit: A property attached to other properties including apartments or units (medium to high density)."

• [24] Clause 5 provides for the various company subsidised accommodation options. Clause 5.1 outlines the different types of accommodation that may be provided to an employee depending on the employee's status. For present purposes, clause 5.2 deals with "Single Person Village" or "SPV" and clause 5.3 deals with CCP. Those clauses are set out as follows:

New Employees will be provided information on the range and availability of accommodation options outlined in the table below and the alternative options if their preference is not currently available.

The range of accommodation options (subject to availability) are:

All allocation of properties will be determined by the Company, taking into account an Employee's needs, the number of Dependent Children and other relevant family circumstances. In the event that a dispute arises under this clause, Employees may access the dispute settlement procedure in accordance with clause 8.

Employees who live in an SPV under this Agreement will pay a subsidised rate of $60 per week which will be deducted from the Employee's post tax salary. Employees who live in the SPV will be required to comply with the rules of the SPV. Failure to comply may result in the withdrawal of this benefit.

Employees who reside in an SPV and commute from areas outside of the region may be required to travel to and from the SPV at the start and finish of their rostered days in a Company-provided bus.

Employees who live in a CCP will pay a subsidised rate of $60 per week, deducted from the Employee's pre-tax salary."

• [25] Clause 6 is headed "General Terms". Clause 6.2 provides that while employees may choose a particular type of accommodation, the provision of such accommodation is subject to availability and employees may be offered alternative accommodation until such time their preferred accommodation becomes available. Clause 6.8 outlines the process whereby employees may apply to transition from a previous home ownership scheme to the arrangements provided under the Accommodation Agreement. Clause 7 outlines the process by which the Accommodation Agreement may be varied. Clause 8 sets out the procedures for resolving disputes under the Accommodation Agreement. Clause 9 is headed "Preservation of benefits" and provides that the entitlements of employees in relation to accessing company subsidised accommodation will continue to apply if the 2018 Agreement or any subsequent replacement enterprise agreement, is terminated. Relevant parts of these clauses are reproduced below.

The Company will supply accommodation according to an Employee's choice under this Agreement, subject to availability. Should the requested accommodation not be immediately available the Employee will be accommodated in an SPV, or other alternative accommodation, until the requested accommodation becomes available.

Whilst all circumstances will be considered, the timing and allocation of accommodation will be determined by the Company.

6.8 Option for Previous Home Ownership Scheme Participants

An Employee who has previously entered into a Home Ownership Scheme and wants to now live in an SPV under this Agreement may make an application to HR Accommodation Services to do so. The Company will assess any such applications on a case-by-case basis and will take into consideration the availability of SPV rooms. Should the application be approved, the following provisions will apply:

(1) When an Employee owns their home in a Town (or wishes to exit a caveat under the conditions of their respective Home Ownership Scheme agreement), the Employee will be eligible to move into the SPV under the terms of this Agreement if approval is given by the Company. The approval process is as follows:

(A) The Employee must offer to sell their property to the Company. The offer must specify the sale price.

(B) The Employee can then continue the application process to move into the SPV at the subsidised rates as outlined in Clause 5.2.

Employees that obtain a benefit from this clause may not enter into any other accommodation option (other than the SPY) unless approval is granted by the Head of HR or their nominee.

Employees who no longer own their own home are eligible to apply for SPY accommodation. Any Employee who has purchased a property from the Company will not be entitled to a benefit under the Agreement where they rent the property back to themselves.

This Agreement may be amended by agreement between the parties.

Any discussions between the parties to vary this Agreement will include employee representatives from Goonyella Riverside, Peak Downs and Broadmeadow Mines.

A variation to the agreement can be sought by any party where supported by appropriate justification.

It is not intended that the parties will seek to vary this agreement for an individual Employee's particular circumstances. However, this does not prevent the Company from offering alternative benefits to Employees.

No party can unreasonably refuse to participate in discussions to vary this Agreement where a reasonable justification has been presented. However, variation can only be effected by agreement between the parties.

In the event a dispute arises pertaining to this Agreement, it will be dealt with in accordance with the dispute settlement procedure in the BMA Enterprise Agreement 2012 (or the Broadmeadow Mine Enterprise Agreement 2011 for Broadmeadow Employees) or any replacement enterprise agreement. Enforcement issues will be dealt with in the appropriate jurisdiction.

In the event the BMA Enterprise Agreement 2012, the Broadmeadow Mine Enterprise Agreement 2011 or any replacement enterprise agreement is to be terminated and will cease to apply to Employees, the parties agree that:

(a) Employees will continue to be entitled to access benefits under this Agreement;

(b) This Agreement will continue to operate unaffected, subject to any variation made in accordance with clause 7; and

(c) The parties will take whatever prior steps are necessary and appropriate to legally preserve the operation of this Agreement."

• [26] A "rooming accommodation agreement" is defined in s. 16 of the RTRA Act as follows:

(1) A rooming accommodation agreement is an agreement under which a provider provides rooming accommodation to a resident in rental premises.

(2) Subsection (1) applies whether the agreement is -

(a) entirely in writing, entirely oral or entirely implied; or

(b) partly in a form mentioned in paragraph (a) and partly in 1 or both of the other forms.

(3) However, an agreement is not a rooming accommodation agreement if it is taken to be a residential tenancy agreement under section 18."

• [27] The definitions of "resident", "rooming accommodation" and "provider" under the RTRA Act are respectively provided for in ss. 14, 15 and 17, which are set out as follows:

(a) who, in rental premises, occupies 1 or more rooms as the person's only or main residence; and

(b) who is not -

(i) the provider; or

(ii) a relative of the provider."

(1) Rooming accommodation is accommodation occupied or available for occupation by residents, in return for the payment of rent, if each of the residents -

(a) has a right to occupy 1 or more rooms; and

(b) does not have a right to occupy the whole of the premises in which the rooms are situated; and

(c) does not occupy a self-contained unit; and

(d) shares other rooms, or facilities outside of the resident's room, with 1 or more of the other residents.

a boarding house in which each of the residents occupies a room and shares a bathroom, kitchen, dining room and common room with the other residents.

(2) For subsection (1), it is immaterial whether or not -

(a) the rooms are in the same premises; or

(b) the resident is provided with a food service, personal care service or other service."

A provider is a person who provides rooming accommodation to residents."

• [28] "Rent" for the purpose of a rooming accommodation agreement (RAA) is defined under the dictionary in sch. 2 of the RTRA Act to mean "an amount payable by a resident under a rooming accommodation agreement for the provision of accommodation and any other service provided under the agreement."[8] Further, under an RTRA Act, an RAA may be a fixed term agreement or periodic agreement.[9] An RAA is different from a residential tenancy agreement for the purpose of the RTRA Act. In this regard, s. 12(4) provides that "an agreement is not a residential tenancy agreement if it is a rooming accommodation agreement." In addition, the RTRA Act applies to certain, but not all, rooming accommodation agreements, by virtue of s. 43 which provides that the RTRA Act applies:

"(1) ...to rooming accommodation agreements and to -

(a) providers, residents and their respective rights and obligations under rooming accommodation agreements; and

(b) rental premises under rooming accommodation agreements.

(2) However, this Act does not apply to all rooming accommodation agreements."

• [29] The types of RAA to which the RTRA Act does not apply, are set out in s. 44, and for present purposes, those exceptions are not relevant. Chapter 4 of the RTRA Act sets out in detail the rights and obligations of the parties to a RAA. For example, part 1 sets out the general rights and obligations of providers and residents and s. 249 is headed "Quiet enjoyment" which requires that:

"(1) The provider must take reasonable steps to ensure the resident has quiet enjoyment of the resident's room and common areas.

(2) The provider or provider's agent must not interfere with the reasonable peace, comfort or privacy of the resident in using the resident's room and common areas.

Maximum penalty for subsection (2) - 20 penalty units"

• [30] Part 2 in Chapter 4 of the RTRA Act makes specific provisions about the regulation of the right of entry into residents' rooms by a provider or a provider's agent or other persons. For example, s. 259 provides that a provider may enter the resident's room for specific purposes after giving the resident a written notice in accordance with the requirements of that provision. Section 260 sets out the limited circumstances in which a provider may enter a resident's room without notice, for example, in the event of an emergency or to carry out urgent repair.

• [31] Part 2 in Chapter 5 of the RTRA Act is headed "Ending of rooming accommodation agreements", which deals with the circumstances in which an RAA may be terminated by a provider or a resident and outlines the notice requirements that must be followed in effecting a termination. Section 366 of the RTRA Act (as it was in force at the relevant times) provided that a rooming accommodation agreement could only be ended in one of the ways stipulated in that provision, as follows:

"366 Ending of rooming accommodation agreements

A rooming accommodation agreement ends only in 1 of the following ways -

(a) the provider and resident agree, in a separate written document, to end the rooming accommodation agreement;

(b) the provider gives the resident a notice under this part requiring the resident to leave the rental premises and the resident leaves the premises;

€ the resident or provider gives a notice under this part terminating the agreement on a stated day;

(d) if there is only 1 resident for the agreement -

(i) the resident gives the provider a notice ending residency interest, and vacates the rental premises, in compliance with the requirements under division 3, subdivision 2A; or

(ii) the resident dies;

See section 387A in relation to the death of a sole resident.

(e) the resident vacates, or is removed from, the rental premises after receiving a notice from a mortgagee or appointed person under section 384;

(f) the resident abandons the resident's room and the period for which the resident has paid rent has ended;

See section 509 for indications a resident has abandoned a room.

(g) the tribunal makes an order terminating the agreement.

See division 5 for the making of termination orders by the tribunal."

• [32] Sections 369 - 372 (as they were in force at the relevant times) then set out the different grounds upon which a provider may rely, for the purpose of issuing a Notice to leave to a resident and thereby bringing an RAA to an end. Those grounds included, for example, a failure to remedy a breach by a resident[10] or a serious breach by a resident[11], or the premises had been destroyed[12]. In addition, s. 372(1) permitted a provider to terminate a RAA without grounds by giving 30 days advance notice in writing. It should be noted that s. 372 was amended by the Housing Legislation Amendment Act 2021 (Qld). The amendment came into force on 1 October 2022 and the effect of the amendment is that providers of accommodation "are no longer able to give 'without grounds' notices and can only end agreements on specific grounds set out in the RTRA Act".[13] Section 372, prior to its amendment, provided as follows:

"372 Terminating of agreement by provider without grounds

(1) A provider may terminate a periodic agreement by giving at least 30 days written notice to the resident.

(2) A provider may terminate a fixed term agreement by giving the resident a notice stating the day, not before the end of the term and not less than 14 days after the notice is given, on which the agreement ends.

(3) A notice under this section must state the day the resident is required to leave the rental premises.

(4) However, the provider may not give a notice to a resident under this section because -

(a) the resident has applied, or is proposing to apply, to a tribunal for an order under this Act; or

(b) the resident has complained to a government entity about an act or omission of the provider adversely affecting the resident or another resident of the rental premises; or

(c) the resident has taken some other action to enforce the resident's rights or the rights of another resident of the rental premises; or

(d) an order of a tribunal is in force relating to the provider and resident.

(5) Also, the provider may not give a notice to a resident under this section if the giving of the notice constitutes taking retaliatory action against the resident."

• [33] From 1 October 2022, s. 372 provides as follows:

"372 Notice to leave for end of fixed term agreement

(1) This section applies in relation to a rooming accommodation agreement that is a fixed term agreement.

(2) The provider may give the resident a notice requiring the resident to leave the rental premises at the end of the rooming accommodation agreement.

(a) be in the approved form; and

(b) state why the resident is being required to leave the rental premises; and

(c) state the day by which the resident is required to leave the rental premises; and

(d) be signed by the provider.

(4) The day by which the resident is required to leave the rental premises must not be earlier than either of the following -

(a) 14 days after the notice is given to the resident;

(b) the end of the rooming accommodation agreement."

• [34] It is not in dispute that the decision of BHP to terminate the "Rooming Accommodation Agreement (RAA) between the resident and BHP Coal Pty Ltd" was first announced in a communications and engagement plan dated 11 November 2021 (the communications plan). [14] The communications plan was appended to the Form F10 Notification of dispute, lodged by the MEU.[15] The communications plan, headed "BMA Removal of RAA", stated that the termination was to take effect from 18 January 2022. It also outlined the steps to be undertaken by BHP to implement this decision. The purpose of the communication, including its background and objectives, was stated as follows:

"A Notice to Leave (Form R12) will be issued to impacted residents across Moranbah Single Person Village SPV, Dysart SPV, Eureka Village & Village on Blain (approx. 1,000 pax) and the Rooming Accommodation Agreement (RAA) between the BMA employee and BHP Coal Ply Ltd will be terminated, effective 18 January 2022.

It is important to note that impacted employees will no longer be charged for their rooms (which will save impacted employees approximately $3,000 per annum) and, at this stage the workforce will maintain their current accommodation rooms.

Residents are not being evicted from their accommodation and will keep their current room.

