FEDERAL COURT OF AUSTRALIA BHP Coal Pty Ltd, in the matter of Clause 32 of the Collieries Staff Award 1984 [2000] FCA 996 INDUSTRIAL LAW – Australian Industrial Relations Commission – referral pursuant to subs 46(1) of the Workplace Relations Act 1996 (Cth) – agreement made under award – relevant terms of agreement and award inconsistent – provision in agreement that it operate for fixed term – term expired – no new agreement entered into – whether agreement remains operative notwithstanding provision as to expiry – whether award applies in absence of agreement – held agreement had expired – award applied in its entirety on expiry Workplace Relations Act 1996 (Cth), subss 46(1), 147(1), 147)(2), 148(1), 148(2) Industrial Relations Legislation Amendment Act (No 2) 1994 (Cth), Sch 1, item 15 Coal Industry Act 1946 (Cth), s 36 IN THE MATTER OF COLLIERIES STAFF AWARD 1984 AND AGREEMENTS BETWEEN BHP COAL PTY LTD AND THE AUSTRALIAN COLLIERIES' STAFF ASSOCIATION, PURPORTEDLY PURSUANT TO CLAUSE 32 OF THE SAID AWARD Q 38 OF 2000 DOWSETT J 26 JULY 2000 BRISBANE IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Q 38 OF 2000 On referral from the Australian Industrial Relations Commission IN THE MATTER OF: COLLIERIES STAFF AWARD 1984 AND: AGREEMENTS BETWEEN BHP COAL PTY LTD AND THE AUSTRALIAN COLLIERIES' STAFF ASSOCIATION, PURPORTEDLY PURSUANT TO CLAUSE 32 OF THE SAID AWARD JUDGE: DOWSETT J DATE OF ORDER: 26 JULY 2000 WHERE MADE: BRISBANE The questions posed by the Australian Industrial Relations Commission are as follows: 1.1 Is the BHP Utah Clause 32 Agreement an "instrument" within the meaning of item 15 of schedule 1 of the Industrial Relations Legislation Amendment (No. 2) Act 1994; 1.2 Does the BHP Utah Clause 32 Agreement have effect as, and be taken to be, an award made by the Australian Industrial Relations Commission under the Workplace Relations Act 1996 (Cth); and 1.3 Is the BHP Utah Clause 32 Agreement in force to set aside? 2.1 Is the BHP Utah 1995 Clause 32 Agreement an "instrument" within the meaning of item 15 of schedule 1 of the Industrial Relations Legislation Amendment (No. 2) Act 1994; 2.2 Does the BHP Utah 1995 Clause 32 Agreement have effect as, and be taken to be, an award made by the Australian Industrial Relations Commission under the Workplace Relations Act 1996 (Cth); and 2.3 Is the BHP Utah 1995 Clause 32 Agreement in force to set aside? The COURT answers these questions AS FOLLOWS: 1.1 No. 1.2 No. 1.3 No. 2.1 As at the date of commencement of the Industrial Relation Legislation Amendment (No 2) Act 1994, the BHP Utah 1995 Clause 32 Agreement was an instrument within the meaning of item 15 of sch 1 of that Act. 2.2 Upon commencement of the said Act, the BHP Utah 1995 Clause 32 Agreement took effect as an award made by the Australian Industrial Relations Commission under the Workplace Relations Act 1996 (Cth). 2.3 No. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Q 38 OF 2000 On referral from the Australian Industrial Relations Commission IN THE MATTER OF: COLLIERIES STAFF AWARD 1984 AND: AGREEMENTS BETWEEN BHP COAL PTY LTD AND THE AUSTRALIAN COLLIERIES' STAFF ASSOCIATION, PURPORTEDLY PURSUANT TO CLAUSE 32 OF THE SAID AWARD JUDGE: DOWSETT J DATE: 26 JULY 2000 PLACE: BRISBANE REASONS FOR JUDGMENT 1 This is a reference from the Australian Industrial Relations Commission pursuant to subs 46(1) of the Workplace Relations Act 1996 (Cth) (the "Workplace Relations Act"). Prior to the commencement of the relevant provisions of the Industrial Relations Legislation Amendment Act (No 2) 1994 (Cth) (the "1994 Act"), employment in the coal industry was regulated by the provisions of the Coal Industry Act 1946 (Cth) (the "Coal Industry Act"). Pursuant to that Act the Coal Industry Tribunal made an award described as the "Collieries Staff Award 1984" (the "award"). It came into effect on 29 October 1984 and remained in force until the commencement of the relevant provisions of the 1994 Act. Clause 32 of the award provided: Agreements An agreement relating to rates of pay, hours of work, and conditions of employment in excess of award provisions affecting 'A' division staff may be entered into between an employer and employee or prospective employee. However, where an agreement is contemplated which proposes to substitute and/or trade off and/or set off any matters, the subject of any provision in this award, then such agreement shall not be implemented without the written acceptance of the Branch Secretary of the Australian Collieries' Staff Association, and such agreement shall: (i) provide for a specific term; (ii) provide for a disputes procedure with the Australian Collieries' Staff Association involvement for resolution of any dispute arising out of the terms of such agreement; (iii) insofar as award provisions are to be substituted and/or traded off and/or set off shall be referred to the Tribunal for approval prior to its implementation. 