Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd

REASONS FOR JUDGMENT 1 For those who follow current affairs in Australia and particularly affairs in relation to our mining industry, and even more particularly the coal mining industry, it is a matter of notoriety that there are difficult economic conditions faced by those who are engaged in that particularly important industry, especially in Queensland. Notoriety apart, so much is confirmed in evidence by Mr Shaun McKenzie, who is the Employee Relations Manager of a joint venture between BHP Billiton and Mitsubishi, known as the BHP Billiton Mitsubishi Alliance (BMA). A subsidiary of BHP Billiton, BHP Coal Pty Ltd (BHP Coal), is the respondent employer in these proceedings. 2 One way of illustrating the difficult economic conditions within the coal industry in Australia is given by Mr McKenzie in his affidavit. As at the end of 2010, the price for coking coal was above $360 per tonne. Since then, the price has fallen and continued to fall. By late 2012 it had fallen to under $150 per tonne. It is now under $110 per tonne. Mr McKenzie attributes this to an oversupply of coal and also to a softening of demand for that mineral product. The accuracy of that is not gainsaid in these proceedings. 3 Other factors to which Mr McKenzie adverts, which also have about them, at least in a general sense, an element of notoriety, are the historically high position of the Australia dollar relative to other currencies, I infer, and particularly, I also infer, to the United States dollar, and increases in taxes and royalties. 4 Unsurprisingly in those circumstances, BMA, and in turn, as the relevant employer, BHP Coal, have turned their minds to how to continue, viably, to conduct business at mines operated by the BMA Alliance. Unsurprisingly, also, that particular phenomenon in the coal industry has given rise to concerns on the part of employees about job security. 5 It is a feature of the mines operated by the BMA that there is a high degree of union membership amongst employees. One of the unions which represents the industrial interests of employees at the mines is the Construction, Forestry, Mining and Energy Union (CFMEU). Others are the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU). It is in relation to those workers for whom the CFMEU provides industrial representation and other services that the present proceedings are concerned. 6 The more detailed corporate structure which lies behind BMA's operations is set out in Mr McKenzie's affidavit and need not be described for present purposes. Suffice it to say, BHP Coal provides, under the umbrella of BMA Mines, labour at the Goonyella Riverside, Peak Downs, Saraji, Blackwater and Crinum Mines. 7 Apart from permanent employees, other work at those mines is undertaken by specialised contractors and also by what are termed "staff employees". At the Goonyella Riverside, Peak Downs, Saraji and Blackwater Mines, the mines of present interest, there are about two and a half thousand employees whose employment is regulated by the BMA Enterprise Agreement 2012 (the Enterprise Agreement). There are also some 850 employees at the mines who are staff employees, whose employment is regulated by the Black Coal Mining Industry Award 2010. 8 Against the background of the difficult economic conditions which have endured and, if anything, worsened since 2010, BMA and, in turn, the employer subsidiary, BHP Coal, had come to the view that a business restructure was necessary. That decision had been made by 23 September 2014. Entailed in that decision was a conclusion on the part of BHP Coal that there was a surplus of permanent employees at the mines that I have mentioned and, further, that that surplus could not be addressed through natural attrition. 9 In those circumstances, so far as permanent employees were concerned, clause 32 of the Enterprise Agreement was engaged. It is controversial as to whether or not, in the events which have transpired since 23 September 2014, BHP Coal has contravened clause 32 of the Enterprise Agreement and thus contravened s 50 of the Fair Work Act 2009 (Cth) (Fair Work Act). 10 By its amended originating application, the CFMEU alleges in ways that are particularised in that amended application that BHP Coal has contravened s 50 of the Fair Work Act by a contravention of clause 32.1 of the Enterprise Agreement. I annex to these reasons for judgment, for it would intrude on clarity of understanding to reproduce them in the body of the judgment, the terms of the relief, including interlocutory relief sought in amended originating application. 11 In summary, the CFMEU seeks by way of interlocutory relief orders in the nature of a mandatory injunction requiring BHP Coal to consult for each of the Peak Downs and Blackwater mines: (a) about the number of permanent employees said to be surplus permanent employees; and (b) adequately with employee representatives at each of those mines about displacing contract employees and/or labour hire employees. Likewise, an order in the nature of an interlocutory injunction is sought by the CFMEU requiring that BHP Coal for each of the Saraji and Goonyella Riverside mines consult adequately with employee representatives at each of the mines about displacing contract employees and/or labour hire employees. 