Construction, Forestry, Mining & Energy Union v Pacific Coal Pty Ltd [1998] FCA 1501

IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY QG146 of 1998

BETWEEN: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION Applicant AND: PACIFIC COAL PTY LIMITED Respondent JUDGE: WILCOX J DATE OF ORDER: 26 NOVEMBER 1998 WHERE MADE: BRISBANE (HEARD BY VIDEO-LINK WITH SYDNEY)

ORDER Upon the usual undertaking as to damages being given by the Applicant:

THE COURT ORDERS THAT:

1. Pending further order of a Judge, the Respondent shall not require a member of the CFMEU engaged in coal production or overburden work (other than a drag line operator or open cut examiner), who has elected to work 8 hour shifts, to work a roster which includes afternoon shifts or night shifts or both, except on the basis that the member shall be rostered to work not less than one day shift in each three shifts. 2. There be liberty to apply on 48 hours notice.

AND THE COURT DIRECTS THAT: 3. Respondent to deliver any Request for Particulars by 4:00pm, 16 November 1998. 4. Applicant to provide those particulars by 4:00pm, 17 November 1998. 5. Respondent to file and serve its Defence by noon, 19 November 1998. 6. Applicant to file and serve affidavits by 4:00pm, 27 November 1998; and 7. Respondent to file and serve affidavits by 4:00pm, 2 December 1998. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY QG146 of 1998

BETWEEN: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION Applicant AND: PACIFIC COAL PTY LIMITED Respondent

JUDGE: WILCOX J DATE: 16 NOVEMBER 1998 PLACE: BRISBANE (HEARD BY VIDEO-LINK WITH SYDNEY)