On removal of the RAA (from 18 Jan 2022), Entry Notice (Form 9) will no longer be issued for cleaning of rooms or maintenance."

• [35] Under the heading "Reference", explanations of the various terms used in the communications plan were set out as follows:

"Form R12- Notice to leave - Rooming accommodation

This RTA (Residential Tenancies Authority) form is issued to Residents to cancel the Rooming Accommodation Agreement.

This RTA form is the agreement between BHP Coal Ply Ltd and the Resident

This RTA form is currently issued to a resident when entry is required to a room for cleaning or maintenance purposes This will no longer be required once RAA (Form 18) is removed.

Refers to EA and non-EA workers residing at impacted accommodation facilities (Moranbah SPV, Dysart SPV, Eureka Village & Village on Blain)"

• [36] In a list of Frequently Asked Questions appended to the communications plan, further clarification was provided by BHP with respect to its decision to terminate the RAAs, as follows:

The Rooming Accommodation Agreement (RM) between the resident and BHP Coal Pty Ltd will be terminated on 18 January 2022.

This will apply to residents of Moranbah SPV, Dysart SPV, Eureka Village & Village on Blain.

Importantly, this administrative change does not mean that you are required to vacate, and you will not be required to move from your current room on this date.

Impacted residents will no longer be charged for their rooms (which will save impacted employees approximately $3,000 per annum).

Payroll deductions cease for NON-EA & EA employees.

Am I being forced to leave my accommodation/change rooms?

Importantly, this administrative change does not mean that you are required to vacate, and you will not be required to move from your current room on this date.

The R12 Notice to leave is a required procedural step in terminating the RAA. Residents are not evicted from their accommodation or required to change rooms as part of this change."

Cleaning or maintenance of your rooms will continue. On removal of the RAA, an Entry Notice (Form 9) will no longer be issued for cleaning or maintenance of your rooms. To enable access without disruption to your stay, please confirm your roster is accurate in the SAM - Accommodation Booking System."

• [37] Mr Borellini, has been employed as a coal mine worker by BHP at the Goonyella Riverside mine site in Central Queensland from around November 2007. Mr Borellini has maintained a residence at the SPV accommodation at Moranbah since approximately March 2012. When he gained the entitlement to the SPV accommodation, Mr Borellini understood that the $60 deduction from his wages was for the RAA, similar to employees who paid $60 per week for a residential tenancy; that his SPV was his room; and that he was able to access it whenever he required and be able to use it as a residence.

• [38] In January 2021, Mr Borellini's RAA was discontinued by the Company and the deduction of the $60 payment per week ceased. Mr Borellini placed the issue in dispute with the Company because of the concerns he held about this change. His concerns were that although he maintained another residence in Ayr, he often used his SPV accommodation when he was on RDOs and not just in between shifts. Mr Borellini expressed the view that there were a number of other employees residing in the SPV who also stayed in the camps during days off and not just in between rostered shifts. Mr Borellini noted that his residence in Ayr is a significant distance from the mine and he only returned to Ayr when he was on leave or had a number of days off in a row. If there was a short break between rostered swings, he would remain in his SPV accommodation.

• [39] Prior to the change in January 2021, the Company would always inform Mr Borellini and other residents when the rooms would be cleaned or when maintenance would occur. This would give him and the residents the opportunity to either vacate the room during that time or arrange for another room. However, after the change, Mr Borellini said the Company no longer notified him when the room was being cleaned or when maintenance would occur. Mr Borellini is concerned about cleaners or security personnel entering his room without notice and said that without the RAA, the Company has the ability to move to a system of "hot bedding" at any time whereby his room would be provided to other employees or contractors when he was not on shift. Mr Borellini felt that his SPV room was no longer his residence and that it was more of a temporary camp facility for work purposes only.

• [40] In submissions, the MEU stated that the starting point is clause 5.2 of the 2012 MAA, noting that clauses identical to clause 5.2 are also found in the Dysart and Blackwater Accommodation Agreements. In accordance with the principles relevant to the construction of enterprise agreements, the MEU submitted that the Commission's first task is to consider the ordinary meaning of the relevant words in the clause and in the context of the Agreement as a whole. In this instance, the wording of clause 5.2 states that those employees living in the SPV accommodation "will pay" a subsidised rate of $60 per week which "will" be deducted from their post-tax salary (emphasis added).

• [41] In the MEU's view, the use of the term, "will", indicates that it was the intention of the parties that the obligation or commitment that follows "will" is mandatory on all parties. Indeed, the term, "will", is used three times in clause 5.2. Firstly, it is used twice to indicate the rate of pay to be deducted and to ensure that the deduction is made by the employer from the post tax salary of an employee in return for accessing SPV accommodation. Finally, it is used to state that it is mandatory for employees residing in the SPV to comply with the rules of the SPV. The MEU submitted that the term "will" in clause 5.2 is used in circumstances where the only option for the parties is to meet the obligation or commitment. Each time it is used, it indicates that both parties must comply with the obligation in the manner as specified.

• [42] Given the repeated use of the term "will" in the clause, the MEU contends that any argument by BHP that the clause allows it to cease or alter the deductions of the $60 payment, would mean that BHP must simultaneously concede that employees also have an option to cease their compliance with the rules of the SPV when residing in the camp. Such an argument, in the MEU's view, would be a "nonsense". Logically, if one cannot read the obligation to comply with the SPV rules as being optional, then the clause must also be read in a manner that there is no ability to refuse to deduct the $60 in return for SPV accommodation.

• [43] In addition, the MEU contrasted the use of "will" with the use of "may" in clause 5.2 and said that the term "may" is used twice to convey the existence of optionality with respect to the commitments or obligations, i.e., BHP has the option to withdraw the SPV accommodation benefit if an employee fails to comply with the rules. Similarly, BHP has the option to direct employees in SPV accommodation to travel by bus if they live outside the region. If BHP had an option to cease the deduction of the $60 from employees accessing SPV accommodation, then the parties would have used "may" and not "will" in the clause. As this has not occurred, it is submitted that the ordinary meaning of clause 5.2 simply does not permit BHP to cease the deduction of the $60 payment and that BHP is bound to do so. Thus, the operation of clause 5.2 is, in the MEU's view, unambiguous.

• [44] While its primary submission is that clause 5.2 is unambiguous such that the ordinary meaning of the clause can be determined, the MEU also submitted that should the Commission find clause 5.2 to be ambiguous, regard should be had to the post-agreement conduct of the parties. It was highlighted by the MEU that the Moranbah, Dysart and Emerald Accommodation Agreements have remained in place without significant change since the approval of the BMA Enterprise Agreement 2012 and throughout the life of the BMA Enterprise Agreement 2018. As outlined in Mr Borellini's evidence, employees residing in the SPV would often stay in the camp on rostered days off and not merely in between shifts. Even if employees maintained residence elsewhere, they nevertheless used their SPV accommodation as a residence and not just for temporary accommodation during shifts.

• [45] The MEU noted that since the 2012 Agreement, employees residing in SPVs had an RAA with BHP. In the MEU's view, this was because of the operation of clause 5.2 and the deduction of the $60 per week. It contends that, while not explicitly stated in clause 5.2, the manner in which the clause has operated leaves it open for the Commission to make a finding that the real purpose of clause 5.2 and the $60 deduction was to create legal relationship between BHP and employees under the RTRA Act, for the benefit of employees, such as Mr Borellini. By having an RAA with the Company, the MEU submitted that employees using the SPV as a residence had the benefits and legal rights afforded to them under the RTRA Act.

• [46] Taking into account the nature and operation of the 2012 BMA Agreement and the relevant Accommodation Agreements, the MEU stated that it was open for the Commission to find that employees reasonably believed and expected that, when voting on the 2018 Agreement, clause 5.2 would require the continued deduction of $60 per week and afford employees residing in the SPV the benefit of an RAA. In addition, the conduct of the parties after the approval of the 2018 Agreement was also consistent with the expectations of employees when they voted for the 2018 Agreement. It was further submitted that the conduct of the parties between 2012 and 2022 therefore demonstrated a meeting of minds between the parties as to the intended operation of clause 5.2.

• [47] By ceasing the deduction of $60 and cancelling the RAAs, the MEU submitted that BHP has acted contrary to the intent of clause 5.2. If BHP were to submit that the effect of its actions has not altered the rights or entitlements of employees or that employees continued to maintain the same entitlements to SPV accommodation, the MEU said such submissions would be incorrect. By cancelling RAAs, the MEU said employees have lost vital legal protections afforded to them under the RTRA Act, including the legal right to quiet enjoyment. Employees no longer had any rights to dispute camp rules or to require notice to be given by BHP before entering employees' rooms. BHP now has unrestricted ability to alter camp rules and accommodation rights, as and when they see fit. For employees using the SPV as a residence outside of their rostered shifts, this was a major loss of freedom and rights that they reasonably expected would have been guaranteed when they voted for the 2018 agreement.

• [48] In response to BHP's submission that clause 5.2 does not impose an obligation on the Company in relation to the deduction of $60 per week, the MEU said that whilst the language used in clause 5.2 explicitly refers to the obligations of employees, the clause is simply not functional and would lead to irrational conclusions if similar obligations were not imposed on the employer. Firstly, the initial part of the clause states that "employees will pay a subsidised rate of $60 par week" for accommodation. For the clause to function effectively, it must also require the employer to have a corresponding obligation to accept the $60 payment. Secondly, if BHP were able to simply refuse to accept the payment, the drafter would have used the term "may" and not "will". Thirdly, if the employee remains under an obligation to make a $60 payment for the SPV accommodation, there must be a corresponding obligation to accept payment placed on BHP so that the employee can comply and not be in contravention of the 2018 Agreement and exposed to a civil penalty. BHP's interpretation would lead to an industrially absurd outcome whereby the employer can unilaterally refuse to accept the $60 payment, notwithstanding that the employees remain obliged to make the payment.

• [49] As to a submission by BHP that employees have continued to be entitled to accommodation under the Accommodation Agreement despite the ceasing of the deduction of $60 per week, the MEU submitted that even if BHP were to largely maintain the rights of residents that were previously provided for under the RAA, employees have no certainty that BHP would not alter those terms and conditions in the future, nor do employees have any legal right to enforce certain conditions for their accommodation.

• [50] In relation to BHP's submission that there is nothing in the text of the Accommodation Agreement that suggests clause 5.2 was intended to create any benefits or rights for employees, including those under the RTRA Act, the MEU submitted that the overall intent of the 2012 MAA is to provide a range of discounted residential accommodation for all employees based on their personal status. Employees accessing accommodation under the Agreement are then entitled to access the requisite legal rights associated with maintaining a residence in Queensland. Whether it be rental or private properties, employees have access to the rights afforded to them through legislation or instruments such as tenancy leases.

• [51] The MEU submitted that prior to the decision in November 2021, employees in SPV were afforded similar associated legal property rights as other employees for maintaining a rooming accommodation residence. It was submitted that the intent of clause 5.2 was to provide the mechanisms for employees residing in SPV accommodation to create housing rights as provided for in State legislation, so that there was little difference between employees accessing SPV accommodation and those accessing other types of accommodation. For example, in accordance with clause 5.1, single employees are entitled to either SPV accommodation or a one or two bedroom unit. If a new employee were allotted a 1-bedroom unit as their entitlement, they would be required to enter into a residential tenancy agreement with the Company for the property, thereby affording both parties the rights and obligations that the lease entails.

• [52] However, if BHP's submission is accepted, that same employee could be assigned SPV accommodation but without access to the corresponding legal rights and obligations that come with an RAA. The MEU submitted that it would make no sense for an employee accessing one form of accommodation be denied the ability to access the associated legal property rights that are afforded to other employees accessing alternative forms of accommodation or to have that right removed unilaterally by the employer without recourse. Thus, the MEU's submission is that the intent of clause 5.2 is to ensure that employees accessing SPV accommodation are afforded rights and obligations like employees accessing the other forms of accommodation.

• [53] In relation to the approach advanced by BHP that the common law principles of contractual interpretation should be adopted in the construction of the Accommodation Agreement, the MEU contends that such an approach is a narrow and pedantic one that should be rejected. The MEU stated that it is well established that the interpretation of enterprise agreements cannot be an overly technical, but rather, should rely upon the ordinary meaning of the words in the context of the Agreement as a whole.

• [54] It was submitted that the interpretation advanced by BHP that the employer does not have any obligation to deduct the $60 or has some form of unilateral right to waive acceptance of the $60 payment, is one that places reliance upon a technical legal point of common law contractual construction. Such an approach was said to favour an interpretation based on the legal niceties found in common law contracts over a more purposive approach in order to ascertain its meaning, thus ignoring the principles of the interpretation of enterprise agreements found in both Skene[16] and Berri[17].