12 Also sought by way of interlocutory relief are orders that BHP Coal refrain from terminating the employment of any employee covered by the Enterprise Agreement at the Peak Downs Mine, the Blackwater Mine, the Goonyella Riverside Mine and the Saraji Mine on the basis of voluntary termination or otherwise until the further order of this Court or until the employee representatives agree in writing that the consultation process for which clause 32.1 provides has been exhausted at the particular mine. 13 Yet, further, an order, again in the nature of an interlocutory injunction, is sought requiring that BHP Coal refrain from engaging in the process of redeployment within the mine and/or transfer between the mines until further order of the Court or the employee representatives agree in writing that clause 32.1 of the Enterprise Agreement consultation process has been exhausted at a particular mine. Finally, and in aid of the other interlocutory injunctive relief sought, it is further sought that the Court require BHP Coal to provide the employee representatives for each of the mines with a detailed list of information, the nature and extent of which appears in the annexure to these reasons for judgment. 14 The reference in the application for interlocutory injunctive relief to employee representatives is to be understood as a reference to the employee representatives as they are defined for the purposes of the Enterprise Agreement. 15 As a matter of fairness, it should be recorded that it was conceded on behalf of the CFMEU that the restraint sought in relation to termination of employment, given that it would apply to voluntary termination or termination for misconduct, was as cast, too wide. 16 Another preliminary observation which might be made in relation to the interlocutory injunctive relief sought is that it injects into the orders sought a word of uncertain reach which does not appear in clause 32 itself, namely, the adverb "adequately". 17 Courts do not make orders of an injunctive kind, the breach of which may sound in a contempt, by using such imprecise language that the nature and extent of the obligation entailed is rendered uncertain: see Pakenham Upper Fruit Company Limited v Crosby (1924) 35 CLR 386 at 395 (Pakenham Upper Fruit Company v Crosby). For all that, though, I accept that, as became obvious in the course of submissions, the restraint sought was one which, at the very least, required consultation to occur. That is a term which is used in the Enterprise Agreement itself. It is not one which, in my view, has about it an imprecision of the kind deprecated in Pakenham Upper Fruit Company v Crosby. 18 Some matters of general principle concerning interlocutory injunctive relief might usefully be adverted to at this stage. 19 Firstly, the foundation for the interlocutory injunctive applications, though not expressly articulated in the amended originating application, would seem to be that found in s 545(2)(a) of the Fair Work Act. The power there found to grant injunctive relief does not, in my view, entail any different test as to whether or not such relief should be granted from other powers pursuant to which the Court may grant such relief. By that I mean that the principles attending whether or not to grant interlocutory injunctive relief, as explained by the High Court in Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 and Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618, are pertinent. It is for the CFMEU to demonstrate that it enjoys a sufficient likelihood of success in the principal proceeding to warrant, in the circumstances of the case, preservation of a status quo, either pending trial or to some earlier date. In turn, that entails the demonstration of whether or not the CFMEU has a prima facie case. 20 An assessment of a prima facie case, yet further, entails an examination of its strength in the sense of the probability of success. That is not to say, that an applicant such as the CFMEU, for interlocutory injunctive relief must show that it is more likely than not it will succeed. Rather, it must show a sufficient likelihood to the extent that there is a serious question to be tried. 21 Another factor which, whilst it can be identified separately, interplays in terms of the discretion entailed in granting or not granting interlocutory injunctive relief is the balance of convenience. 