2 In 1989 BHP Coal Pty Ltd ("BHP Coal") and the Australian Collieries' Staff Association ("ACSA") negotiated a draft agreement described as "ACSA/BHP-Utah Coal Limited Salaried Staff Agreement" (the "1989 draft agreement"). ACSA was apparently acting on behalf of the relevant employees of BHP Coal who were described in the 1989 draft agreement as "its salaried staff in a position which falls within the scope of the Award". Although cl 1 asserted that the agreement had been made pursuant to cl 32 of the award, it was neither executed by the parties nor approved by the Coal Industry Tribunal. Although ACSA asserts in its outline of argument that the parties proceeded upon the basis set out therein, it probably never had legal effect in the absence of approval pursuant to sub cl 32(iii). Further, it did not comply with the requirement of sub cl 32(i) that it provide for a specific term. Clause 10 of the draft document provided (in blank) for such a term, but the blanks were not completed. 3 In 1995 the parties entered into an agreement described as "Interim Agreement Between BHP Australia Coal Pty. Ltd. and Australian Collieries' Staff Association (Qld Branch)" (the "1995 agreement"). This was executed on 22 May 1995 and approved by the Coal Industry Tribunal pursuant to cl 32 on that day, prior to the commencement of the relevant provisions of the 1994 Act on 1 July 1995. Pursuant to cl 16.1 the agreement was to "have a specific term from the date on which it is approved by the Coal Industry Tribunal through to 31 May 1998." There was provision for extension of the term by agreement, which agreement was to be notified to the Coal Industry Tribunal. Clause 16.4 provided: In any event, six months prior to its expiry, the Parties to this Agreement shall meet to discuss whether or not a further Agreement is appropriate. 4 Clause 14 related to the 1989 draft agreement, providing as follows: 14.1 The parties agree that the existing Clause 32 Agreement (i.e. relating to current salaried staff) between the Parties and approved by the Coal Industry Tribunal shall, except in regard to the provision of a health plan and over award sick leave payout benefits are concerned, have its term extended to 31 May, 1998. The health and sick leave benefits were the subject of Board of Reference, Queensland proceedings in Matter No. 123 of 1994. 14.2 The Agreement abovementioned in Clause 14.1 shall operate in conjunction with this Agreement. 14.3 All other matters, including conditions of employment not traded off/substituted through this and/or the Clause 32 Agreement referred to in clause 14.1, shall continue as provided for in the Award. 14.4 The Parties shall, by 31 December 1995, develop a single concise instrument which contains the common conditions of employment for "salaried staff" employees. This document shall be referred to the Coal Industry Tribunal for approval under the provisions of Clause 32 of the Award. 14.5 It is the Parties' intent that, upon approval by the Tribunal, this Statement referred to in 14.4 shall replace the existing Clause 32 Agreements. 5 Even if the 1989 draft agreement, at some stage, had legal effect, it was effectively "merged" in the 1995 agreement. However the latter agreement incorporated those aspects of the former agreement to the extent necessary to give effect to cl 14. 6 The effect of the 1994 Act was to transfer responsibility for industrial relations in the coal industry to the structure established by the Workplace Relations Act. It was therefore necessary to make provision in the 1994 Act for the continuation of awards and agreements previously made under the Coal Industry Act. To that end, Sch 1, Item 15 provided: (1) A reference in this item to an instrument is a reference to: (a) an award or order made by the Tribunal; or (b) a decision given by a Local Coal Authority; or (c) an agreement made at a hearing before the Tribunal or a Local Coal Authority; or (d) an agreement made under a provision of an award made by the Tribunal; that had effect as mentioned in subsection 36(1) or (2) of the Coal Industry Act immediately before the commencement of this item. (2) On and after the commencement of this item, an instrument, to the extent to which it was made under the powers and functions vested by subsection 32(2) of the Coal Industry Act, has effect as, and is taken to be, an award made by the Commission under the Industrial Relations Act. … 7 It is common ground that the award and the 1995 agreement were made under the subs 32(2) powers. The relevant date for the purposes of sub-item 15(1) was 1 July 1995. 