Newlands Coal Pty Ltd v Construction, Forestry, Mining & Energy Union [2005] FCA 1512

FEDERAL COURT OF AUSTRALIA

Newlands Coal Pty Ltd v Construction, Forestry, Mining & Energy Union [2005] FCA 1512

INDUSTRIAL LAW – industrial dispute – whether certified agreements prior or after the nominal expiry date prevail over an Australian Workplace Agreement to the extent of any inconsistencies – whether clauses in the certified agreements between the applicant and respondent exclude the operation of Australian Workplace Agreements WORDS AND PHRASES – 'industrial instrument', 'paid rates award' Workplace Relations Act 1996 (Cth) ss 3, 4, 143, 170LV, 170LY, 170LW, 170LX, 170ME, 170MG, 170MH, 170MHA, 170MX, 170VF, 170VQ, 298B, 412, 413A Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 79 ALJR 703 followed Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657 considered NEWLANDS COAL PTY LTD (ACN 010 082 578) v CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION QUD 157 OF 2005 DOWSETT J 28 OCTOBER 2005 BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QUD 157 OF 2005

BETWEEN: NEWLANDS COAL PTY LTD (ACN 010 082 578)

APPLICANT

AND: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

RESPONDENT

JUDGE: DOWSETT J

DATE: 28 OCTOBER 2005

PLACE: BRISBANE

REASONS FOR JUDGMENT

Background 1 The applicant operates underground and open-cut coal mines and a coal preparation plant. Conditions of employment at the open-cut mine and the coal preparation plant are regulated by two agreements, the Newlands Open-Cut Coal Mine Certified Agreement 2003 and the Newlands Coal Preparation Plant Certified Agreement 2002. I will refer to them respectively as the "Open-Cut agreement" and the "Preparation Plant agreement". The applicant and the respondent are the parties to both agreements. The agreements have been "certified" pursuant to the Workplace Relations Act 1996 (Cth) (the "Act"). The Act requires that such an agreement have a nominal expiry date. For the Open-Cut agreement, the nominal expiry date is 31 January 2006. For the Preparation Plant agreement it was 25 September 2005. It is common ground that both agreements remain in force pending negotiation of new arrangements for employment at the two workplaces. The agreements are in substantially similar terms. Pursuant to s 170LY a certified agreement effectively regulates the terms and conditions of employment in the relevant workplace to the exclusion of any award. 2 Subsection 170VF(1) of the Act provides: 'An employer and employee may make a written agreement, called an Australian workplace agreement, that deals with matters pertaining to the relationship between an employer and an employee.' 3 It is likely that such an agreement (an "AWA") will deal with matters also dealt with in any certified agreement for the relevant workplace. Whilst a certified agreement has general application to the terms and conditions enjoyed by all affected employees, an AWA applies only to the relationship between an individual employee and his or her employer. The Act contains provisions for resolving any inconsistency between an award or certified agreement on the one hand and an AWA on the other. 4 Since 25 April 2005 the applicant has been offering AWAs to individual employees employed in the open-cut mine and at the coal preparation plant. Some employees have accepted the offers. There are inconsistencies between the terms of the AWAs and the terms of the certified agreements. In the course of these proceedings no attempt has been made to identify in detail those inconsistencies. However it seems that the pay rates prescribed by the AWAs are higher than those payable under the certified agreements. 5 A dispute has arisen between the applicant and the respondent as to the status of these AWAs, given that the certified agreements remain in place. However the points in dispute are by no means clear. The dispute was referred to the Australian Industrial Relations Commission (the "Commission") pursuant to s 170LW of the Act. Each certified agreement made provision for such reference as contemplated by the section. Commissioner Bacon made recommendations for resolution of the dispute, based upon a particular view of the relationship between the certified agreements and the AWAs. The applicant does not accept that view as being correct and so has brought proceedings pursuant to ss 412 and 413A of the Act for interpretation of the certified agreements. The respondent has not submitted that the proceedings in the Commission constitute a bar to my determining the matter. However it submits that as a matter of discretion, I should choose not to do so in view of the fact that the parties have agreed that matters in dispute should be resolved in the Commission. I consider that a purported resolution of the dispute based upon an incorrect interpretation of the certified agreements would be an unsatisfactory outcome. I am inclined to undertake the task imposed by s 413A, namely to interpret the agreements. 6 Commissioner Bacon's recommendations assist in identifying the underlying cause of the dispute. He observed at par 5: 'The [respondent] contends that for reasons that will be discussed shortly the [the applicant] is precluded from applying the terms of an AWA to any employee who is covered by one of the certified agreements. The [respondent] states that it knows and accepts that it will have a contest with [the applicant] for the "hearts and minds" of employees on the question of whether such employees want to remain in the "collective" enterprise agreement or whether such employees want to sign "individual" AWAs. [The respondent's] complaint is not that such a contest will take place but rather when that contest should take place. [The respondent] expects that [the applicant] should honour its existing agreement and contends that [the applicant] is currently failing to do so.' 7 Nonetheless, there is a legal basis to the dispute. The Commissioner understood the respondent to assert that the certified agreements prescribe all conditions of employment and entitlements for the relevant employees, to the exclusion of all other terms and conditions. This approach is said to lead to the conclusion that to the extent that an AWA deals with matters not mentioned in the certified agreement, it has no operational effect because the certified agreement is to be the sole source of all conditions of employment enjoyed by, or imposed upon the applicant and relevant employees. This view is based upon the assertion that cl 4 of each agreement excludes the operation of all other relevant awards, agreements and industrial instruments, whether existing at the time at which the certified, agreement was made and certified or coming into existence thereafter. 8 The Commissioner accepted this view and also accepted that the certified agreements prohibited the payment of amounts in excess of those specified in those agreements. The Commissioner considered that the applicant had 'bargained away' its right to pay amounts pursuant to the AWAs where those amounts exceeded those payable pursuant to the relevant certified agreement.