22 In a case such as the present, where the remedy sought in the principal proceeding is not damages but rather the imposition of a pecuniary penalty, it might be added that, where interlocutory injunctive relief is sought in relation to what is, in effect, a penal proceeding, a question which would intrude is whether or not the penalty would be an adequate remedy, rather than whether or not damages would be an adequate remedy. It was not necessary in this case, for it was not a subject explored in submissions, to give further consideration to the interplay between an application under s 542 for interlocutory injunctive relief and a substantive proceeding alleging contraventions of s 50 of the Fair Work Act. 23 Reflection upon the terms of clause 32, the detail of which I shall set out in a moment, raises a further consideration. That is there are at least some aspects of the consultation contemplated by that clause that, on any view of the facts, would necessarily have to be completed prior to the likely trial date in this matter. That trial date may well not be until June of next year. So the upshot is, and so much as I understood it became common ground as between the CFMEU and BHP Coal, that some, at least, of the interlocutory injunctive relief sought would require that consultation occur by a particular date, fixed by reference to prevailing circumstances of the case, but nonetheless a date which would fall before the likely trial date. 24 It was put, on behalf of BHP Coal, that the impact of that was that, because there was in practical effect, a quality of finality about any such injunctive relief, a greater degree of likelihood in terms of prospects was required before the Court would grant such mandatory injunctive relief at this stage of proceedings. In Queensland v Australian Telecommunications Commission (1985) 59 ALJR 562 at 563 (Queensland v Australian Telecommunications Commission), Gibbs CJ made the following observations: Justice McGarry stated the principle in Shepherd Homes v Sandham (1971) 1 Ch 314 at 315 in the following words: On motion is contrasted with the trial. The Court is far more reluctant to grant a mandatory injunction than it would be to grant a comparable prohibitory injunction. In a normal Court case, the Court must, inter alia, feel a high degree of assurance that at the trial it will appear that the injunction was rightly granted, and that is a higher standard than is required for a prohibitory injunction. 25 That approach, in relation to mandatory injunctions at the interlocutory stage, enjoys support both in this Court and others in this country, but the support is certainly not universal. Thus, in Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499 at 502 to 503 (Businessworld Computers), Gummow J referred at length to remarks made by Hoffman J, as his Lordship then was, in Films Rover International Ltd v Cannon Film Sales Ltd [1987] 1 WLR 670 at 671, 679 to 681, which included the following: If it appears to the Court that exceptionally the case is one in which withholding a mandatory interlocutory injunction would in fact carry a greater risk of injustice than granting it, even though the Court does not feel a "high degree of assurance" about the plaintiff's chances of establishing his right, there cannot be any rational basis for withholding the injunction. 26 Authorities subsequent to Businessworld Computers have not finally resolved whether there is indeed a conflict of authority as between Businessworld Computers and Queensland v Australian Telecommunications Commission, see, for example, Telstra Corporation Ltd v First Netcom Pty Ltd (1997) 78 FCR 132 at 137. 27 In Parmalat Australia Pty Ltd v VIP Plastic Packaging Pty Ltd (2013) 210 FCR 1 at [21], Collier J expressed the view that some higher degree of assurance was necessitated in relation to granting mandatory interlocutory injunctive relief. I am not, with respect, convinced that is so. After all, what is entailed, in the end, is the exercise of a judicial discretion. That exercise of discretion will necessarily be informed both by the nature of the relief sought as well as the circumstances of a particular case. It may very well be that all that Gummow J was articulating was a reminder that, in the end, what is entailed is the exercise of a discretion and an endeavour not to do injustice and, further, that if it be apparent that injustice would occur, then even though there was not a high degree of assurance, it was not impossible to grant mandatory interlocutory injunctive relief. In exercising that discretion, of course the strength of an applicant's case will be relevant. To say more than that, in my view, is to impose a fetter on a discretion. 28 Those, then, are the general principles at large. What of the clause itself? Clause 32 of the Enterprise Agreement is in these terms: 32 Redundancy 32.1 Where a surplus of permanent Employees arises at a Mine during the life of the Agreement that cannot be addressed through natural attrition, the Company will consult with Employees and their Employee Representatives, about the possible need for redundancies, and if so: (a) the means of minimising the number of redundancies; and (b) the means of minimising the effect of the redundancies on Employees. 