• [55] In response to questions from me as to the basis for the assertion that an RAA applies in the context of SPV accommodation and whether, if the company's interpretation of clause 5.2 were correct, it would be open to the company to refuse to accept rent and terminate a residential tenancy agreement concerning other forms of accommodation, Mr Newman said that the Company could take the same approach in relation to such agreements.[18]

• [56] In summary, the MEU submitted that in answering the question as agreed by the parties in the dispute, the Commission should find:

a) That the ordinary meaning of clause 5.2 does not allow the Company the option to cease deducting the $60 payment for SPV accommodation; and

b) Given the nature of the conduct of the parties between 2012 and 2021, it is reasonable to conclude that there was a meeting of minds in relation to both the deduction of $60 per week as well as the reasons for it under clause 5.2 affording employees in SPV accommodation the right to a RAA.

• [57] On that basis, the MEU submitted that the Commission should answer "No" to the question for determination. In oral submissions in reply, the MEU contended that BHP had not waived its right to deduct $60 per week from the wages of employees, but rather was refusing to do so, and the issuing of the notices to employees terminating the RAAs evidences that the payment of $60 per week by employees was intended to create the necessary legal framework by which an RAA would come into effect.

• [58] Mr Darryl Piper, an AMWU delegate, is employed as a Boilermaker by BHP Coal Pty Ltd T/A Mitsubishi Alliance (a BHP joint-venture) at the open cut coal mine at the Goonyella Riverside site. Mr Piper has been in the role since February 2005 and is currently on a "lifestyle" roster which follows a pattern of 5 day shifts, 5 days off, 4 night shifts and 4 days off. Mr Piper was involved in the bargaining for the 2022 Agreement and had some involvement in the bargaining for the 2018 Agreement. Mr Piper was also involved in the negotiations for the 2012 MAA when it was first introduced and understands that the 2012 MMA was incorporated into the 2012 Agreement so that it did not need to be renegotiated every time a new enterprise agreement was negotiated. In addition, Mr Piper understands that the "Village Rules" are applicable to him as a resident in the Moranbah Single Person Village.

• [59] When Mr Piper is rostered to work at Goonyella, he stays in the Moranbah SPV, which is accommodation for single people who do not have dependents. Mr Piper stated that sometimes he stays in that accommodation when he has not been rostered to work, for example, when he attended events with co-workers in Moranbah on his days off. Mr Piper described his SPV accommodation as a room that is approximately 4m by 3m in size with a single bed, a small study desk built into side cupboards, a TV mounted on the wall, a small couch, a small bathroom with a toilet and a stand-up shower and a balcony approximately 1m by 2m in size. In addition, Mr Piper described that there are three of those rooms in each demountable "house". The doors are next to each other. The demountable houses are connected by concrete paths which also connect to the mess hall. Mr Piper said that he does not share any facilities with other employees, except the mess hall where the residents eat their meals and "get their crib".

• [60] In or around July 2015, Mr Piper commenced residing in the Moranbah SPV and he was allocated a particular room. Mr Piper stated that he uses the same room every time he stays at the Moranbah SPV and considers it as his permanent room. Mr Piper keeps personal effects in the room, such as pictures of his family and he described the accommodation as his "home away from home". Mr Piper arrives and leaves his Moranbah SPV at the start and end of each swing, and he signs in and out by texting his name and room number to a mobile number provided by the Company. Were he not provided with accommodation by the Company, Mr Piper would probably have to rent accommodation privately in Moranbah.

• [61] When he first moved into the Moranbah SPV, Mr Piper believed that he was provided with and signed a "Rooming Accommodation Agreement", a form issued by the Residential Tenancies Authority Queensland. However, Mr Piper no longer has a copy of the Agreement that he signed. In this regard, Mr Piper spoke with a colleague, Mr Farmer, who has retained a copy of the RAA that Mr Farmer signed. Mr Piper believes he signed the same standard form agreement. A copy of Mr Farmer's RAA was. Mr Piper recalled only signing an accommodation agreement once. The "rent" charged under the RAA was $60.00 per week and that amount was deducted from his pay by the Company and the deductions were stipulated in his payslips. Mr Piper further recalled that the first deduction was made as soon as he moved in to the SPV. Prior to moving into the SPV, he had to wait for a room to become available and during that time, he stayed at the Eureka Camp which also cost $60 per week.

• [62] Prior to January 2022, Mr Piper said he did not recall being notified of any formal "inspections" of his room and entry into his room was only for cleaning and general maintenance. Mr Piper said he has never been provided with a formal "notice" of those entries. Instead, there was a board in the mess hall which displayed a cleaning schedule of which rooms would be cleaned and on which days. That was the only notice of entry with which he was provided. If his room required maintenance, Mr Piper had to go to the SPV office and complete a maintenance request form to provide consent for his room to be entered for maintenance. Mr Piper's understanding was that the Company was required to either give notice, or obtain his consent, to enter his room because of the accommodation agreement and the obligations under the relevant residential tenancy legislation.

• [63] On or around 18 November 2021, Mr Piper received an email from the Company informing him of changes to his accommodation arrangement, in identical terms to the Notice to Residents appended to the MEU's Form F10 Notification of dispute, as follows.

The purpose of this letter is to let you know about some upcoming changes to your accommodation arrangement which will mean from 1 January [2022] you will no longer be charged for your village accommodation.

Importantly, this administrative change does not mean that you are required to vacate your accommodation, and you will not be required to move from your current room when the changes come into effect.

If you have any questions about the process, we encourage you to contact [email address] or speak to your supervisor.

From 1 January 2022, an accommodation payment will no longer be deducted from your salary (a saving approximately $3,000 per annum)

Enclosed is a standard notice (Form 12) that is required to be issued to end a Rooming Accommodation Agreement (RAA).

This Form does not mean you are being evicted from your accommodation and you are not required to leave your current room.

Your accommodation entitlement will not change as a result of this notice and you will continue to be entitled to accommodation in line with the terms and conditions of employment.

The RAA between you and BHP Coal Pty Ltd will end on 18 January 2022, but this does not mean you need to vacate your accommodation.

Enclosed is a notice (Form 12) issued under section 372 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTA) terminating the RM between you and BHP Coal Pty Ltd.

From 1 January 2022, payroll deduction for your accommodation will cease.

There is no requirement for you to vacate your current accommodation.

On removal of the RAA, the standard Entry Notice (Form 9) will no longer be issued for cleaning or maintenance of your room. To enable access without disruption to your stay, please confirm your roster is accurate in the SAM - Accommodation Booking System.

Please also to continue to check in and out at the administration areas in accordance with the standard village procedure.

RAA ends (no requirement to vacate)" [19]

• [64] Appended to the correspondence is a Form R12 Notice to Leave - Rooming Accommodation,[20] a form created by the Residential Tenancies Authority Queensland for the purpose of ending a rooming accommodation agreement in accordance with ss. 366, 369-372 and 384 of the RTRA Act. The Notice was issued to Mr Piper. Under item 2 of the Form R12, the Notice was issued and signed by BHP Coal Pty Ltd as the "Manager/provider". Item 4 of the Notice stated that the Notice was issued "without grounds". The Notice was issued on Thursday, 18 November 2021, under the option of by email or in person. Item 6 stated that resident/s must vacate the property by midnight on Tuesday, 18 January 2022 and that if a resident did not leave by the stipulated time, "it may be lawful for the agent or manager/provider, and anyone helping them, to use necessary and reasonable force to remove you and your property from the residence, in the presence of a police officer."

• [65] Mr Piper's understanding of the correspondence is that if he no longer pays rent, he does not have an accommodation agreement and the room is technically the Company's room rather than his room, and the Company could enter the room at any time. Mr Piper is concerned that this meant that the Company would start "hot bedding" at the SPV allowing other employees to use his room on his days off. Mr Piper feels uncomfortable about the change and considers that he may be required to remove photos of his family and other personal items as he did not know who would now be staying in his room in his absence. Consistent with the correspondence, Mr Piper recounted that the deductions did stop in January 2022 and the one-month notice given by the Company was consistent with the requirements under the legislation.

• [66] After the change, Mr Piper said he did not know whether anyone stayed in his room while he was not there or whether the room has been entered or inspected without notice. However, in early 2022, Mr Piper said he found a card holder under the pillows on his couch, and it contained expired tickets and licences. Mr Piper said he was distressed as he had not been informed that anyone was in his room. In addition, Mr Piper expressed the view that aside from "hot bedding", residents were also worried about any unilateral changes to the Village Rules by the Company. Mr Piper said that currently the Company seeks the agreement of residents to change the rules. However, Mr Piper said that if the Company can enter their room at any time, people were worried that they may be evicted from the SPV for breaking those rules.

• [67] In submissions, the AMWU and the CEPU stated that the only clause which appears to be in any way controversial is clause 5.2 of the Accommodation Agreement. Read in its context - particularly the documentary context of an agreement about accommodation - it was submitted that the intent of the clause is to record an agreement about the payment and collection of rent. It imposes obligations on both the employee and BHP - one to pay, and the other to accept. In other words, it is directed at establishing the fundamental and reciprocal relationship of landlord and tenant with all its attendant consequences. It is submitted that this is in fact what the clause does, and it is apparently uncontroversial that the arrangement attracted the coverage of the RTRA Act.

• [68] In that light it would be facile to read the provision as simply a one-sided obligation on the employee which BHP can elect to waive. This is because the payment attracts two benefits: first, it functions as consideration for the provision of accommodation, and second, it provides employees who use the accommodation for long periods as effectively their "home", with the ordinary protections that renters enjoy, namely, a basic right to quiet enjoyment. Any ambiguity in the text should be resolved with reference not only to this context, but also to the behaviour of BHP surrounding the making of this agreement. In this regard, the intervenors referred to the historical treatment of these SPVs as subject to the RTRA Act by clearly established practice and the lack of any foreshadowed change to this in the bargaining process.

• [69] Further, it is "too glib" for BHP to dismiss the change as simply "deciding not to collect rent" and it is apparent that the actual decision was to take steps to remove the continuing application of the RTRA Act, and thus to fundamentally change the rights of employees to their detriment. That the impact of the change was so significant further demonstrates the incorrectness of any such interpretation. It was submitted that instead, what remain are corresponding promises: one to pay rent, and one to take it, and on doing so accept the obligations imposed by protective legislation.

• [70] In relation to a suggestion by BHP that the Accommodation Agreement is "intended to operate of its own force", the AMWU and the CEPU submitted that this seems to be directed at supporting a submission that its interpretation should be approached as though it was a pure commercial contract, absent any of the particular features that influence the way enterprise agreements must be read. In this respect, the AMWU and the CEPU submitted that the difficulties with this approach are:

• Firstly, the 2012 MAA is expressly incorporated into the Agreement by clause 34.2(b) and is undeniably part of the 2018 Agreement proper. BHP was required to, and presumably did, distribute it to employees during the pre-approval access period as required by s. 180(2)(a)(ii), as part of the matters that the employees were being asked to vote for. It is not clear how it could be sensibly severed from the Agreement itself;

• Secondly, the 2012 MAA simply does not function as a contract, commercial or otherwise. The "parties" are described as the two employer parties and the three relevant Unions, and not the employees whose rights and obligations it affects. None of the above have authority to enter into contracts on behalf of individual employees; and

• Thirdly, the 2012 MAA is described as becoming binding on BHP only when the 2018 Agreement was approved. By virtue of the BMA Agreement, it binds employees (i.e. new starters) who were not even engaged when BHP became bound. It is not capable of being enforced except through mechanisms within and concerning the Agreement. An individual employee could not bring a claim for breach of contract based on BHP's non-compliance with the terms of the document. The Accommodation Agreement is simply an adjunct of the BMA Agreement. Plainly, as the Company's evidence makes clear, it was negotiated at the same time, in the same manner and between the same people as the Agreement. It should be interpreted in the same way.

• [71] It was submitted that the principles of interpretation derived from cases concerning contract are not necessarily irrelevant, given that there is significant convergence in the modes of textual analysis used in respect of both types of instruments, in the same way as there has been convergence in relation to the principles applicable to statutory interpretation and construction of an enterprise agreement. It was also submitted that "the emphasis [is] on the objective ascertainment of the instrument's purpose and the move from textual to contextual interpretation"[21] and the real point is that it is "necessary in interpreting a particular instrument to pay attention to the peculiar characteristics of that instrument".[22] In this regard, the enterprise agreements have particular features, notably in the manner in which employees become bound regardless of individual consent and the way in which they are negotiated. The real vice in BHP's submissions in this respect is the suggestion that the Accommodation Agreement should be treated like a commercial contract and the contextual features are thereby ignored.