8 Clearly enough, the effect of par 15(1)(a) is to continue in force any current award made by the Coal Industry Tribunal, sub-item 15(2) giving such award the status of an award made by the Industrial Relations Commission pursuant to the Workplace Relations Act. However this case is concerned with the consequences of the application of item 15 to the 1989 draft agreement and the 1995 agreement. As the former was never signed and never approved by the Coal Industry Tribunal, it was not an agreement for the purposes of item 15, nor was it ever the subject of an order made by the Coal Industry Tribunal. In those circumstances item 15 has no application to it. As to the 1995 agreement, it is common ground that the parties intended to utilize the provisions of cl 32 of the award and that it was approved by the Coal Industry Tribunal as required by that clause. I was told that as a matter of practice, the Coal Industry Tribunal did not issue formal orders, and so the transcript of proceedings before the Chairman on 22 May 1995 was provided as evidence of such approval. I note that at p 10 he recorded that he was pleased "to formally ratify the document …". Thus, subject to one formal matter, there is no reason to doubt that there was an agreement as contemplated by cl 32 of the award, that it was approved (or ratified) as required by that clause and that it was current as at 1 July 1995. The formal matter arises out of the requirement in s 36 of the Coal Industry Act that certain agreements be filed. Because of the view which I take of the proper construction of the award and the 1995 agreement, it is not necessary that I consider that matter. 9 Paragraphs (a) and (d) of sub-item 15(1) are relevant for present purposes. The 1995 agreement is "an agreement made under a provision of an award made by the Tribunal" (par 15(1)(d)), and the decision of the Coal Industry Tribunal to approve it is "an … order made by the Tribunal" (par 15(1)(a)). The effect of the operation of sub-item 15(2) is to extend the operation of both the agreement and the order approving it, giving both the effect of awards pursuant to the Workplace Relation Act. As I have said, the 1995 agreement, for all relevant purposes, includes by reference those provisions of the 1989 agreement which are necessary to give effect to the provisions of cl 14. 10 It is said that a difficulty arises at this point because of the provisions of ss 147 and 148 of the Workplace Relations Act which provide: 147(1)An award shall specify the period for which the award is to continue in force. (2) In determining the period to be specified under subsection (1), the Commission shall have regard to: (a) the wishes of the parties to the industrial dispute concerned as to the period for which the award should continue in force; and (b) the desirability of stability in industrial relations. 148(1)Subject to section 113 and any order of the Commission, an award dealing with particular matters continues in force until a new award is made dealing with the same matters. (2) … (3) … 11 ACSA submits that s 148 operates upon both the award and the 1995 agreement so as to continue the legal effect of each until a new award is made dealing with "the same matters". This submission is made notwithstanding the express provision in the 1995 agreement that it is to operate from the date of approval by the Coal Industry Tribunal until 31 May 1998. It is said that such provisions are common in awards. Indeed, the award itself provides that it is to remain in force for a period of twelve months from 29 October 1984, apparently, as ACSA suggests, in the expectation that its effect would be extended by a section analogous to s 148. I am presently asked to determine whether or not the 1995 agreement remains in force and is therefore capable of being the subject of orders of the Australian Industrial Relations Commission under the Workplace Relations Act. If both the award and the 1995 agreement remain in force, then both continue to regulate the relationship between BHP Coal and its relevant employees. I assume that the award and the 1995 agreement are inconsistent in their respective operations. ACSA argues that to the extent of any such inconsistency, the 1995 agreement continues to operate to the exclusion of the award. 12 Clause 32 of the award required that any agreement be for "a specific term". The 1995 agreement met that requirement. Excluding any statutory intervention, upon expiry of the prescribed term, the conditions of the award would again apply, at least in the absence of any fresh agreement. Thus, prior to the commencement of the relevant provisions of the 1994 Act, the award applied, save to the extent that it was varied by the 1995 agreement, such variation applying for the specified term of that agreement. The 1995 agreement applied according to its provisions, including that as to term. ACSA's submission would lead to further partial suspension of the award, contrary to the intention at the time at which the agreement was approved, and a corresponding extension of the 1995 agreement beyond its specified term. 13 I have great difficulty in accepting this submission. I consider that it is incorrect for three reasons: · firstly, it concentrates upon the continuation of the 1995 agreement rather than upon its content; · secondly, it treats the 1995 agreement as being independent of the award when, in fact, it is a creature of it; and · thirdly, it fails to recognize the fact that the award and the 1995 agreement exist only to the extent that they operate upon the same subject matter, namely the relationship between BHP Coal and its relevant employees. 14 ACSA's submission seeks to identify the effect which each instrument would have upon the employment relationship in the event that it stood alone, and then to make an arbitrary decision as to which ought prevail in the event that there is a conflict. The proper approach is to construe the two instruments as one, an approach which necessarily follows from the fact that the 1995 agreement is the creature of the award, suspending its operation in part, but only for a limited period of time. When the instruments are read together and applied to the employment relationship, it is clear that the limited operation of the 1995 agreement has expired. 15 It may be simply another way of saying the same thing to note that item 15 was intended to continue the operation of relevant awards and agreements for the purpose of transferring their subject matter to the system created by the Workplace Relations Act, while s 148 is intended to avoid any hiatus in award coverage caused by the expiry of an award. If an award so expires there are, as far as I can see, no prescribed conditions of employment to take the place of those prescribed in it. However, upon the expiry of the 1995 agreement, the award, in its entirety, again came into effect. To construe item 15 and s 148 as continuing the 1995 agreement in force at the expense of inconsistent provisions in the award would be to vary the award and the 1995 agreement in ways which were not intended by either legislative provision. I consider that the 1995 agreement is spent and has no continuing operation. In view of this conclusion, it is unnecessary for me to consider the effect on the 1995 agreement of the BHP Coal Pty Ltd Salaried Staff Agreement 1996. 16 The questions which have been posed by the Australian Industrial Relations Commission are as follows: 1. BHP Utah Clause 32 Agreement 1.1 Is the BHP Utah Clause 32 Agreement [the 1989 agreement] an "instrument" within the meaning of item 15 of schedule 1 of the Industrial Relations Legislation Amendment (No. 2) Act 1994; 1.2 Does the BHP Utah Clause 32 Agreement have effect as, and be taken to be, an award made by the Australian Industrial Relations Commission under the Workplace Relations Act 1996 (Cth); and 1.3 Is the BHP Utah Clause 32 Agreement in force to set aside? 2. BHP Utah 1995 Clause 32 Agreement 2.1 Is the BHP Utah 1995 Clause 32 Agreement [the 1995 agreement] an "instrument" within the meaning of item 15 of schedule 1 of the Industrial Relations Legislation Amendment (No. 2) Act 1994; 2.2 Does the BHP Utah 1995 Clause 32 Agreement have effect as, and be taken to be, an award made by the Australian Industrial Relations Commission under the Workplace Relations Act 1996 (Cth); and 2.3 Is the BHP Utah 1995 Clause 32 Agreement in force to set aside? 17 I answer these questions as follows: 1.1 No. 1.2 No. 1.3 No. 2.1 As at the date of commencement of the Industrial Relation Legislation Amendment (No 2) Act 1994, the BHP Utah 1995 Clause 32 Agreement was an instrument within the meaning of item 15 of sch 1 of that Act. 2.2 Upon commencement of the said Act, the BHP Utah 1995 Clause 32 Agreement took effect as an award made by the Australian Industrial Relations Commission under the Workplace Relations Act 1996 (Cth). 2.3 No. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. Associate: Dated: 26 July 2000 Counsel for BHP Utah and BHP Utah 1995: Mr J Murdoch SC Solicitor for BHP Utah and BHP Utah 1995: Blake Dawson Waldron Counsel for the Australian Collieries' Staff Association: Mr J Nolan Solicitor for the Australian Collieries' Staff Association: Hall Payne Date of Hearing: 3 July 2000 Date of Judgment: 26 July 2000