32.2 Any surplus will be addressed in one or more of the following ways: (a) By voluntary redundancy, at the rate specified in clause 32.9; or (b) By redeployment to another task within the Mine, which is appropriate to the skills and competencies of the Employees concerned, or through retraining; or (c) Transfer of Employees who have the appropriate skills and competencies or who can be retrained within a reasonable period of time to: (1) another position or other duties (which may be temporary) at a Mine which is within reasonable distance from the Employee's residence; (2) a vacancy created by an Employee taking voluntary redundancy at a Mine which is within reasonable distance from the Employee's residence; (3) another position or other duties (which may be temporary) at a Mine outside reasonable distance from the Employee's residence; or (4) a vacancy created by an Employee taking voluntary redundancy at a Mine outside reasonable distance from the Employee's residence. Where a temporary position or other duties are undertaken under 32.2(c)(1) or 32.2(c)(3), the Company will make its best attempt to advise the Employee of the duration of the temporary period eg 1 month, 3 months, 6 months etc, depending on the circumstances. Should the position or duties cease, the Employee will then be offered redundancy. 32.3 Where the surplus cannot be adequately addressed through 32.2(a), 32.2(b) or 32.2(c), then the Company may consider forced redundancies. In such a case, it shall investigate and consider all reasonable avenues to avoid such forced redundancies. This will include removal of contractors and labour hire, except where: (a) There are contractual commitments that prevent this; (b) The work performed by contractors or labour hire is considered to be specialist work of a non-permanent nature; or (c) Employees are not readily able to perform the work. 32.4 Where voluntary redundancy is offered, the Company will have regard to its requirement to retain an appropriate mix of skills and competencies. Accordingly, not all applicants will necessarily be accepted for voluntary redundancy. 32.5 Where forced redundancies are necessary: (a) The Company will determine the number of Employees to be made redundant and the spread of skills required for the efficient and effective operation of the relevant Mine; and (b) To ensure that a Mine can be operated in the most productive and efficient manner, all Employees from within the Functional Work Area (as listed at clause 41) where a surplus exists will be interviewed to determine the Employees to be retained or retrenched. 32.6 The selection method for forced redundancies will involve a selection process that will be conducted by a panel trained in behavioural interviewing. The panel will include: (a) An independent member agreed between the Company and the Unions; and (b) A representative selected by the workforce. 32.7 A merit-based selection process will be undertaken by the panel which will take into consideration the following: (a) Necessary skills mix required by the business; (b) Individual skills and proficiency in those skills; (c) Employment record/length of service; (d) Cases where unsatisfactory performance has been identified and is being managed; (e) Alignment with BMA Charter Values as identified in the Employee's IDPR. 32.8 Exemption The Company is not liable for the payment in clause 32.9 if the Company obtains, or causes to be made available for the Employee, work within 14 days: (a) That the Employee is competent to perform; (b) In a position that carries the same or a higher classification rate of pay than the Employee's previous position; (c) That can reasonably be regarded as permanent; (d) That is another coal mine; and (e) Allows the Employee to reside in the same general locality as the Employee's previous residence i.e. at the same or another township within the Bowen Basin which does not require the Employee to relocate. 32.9 Redundancy Pay Redundancy payments will be calculated at the rate of 13 weeks' base salary plus 2 ½ weeks' base salary per year of continuous service for the first 26 years of service, plus 3 weeks' base salary for each subsequent year of continuous service. For the purpose of this clause: (a) One week's base salary will be equal to $1742 subject to clause 32.9(b) and clause 9 of Schedule 5; or (b) In the case of Crinum Employees, one week's base salary will be as follows: (1) Mine worker 7 Day Roster 12 Hour Shifts = $1997 (2) Section &/or Engineering Co-ordinators, 7 day roster 12 Hour Shifts = $22233. 32.10 Any payment under clause 32.9 is inclusive of any statutory entitlement an Employee may have to severance or redundancy or retrenchment pay. 32.11 Redundancy Relocation Assistance In order to assist with any relocation expenses incurred by an Employee, an amount of up to $5,000 will be reimbursed to an Employee whose employment is terminated due to redundancy. This payment will be made upon presentation by the former Employee of receipts incurred for relocation expenses, within eight weeks of the termination of their employment. 32.12 Generic Induction and Statutory Health Assessment The Company will provide the opportunity for all Employees who are made forcibly redundant to attend the generic induction course at no cost to the Employee prior to their leaving the Company. The Company will cover the cost of a Statutory Health Assessment undertaken by an Employee if their existing assessment is due to expire within six months of them becoming forcibly redundant. 32.13 Competencies (Training Transcript) Any Employee who is made redundant will be given a copy of his or her competencies (training transcript) upon a request made by the Employee within four weeks of leaving the Company. 32.14 This clause 32 applies only to full time and part time Employees and excludes casual and temporary Employees. 29 Authority concerning the construction of clause 32 is not entirely absent, albeit that the authority concerned is not that of a court. It is desirable to refer to that authority not just because it represents the view of a member of the specialist Federal industrial conciliation and arbitration tribunal presently known as the Fair Work Commission (the Commission) but also because, as it happens, the view expressed in that case and its outcome can be seen, certainly in hindsight, to have been influential on the conduct of BHP Coal and also the CFMEU. 30 Thus, in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] FWC 2062, decided on 28 March 2014 against the background of a dispute between the CFMEU and BHP Coal in relation to the implementation of redundancies at the Saraji Mine, Deputy President Asbury made the following observations in relation to clause 32: [10] The disputed clause 32 must be read in the context of the terms of the Agreement as a whole. The focus of the redundancy provisions is on protecting the position of permanent employees of BHP including those who are to be made redundant and those who are to remain in employment. This is apparent from clauses 31 and 32 of the Agreement, which are directed at ensuring that where there is a surplus of employees, forced redundancies are the last option. [11] The obligation to consult in clause 32.1 of the Agreement is triggered where a surplus of permanent employees arises at the mine during the life of the Agreement, and that surplus cannot be addressed through natural attrition. There is no requirement for BHP to consult with Employees and their Employee Representatives before forming the view that there is a surplus of employees and that the surplus cannot be addressed by natural attrition. I accept the submission of BHP that those matters are within the prerogative of the Company and are not matters that it is required to consult about or reach agreement in relation to. [12] The ordinary meaning of the term "surplus" is the amount left over when requirements have been met. Thus, when BHP identifies a surplus and the possibility of the need to reduce that surplus by way of redundancies, the obligation to consult employees is triggered. The term "surplus" relates to permanent Employees as defined in clause 47.1 and means persons employed by BHP who are covered by the Agreement. The term specifically excludes contractor or labour hire employees. The term "surplus" is relevant to both employees who are in the group that is in excess of requirements, and those within the group who are still required to be employed. [13] Consultation must be about the possible need for redundancies and the means of minimising their effect. Clause 32.1 does not distinguish between voluntary and forced redundancies. The possible need for redundancies and their effect relates to both the circumstances of employees who may volunteer for redundancy and those who will remain in employment. In particular, I accept that the composition of the workforce which will remain after the redundancies are implemented and the units which comprise that workforce is of vital concern to persons who will remain in employment. 31 In respect of that dispute, the Deputy President concluded that BHP Coal had not met its obligations to consult in relation to redundancies. 32 By an order made on 24 March 2014, the Commission as constituted by Deputy President Asbury made the following orders: 1. BHP Coal Pty Ltd refrain from terminating the employment of any employees covered by the BMA Enterprise Agreement 2012 engaged to work at the Saraji Mine on the basis of redundancy, voluntary or otherwise, until 5.45 pm on 28 March 2014. 2. BHP Coal Pty Ltd provide to the Construction, Forestry, Mining and Energy Union (CFMEU); the Employee Representatives identified in the transcript of proceeds in C2014/3084; and Mr Chris Brodsky with the following information: (a) The number of surplus employees; (b) The roles, including the departments and where relevant, crews, in which those surplus employees are engaged; (c) The number of contractor and labour hire employees performing work in the affected departments and crews; (d) Details of reorganisation of work in the affected areas following the proposed voluntary redundancies; and (e) Details of any changes in the performance of work, or changes in the allocation of work, to employees, contractors, and labour hire workers, including which roles will be performed by each of those categories of workers following the proposed voluntary redundancies. 3. That representatives of BHP Coal Pty Ltd make themselves available to meet with representatives of the CFMEU; the Employee Representatives; and Mr Brodsky at reasonable times, on three occasions from the date of this Order until 5.45 pm on 28 March 2014. 