• [72] In relation to a submission by BHP that it is not permissible to have regard to post-contractual conduct, the AMWU and the CEPU contended that if read as an absolute, the submission is incorrect regardless of whether the matter is approached as a question of pure contractual interpretation or not. In this regard, while as a general rule post-contractual conduct may not be employed in construing the terms of a contract,[23] there are exceptions whereby post-contractual conduct can be used:

"(a) to evidence the existence of a fact or relevant surrounding circumstance existing at the time the contract was made which is material to its subsequent interpretation;[24]

(b) to prove the existence of a contract at all, or its subsequent variation;[25]

(c) where the contract is not the sole repository of the terms of engagement between the parties, to prove the absent terms and the true nature of the relationship between the parties;[26]

(d) in rare circumstances to identify a mutually held understanding as to the effect of the contract or its terms.[27]"

• [73] In this regard, the AMWU and CEPU submitted that only (d) appears to be relevant in the present case. It was said to be a very narrow exception, which requires evidence of a "clear and mutual subjective intention as to what the contract originally meant"[28] It likely requires support in the objective framework of fact found to exist at the time.[29] It was said that the exception is subject to the overriding necessity to have regard to the objective theory of contract. In all but the rarest of cases, the subsequent conduct of parties goes no higher than demonstrating, at best, their subjective understanding of the meaning of the clause - what they meant to do rather than what they did. In many cases, it will not even go that far, particularly in circumstances where what is relied on is silence. A failure to enforce a term or insist on its performance may be motivated by mistake, poor advice, an absence of bargaining power or a desire to maintain harmonious relations - something more is required to demonstrate actual concurrence.

• [74] In this case, what is relied upon is: the long history of these Accommodation Agreements which makes it clear that the amounts payable by employees constituted rent in the ordinary sense; and the similarly long history of, in compliance with the underpinning legislation, entering into RAAs with employees and complying with those obligations, such that a common understanding as to the nature and purpose of the MAA emerges - that is, it is directed at establishing and maintaining a landlord/tenant relationship.

• [75] BHP's proposition that the use of "will" in clause 5.2 is permissive rather than mandatory, such that BHP has a discretion to deduct rent if it so chooses, is completely at odds with what "will" in its ordinary sense conveys as a modal verb - it expresses inevitable future events. It was submitted that this is how it is otherwise used within the Agreement to describe mandatory obligations for BHP and reference was made to the following examples:

"• at clause 3.7(b) and (e), in the context of paid suspensions during disciplinary investigations, "the company will update the employee... on a regular basis" and, where the employee is required to return to the mine to meet with the Company, "will arrange return transportation";

• at clause 3.8(d), in respect of unpaid standdowns, BHP "will take all reasonable steps to minimize the need for standing down Employees";
• at clause 5.1(b), dealing with training, BHP "will develop a skills matrix...[and] will publish the skills matrix annually";
• at clause 5.2(a), in addressing payment for training, BHP "will provide" transport and other matters; and
• at clause 18, in relation to superannuation, "BHP will make...superannuation contribution".

• [76] The AMWU and the CEPU submitted that none of these provisions, nor the plethora of other examples, could in any way be sensibly read in the manner contended by BHP. Where there is a lack of certainty that the relevant action will occur, or a discretion is otherwise retained, caveats also appear in the language. For example, BHP "will endeavour to establish and maintain training programs" in relation to training in clause 5.1(c) or BHP "will approve leave at its discretion" in respect of leave approvals in clause 22.6. As such, the AMWU and CEPU contend that it is highly unlikely that the parties intended a new, and novel, meaning to be attributed to the word "will" in the Accommodation Agreement.

• [77] Another issue with BHP's construction of clause 5.2 is that it requires the word "will" to be given two distinct meanings within the one sentence: First, its ordinary meaning, imposing an obligation on employees to pay the subsidised rate; and second, the meaning BHP contends for, effectively substituting "may" for what the clause says, unless BHP would also accept that the clause gives employees a discretion to pay rent if they choose. While BHP's contention in this regard is that the clause solely benefits the employer, the clause is not as simple as that. What it in fact does is identify: the fact of the subsidy, i.e., that BHP is absorbing part of the rent the employee would, in the surrounding context of a landlord/tenant relationship, be obliged to pay; and the mechanism by which it would be extracted, i.e. principally a benefit for the employee. Viewed in light of the uncontested surrounding circumstances, notably the long-standing use of RAAs, the intervenors' view is that it cannot be sensibly read as a clause allowing BHP to deduct money or not - and thus entirely alter the legal relationship between the parties at its discretion.

• [78] In relation to BHP's contention that any party to a contract is entitled to "waive compliance with a condition that is not inextricably mixed up with other parts of the transaction such that it cannot be severed", it is submitted that to a degree that is true in respect of contracts. However, it is not clear that the principle flows in respect of enterprise agreements where parties have independent obligations to comply under statute, as opposed to simply arising due to a promise between them. Even if it were a principle applicable to enterprise agreements, the difficulty is that: the "transaction" is the provision of residential rooming accommodation by BHP (the landlord) to employees as tenants; an obligation to pay rent is inextricable with that relationship; and BHP's "waiver" has facilitated purportedly to fundamentally alter the legal relationship between BHP and its tenants, to their detriment. In any event, the language of "waiver" is inapt in this case as BHP has not simply decided to stop charging employees by way of waiving their obligation to pay but has refused to accept rental payments via the agreed mechanism for the express purpose of obtaining a benefit for itself and to the employees' detriment. This is a different concept and not permissible under the terms of the Agreement.

• [79] In oral submissions, Mr Saunders for the AMWU and the CEPU contended that BHP's refusal to deduct the weekly payment has the effect of turning "residential employees into effectively commuters"[30]. In this respect, there is a delineation in the BMA Agreement between accommodation arrangements and commute arrangements (FIFO work).[31] Reference was made to clause 34.3 which explains the nature of a commute arrangement. It was said that clause 34.3(b) makes it clear that it is not the default form of engagement at the site and employees have a choice between commuting and residential options. Under clause 34.3(d), bus or air transportation organised by the Company is an option for employees to travel to the mine from the various locations and Mr Saunders said that this reflects a "true FIFO arrangements".[32] Having regard to clause 34.3, it was submitted that:

"These [commuting] employees are housed, are provided with village accommodation, not in accordance with the underpinning accommodation agreement, they just get a room in a village and that's the difference here. They are treated very differently to for example Mr Piper who is not a commuting employee and who has until recently enjoyed the benefit, we say still does, enjoyed the benefit of the company recognising that he's covered by the Residential Tenancies Act, and be according rights and entitlements for his home to be his home.

The consequence of BHP's new interpretation is that he is functionally treated like a commuting employee. He has no more or no less than the rights they have. It's a strong indication that the interpretation is wrong in that it elides that delineation that has been clearly established in the enterprise agreement. The interpretation or what BHP did, whichever came first, removes that distinction. There's no textual support for turning a non-commuting employee into a commuting employee..."[33]

• [80] In addition, the AMWU and CEPU submitted that the distinction between commuting and residential arrangements has always been understood by the parties as "being different things, different arrangements to track different entitlements".[34] Reference was also made to the various communications from BHP to employees regarding the negotiation of the accommodation arrangements during the bargaining of the 2012 Agreement.[35] These communications were said to support the proposition that the distinction between the two types of arrangement and the importance of preserving employees' ability to elect "to live in either company controlled property in town or the single person village accommodation" was recognised by BHP when the 2012 MAA was being negotiated.

• [81] In relation to a question from me as to whether the Company still retains the rights to terminate a RAA under the RTRA Act if it had a mandatory obligation under clause 5.2 to continue to deduct the $60 weekly payment,[36] Mr Saunders said that the Company has a persisting obligation under the BMA Agreement and the 2012 MAA to provide accommodation in line with employees' preferences and therefore, the rights that a landlord ordinarily has, are conditioned by its agreement to provide such accommodation.[37] As to whether this would create an anomalous situation, where the Company remains obliged to provide accommodation to employees under the Agreement, despite exercising its rights under the RTRA Act to terminate the RAA, or withdrawing the accommodation benefit from an employee for failing to comply with the rules of the SPV, it was submitted that the Company would have a continuing obligation to deduct the weekly payment and provide accommodation regardless.[38] In this regard, the point of the Accommodation Agreement was to provide additional certainty to employees living in the location of where their job is[39] and BHP "can't leave the employee homeless in Moranbah".[40] The only circumstance where the Company ceases to be bound by those obligations is when the employee ceased employment with the Company.[41]

• [82] In summary, the AMWU and CEPU submitted that the Commission should find that BHP's conduct is plainly inconsistent with its obligations under the Accommodation Agreement and thus, the 2018 Agreement, and that BHP must reinstate the $60 per week deduction. It was also noted that questions of non-compliance with the RTRA Act in the interim, and compensation for any loss or damage suffered by employees, are matters to be dealt with in a jurisdiction other than the Commission. In reply submissions, the AMWU and the CEPU said that in the alternative, the question for determination may also be answered as follows:

"Yes, but only to the extent that it simply excuses the employee's obligation to pay, and not whereby it refuses to accept payment and contends a rental obligation no longer exists".

• [83] In oral submissions in reply, Mr Saunders for the AMWU and CEPU accepted that the question of what clause 5.2 requires is in part a textual analysis but cannot be divorced from the context of the 2018 Agreement. The reason why clause 5.2 is mandatory, is because in context, the amount deducted is rent. It is the process by which rent will be paid and is subsidised and accepted. It was submitted that the communications plan appended to the MEU Form F10 makes clear that BHP saw a link between deducting rent from employees and the corresponding obligations arising under the RTRA Act in relation to landlords.

• [84] Further, Mr Saunders said that the 2012 MAA is not itself an RAA. Rather, it is an agreement about how accommodation will be provided to employees. The proper (and fundamental) question is whether the accommodation being provided to employees is rooming accommodation, and if the answer is yes, then any agreement about its provision, becomes, by virtue of s. 16 of the RTRA Act, an RAA between the Company and an individual employee. Clause 5.2 of the 2012 MAA becomes important because rooming accommodation is defined in s. 15(1) of the RTRA Act, as accommodation occupied, or available for occupation by residents, in return for the payment of rent. This was said to have motivated the change to previous arrangement whereby accommodation was provided. It was also submitted that s. 14(a) of the RTRA Act does not require that the rooming accommodation is the person's only residence and is capable of being read as a main residence in an area where someone is residing at a particular time. It is the main residence of Mr Piper and Mr Borellini when they are in the town. Accordingly, whether the agreement to let them go into that particular accommodation is written or oral, it is a RAA. Further, it was submitted that the critical difference between BHP and the Unions is whether BHP is generously waiving employees' obligation to pay their rent or refusing to collect. What BHP is doing is not "a freeby" but rather, a change in legal relationship. BHP can choose to give employees a rent abatement, but only to the extent that it is excusing non-payment, and not to the extent that it is refusing to accept payment and contending that a legal relationship no longer exists.

• [85] The AMWU and CEPU do not rely on an implication argument but instead, contend that the RTRA Act, the RAA and other documentation, establish objective background facts for the purposes of the context in which the 2012 MAA was made.

• [86] Mr Peter Stelmach has held various Human Resources positions since the mid-1990s and was previously employed by BHP as Manager - Employee Relations between August 2009 and May 2013. In his role with BHP, Mr Stelmach led the negotiation for the 2012 BMA Agreement with assistance from members of BHP's Employee Relations team. Mr Stelmach recounted that at the time, the various Unions were negotiating and bargaining with BHP as a "Single Bargaining Unit" (SBU). For specific parts of the bargaining, the team was also supported by the HR team, including Ms Licia McGroarty (formerly, Ms Licia Miller), who was the Senior Employee Relations Advisor with BHP at the time.

• [87] As the lead negotiator of BHP's Negotiating Team, Mr Stelmach explained that he managed and was involved in all negotiations for the 2012 BMA Agreement either personally or through team members who reported to him about the progress on specific issues they were dealing with, so that he could deal with them at the main bargaining table. For instance, Mr Stelmach said he attended almost all of the site schedule meetings to discuss BMA's proposed site schedules, though he did not attend any of the town meetings to discuss the Accommodation Agreements. In both instances, Mr Stelmach said that those who did attend, reported to him so he could deal with issues from those meetings as required in the bargaining meetings with the SBU.

• [88] During this period of bargaining, Mr Stelmach recounted that accommodation was not a major issue. The intention of BHP at the time was to get the Agreement finalised with a reference to the town accommodation agreements and then to close out those agreements after the Enterprise Agreement. Mr Stelmach does not recall having any discussion at all about Rooming Accommodation Agreements or any intention or assumption that the multiple accommodation subsidies, as applicable at the time, were linked to residential tenancies.

• [89] After the proposed BMA Agreement was first voted down by employees in October 2011, bargaining meetings resumed in October 2011 with further meetings through to March 2012. One of the issues that came out of the unsuccessful ballot was the dissatisfaction of employees with the fact that the Accommodation Agreements (and site schedules) had not been finalised to the satisfaction of the lodges. In response to this, Mr Stelmach recalled that a small team was assigned to conduct further discussions at town level on the Accommodation Agreements and to report back.

• [90] Mr Stelmach stated that he did not attend the township-level discussions and the representatives from BMA who attended those discussions were primarily Ms McGroarty and Mr Jon Evans. Mr Stelmach said that the report he received was that the majority of issues in those discussions were local ones and he was never advised by Ms McGroarty or Mr Evans that matters of residential tenancies or rooming accommodation agreements had been raised.

• [91] In March 2012, Mr Stelmach recounted that, after a period of deadlock between the negotiating parties, the parties engaged in renewed discussions and in those discussions, the negotiating parties dealt primarily with issues of rosters, but also other issues identified by the SBU as being critical. Mr Stelmach's recollection is that there was no discussion in relation to any of the content of the Accommodation Agreements or residential tenancies or rooming accommodation agreements.

• [92] In July 2012, Mr Stelmach recalled that BHP and the SBU agreed to participate in a mediation. In the mediation, the parties agreed to set out all outstanding issues in an MOU and implement a process to deal with those issues and to finalise the Enterprise Agreement, the site schedules, and the Accommodation Agreements. It was agreed that the differences between the parties with respect to site schedules and accommodation issues would be resolved at the site level sessions. Mr Stelmach said that the status of SPV rooms or the RTRA Act was not identified as a difference by the parties coming out of the mediation.

• [93] Mr Stelmach further stated that while he was not directly involved in the accommodation discussions, Ms McGroarty was assigned to manage those meetings at a site level. Mr Stelmach recalled receiving reports after those meetings and to the best of his recollection, there was no report back to him of any discussion during the town meetings that concerned any connection between SPV rooms and residential tenancies or rooming accommodation agreements. Mr Stelmach had a subsequent meeting under the MOU and all outstanding accommodation issues were discussed. Any changes that were agreed on were captured in the EA to be put to a ballot. Mr Stelmach said that again he did not recall any discussion of any connection between SPV rooms and residential tenancies or rooming accommodation agreements.

• [94] Ms Licia McGroarty was employed in various roles by BHP between August 2011 and November 2021. In late October 2011, Ms McGroarty said she was assigned to assist the BMA bargaining team with the negotiation of the 2012 Agreement, including the bargaining for the Accommodation Agreements. Prior to the first ballot, Ms McGroarty said there had been no substantive discussion of the content of the Accommodation Agreements in the enterprise agreement negotiations.

• [95] Ms McGroarty recounted in July 2011, Mr Stelmach had redrafted the then accommodation arrangements at each mine as an interim step and forwarded them to the SBU, with the intention of conducting a review of those Accommodation Agreements within 2 weeks of the approval of the BMA Agreement. This assurance was provided to the SBU as an undertaking. The first ballot, however, was unsuccessful. Immediately following the first ballot, Ms McGroarty recalled that BMA received feedback that employees wanted greater certainty about their accommodation arrangements. The SBU was then advised by the Company that it was prepared to commence meetings to review the Accommodation Agreements before the next vote so they could be put to the next ballot as part of the BMA Agreement.

• [96] Ms McGroarty was subsequently assigned to a small sub-team to bargain with the SBU and report back to Mr Stelmach who led the main bargaining team. Ms McGroarty said that a series of meetings were set up across the four towns. She attended the Moranbah Accommodation meetings which occurred on or around 8 November and 14 December 2011 and possibly another meeting on 21 December based on her memory. Ms McGroarty recounted that the key issues raised and discussed during those meetings were:

• The cost of rent and the rate of reimbursement and that a third party or the market rather than BMA should decide the market rates;
• The preponderance of short-term rentals due to market issues and the increase of rent at every renewal;
• Employees had to move every time their rental ceased and were then exposed to market increases;
• Many employees had to move usually every 12 months or less and pay removal fees; and
• The employees had a perception that BMA's failure to provide sufficient housing was contributing to those issues.

• [97] Prior to the 2012 Agreement, Ms McGroarty explained that there were different subsidy rates for different types of accommodation, and this varied across sites. The rate of subsidy, whether it was for SPV, CCP rentals, third-party rentals or otherwise, was an issue across all Accommodation Agreements. As BMA's representative in the bargaining for the Moranbah Accommodation Agreement, Ms McGroarty said she was not even aware whether the Company used RAAs or not. In addition, Ms McGroarty said at no stage did BMA ever indicate to her that there was any connection between the subsidies and the RAAs or that this was an issue for discussion, nor was this connection raised by the SBU in their discussions. To the best of her Ms McGroarty's recollection, there was either no, or at most only incidental, discussion specific to SPV benefits, and there was no discussion at all in relation to the topic of RAAs under the RTRA Act.

• [98] In April 2012, the proposed BMA Agreement was put to a second vote and the ballot was again unsuccessful. After a period of further bargaining between the parties and considerable protected industrial action, the parties agreed to participate in a mediation and reached a MOU to canvass a process to finalise all outstanding issues in the Agreement, the site schedules and the Accommodation Agreements. This included listing all the differences between the parties concerning those documents. However, the status of SPV rooms and the RTRA Act was not listed under the MOU as a difference identified with respect to accommodation.

• [99] Further, Ms McGroarty stated that it was also agreed that the identified differences in relation to the subject of accommodation would be resolved using the site level sessions. For the MAA, the discussion between the SBU and the Company was based on the version of the MAA that was included in the April ballot pack. Ms McGroarty said that there was no discussion at all about the rate of subsidy or the RAAs under the RTRA Act.

• [100] In submissions, BHP explained that the Accommodation Agreement was agreed in 2012 between BHP Coal and Broadmeadow Mine Services Pty Ltd and the relevant unions. The 2012 MAA was an agreement reached in negotiations between July 2012 and October 2012 and it was made and existed outside the 2012 Agreement but incorporated into that Agreement under s. 257 of the FW Act. The 2012 MAA operated in the same terms under the 2018 Agreement and the current 2022 Agreement. BHP submitted that this is reflected in recital 5 and clause 9(b) of the 2012 MAA and that it was intended to take, and still has, effect as a contract between the parties.

• [101] BHP submitted that during the negotiations for the MAA in 2012, there was no discussion of the RTRA Act or any idea that the MAA would or might create rights under the RTRA Act or that the deduction of $60 from employees' remuneration by BHP (being a party to the MAA) would or might have the legal effect of creating residential tenancy rights or arrangements for employees. In BHP's view, the objective purpose of the 2012 MAA as a whole, is to provide eligible employees with a range of company subsidised accommodation options, subject to their availability.

• [102] It was not disputed by BHP that on or around 18 November 2021, correspondence was issued by BHP, via email and hand delivery, to all employees in the SPV which stated that from 1 January 2022 employees would no longer be charged for their SPV accommodation and that the $60 deduction would stop. BHP said it made clear to employees that they would continue to be entitled to accommodation in accordance with the MAA. BHP also accepted that for employees provided with SPV accommodation, the deduction of $60 per week from employees' post tax salary ceased on 1 January 2022.

• [103] As to the approach to the construction of an industrial instrument, BHP submitted that as with a contract, it begins with a consideration of the ordinary meaning of its words, read as a whole and in context.[42] Regard must be had to the context and purpose of the provision or expression being construed and the commercial and legislative context.[43] Context may appear from the text of the instrument taken as a whole, its arrangement and the place within the Agreement of the provision under construction. It may extend to the entire document of which it is a part or to other documents with which there is an association.[44]

• [104] In addition to the established approach to the construction of industrial instruments, BHP further submitted that general principles of contractual interpretation and the common law of contract are also relevant. In this respect, BHP contends that despite the Accommodation Agreement being incorporated into the enterprise agreement, the Accommodation Agreement is intended to operate of its own force as a contract between the parties and that principles of contractual interpretation should be applied in determining whether a particular clause of the Accommodation Agreement imposes obligations on the parties. Further, post-contractual conduct that the Unions seek to rely upon was said to be an impermissible consideration in construing the contractual rights and obligations of the parties.[45]

• [105] BHP submitted that clause 5.2 of the 2012 MAA is not the source of an employee's entitlement to be provided with SPV accommodation. That entitlement arises from clause 34.2(a) of the BMA Agreement 2018 and clauses 5.1 and 6.2 of the 2012 MAA. It contends that clause 5.2 simply sets conditions, solely for BHP's benefit, with which Employees are to comply in return for the provision of SPV accommodation. Those conditions are:

a) that Employees authorises BHP Coal to deduct $60 per week from their pay while they live in the SPV;

b) an obligation on Employees to comply with the rules of the SPV;

c) an acknowledgment that Employees may be required to travel to and from the SPV in a Company provided bus.

• [106] In BHP's view, the ordinary meaning of the words in the 2012 MAA does not give rise to a burden or obligation on the Company to deduct the $60 per week from employees' post tax salaries in exchange for accommodation, whether expressly or by necessary implication. So far as BHP Coal is concerned, the language of clause 5.2 is permissive as it provides that the employee "will pay a subsidised rate of $60 per week" and this "will be deducted from the Employee's post tax salary", which is distinguishable from mandatory language, for example, that BHP Coal "must" deduct the $60 payment from employees' post tax salary. It further contends that there is nothing in the text of the 2012 MAA which suggests that clause 5.2 was intended to create benefits or rights for employees, whether directly or indirectly, including under the RTRA Act. Objectively, the sole commercial purpose of the deduction was to operate for the benefit of the respective employer parties to the MAA, which does not expressly or impliedly require BHP to provide "rooming accommodation" within the meaning of the RTRA Act to "residents".

• [107] According to BHP, the RTRA Act only applies in limited circumstances where, among other things, the occupant "occupies 1 or more rooms as the person's only or main residence."[46] There is nothing in the 2012 MAA that gives an employee a right to "occupy" any particular room or to be accommodated in any particular SPV or that regulates what standard or type of accommodation will constitute an SPV (for example, whether it has private or shared rooms).

• [108] Further, BHP submitted that a party to a contract, such as the 2012 MAA, is entitled to waive compliance with a condition that is solely for its benefit and is not inextricably mixed up with other parts of the transaction such that it cannot be severed.[47] It contends that clause 5.2 should be understood and interpreted in that context as providing a right to BHP to deduct $60 per week rather than imposing an obligation that it do so. In this regard, BHP stated that: the deduction of $60 per week is not inextricably mixed up with other rights and obligations under the MAA, which continues to be applied in accordance with its terms without the deduction of the $60 per week subsidised rate and employees continue to be provided with accommodation in accordance with clause 34.2(a) of the 2018 Agreement and clauses 5.1 and 6.2 of the Accommodation Agreement.

• [109] In oral submissions, Mr Neil said that the fundamental question, as framed by the Unions, is: has BHP acted unlawfully by not deducting from employees' remuneration, the amount of a benefit conferred on the Company, which it no longer wishes to receive?[48] BHP submits that the use of the term "will" in clause 5.2, is not independent of the second use of that word and the reference to a deduction is explicitly tied to the payment - it is a machinery provision. If no payment is made, there will be no requirement to deduct. It is also submitted that the case for the Unions falls apart at the outset because it is premised on the argument that clause 5.2 of the 2012 MAA requires the $60 per week deduction and gives rise to a RAA within the meaning of the RTRA Act. BHP contends that there is no necessary connection between clause 5.1 of the 2012 MAA and an RAA, and clause 5.2 is neutral as to the character of any agreements or arrangements between BHP and the employees occupying rooms in the SPV.[49]

• [110] According to BHP, it may be accepted that clause 5.2 contemplates that there will be a posterior agreement between the Company and each of the employees who uses or occupies a room in the SPV, and this must be the case, as the 2012 MAA is a contract between BHP and the Unions rather than between BHP and individual employees.[50] However, clause 5.2 does not have the effect that any such agreement or arrangement between BHP and individual employees must be an RAA. In this respect, clause 5.2 is entirely neutral as to the character of any agreement between the BHP and employees.

• [111] BHP submitted that the underlying proposition advanced by the Unions is not correct for three reasons. First, neither clause 5.2, nor the 2012 MAA as a whole, mentions RAAs, expressly or by implication, and it is equally open that those arrangements could be RAAs or common law agreements outside of the RTRA Act.[51] Second, the fact that clause 5.2 does not contemplate that agreements between BHP and individuals who live in a room in the SPV must be in the form of RAAs, is reinforced by the fact that the 2012 MAA does not give a right of occupation of the kind required by the RTRA Act.[52] In this regard reference was made to s. 15(1)(a) of the RTRA Act, and that the 2012 MAA does not expressly confer a right to occupy one or more rooms. Further, the definition of "resident" in the RTRA Act, which requires that rooms are occupied as a person's only or main residence, and it was submitted that clauses 5.1 and 6.2 expressly, or by necessary implication, negative the existence of a right of the kind required by s. 15(1) of the RTRA Act, including the right to occupy a particular room.[53] It was also submitted that neither Mr Borellini nor Mr Piper are residents within the meaning of s. 14 of the RTRA Act, because their rooms in the SPV are not their only, or main, residence.

• [112] Third, the 2012 MAA does not make explicit that its purpose was to create RAAs within the RTRA Act, and the purpose of the MAA is to provide particular employees with a range of Company subsidised accommodation arrangements. There is no objective indication of a necessary connection between the MAA and the RTRA Act or between the MAA and RAA.[54] Fourth, while there is evidence that BHP has entered into instruments entitled RAA, there is no connection between those instruments and the 2012 MAA.[55] Fifth, the MEU's submissions in reply, make explicit that it relies on a process of implication for its contention that clause 5.2 imposes an obligation on the Respondent to accept payments from employees.[56] BHP submits that no such process of implication is available.