EXTEMPORE REASONS FOR JUDGMENT WILCOX J: The application before me is for an interlocutory injunction in relation to a change in shift arrangements at the mine operated by the respondent, Pacific Coal Pty Limited, at Turong. Historically, apparently, the mine operated three eight hour shifts per day, being the "day", "afternoon" and "night shifts". Early this year the respondent sought the agreement of its employees to work 12 hour shifts. Clause 24.2.1 of the Coal Mining Industry Production Engineering Consolidated Award 1997 provided that the employer can determine the shift length to be worked up to a maximum of eight ordinary hours. Clause 24.2.2 provided that shift lengths greater than eight ordinary hours can only be implemented by agreement between the employer and the majority of affected employees. As I understand the position, and the evidence is not complete because it has been prepared in a very short time, a majority of the employees agreed to go to a 12 hour shift. They did so on the basis of an assurance from the respondent that, if any employee wished to revert to an eight hour shift, then this would be permitted. Apparently four employees never accepted the idea of 12 hour shifts and they continued to work eight hour shifts. Nine employees have signed Australian Workplace Agreements which commit them to 12 hour shifts and they continue to work a 12 hour shift, or perhaps 12˝ hours, commencing at 0630 hours and working to 1900 hours. The other relevant employees in the mine, some 27 in number, have reverted to eight hour shifts. The certified agreement in operation at the mine came to an end on 1 November 1998. Some months ago, negotiations for a new certified agreement commenced. On 22 July 1998, Andrew Vickers, the Queensland District President of the Construction, Forestry, Mining and Energy Union ("CFMEU"), the applicant, notified the respondent of CFMEU's intention to initiate a bargaining period for and on behalf of its members employed at the mine. The notice appears to comply with the requirements of the Workplace Relations Act 1996, but I say this without the benefit of any argument on the point. On 8 September 1998, Mr Vickers gave notice, pursuant to s170MO of the Act, of the intention of the CFMEU members employed at the mine to engage in industrial action. One aspect of the notified industrial action was a ban on the working of rostered shifts in excess of eight hours duration. It seems sufficient notice was given to cause this to be "protected action" within the meaning of the Workplace Relations Act. Subsequently, the CFMEU employees at the mine who had not previously been working eight hour shifts commenced to do this, apart from the nine employees who were on Australian Workplace Agreements. Within the last few days, the employer has notified the employees that those employees who work eight hour shifts will work only on afternoon shifts and night shifts; they will not be rostered for day shifts. The afternoon shift commences at 1500 hours and ends at 2300 hours. The night shift commences at 2300 hours and goes until 0700 hours the following day. The award provides penalty payments for employees working on afternoon shifts and night shifts and Mr Martin, on behalf of the respondent, points to this as a substantial reason for saying that the employees are not injured in their employment by being limited to those two shifts, rather than having every third shift rostered as a day shift. On the other hand, Mr Logan, on behalf of the union, points to some evidence, coming on a hearsay basis through his instructing solicitor, that many of the employees are concerned that limitation to afternoon and night shifts will diminish their opportunities of being with their families. No doubt there are advantages each way. Some members may prefer to have the extra money, others may prefer to have more free time when their families are available to them. I can only say that the affected people have currently taken the view that they do not wish to be limited in the shifts available to them. The applicant alleges that the company's decision contravenes s170MU of the Workplace Relations Act. Sub-section (1) of that section provides, amongst other things, that an employer must not injure an employee in his or her employment, or alter the position of an employee to the employee's prejudice, wholly or partly because the employee is proposing to engage, is engaging or has engaged in protected action. Sub-section (3) casts upon the employer the onus of establishing that the conduct of the employer was not wholly or partly related to the fact that the employee was proposing to engage, was engaging or had engaged in protected action. Mr Logan submits that the respondent's action in changing the shift arrangements is action which, at least in the eyes of many employees, alters their position to their prejudice; it was taken during a period when the employees were engaged in protected action; and there is at least a serious question to be tried in favour of the proposition that this action was taken because they were engaged in protected action. Mr Logan emphasises the reverse onus of proof provided by 170MU(3). On behalf of the respondent, Mr Martin relies upon an affidavit made by Paul Michael Davies who is described as Principal Consultant, Organisation of the company. Mr Davies deposed that the company changed the shift arrangements because the change made a more efficient work arrangement. It was likely to improve productivity. In aid of this proposition, he attached to his affidavit some charts showing the interruptions in production that would occur on the basis of three eight hour shifts and on the basis of the arrangements now desired by the company. I have experienced difficulty in following the charts. It seems to me the chart that is labelled "problem" is misleading. It includes a 12 hour shift, from 1900 hours to 0700 hours, which Mr Martin tells me is not in fact worked and is not intended to be worked. The result is to exaggerate the number of breaks. It is also apparent that one of the reasons for the number of breaks is that the respondent prefers people working a 12 hour shift to take their crib break at a different time from people working an eight hour shift, even though there is a need for a break at about the same time. Apparently, the respondent's rationale is that this keeps production moving. I understand that preference but it is then rather misleading to suggest the different shifts cause a greater number of breaks. The real difference between the two analyses is the extent to which 12 hour shifts are relied upon. I can well understand that, from the respondent's point of view, a 12 hour shift is a preferable arrangement; it means two changeovers in a 24 hour period, rather than three. Also it seems there are only two crib breaks in a 12 hour shift, whereas in an eight hour shift there is one crib break and one 10 minute smoko. But this comes back to the advantage, from the respondent's point of view, of 12 hour shifts rather than eight hour shifts. Apparently, the employees see the balance of advantage differently. It is not for this Court, certainly not at this time, to express a view about the differences. While I can understand the respondent's preference for 12 hour shifts, I have difficulty in seeing the rationale of not employing any of the eight hour people on day shift. It may be significant that the people who are engaged in protected action are the only employees not allowed to work day shifts. Having regard to those matters, and the employer's onus of proof, it is not possible for me to be satisfied that there is no probability that the change has been made for reasons divorced from the employees' engagement in protected action. I put the matter in that way, using the double negative, because of the onus of proof. To put the matter in positive terms, it seems to me there is a serious question as to whether there has been a breach of s 170MU of the Act. That conclusion leads to consideration of the balance of convenience. On the one hand it is said that, preventing the respondent carrying out the proposed change, will cause it extra expense and loss of profit. On the other hand, the employees say a change such as this will be difficult, in practice, for them to reverse and, in the meantime, they will suffer hardship because of the denial of any opportunity of working day shifts. In my view it is desirable that this matter come on for final hearing as soon as possible. I do not know what arrangements can be made in that regard, but I will speak to the senior judge in Brisbane, Spender J, to explore the possibility of an early hearing. I can give no guarantee as to when a hearing can be arranged. I can only say the Court will do its best. The question is: what should happen in the meantime? I have come to the view I should grant an injunction. I appreciate this will delay the changeover the company wishes to achieve, and possibly affect productivity, but I think it is better to avoid chopping and changing of arrangements. The new arrangement came into effect only from 11 pm yesterday. It has not yet seriously affected any employee. I think it is better for the employees to stay on their familiar arrangements until the case is resolved. There will be liberty to apply at short notice. If the situation changes significantly, the respondent can take advantage of that liberty. If it appears a final hearing will be significantly delayed, notwithstanding the best efforts of the respondent, and the respondent can demonstrate the delay will involve it in considerable loss, that may constitute a reason for a judge reconsidering the continuing operation of the injunction; but, for now dealing with the matter on an urgent basis, I think the appropriate course is to make an order which will, in effect, continue the three shifts per day arrangement. I should add that, in coming to that conclusion, I am influenced by the promise the respondent gave to its employees early this year, when it sought to persuade them to go on 12 hour shifts. Until that time, the employees had been working eight hour shifts which rotated through day, afternoon, and night. I think any employee who was told he could revert to eight hour shifts, if he wished, would assume this meant that he could go back to working a rotation of three shifts: day, afternoon, and night. The problem arises because the respondent wishes to have as many employees as possible on 12 hour shifts. I understand this from the respondent's point of view, but it seems to me it would be something of a breach of faith to employees, who agreed to try the 12 hour shift on the basis they could go back to the old eight hour shift, for them now to be faced with a situation of disadvantage, in not having a day shift available to them, because of complications caused by retention of some employees on 12 hour shifts. These considerations do not mean that, in the end, CFMEU's application will succeed; but I think they are relevant in considering the balance of convenience. I note that Mr Logan gives the usual undertaking as to damages on behalf of the applicant. On the basis of that undertaking I will order that, pending further order of a judge, the respondent be restrained from requiring: 1. A member of the CFMEU engaged in coal production or overburden work (other than a drag line operator or open cut examiner) who has elected to work 8 hour shifts, to work a roster which includes afternoon shifts or night shifts or both, except on the basis that the member shall be rostered to work not less than one day shift in each three shifts. 2. There be liberty to apply on 48 hours notice. I further direct that: 3. Respondent to deliver any Request for Particulars by 4:00pm, 16 November 1998. 4. Applicant to provide those particulars by 4:00pm, 17 November 1998. 5. Respondent to file and serve its Defence by noon, 19 November 1998. 6. Applicant to file and serve affidavits by 4:00pm, 27 November 1998; and 7. Respondent to file and serve affidavits by 4:00pm, 2 December 1998. I grant liberty to apply on two days' notice. I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox