Gordonstone Coal Management Pty Ltd v Australian Industrial Relations Commission

Background to the certified agreement 7 On 5 April 1993 the Coal Industry Tribunal made the Gordonstone Coal Mine Consent Award 1993. This award was made in settlement of a dispute that had been found by the Tribunal on 19 June 1990 to be an interstate industrial dispute (in CIT No 142 of 1990) to which Gordonstone was a party. 8 The agreement which was certified by the Commission in 1996 was reached after negotiations for an enterprise agreement at the mine. The negotiations took place from February 1995 to mid-1996. In general terms, the negotiations dealt with the terms and conditions that were to apply to production and engineering employees at the mine. In the course of the negotiations between March and July 1995, Gordonstone and the Union were unable to agree upon the level of bonuses and the use of contractors on specific tasks, and on 7 July 1995 Gordonstone notified the Commission of an alleged industrial dispute in relation to those two issues. On 14 July 1995 Gordonstone notified the Commission of an alleged industrial dispute in relation to the enterprise agreement, the bonus agreement and the use of contractors on a specific task. The notifications were heard before a deputy president of the Commission on 27 July 1995 and adjourned to 15 August 1995 when the Commission was informed that an enterprise agreement had been reached. The Commission did not make any finding of a dispute. 9 On 31 August 1995 the Union served a log of claims on Gordonstone and other coal industry employers in relation to their employees. The claims related to a number of industrial matters such as terms of employment, minimum wages and allowances, hours of work, leave, redundancy and retrenchment and occupational health and safety. On 16 October 1995 the Commission made a finding of the existence of an industrial dispute within the meaning of the Act between the Union and numerous employers, including Gordonstone. The finding was based upon the service and rejection of the log of claims. There were subsequent notifications of other industrial disputes with which we need not be concerned in this proceeding. 10 The work model negotiations between Gordonstone and the Union continued after August 1995. On 29 March 1996 Gordonstone notified a dispute to the Commission in C No 40170 of 1996 in relation to: "the failure of the parties to reach agreement on the operation of the mine site work model in the Coal Preparation Plant". The matter was listed for hearing in the Commission on 1 and 22 April 1996 and the parties continued discussions. On 23 April 1996, in dispute C No 40206 of 1996, the Union notified the existence of negotiations on a proposed agreement between the Union and Gordonstone which "may give rise to an Industrial Dispute". It was said in the notification that the issue that might give rise to the dispute was: "[t]he inability of the parties to reach agreement on that part of the Gordonstone Agreement relating to the Work Model of the Mine". 11 In April 1996 the parties agreed to file the enterprise agreement with the Commission so that negotiations could focus on the work model. On 23 April 1996 the enterprise agreement was signed by Gordonstone and the Union and on 31 May 1996 the enterprise agreement including the work model was forwarded to the Union for endorsement and filing with the Commission. 12 On 1 August 1996 Gordonstone filed an application with the Commission to have the agreement certified and on 21 October 1996 the Commission certified the agreement to have effect from 13 August 1996 and to remain in force until 1 April 1998. Statutory declarations supporting the application for certification were made on behalf of Gordonstone and the Union. In both statutory declarations it was declared that the agreement partly settled the disputes notified on 31 March 1996 and 23 April 1996 in notification numbers C No 40206 of 1996 and C No 40170 of 1996, but in Gordonstone's statutory declaration in response to the question: "Identify the facts on which it is asserted that the agreement is between parties to an industrial situation and is for preventing the situation from giving rise to an industrial dispute between them", the following answer was given: "Negotiations took place between the parties throughout 1995 and 1996 to date in an attempt to resolve a number of claims and counter claims by the parties. No further claims are permitted for the life of the agreement". The Union's statutory declaration, in answer to the same question, simply referred to the disputes notified on 31 March 1996 and 23 April 1996 as being the disputes in part settlement of which the agreement was made.