• [113] In relation to this submission, BHP accepts that the 2012 MAA should be interpreted in the same way as the 2018 BMA Agreement. The question then becomes whether a process of implication can be used to inform the interpretation, construction and application of clause 5.2 of the 2012 MAA. BHP submitted that the answer to this question is no. In this regard, reference was made to the decision of Collier J in CFMEU v Hay Point Services Pty Ltd[57] which set out principles of construction including that enterprise agreements are solely creatures of statute, in the interpretation of which there is no scope for private law concepts of contract or equity and it follows that it is doubtful whether terms may be implied into enterprise agreements.[58]

• [114] This question was submitted to have been conclusively settled by O'Sullivan J in Delpatchitra v University of Technology Sydney[59] where his Honour stated that there are at least three decisions of the Full Court of the Federal Court which proceed on the basis that enterprise agreements have a legislative character; that they are agreements in name only; and their construction should not proceed on the premise that they are a form of bargain between agreeing parties.[60] Accordingly, the statement of Mason J in Codelpha Construction Pty Ltd v State Rail Authority of New South Wales[61] that the implication of a term is one which it is presumed the parties would have agreed upon had they turned their minds to it, such that deficiency in the expression of a consensual agreement is caused by their failure to direct their minds to, and provide for, a particular eventuality, excludes any possibility of a term being implied into an enterprise agreement on contractual principles.[62]

• [115] BHP submitted that against that background, a reference to an RAA cannot be implied into clause 5.2 of the 2012 MAA, and one must look at the words themselves. In this regard, clause 5.2 was said to mean exactly what it says and nothing else. In support of this submission, reference was also made to the judgement of the plurality of the High Court in Construction, Forestry, Maritime, Mining and Energy Union and Another v Personnel Contracting Pty Ltd[63] which emphasised that where the legal rights and obligations "are comprehensively committed to a written contract, the validity of which is not challenged as a sham nor the terms of which otherwise varied, waived or the subject of an estoppel, should not be decisive of the character of the relationship" and that the only kinds of rights with which a court is concerned are legal rights.[64]

• [116] In relation to the meaning of clause 5.2 of the 2012 MAA, it was submitted that the operative words provide that employees who live in the SPV will pay a subsidised rate of $60 per week. Those words are directed only to something to be done by employees and the thing to be done is to make a payment manifestly of benefit to BHP to defray some of the costs it incurs by subsidising employees' accommodation. This is a benefit the Company is free to waive. In this regard, BHP referred to numerous provisions of the 2018 Agreement where the term "will" is used to mean "may if we want to". It was also submitted that the Unions' cases make explicit, some process of implication, and this is necessary to their cases because there is no express obligation anywhere in clause 5.2 imposed on BHP. Because it is waiving its right to receive the benefit of payment of $60 per week, BHP is not varying the Accommodation Agreement contrary to clause 7. Where, as a matter of fact, the Company has entered an RAA with an employee, the Company has the right to terminate that agreement. In this regard, the RAAs were periodic agreements, and s. 372 of the RTRA Act, as it was in force at the relevant time, authorises the termination of a periodic agreement on 30 days' notice.

Approach to the construction of enterprise agreements

• [117] The approach and the principles relevant to the task of construing the terms of enterprise agreements were set out in a Decision of a Full Bench of the Commission in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Berri Pty Ltd[65]. The relevant passage setting out the principles is well known, and it is not necessary to rehearse it. More recently, in AMA (Victoria) Ltd and Australian Salaried Medical Officers Federation v The Royal Women's Hospital[66], a Full Bench of the Commission distilled those principles from the Full Court of the Federal Court majority in James Cook University v Ridd[67] as follows:

"The starting point is the ordinary meaning of the words, read as a whole and in context.

A purposive approach is preferred to a narrow or pedantic approach - the framers of such documents were likely to be of a practical bent of mind. The interpretation turns upon the language of the particular agreement, understood in the light of its industrial context and purpose.

Context is not confined to the words of the instrument surrounding the expression to be construed. It may extend to the entire document of which it is a part, or to other documents with which there is an association.

Context may include ideas that gave rise to an expression in a document from which it has been taken.

Recourse may be had to the history of a particular clause where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form.

A generous construction is preferred over a strictly literal approach but agreements should make sense according to the basic conventions of the English language.

Words are not to be interpreted in a vacuum divorced from industrial realities but in the light of the customs and working conditions of the particular industry."[68]

• [118] In an earlier decision in relation to the same dispute[69], the Full Bench said that: '...the common intention of the parties to an agreement is to be discerned from the terms in which they have expressed their agreement, not from their subjective statements about their intentions' citing the decision of the High Court in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd[70] which said:

"It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean."[71]

• [119] The Full Bench went on to observe that this principle was applied to the construction of enterprise agreements made under the FW Act in AMWU v Berri Pty Limited,[72] where a Full Bench said: 'The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.'[73] It is also well-established that the context of a disputed provision is significant. In CFMEU v Endeavour Coal Pty Ltd T/A Appin Mine[74] a Full Bench of the Commission set out the explanation of the significance of context, given by the NSW Court of Appeal in Mainteck Services Pty Ltd v Stein Heurtey SA[75] which emphasised the following matters:

• • Until a word or phrase is understood in the light of the surrounding circumstances, it is rarely possible to know what it means[76] and there is always some context to any statement;[77]
• • Language considered in its context will often have a clear meaning and context will often not displace that meaning - "but not always";[78]
• • To state that a legal text is clear reflects the outcome of an interpretation process and means that there is nothing in the context that detracts from the ordinary literal meaning and cannot mean that context can be put to one side;[79]
• • The phrase used by Mason J in Codelfa "if the language is ambiguous or susceptible of more than one meaning" does not mean that the susceptibility of the language to more than one meaning must be assessed without reference to the surrounding circumstances and in order to determine whether more than one meaning is available it may be necessary to turn to context;[80] and
• • The meaning of terms normally requires consideration not only of the text, but of the surrounding circumstances known to the parties and the purpose and object of the transaction[81]

• [120] The case law in relation to the approach to the construction of enterprise agreements makes it clear that context and purpose must be considered even where the words of the provision being construed appear, on their face, to have a clear and unambiguous meaning. In principle 15 in Berri the Full Bench dealt with the relevance of post-agreement conduct to the construction of the terms of an enterprise agreement citing the judgment of Gray J in ALHMWU v Prestige Property Services Pty Ltd[82] in which his Honour observed that:

"...I am prepared to accept that the construction of an award can be affected by a common understanding of the parties to it about a particular state of affairs. If such a common understanding existed when the award was made, it should not be departed from when the Court comes to construe the award at a subsequent time. Care must be taken however, to distinguish a common understanding from common inadvertence ... In order to have an understanding, it is necessary that there be a meeting of minds, a consensus. There can be no meeting of minds, no consensus, if no one has thought about the issue."[83]

• [121] His Honour then went on to observe that the case he was dealing with was not one where a party had changed its mind and gone back on a common assumption but rather, one where no common assumption ever existed.[84] Similarly, in Shop Distributive and Allied Employees' Association v Woolworths Limited[85] his Honour said:

"Counsel for the applicant contended that the past conduct of the parties could be relied upon as an aid in the construction of the Certified Agreement. There is authority that, if a provision has appeared in a series of agreements between the same parties, and if they can be shown to have conducted themselves according to a common understanding of the meaning of that provision, then it can be taken that they have agreed that the term should continue to have the commonly understood meaning in the current agreement. See Merchant Service Guild of Australia v Sydney Steam Collier Owners and Coal Stevedores Assn (1958) 1 FLR 248 at 251 per Spicer CJ, 254 per Dunphy J and 257 per Morgan J, and Printing and Kindred Industries Union v Davies Bros Ltd (1986) 18 IR 444 at 452-453. It is necessary to take great care in the application of this limited principle, to avoid infringing the general principle that the conduct of parties to an agreement cannot be taken into account in construing the agreement. For the limited principle to operate, there must be clear evidence that the parties have acted upon a common understanding as to the meaning of the relevant provision and not for other reasons, such as common inadvertence to its true meaning."

• [122] In Transport Workers' Union of Australia v Linfox Australia Pty Ltd[86] Tracey J considered a claim that employees covered by an enterprise agreement were entitled to a paid 20-minute crib break, pursuant to an award that was incorporated into the agreement subject to any inconsistency. The award provided for a paid 20-minute crib break for shift workers working on day, afternoon or night shift. The employees to whom the dispute related, worked hours under the agreement that were within the definitions of "day shift" and "shift work" under the award. The agreement did not provide for crib breaks and the employer did not provide a paid crib break of 20 minutes to the employees on any day they worked. The TWU claimed that employees were entitled to paid 20-minute crib breaks for work performed between September 2007 and May 2011.

• [123] His Honour considered that a literal reading of the relevant award provisions rendered each of the relevant employees a shift worker, working on day shift and entitled to a paid crib time of 20 minutes. His Honour traced the history of crib breaks being made available to shift workers and noted that there had been a distinction between day workers and shift workers and when the crib break provision was introduced in 1983, had it been intended that employees who had been treated as day workers would be thereafter treated as shift workers, the parties would have been required to inform the Commission to ensure that the proposed variation complied with wage fixing principles in effect at the time. His Honour observed that it might also have been expected that employers would commence to provide workers with crib breaks and that had they failed to do so, the Union would have sought to enforce those obligations. Noting that neither the Union nor the employers reacted in this way during subsequent amendments to the award, his Honour determined that:

"...between the advent of the 1983 Award and, in particular, since the introduction into it in 1987 of the shift work provisions, and March 2012, the parties had, by their conduct, demonstrated that they held a common understanding that the provisions relating to crib time applied only to shift workers and that the large majority of workers who were treated as "day workers" were not "day shift" workers within the meaning of the award. In such circumstances the literal construction of Clause 26 must give way to the common understanding, over almost a quarter of a century, of the parties whose conduct it regulated."

• [124] These observations are apposite in present circumstances where the parties introduced amended Accommodation Agreements in 2012 and made successive enterprise agreements without changing the terms of the Accommodation Agreements and where there is evidence that it was the practice for BHP to enter into RAAs with employees in the SPV.

• [125] The relevant cases make clear that the main guides to the construction of enterprise agreements are text, context and purpose, and the facts known at the time an agreement is drafted, are also relevant to its construction.

• [126] In relation to the context and purpose of an enterprise agreement, the Full Bench in Berri said that regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists, but if the agreement has a plain meaning, such evidence will not be admitted to contradict that meaning. The Full Bench in Berri also said that admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts rather than the subjective intention of the parties and may include:

1. evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;
2. notorious facts of which knowledge is to be presumed; and
3. evidence of matters in common contemplation and constituting a common assumption.

• [127] I have applied these principles to determining the matters in dispute in the present case.

• [128] The starting point for the construction of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context. The disputed term - clause 5.2 of the 2012 MAA - provides that: "Employees who live in an SPV under this Agreement will pay a subsidised rate of $60 per week which will be deducted from the employee's post tax salary". Generally, the term "will" indicates a mandatory provision. The plain meaning of the term is that employees are required to pay the specified amount and it will be deducted from their post-tax salaries by the only entity able to take this action - their employer, BHP. If the term required the payment only, then there would be no requirement to refer to a deduction from salary.

• [129] The mandatory nature of the provision relating to the payment and the deduction, is supported by the additional mandatory requirement that employees comply with rules of the SPV. Where the clause in which the provision is found gives discretion, the term "may" is used. Thus, a failure of employees to comply with the rules of the SPV "may result in the withdrawal of the benefit". As the provider of the benefit, BHP has the discretion to withdraw it or not, subject to the possible application of the dispute settlement provision. The clause also goes on to provide that BHP may require employees who commute to the SPV from areas outside the region, to travel to and from the SPV by Company-provided bus, at the start and finish of their rostered days. Again, the decision to provide a bus is at the discretion of the Company, indicated by the term "may". The distinction in the clause with respect to the use of "will" and "may" is significant. On its face, the plain meaning of the disputed term, is that employees who live in the SPV are required to pay $60 per week and BHP is required to deduct that amount from their post tax salary and neither party has discretion about compliance with this requirement.

• [130] Context is not confined to the words of the instrument surrounding the expression to be construed but may extend to the entire document of which it is a part, or to other documents with which there is an association. I firstly consider the disputed term in the context of the 2012 MAA read as a whole, commencing with the machinery terms. A Note for Employees on the title page of the 2012 MAA states that it is referred to in clause 34 of the 2012 Agreement and will be binding on BMA when employees approve the 2012 Agreement. The Note further states that BMA proposes that BMA and the Unions will sign the 2012 MAA when the 2012 Agreement is approved by employees. Further, the Recitals to the 2012 MAA indicate that the Unions are entitled to represent the industrial interests of the employees to whom the 2012 MAA applies and are bargaining representatives for those employees and agreeing to it on their behalf.

• [131] The Note indicates that BHP's agreement to be bound by the 2012 MAA was conditional on employees approving the 2012 Agreement. Pursuant to the FW Act, employees "approve" an enterprise agreement on the date upon which a majority of employees who cast a valid vote agree to its terms. It can be assumed that the parties involved in the negotiations for the 2012 MAA and the 2012 Agreement understood the provisions of the FW Act in this regard and that the 2012 MAA was intended to come into effect prior to the 2012 Agreement being approved by the Commission and to operate from the date that the 2012 Agreement was approved by a majority of employees covered. Although employees for whom entitlements are provided are not parties to the 2012 MAA, they endorsed it as part of the process of approving the 2012 Agreement. It is those employees who benefit from the terms of the Agreement. It is also the case that employees who voted against the approval of the 2012 Agreement, must be assumed to have understood that the 2012 Agreement would be binding on them and they would be entitled to any benefits that it provided, if a valid majority of employees approved the 2012 Agreement.

• [132] Accordingly, the 2012 MAA is not contractual in nature because it prescribes obligations and rights for persons by virtue of being in a group of employees, the majority of which approved the 2012 Agreement, regardless of whether each individual member of that group agreed to its terms. For these reasons, the 2012 MAA is not amenable to waiver by the Respondent.

• [133] The Recitals to the MAA also state that the parties have agreed to incorporate the MAA into the 2012 Agreement, under s. 257(b) of the FW Act. Section 257(b) of the FW Act has at all relevant times provided that: "Despite s. 46AA of the Acts Interpretation Act 1901, an enterprise agreement may incorporate material contained in an instrument or other writing...as in force from time to time". This loop was closed by the terms of the 2012 Agreement including at clause 34, a specific provision confirming the incorporation of the MAA and other Accommodation Agreements specified in clause 34.2(a). Accordingly, the clear intention of the parties was to make the 2012 MAA binding by virtue of its incorporation into the 2012 Agreement in the manner provided for in clause 34.2(b).

• [134] Clause 9 of the 2012 MAA emphasises that the primary objective of the parties was to make the 2012 MAA binding via its incorporation into the 2012 Agreement, in the event that the 2012 Agreement or any replacement ceased to apply. Clause 9 of the 2012 MAA achieves this objective by providing that employees will continue to be entitled to access benefits under the 2012 MAA and that the parties will take whatever prior steps are necessary and appropriate to legally "preserve" its operation. The parties took such steps in relation to the 2018 and 2022 Agreements by agreeing that the 2012 MAA was incorporated into those Agreements prior to each of the predecessor agreements ceasing to operate, when each successor agreement was approved, up to and including the 2022 Agreement which is currently in effect.

• [135] Clause 9 of the 2012 MAA is a back-up provision if the 2012 Agreement or any replacement of the 2012 Agreement which incorporates the 2012 MAA is terminated and ceases to apply and is not a provision that gives the 2012 MAA status as a standalone agreement. Absent incorporation into an enterprise agreement, the continuation of the 2012 MAA relies on the agreement of the parties - BHP and the Unions - to take whatever steps are necessary and appropriate, to legally preserve its operation. The 2012 MAA does not, and was not intended to, stand alone and the primary mechanism by which it obtains effect is incorporation into the 2012 Agreement and its successors.

• [136] It is also the case that by virtue of the provisions of the FW Act, an enterprise agreement may be made with all employees by approval of a majority of employees who will be covered. Conversely, while a document such as the 2012 MAA can be incorporated into an enterprise agreement and thus be given effect under the FW Act, it would not in its current form, be amenable to approval by the Commission as a standalone enterprise agreement. Nor is the 2012 MAA amenable to being treated as a contract, given that a contract cannot be made with parties who do not agree to its terms and there is no evidence that the Unions, while authorised as bargaining representatives for their members, intended that the 2012 MAA would have effect as a contract. Even if the Unions had such intention and could be found to have contracted on behalf of their members, they could not have contracted on behalf of non-members.

• [137] In terms of the substantive provisions of the 2012 MAA, clause 1 states that it has been developed having regard to the principles in clause 34.1 of the 2012 Agreement. That clause also states that the purpose of the MAA is to provide eligible employees with a range of "company subsidised accommodation options" (my emphasis). It is clear that all options are "subsidised" and this term does not only refer to the SPV. This is significant given that the range of options includes rental properties that are not apparently within the scope of the provisions of the RTRA Act dealing with rooming accommodation and are instead covered by the provisions dealing with Residential Tenancy Agreements (RTAs). That this is so, is apparent from the range of accommodation options provided to employees set out in clause 5.1 of the 2012 MAA, which I consider below.

• [138] The 2012 MAA has limited definitions. Relevantly, there is a definition of "Company Controlled Property" (CCP) as a unit or house that is owned or directly leased by the Company in the Town, defined as 40 km from the centre of Moranbah. "Single person" is defined as a person who does not live in the Town together with another person who he or she is in a relationship with, or any dependent child. A "unit" is defined as a property attached to other properties including apartments or units (medium to high density) and the definition does not cover the SPV. Clause 4 states that fixed term/temporary employees, trainees, apprentices, part-time employees and casual employees will only be able to access the "benefits" of the MAA or any specific benefit it provides, if they are granted approval by the Head of HR or their nominee and that such access will be determined by the Company.

• [139] As noted above, clause 5 specifies accommodation options. The clause requires that new employees will be provided with information on the range and availability of accommodation options in a table, and alternative options if their first option is not available. The range of options in the table is subject to availability. Significantly, a single person has the option of selecting accommodation in the SPV or a 1 - 2 bedroom Unit. The way the table is structured indicates that either of these options may be the employee's first choice. A 1 or 2 bedroom unit is not accommodation in the SPV and must be either a CCP or possibly a property rented by the employee from a third party. It is consistent with the SPV or a 1 - 2 bedroom unit being alternatives, that both are offered under a legal arrangement which gives the occupant rights - either as a tenant under a RAA or a Residential Tenancy Agreement (RTA). In both cases, payments made pursuant to these agreements are rent under the RTRA Act. If both options are equal, then they should be offered on the same basis and there is no reason or indication of intention to the contrary.

• [140] Further, clause 5.2 states that employees who live in the SPV "will pay a subsidised rate of $60 per week which will be deducted from their post tax salary", while clause 5.3 also states that employees who live in a CCP "will pay a subsidised rate of $60 per week", with the distinction being that this amount will be deducted from their pre-tax salary. The amount to be deducted is identical and in both cases is referred to as a subsidised rate. A person living in a CCP would be required to do so under a RTA pursuant to the RTRA Act and any payment made for the accommodation pursuant to the lease would be rent. Similarly, payments made by tenants under RAAs are rent. If it was intended that amounts payable by employees for accommodation in the SPV would not be rent, then it would have been easy for the parties to the MAA to term the benefit under clause 5.3 as a rent subsidy or similar and the payment for accommodation in the SPV as a subsidised rate. Instead, the same term was used, and the clear intention in the context of the MAA was that in both cases, this amount is rent.

• [141] Clause 5.4 provides for leases for properties currently rented directly by an employee from a third party, to be transferred to the Company at the earliest possible time, and that the Company will not approve any new third-party rental arrangements with employees covered by the MAA as tenants. The objective of this provision is said to be to improve employee's security and the Company's ability to plan for future employee accommodation needs. Regardless of the objective, where the lease is renewed with the Company, the employee is entitled to the benefit in clause 5.3. The relevant property may be a 1 - 2 bedroom unit as an alternative to the SPV, further indicating the intention that both options are equivalent in terms of the basis upon which they are provided - pursuant to an arrangement that provides rights to the occupant in return for the payment of rent - albeit subsidised rent. It is also irrelevant that the payment made by employees in the SPV includes meals, as the RTRA Act contemplates that RAAs may include the provision of meals. Further, the provision of meals compensates for the fact that employees in 1 or 2 bedroom units that are CPPs are renting accommodation that gives them the ability to procure and store ingredients and prepare their own meals, while employees in the SPV do not have that capacity given the nature of that accommodation. It is common knowledge that the providers of accommodation such as that provided in the SPV strongly discourage, if not prohibit, the preparation and cooking of meals in rooms given the raft of problems this can cause.

• [142] Clause 6.2 provides that the Company will supply accommodation according to an employee's choice under the MAA, subject to availability. The fact that accommodation in the SPV is an equivalent to other accommodation options is emphasised by the fact that the SPV or other equivalent accommodation, is the default position, if the accommodation requested by an employee is not immediately available, until the requested accommodation is available. By the terms of clause 5.1, the equivalent accommodation to the SPV is a 1 - 2 bedroom unit, which as previously noted would be a rental property provided pursuant to a lease. It is also apparent from the fact that the rate paid by employees as rent for accommodation under the 2012 MAA is subsidised, that the Respondent is not receiving market rental rates for accommodation in the SPV or CPPs.

• [143] In addition to clause 4 referred to above, there are other statements to the effect that the 2012 MAA provides benefits to employees. Clause 2.2 of the 2012 MAA deals with the protection of existing benefits enjoyed by employees, under previous Accommodation Agreements, indicating the beneficial nature of the 2012 MAA. Clause 9, as previously noted, deals with the preservation of benefits to which employees are entitled under the 2012 MAA. It is improbable that BHP, with access to a range of industrial relations and legal expertise, would have failed to preserve any benefit to which it was entitled under the 2012 MAA and if the Agreement provided a benefit to the Respondent, then the Respondent would have been mentioned in clause 9 as a beneficiary rather than implicitly as the provider of benefits.

• [144] There is no obvious benefit for BHP or BMA arising under the MAA, and as will be apparent from the earlier versions considered below, and the history of the 2012 MAA, the Company has been required to become further involved in the provision of accommodation, as a cost of attracting the labour it requires to operate mines.

• [145] In summary, in the context of the MAA read as a whole, I conclude as follows. Firstly, I do not accept the Respondent's submission that the 2012 MAA is intended to operate of its own force, despite being incorporated in the enterprise agreement. The 2012 MAA was intended to be incorporated in the 2012 Agreement and into each subsequent enterprise agreement, and in the event of the termination of any agreement into which the 2012 MAA was incorporated, employees continue to be entitled to access benefits and the parties are committed to taking whatever prior steps are necessary and appropriate to legally preserve the operation of the 2012 MAA by incorporating it into subsequent agreements or in the alternative, other steps that may meet the criteria of being necessary and appropriate.

• [146] Specifically, the 2012 MAA is not a contract. I accept the submissions advanced by Counsel for the AMWU and CEPU that, as such, rights under the 2012 MAA cannot be waived. Further, even if the Respondent could waive its right under the 2012 MAA, as incorporated into the 2018 Agreement, to collect rental payments by ceasing to deduct them, employees have not waived their rights to any entitlements under those instruments. The arrangements under which the accommodation benefits are provided cannot be varied other than as specified in the 2012 MAA and require agreement of the parties to the 2012 MAA. There is no such agreement and nor was agreement sought. Instead, the Respondent has, in my view, purported to unilaterally vary the 2018 Agreement in this regard which is not permitted by its terms relating to variation. The Company has not sought agreement and employees have not given agreement to the deduction ceasing. If the Respondent wished to provide a benefit to employees in the SPV by reducing the amount of rent they pay for that accommodation, it could have sought their agreement to do so. The Company did not take this step and I do not accept that this is a benefit to employees, and in fact, it has removed a benefit to which they were entitled.

• [147] The 2012 MAA is a beneficial instrument for employees under which they are provided with accommodation options depending on whether they commute to work at the Goonyella Riverside Mine or live locally in Moranbah and surrounding areas. It does not provide a benefit for the Company and is rather part of the cost of operating mines in areas where it is necessary to attract labour. The history of negotiations for the Accommodation Agreements, which I consider below, further indicates that the benefits to employees who reside in Moranbah, were a cost necessary to obtain the agreement from the Unions and a majority of employees, to the use of commute arrangements whereby employees reside in facilities such as the SPV while they are working or on short breaks from work and travel to other areas for periods they are rostered off.

• [148] The SPV is one of two base entitlements for employees under the 2012 MAA, with the other being a 1 - 2 bedroom unit, and employees have a right to select either option. The second of these options requires an RTA pursuant to the RTRA Act and it follows that the first of these options requires a RAA under the RTRA Act. The subsidised rate payable by employees who live in an SPV is rent and this is no less the case than with respect to the subsided rate for employees who live in a CPP, including a 1 - 2 bedroom unit. The fact that the subsidised rate is deducted from pre or post tax salary, is a taxation matter related to the nature of the accommodation rather than an indication of any distinction in the legal basis for the provision of the accommodation.

• [149] It is also relevant to the construction of the MAA to consider the disputed term in the context of other documents with which it is associated. Such documents include the 2018 Agreement.