4. That during the meetings in (3) BHP Coal Pty Ltd will provide to the CFMEU; the Employee Representatives; and Mr Brodsky, an opportunity to make suggestions on the number of redundancies and the effect that they will have on Employees. 33 The Commission's reasons for making these orders were issued at a later date. I have already set out excerpts from them. Insofar as the Deputy President, at para 11, observed that clause 32 did not require BHP to consult with employees and their employee representatives before forming the view that there was a surplus of employees and that the surplus could not be addressed by natural attrition, I agree. Those matters are within managerial prerogative. 34 It does not follow from this, as the Deputy President's decision evidences, that consultation under clause 32 occurs in a vacuum in relation to the composition of that particular surplus. The Deputy President's further observation at para 13, that "[c]onsultation must be about the possible need for redundancies and the means of minimising their effect", is an accurate summary of the effect of clause 32.1. Likewise, it is true, as the Deputy President observes, that clause 32.1 does not distinguish between voluntary and forced redundancies. I also agree with the further observations the Deputy President makes concerning clause 32.1 at paragraph 13. 35 What, then, of the particular circumstances? 36 As I have mentioned, the conclusion about the existence of a surplus that could not be addressed by natural attrition was reached on 23 September 2014 by BHP Coal. It is evident that, in reaching that conclusion, BHP Coal, with the assistance, inferentially, of persons elsewhere within BMA, prepared documents by way of speaking notes, sample letters and PowerPoint presentations to be used in dealing with employees, employee representatives as defined and with the unions I have mentioned, materially including the CFMEU. 37 Such materials could not have been created overnight. By that I mean that, inferentially, they were not created just on 23 September 2014, but rather are indicative of a maturation of corporate thinking, which must necessarily have been occurring prior to 23 September 2014. Axiomatically, these documents must be read in context. Also axiomatically, and it is necessary emphatically to record this, such views as I express concerning them carry no quality of conclusiveness about them at this stage of proceedings. It is, rather, necessary to refer to them to highlight whether or not there is a serious question to be tried. 38 As I have said, context is very important. That context includes, for example, a statement in the speaking notes (p 221 of Mr McKenzie's affidavit refers) under the heading "Next Steps": • We will consult with EA employees [that's the employees covered by the enterprise agreement] and their representatives about these changes in accordance with BMA EA 2012 [the enterprise agreement]. 39 Also included in the speaking notes on that same page and under the heading "Today's Decision" is the following: • We are today advising employees that: • … • There is a surplus of staff (Non-EA) at these mines; • There is a surplus of EA Employees at Goonyella Riverside, Peak Downs, Saraji and Blackwater; • There will be no forced redundancies of EA Employees. However, we are seeking to address the surplus of EA employees by way of voluntary redundancies. 40 These speaking notes, crafted as they necessarily must have been prior to 23 September, do provide something of an insight, an insight in the reference to: We are seeking to address the surplus of EA employees by way of voluntary redundancies. 41 On 23 September 2014, at premises occupied by BMA, including BHP Coal, in Brisbane, a meeting was held between Mr McKenzie, a Ms Kristen Wall, Principal Employee Relations Manager in BMA, Mr White of the CFMEU, Mr Hughes of the CFMEU, Mr Webb of the AMWU, Mr Young of the Electrical Trade Union (ETU) and Mr Rogers of the ETU. Minutes of that meeting are in evidence. It is a feature of the exchange which occurred at that meeting that it was stated either by Mr McKenzie or by Ms Wall, more likely, it seems, on the evidence to hand, Mr McKenzie, that: Consultation is our focus. We want to start straight away. There will be one central consultation group. One employee per union per site will be able to participate. The meetings will be held in the Central Queensland Office. Will be available on these dates, starting this Thursday. 42 The minutes also record that Mr Young of the ETU asked: I haven't read this agreement but in my experience consultation is usually that you give us information before a decision is made. 43 Mr McKenzie responded: We have the right to make a decision and we then have an obligation once a decision is made to consult with you on how that decision will be implemented. 44 Used in conjunction with an initial briefing and exposure of the conclusion that there was a surplus was a PowerPoint entitled "Review of Operations Accelerate 2020." The reference to "2020" is a reference to a then extant five year plan in relation to the operation of the mines. Included in that PowerPoint, and I make reference to it because of the insight it provides into what, inferentially, is to be regarded as corporate thinking on the part of BHP Coal, was a slide entitled "Central Queensland Operations Review". Under the heading "Findings", the following appeared: • That each of the mines are high fixed cost operations • That [each of] the mines could be operated more effectively and efficiently with a redefined workforce than currently utilised. • That a surplus of ..... exists across our Central Queensland mines. BMA will consult with employees and their representatives on how the workforce reductions will be achieved. 45 Another slide detailed how a surplus total of 562 employees covered by the Enterprise Agreement was broken up as between the four mines in question. Yet another slide, under the heading "Next Steps - Process Going Forward," included, inter alia, the following: • BMA will consult with employees and your representatives about those changes in accordance with the [enterprise agreement]. • The consultation process will determine how the reduction in number of EA employees will be achieved, however, BMA is focused on addressing the EA employee surplus through voluntary redundancies only. 46 Another document prepared in the context of the 23 September decision was a BMA question and answer document. It was prepared for the benefit of the employees covered by the Enterprise Agreement. That document, inferentially, was attached to a standard form letter sent to each such employee on 23 September 2014. In that particular document, the following appears: Question: Will EA Employees be made forcibly redundant? Answer: BMA will consult with employees and their representatives to determine the appropriate course of action to achieve these workforce reductions. However BMA is focused on addressing the EA employee surplus through voluntary redundancies only. 47 On 24 September 2014, and in response to a letter from Mr Hughes, the Senior Vice President Queensland District Branch Mining and Energy Division of the CFMEU, BMA, inferentially, on behalf of BHP Coal also as employer, stated, inter alia: 1. We will consult in accordance with our obligations under the BMA Enterprise Agreement 2012 (EA). 2. An agenda for each consultation meeting will be provided either in advance or at the beginning of each meeting. We acknowledge that the Queensland District Branch of the Mining and Energy Division of the CFMEU has been appointed as a representative for the purposes of clause 15 of the EA. As the consultation progresses, there will be a natural evolution into discussions that are the subject matter of clause 32 of the EA. We will invite the Queensland District Branch of the Mining and Energy Division of the CFMEU to continue to participate in central consultation meetings in relation to the surplus of EA Employees and the need for voluntary redundancies to address that surplus under clause 32 of the EA. There will come a point when it will be necessary to transition from central consultation meetings to site-based consultation meetings with Employee Representatives pursuant to clause 32 of the EA. We will continue to comply with our obligations under the EA as consultation progresses. 48 The CFMEU responded to that letter by a letter also dated 24 September 2014 in which, inter alia, reference was made to an asserted commencement of approaches to employees by BHP Coal seeking expressions of interest in voluntary redundancy. There was substance in that assertion in that, on 24 September, such activity had occurred. The letter continued: We further note that the response to this issue has the appearance of avoiding the question. We request a clear response be provided on the issues raised in the interest of avoiding unnecessary disputation. We put you on notice that we consider such action to be in breach of and/or a misapplication of clause 32 of the BMA Enterprise Agreement 2012 ("Agreement"). The actions of the Company are contrary to the consultation obligations at clause 32.1 of the Agreement and undermine the obligations of the Company in respect of the Agreement and the Fair Work Act 2009. We request that you cease and desist this action immediately. We reserve the right to file proceedings in the appropriate jurisdiction without further notice to you. 49 In the result and notwithstanding the events which had, to that date, occurred and those which occurred thereafter, no proceeding was issued either in the Fair Work Commission or this Court until the originating application, including the interlocutory application, was filed on 4 December 2014. 50 In the period between 23 September 2014 and 1 October 2014, BHP Coal commenced a process of seeking expressions of interest for voluntary redundancy. That became a subject raised at a meeting which was held on 1 October 2014 at BMA's Central Queensland office. A representative of the CFMEU was in attendance at that meeting. 