The enterprise agreement 13 The agreement dealt with substantially the same subject‑matter as had been dealt with in the 1993 consent award save for the 1993 provisions relating to leave. The following clauses are presently relevant: "4 DATE AND PERIOD OF OPERATION This Agreement shall take effect from the beginning of the first pay period commencing on or after the date of this Agreement's registration under the provisions of the Industrial Relations Act 1988 and shall remain in force until 1 April 1998. 5 RELATIONSHIP TO PARENT AWARD The terms and conditions of this Agreement replace in total the terms and conditions of the Gordonstone Coal Mine Consent Award 1993 and all variations thereafter, which would otherwise govern the employment relationship at Gordonstone Coal Mine. 6 AIM OF AGREEMENT This Agreement is based on the understanding that Gordonstone's People want to contribute to the viability and success of Gordonstone mine, to become the Worlds Safest and most productive Underground Coal Mine. The Agreements principal objectives are to provide for flexible working arrangements, achievement of productive performance and to enhance our People's skills and job satisfaction. Everyone's actions will be in accordance with the following principles of Gordonstone Mine. Safety. Every action must be safe in terms of people and also in terms of work process, work place, machinery, tools, equipment, facilities and product and must comply with all relevant legislation. Honesty, Fairness and Dignity. Honesty and fairness must be part of everything we do. We all must be treated with dignity. Productivity. Every person's actions should be aimed at making best use of team and personal abilities and of Gordonstone's resources in striving for continual improvement of Gordonstone's competitiveness." 14 The agreement also contained detailed provisions in relation to the contract of employment, career paths, hours of work, tools and equipment, clothing and protective equipment, employment benefits, trainees and apprentices, public holidays, accident pay and other similar provisions. Clauses 21 and 22 were in the following terms: "21 PROBLEM RESOLUTION PROCEDURE a) In the event of a safety or industrial issue arising, the parties agree to aim to resolve such conflict responsibly and harmoniously and as quickly as possible on site. b) Leaders are responsible at each step for properly documenting discussions. All decisions made under the Problem Resolution Procedure are to be communicated with disciplinary action being communicated by way of written instruction. c) Resolution of differences shall be according to the following steps. Step 1 Team Level. Joint investigation between the aggrieved person and his/her Team Leader in an attempt to resolve the matter within the Team. If the matter remains unresolved; Step 2 Shift Level Joint investigation between the aggrieved person, the Team Leader, Shift Delegate, Miners Officer and Shift/Area Leader. If the matter remains unresolved; Step 3 Group Level Joint investigation between the aggrieved person, Lodge Officials, Group Leader, Miners Officer and, where necessary, the person's Team Leader and Shift Delegate. If the matter remains unresolved; Step 4 Referral to the appropriate Industrial Authority for determination of the matter, provided that the UMW may, prior to referral, refer the matter to a conference involving District Officials and Gordonstone. This provision shall in no way delay the resolution of any outstanding problem, except by agreement of both parties to this Agreement." d) Provided the Status Quo that existed prior to the issue continues, then work shall continue as normal while the above procedures are being followed, and no party shall be prejudiced as to the final settlement by the continuation of work. 22 AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION a) In the event of a dispute where resolution cannot be achieved without the assistance of the AIRC, the parties will exchange positions prior to any hearing taking place. b) The parties to this Agreement agree to abide by any decision determined by the AIRC which relates to a dispute at Gordonstone Mine. c) Where it is agreed by the parties to resolve the matter with a mediator of the AIRC, both parties agree to abide by the recommendation of the chairman." 15 Clauses 32 and 33 provided: "32 NO FURTHER CLAIMS It is a condition of this Agreement that the UMW undertakes not to pursue any extra claim for the period of the Agreement. 33 FUTURE NEGOTIATIONS The parties agree to commence renegotiations on a new agreement no later than six months prior to this Agreement's expiry." A mine work model was annexed to the agreement.

Current dispute notification 16 On 27 February 1997 the Union notified the Commission of an alleged industrial dispute concerning: "h Union meetings - both on site and off site. h Union meetings with company representatives. h Local union executive meetings. h Payment and leave approval for union activities. h The provision of a bus service subsidy. h The problem resolution procedure in the enterprise agreement. h The behaviour code. h Communication of issues through the problem resolution procedure. h State level conferences via the problem resolution procedure. h Delegates assistance to individuals involved in rehabilitation, illness or injury, housing matters etc. h Attendance by employee representatives at AIRC. h Unilateral appointment of temporaries while 'manning issue' is before Commission - C No 40817 of 1996." 17 The notification stated that these matters had been the subject of the problem resolution procedure provisions of the certified agreement and that: "The Company now intends to unilaterally introduce changes to these arrangements and the Union is notifying this step in order to prevent industrial action over very sensitive issues on site." 18 On 20 March 1997 the Union filed with the Commission a notification of an alleged industrial dispute concerning: "The refusal of the Company to allow Officials of the CFMEU to enter the site and to talk to members". 19 The two dispute notifications were heard before Commissioner Hodder who referred both matters to a Full Bench of the Commission which found that: · the agreement related to an industrial situation within the meaning of the Act; · the problem resolution procedure validly enlivened the Commission's power under s 170MH(a) of the Act. · s 89A did not apply so as to limit the actions of the Commission taken pursuant to clauses deriving their validity from s 170LW of the Workplace Relations Act, or its predecessor, s 170MH of the Act, as such actions were not actions dealing with an industrial dispute by arbitration; preventing or settling an industrial dispute by the making of an award or order; or maintaining the settlement of an industrial dispute by varying an award or order. Rather, the Commission found, it would be making a decision pursuant to the provisions of an agreement and pursuant to a power expressly conferred by s 170LW of the Workplace Relations Act or by s 170MH of the Act. The Full Bench referred the notifications to Commissioner Hodder to deal with in accordance with the jurisdiction which the Full Bench set out.

Reasoning of the Full Bench 20 The Full Bench examined the history of the subject‑matter dealt with in the agreement and said: "It is self evident from the entirety of that material that the Agreement was made in settlement of claims that went beyond the bare question of the operation of the work model in the Coal Preparation Plant. That much is manifest from the content of the Agreement, particularly the displacement of the 1993 Consent Award. Consequently, the Agreement relates to a wider subject matter of dispute, or potential dispute than the bare issue that Gordonstone Coal first pointed to in its section 99 notification in 1996. It stated then that the potential dispute 'involves the failure of the parties to reach agreement on the operation of the mine site work model in the Coal Preparation Plant'. It may be noted that the wording does not confine the potential dispute to that bare issue." 21 The Full Bench then referred to the passage in the Gordonstone's statutory declaration to which we have referred and said that Gordonstone should be taken to have intended the agreement to be presented to Commissioner Hodder on the basis of there having been at least an industrial situation identifiable from the claims and counterclaims that had been at issue and subject to negotiation throughout 1995-1996. It said that this was corroborated by the content of the agreement and especially by the agreed displacement of the 1993 consent award and the no extra claims condition. The Full Bench then continued: "In the circumstances it would be obtuse for the Commission to not accept that the whole of the Agreement could properly be said to be made between the parties to an industrial situation. Moreover the Agreement may also properly be conceived to have been framed as the terms for preventing the industrial situation from giving rise to an industrial dispute between the parties. The existence of the industrial situation, and the identity of the parties to it, is established by the two notifications cited in the statutory declarations associated with the application under section 170MA. We do not need to determine whether that application could properly have been made under section 170MA(1), although it probably could have been by a mere invocation of a reference to the dispute found in C No. 22841 of 1995. It is sufficient for present purposes that the Agreement, and in particular the substance of clauses 21 and 22, may properly have been made by these parties pursuant to an application under section 170MA(2)."

22 Section 170MA(2) provided: "If the parties to an industrial situation, or any of them, agree on terms for preventing the situation from giving rise to an industrial dispute between them, they may make a memorandum of the terms agreed on."

The reference to an industrial situation in s 170MA(2) and also in the Commission's reasons is of course a reference to an industrial situation within the meaning of the Act. Section 4 of the Act defined the expression as follows: "industrial situation" means a situation that, if preventive action is not taken, may give rise to: (a) an industrial dispute of the kind referred to in paragraph (a) of the definition of 'industrial dispute'; or (b) [not relevant]."

The reference back to the definition of industrial dispute, with its central requirement that the industrial dispute (which includes a threatened, impending or probable industrial dispute) be a dispute extending beyond the limits of any one State, was the means by which the requirement of interstateness was introduced for the purposes of s 170MA(2). 23 Although the Commission did not find it necessary to determine whether the agreement was within s 170MA(1), we note that the dispute it mentioned in that connection, namely the dispute found in C No. 22841 of 1995, was the dispute that was the subject of the finding on 16 October 1995 in relation to the log of claims served on 31 August 1995.

Was there an interstate element underpinning the agreement?

24 Gordonstone's primary submission was there was no interstate element such as would provide the necessary foundation for an agreement within s 170MA of the Act and capable of certification under s 170MC. Gordonstone relied upon the definitions to which we have referred. It submitted that the agreement was not entered into in settlement of any claims that had an interstate element and that there was no interstate dispute or situation in prevention or settlement of which the agreement had been made; on the contrary, the agreement only resolved disputes in relation to local issues at the mine. Gordonstone pointed in particular to the notifications of 29 March 1996 and 23 April 1996 which related to the failure of the parties to reach agreement on the operation of the work model of the mine. It also pointed to the fact that in its statutory declaration in support of the application for certification, the disputes identified as those in settlement or part settlement of which the agreement was made were the disputes notified on 29 March 1996 and 23 April 1996. 25 The Union submitted that the effect of the definition of "industrial situation" was that it was sufficient for the purposes of s 170MA(2) that there be a situation which, if preventive action were not taken may give rise to an industrial dispute extending beyond the limits of any one State. It submitted that the evidence before the Commission supported the conclusion that those circumstances existed when the agreement was certified. The Union relied in particular on the terms of the two notifications of 29 March 1996 and 23 April 1996, Gordonstone's statutory declaration, the history of negotiations between the parties during 1995 and 1996, the terms of the certification of the agreement and the terms of the agreement itself, including its relationship with the 1993 consent award and the no extra claims conditions. 26 In circumstances such as the present it is for the Court to determine whether the prosecutor has shown that the facts necessary to found the jurisdiction of the Commission have not been made out. In doing so however, it is appropriate for the Court to consider the Commission's reasoning and to give great weight to the views formed by it on issues such as whether an industrial dispute exists or whether there was an industrial situation. Thus, in Attorney-General for Queensland v Riordan (1997) 146 ALR 445 Brennan CJ and McHugh J said (at 451): "If the Commission proposes to exercise powers of conciliation and arbitration by reason of the Commission's opinion that a 'threatened, impending or probable industrial dispute' exists, a court on an application for prohibition must give great weight to that opinion. The Commission is far better equipped than a court to assess the industrial situation."

See also at 462 per Gaudron and Gummow JJ, and at 469 - 470 per Kirby J. 27 In the present case the Commission, as we have noted, considered that it would be obtuse for it not to accept that the whole of the agreement could properly be said to be made between the parties to an industrial situation. But even if the Commission's conclusion is put to one side it is clear, in our opinion, that the Commission did have jurisdiction to certify the agreement. 28 It may well be that the particular disputes notified on 29 March 1996 and 23 April 1996 were of the most immediate importance when the agreement was submitted for certification, but they were not the only outstanding disputes between these parties upon which the agreement had an impact and the agreement must be considered in its industrial context. At the time of certification there was still outstanding the resolution of the interstate industrial dispute found by the Commission on 16 October 1995 consequent upon the service and rejection of the demands made in a log of claims served on 31 August 1995. The effect of cl 32 of the certified agreement was that no further claims could be made during the life of the agreement with the consequence that unresolved claims that were the subject of the October 1995 interstate industrial dispute could not be pursued until 1 April 1998. Moreover, the agreement, with its no extra claims provision, by its terms replaced "in total" the terms and conditions of the 1993 consent award made in settlement of an interstate industrial dispute, and it was in itself a new means for preventing an industrial situation from giving rise to an interstate industrial dispute between the parties. 29 The contention by Gordonstone that the dispute found on 16 October 1995 had no connection with the certified agreement in the sense that the agreement was not intended to resolve the issues in that dispute ignores the purpose and effect of the certified agreement. Clauses 21 and 22 - problem resolution procedure 30 Gordonstone submitted that cls 21 and 22 were in any event invalid since they were manifestly concerned with local disputes which may arise independently of any interstate dispute. It submitted that a dispute about a procedure for the settlement of local disputes was not an industrial dispute within the meaning of the Constitution or the Act, and an award establishing such a procedure was not within the jurisdiction of the Commission. Reliance was placed upon The Queen v Commonwealth Conciliation and Arbitration Commission; Ex parte Melbourne and Metropolitan Tramways Board (1965) 113 CLR 228 at 255-256 per Menzies J and The Queen v Portus; Ex parte City of Perth (1973) 129 CLR 312 at 316, 318-319. 31 Gordonstone further submitted that for a disputes settlement provision to be a valid part of a certified agreement it had to relate to matters arising under the agreement and this agreement did not do so. Moreover, the Commission's involvement under such a valid clause was limited to disputes about the application of the agreement. 32 In our view Gordonstone's attack on cls 21 and 22 must fail for the reason that, properly construed, cls 21 and 22, to the extent that they provide for disputes to be referred to the Commission for determination, are limited to disputes about the application of the agreement and are not impermissibly wide in their scope. 33 Section 170MC(1)(c) of the Act specified, as one of the requirements for certification, that an agreement include procedures for preventing and settling disputes between employers and employees covered by the agreement "about matters arising under the agreement" and s 170MH provided: "Procedures in an agreement for preventing and settling disputes between employers and employees covered by the agreement may, if the Commission so approves, empower the Commission to do either or both of the following: (a) to settle disputes over the application of the agreement; (b) to appoint of board of reference as described in section 131 for the purpose of settling such disputes." 34 When the agreement is considered as one which the parties intended should be certified by the Commission under Div 2 of Part VIB of the Act, it is not difficult to conclude that their intention was to reflect s 170MH and to empower the Commission to settle disputes over the application of the agreement. The language of the clauses points to this conclusion. Clauses 21 and 22 should be seen as providing for a staged process of problem resolution and, so viewed, it can be seen that the differences that were intended to be dealt with by the procedure are those that can, if necessary, move through the whole of the process to be resolved ultimately by "a decision determined by the AIRC" under cl 22(b). Disputes of this nature are "disputes over the application of the agreement" which, by reason of s 170MH, the parties can empower the Commission to settle. 35 The impugned clauses thus operate to enliven the Commission's power under s 170MH(2) only to the extent of enabling the settlement by decision of disputes that are "disputes over the application of the agreement". In this regard we consider the observations of Mason J in The Queen v Hegarty; Ex parte The Corporation of the City of Salisbury (1981) 147 CLR 617 at 629-630 to be apposite and particularly the observations at 629 that: "Where there is an interstate industrial dispute as to the means by which differences as to the classification of employees are to be determined, that dispute may be validly settled by an award which provides that all future such differences shall be resolved by a Board of Reference, so as to bind the parties to the dispute. Such an award is a settlement of the original dispute. The settlement is the more effective and enduring because it provides procedures and continuing machinery for the resolution of classification issues, the mode of resolution being germane to the original interstate dispute. These procedures and that machinery apply to the parties bound by the award wherever they may be, including an employer and an employee in a single State, in the same way that other provisions of the award apply to an employer and an employee in a single State. The application of the procedures results in a determination that an employee is within a particular classification, a factum on which the provisions of the award then operate. It is not to the point that the difference between the prosecutor and Tyler is not in itself an interstate dispute or that the Award is so expressed that a Board of Reference is authorized to deal with that difference. What is the point is that the provisions constitute the settlement of an interstate industrial dispute and that the procedures and machinery prescribed for the resolution of a person's classification are designed to ensure that the settlement of that dispute is effective and enduring." 36 We do not think it necessary to determine whether the clauses might have a wider operation that would not involve the exercise of any power by the Commission. Section 89A of the Workplace Relations Act 37 Gordonstone submitted that s 89A of the Workplace Relations Actoperated in any event to limit the jurisdiction of the Commission to deal with any matter coming before it for decision under cls 21 or 22. Section 89A is in these terms: "89A(1) Industrial dispute normally limited to allowable award matters For the following purposes, an industrial dispute is taken to include only matters covered by subsections (2) and (3): (a) dealing with an industrial dispute by arbitration; (b) preventing or settling an industrial dispute by making an award or order; (c) maintaining the settlement of an industrial dispute by varying an award or order." Section 89A(2) specifies allowable award matters. 38 Gordonstone submitted that s 89A(1)(a) was directly applicable to any decision-making process that may result from the operation of either of the clauses and that the Commission's jurisdiction was effectively confined by the section. It contended that to the extent that the Commission had any role in the procedures provided for by cls 21 and 22 that was necessarily by way of conciliation or arbitration and that where the Commission's role involved a determination of a matter in contest, that role was necessarily one of arbitration. In such a case s 89A would apply. 39 The Union submitted that s 89A did not apply to the certified agreement because it was not a certified agreement for the purposes of s 4(1) of the Workplace Relations Act; Div 4 of Pt VIB of that Act only applied to agreements entered into after the commencement of sch 8 of the Workplace Relations and Other Legislation Amendment Act 1996 (Cth): see item 23 of sch 8. It followed, said the Union, that the comprehensive amendments made to Pt VIB of the Workplace Relations Act pursuant to sch 8 did not apply to the agreement certified on 21 October 1996 because the date of commencement of sch 8 was 25 November 1996. The consequence was that the agreement was not a certified agreement for the purposes of s 4(1) of the Workplace Relations Act. Schedule 5 introduced s 89A into the Workplace Relations Act on 1 January 1997. 40 The Union submitted in the alternative that the determination of issues arising under cls 21 and 22 of the agreement in the exercise of power derived from s 170MH of the Act, was not subject to s 89A(1) because what was involved was in truth the exercise of conciliation powers and these were outside the scope of s 89A. The Union also submitted that s 170MH contained, in any event, a comprehensive and independent source of power to determine disputes and that it was not intended that s 89A should apply to s 170MH or its counterpart in the Workplace Relations Act, s 170LW. 41 We reject the submission that the agreement is not a certified agreement for the purposes of the Workplace Relations Act. Although the provisions of sch 8 may not be applicable to the certified agreement because they only apply to agreements made after the commencement of sch 8 (see item 23 in sch 8), s 89A is contained in sch 5 and is not so limited and is generally applicable in respect of all certified agreements whenever made. 42 We also reject the Union's submission that the determination by the Commission of a dispute arising under the certified agreement and referred to it pursuant to cls 21 and 22 is outside the operation of s 89A(1)(a). It is true that s 170MH of the Act was a broad grant of power to the Commission to enable it to settle disputes over the application of certified agreements and it is also true that such a grant included powers of both conciliation and arbitration. Nevertheless, we see no sufficient indication of any intention to deny s 89A its full effect when the Commission is exercising arbitral powers, albeit arbitral powers committed to it by virtue of the grant of power in s 170MH. 43 The fact that the parties have agreed, by a certified agreement and through the enabling provisions of s 170MH of the Act, to give the Commission powers to settle disputes does not deny those powers their arbitral character when what is involved is a binding decision in settlement of a dispute, not consensual in its nature, but made in the exercise of an independent judgment after the consideration of the differences between the parties. 44 We are therefore of the opinion that the Full Bench of the Commission was in error when it determined that any action taken by the Commission under cl 22 could not be seen as action which fell within s 89A(1) of the Workplace Relations Act. 45 It follows that although the applicant's primary challenges to the Commission's jurisdiction have failed, it has in one respect succeeded. The parties did not address the Court about the relief, if any, that should be granted if this was the conclusion we reached and we consider that they should now have an opportunity to do so. They should also have an opportunity to make submissions on the question of costs. We therefore direct that the applicant file written submissions as to the nature of the relief (if any) that should be granted in the circumstances and also as to the question of the costs, such submissions to be filed and served within seven days. We direct that the second respondent file and serve written submissions within seven days of the service upon it of the applicant's submissions. I certify that this and the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment herein of the Honourable Chief Justice Black, and the Honourable Justices Heerey & Goldberg

Counsel for the Applicant: Dr C Jessup QC and Mr R F Parry

Solicitor for the Applicant: Corrs Chambers Westgarth

Solicitor for the Respondent: R L Whyburn & Associates