• [150] Clause 34 of the 2018 Agreement establishes a regime whereby employees can access accommodation in accordance with clause 34.2 or a commute arrangement in accordance with clause 34.3. Relevant provisions can be summarised as follows. The objective of the principles as set out in clause 34(1)(b) is to increase the pool of available housing for employees and their families. Clause 34.1(c) provides for employees to move into the SPV in circumstances where they own their own homes and sell or lease them to BHP or decide to move from a house or unit attracting a rental subsidy and elect to change to commute arrangements and move in to the SPV or other suitable accommodation. As previously noted, clause 34.2(a) provides that employees will be entitled to accommodation in accordance with the Accommodation Agreements, and clause 34.2(b) provides that these are incorporated into the 2018 Agreement in accordance with s. 257(b) of the Act and can be amended separately in accordance with the clause 34.4.

• [151] Clause 34.2(c) provides that employees may access accommodation not regulated by the Accommodation Agreements in accordance with clause 34.2(a) and in those circumstances, receive no less than the same subsidy they would be entitled to under the relevant Accommodation Agreement if living in the SPV. Clauses 34.2(d) - (f) deal with issues and disputes arising under the Accommodation Agreements and clause 34.2(g) provides for amendments to the Accommodation Agreements and that these will take effect as contemplated by the Accommodation Agreements.

• [152] Clause 34.3 deals with Commute arrangements and provides the principles that apply to such arrangements were on the basis that employees will have the option to choose whether to access commute or residential arrangements, subject to the Company's right to make commute arrangements a precondition of employment for new employees and subject to the right of employees to make other residential arrangements in accordance with the applicable Accommodation Agreement where their circumstances change. Clause 34.3(c) provides that for employees who commute, the Company will supply village style accommodation or other suitable accommodation at a subsidised rate as nominated by the Company and in accordance with the principle in clause 34.1(b) that the objective is to increase the available pool of housing for employees and their families.

• [153] These provisions support the conclusions that the provision of accommodation options under the 2018 Agreement (and its predecessor (the 2012 Agreement) and successor (the 2022 Agreement) are beneficial entitlements for employees and that the Respondent cannot vary those entitlements other than by agreement. There is also no indication in the 2018 Agreement that the provisions in relation to accommodation are beneficial for the Respondent. The terms of the 2018 Agreement do not cause me to reconsider any of the conclusions I have reached in relation to the 2012 MAA and its operation and effect.

• [154] A further contextual matter is the history of the 2012 MAA and the negotiations from which it followed. As indicated in the material filed by the Respondent, the 2012 MAA was part of a period of protracted disputation and negotiations in relation to the 2012 Agreement which commenced in 2011 and included a number of unsuccessful ballots. It is not necessary to set out the evidence of these negotiations appended to Mr Stelmach's witness statement. In summary, while Mr Stelmach's evidence was that accommodation agreements were not a major issue, it is apparent that after the first unsuccessful ballot in October 2011, the finalisation of the accommodation agreements was an issue raised by employees in subsequent bargaining.

• [155] The documents tendered by the Respondent show that by Bulletin 2 in relation to what was then referred to as the BMA Enterprise Agreement 2011, the parties were discussing the need for employees to be able to choose roster, commute and accommodation arrangements that suit their lifestyle needs and that Union bargaining representatives were seeking to incorporate elements of site schedules into the central agreement. The documents also indicate that BMA was pursuing agreement provisions that recognised that many employees commuted from towns such as Mackay, Rockhampton, Yeppoon, Townsville, Toowoomba, the Sunshine Coast and from interstate and that many commuting employees also rented or owned houses in Moranbah and other residential areas near mines. The Company wanted to "explore" high quality village accommodation options at low cost to employees who were commuting, to free up under-utilised houses and help employees who wished to reside in towns such as Moranbah to obtain rental properties.[87] A further emerging issue was concern on the part of employees that the Respondent would force individual employees who did not wish to do so, to work 7/7 "commute-friendly" rosters.[88]

• [156] It is also apparent that the Unions were focused on commute-friendly rosters whereby employees work 7 days on and 7 days off, and expressed concerns throughout the entirety of the negotiations that employees would be forced to work those rosters. The Respondent continued to press its position that it wanted to provide accommodation, commuting and residential options for employees and to enable employees to change rosters and also to decide to change from residential to commuting arrangements or vice-versa. By 8 July 2011, it was proposed that the SBU and BHP would sign Accommodation Agreements once they were finalised to give employees certainty, and that these would be reviewed in accordance with agreed principles, and changes made in accordance with the process in the proposed 2011 Agreement once negotiations for that Agreement were completed.[89] A theme also emerged whereby the Unions were seeking to make Accommodation Agreements binding (I will return to their earlier iterations later in this decision). Subsequently the Respondent proposed that current accommodation arrangements be retained, flexibility would be provided and that while they would be separate from the enterprise agreement, Accommodation Agreements would be legally binding. It is apparent from the communications that some changes were proposed but that current arrangements would be maintained.

• [157] By 14 September 2011, BMA was rejecting contentions by the Unions that it was seeking to remove terms of the Accommodation Agreements and to change benefits and that the Accommodation Agreements would not be enforceable at common law.[90] After the unsuccessful ballot in October 2011, BMA corresponded with the Unions advising that it would commence a review of the Accommodation Agreements before the next ballot took place, contrary to its previous position and employees were informed that they had told the Company they wanted greater certainty about Accommodation Agreements and that the Company would meet with Unions to attempt to finalise Accommodation Agreements prior to the next vote.[91] In November 2011, BMA stated that its proposal was to incorporate the Accommodation Agreements into the enterprise agreement by reference, and have the Agreements in the same legal form as the then current Moranbah Housing Agreement.[92]

• [158] Bulletins about subsequent meetings indicate that BMA offered certainty, security and choice for employees and no reduction in benefits while enabling accommodation choices. Further, BMA offered a balance in SPV and residential accommodation options.[93] Discussions continued and by 6 July 2012, a Memorandum of Understanding was reached, whereby principles of agreement included that regional towns would not be diminished by roster flexibility and that commuters and residential employees may desire a more flexible roster arrangement. The negotiations were also concerned with arrangements for the Company to purchase homes from employees wishing to sell them and to assist with the construction of new homes in regional areas where mines operate.

• [159] In short compass, the negotiations indicate that Unions on behalf of employees, wanted to retain existing right under Accommodation Agreements and to improve the terms and conditions under those Agreements. Unions also sought to make the Accommodation Agreements legal binding and enforceable and the mechanism by which this was to occur was their incorporation into what became the 2012 Agreement. There is no evidence of Unions negotiating away any rights and benefits that employees had under existing Accommodation Agreements, but rather seeking to improve those rights and benefits. This material also confirms that the SPV and 1 - 2 bedroom units are primarily an entitlement to be accessed by commuters, while other options including houses that are CCPs are entitlements primarily for residents.

• [160] The resulting 2012 Agreement operated from 2 November 2012 until 26 October 2015. The provisions in the 2012 Agreement in relation to accommodation are relevantly identical to those in the 2018 Agreement in clause 34, discussed above.

• [161] The 2012 MAA, is directly associated with the 2004 Moranbah Housing Policy (2004 MHP). It was not incorporated into the 2007 Enterprise Agreement which preceded the 2012 Agreement. The BHP Coal Pty Ltd Agreement 2004 (2004 Agreement) operated from 20 August 2004 until 19 August 2007. It contained the Goonyella Riverside Enterprise Agreement 2004 Local Schedule A which included a reference to a Moranbah Housing Agreement. This was not in evidence, but I assume it was an earlier iteration of the 2004 MHP given the different title.

• [162] The 2004 MHP tendered by the AMWU and CEPU[94], was designed to provide accommodation options and a range of choices. In this regard, reference is made to employees renting a unit, townhouse or residing in the SPQ. referred to QHC houses, owned by the Queensland Housing Commission and rented to BMA and provided for a number of options for employees renting QHC houses or Company houses with respect to continuing to rent or to purchase a house. Clause 3.3 dealt with Current SPQ, Unit or Townhouse Renters and provided that employees renting a unit, townhouse or residing in the SPQ prior to 1 March 2004, could continue to do so at the rates contained in Appendix A and that SPQ rates could not be salary sacrificed and that unit and townhouse rents could be salary sacrificed.

• [163] Under the heading "Rental" clause 4.1(a) provides that single status employees will be offered accommodation in Curtin House on the rental rates in Appendix A and that if Curtin House Accommodation is not available, the employee may go on a waiting list for the facility, and in the meantime if an employee chooses to live in an external SPQ facility, the Company will reimburse them for specified amounts. It is notable that the specified amounts are significantly higher than the subsidised rent agreed in 2012 but are paid to the employee to pay rent with the employee being responsible for excess amounts, rather than the employee paying rent at a specified subsidised rate.

• [164] In short, the 2004 MPH indicates that residents of the SPQ and then existing units or town houses were considered as renters and that the terms "rent" and "rates" were used synonymously. It further indicates that the SPQ and units were interchangeable.

• [165] It is also notable that the BHP Coal Workplace Agreement 2007 which replaced the 2004 Agreement has accommodation agreements in other Schedules, which make clear that persons in single persons accommodation, variously described as villages, are charged rent. Regrettably this historical material was not referred to by the Union parties and I have not placed significant weight on it, other than to observe that payments including those made by employees for single person's accommodation, were viewed by all parties as rent.

• [166] Based on the evidence, before me I conclude as follows. Prior to the making of 2012 MAA, the common understanding of the parties was that payments for all forms of accommodation were rent. Employees were frequently renting properties privately and receiving subsidies for rent. Single persons' accommodation could also be provided by third parties. The Respondent commenced a process of acquiring properties from employees to place into its pool for rental and encouraging employees to build and/or purchase their own properties.

• [167] I also conclude that as the Respondent increased its role in making properties available for rental, including those occupied by single persons, it implemented a practice of entering into legal agreements under the RTRA Act. In the case of employees renting rooms in the SPV, the Respondent entered into RAAs under the RTRA Act. This practice was widespread and standard. I base these conclusions on the fact that when it decided to withdraw from such arrangements and cease to deduct the $60 per week amount paid from the wages of employees residing in the Moranbah SPV, which led to the present dispute, the Respondent saw the need to implement a comprehensive Communications and Engagement Plan for use by line managers in discussions with employees, in respect of this decision. There would have been no requirement for such a plan if the arrangements were not generally in operation.

• [168] The fact that RAAs were not mentioned during the 2012 negotiations, was because they were a given. The focus of the negotiations was on claims to make Accommodation Agreements legally binding, which was achieved by incorporating them into the 2012 Enterprise Agreement. It also appears that the rate paid by employees was expressed as an amount that would be deducted from their wages, to subsidise rental payments, rather than employees being required to pay the difference between the subsidy and the market rate of rent. There was no intention to change existing practice which included employees in SPV accommodation paying rent for that accommodation and having rights under the RAAs that it had been the practice to make between the Respondent and employees in that accommodation. This is not a case of mutual inadvertence. The Respondent would hardly have a practice of making formal RAAs under the RTRA Act, with employees in the SPV, inadvertently.

• [169] Having regard to the warnings about the distinction between common inadvertence and common understanding, I conclude on the basis of my review of the material before me, which regrettably may not be complete, that this was a case where minds had met and such arrangements agreed, and that they continued to be reflected in the 2012 MAA as incorporated in the 2018 Agreement.

• [170] Accordingly, I conclude that the text and context of the 2012 MAA and relevant circumstances surrounding its making and its history, all support a conclusion that the parties intended that accommodation in the SPQ at Moranbah would be provided by the Respondent to employees pursuant to an RAA under the RTRA Act and reflected this in the terms they agreed upon.

• [171] The Respondent is not permitted by those terms to vary them, other than with the Agreement of the Unions and employees and did not attempt to reach such agreement, but rather, unilaterally decided to vary the terms of the MAA and the 2018 Agreement. Those terms continue in effect in the 2022 Agreement. For these reasons, I answered the question for arbitration, which was in the form agreed by the parties, as follows:

Can BHP lawfully cease the $60 per week deduction from post-tax salary of all employees residing in the SPV?

[1] [2023] FWC 2092.

[2] Exhibit A1 - Witness Statement of Barry Borellini.

[3] Exhibit A2 - Annexures to MEU's Outline of Submissions dated 23 December 2022.

[4] Exhibit A3 - Witness Statement of Darryl Piper dated 20 February 2023.

[5] Exhibit A4 - Rooming Accommodation Agreement (Form R18).

[6] Exhibit R1 - Witness Statement of Peter Stelmach dated 10 February 2023.

[7] Exhibit R2 - Witness Statement of Licia McGroarty dated 9 February 2023.

[8] Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTRA Act) s. 6, sch. 2 (definition of 'rent').

[9] RTRA Act s. 6, sch 2 (definitions of "fixed term agreement" and "periodic agreement").

[13] Explanatory Note to the Housing Legislation Amendment Bill 2021 (Qld) at p 58.

[14] Exhibit A2 - Annexures to MEU's Outline of Submissions dated 23 December 2022.

[16] WorkPac Pty Ltd v Skene [2018] FCAFC 131.

[17] AMWU v Berri Pty Ltd [2017] FWCFB 3005.

[18] Transcript of Proceedings PN74-PN85