51 The record of that meeting, which is in evidence, includes the following: Employee Representative Issue/Question The EOI [expression of interest] for Voluntary Redundancy form does not make it clear that by completing the form you are just expressing an interest in what you will be paid out if you take a VR. The BMA and, thus, inferentially BHP Coal response is: The EOI for VR form does state that it is just an EOI, it is not an application to accept a voluntary redundancy. Completing the EOI form does not oblige employees to accept a VR. This process has been outlined in more detail in the Site Briefing distributed on 1st Oct 2014. 52 Next, under the heading Employee Representative Issue: Question: If an employee does not complete the EOI for Voluntary Redundancy by 17 October, can that employee complete an EOI at a later time? Answer: Employees must complete an EOI form by 17th Oct to be able to accept a VR. If an employee completes the EOI form they are not obliged to accept a VR. [emphasis added] 53 Other subjects canvassed at that particular meeting were whether BMA was taking advantage of the low Australian dollar to cut jobs. That was met with a particular response that need not be detailed. And a request for more detailed information than the organisational charts that the company had provided. Another subject covered was why does the company not achieve any required efficiencies by removing contractor and supplementary labour roles? The answer to this was an incorporation by reference to the answer given to question 1. In short form, the company's current position on that subject was that it proposed to backfill particular roles with labour hire and to use labour hire with particular skills and that it was not going to look to labour hire in relation to the reduction of the surplus. 54 More insight into the course of events between 24 September and 1 October is offered by a transcript of a meeting which occurred at the Peak Downs mine at Moranbah on 25 September, attended by, inter alia, Mr McKenzie, representing BMA and thus BHP Coal, and Mr Brodsky of the CFMEU. The minutes transcript records in detail the attendance. 55 At that meeting, Mr McKenzie stated the following (at p 1511 of Mr McKenzie's Affidavit): I am going to pull it up there. So looking forward the company intends to continue from an EOI [expression of interest] point of view seeking expression of interest from employees in relation to possible redundancies, also seek to be able to commence mine services recruitment. I make it very clear that no decisions will be made with respect to acceptance of EOIs and no decisions will be made in relation to appointments to mine services until such stage that we continue to go through the process but merely to express an interest and start the process of those two things. 56 Also recorded in that meeting is the following exchange which occurred between Mr Brodsky of the CFMEU and Mr McKenzie (at p 1511): MR BRODSKY: What I am saying is the 562 roles could be mitigated down if you concentrate further on identifying the contracting roles that you don't need in the business anymore. MR McKENZIE: So your proposition is that we should further seek out reductions that can be made with contractors or labour hire that we need in place. MR BRODSKY: Yes. MR McKENZIE: I am happy to consider that. Have you got any ideas on the areas that we should concentrate on? MR BRODSKY: No, not yet. Need to go through the book. What would assist us there greatly is the suggestion and me asking for the pre and post re-organisation structure so it will identify how I can come up with mitigating … MR McKENZIE: To be very clear, I can't give you a post organisational structure. It is not because we have not done one. We have to build it into the system. I can give you a pre if that is what we can get but I cannot give you a post. MR BRODSKY: But can you give a forecast? MR McKENZIE: I can't give an org chart for the future. MR BRODSKY: Yeah I know that. The pre is going to help us mitigate what I am going to suggest to the company because we will be able to see numbers and give suggestions. In no way, shape or form are we going to say you cannot use contractors and we don't want you to use contractors, we just want you to utilise them in the best way forward so it doesn't affect the permanent roles as what you were seeking. And then later after a reference by Mr Brodsky about going on to rotating shift, Mr McKenzie asks: MR MCKENZIE: On what basis do you need that? Mr Leggett: To see what exactly it would need to be at to mitigate against redundancies. 57 To come forward again to 1 October and to an agenda for the meeting. That agenda sought to provide an update on expressions of interest for voluntarily redundancies, the company's response to items for consideration and various thoughts for the company's consideration. It is plain enough that, by that stage the company had well and truly commenced the process of seeking expressions of interest for voluntary redundancies. Further, part of that presentation was under the heading, "Proposals/Idea/Thoughts Raised": Company Response