FEDERAL COURT OF AUSTRALIA Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 4) [2012] FCA 1454 Citation: Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 4) [2012] FCA 1454 Parties: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION v BHP COAL PTY LTD File number: QUD 248 of 2012 Judge: JESSUP J Date of judgment: 21 December 2012 Catchwords: INDUSTRIAL LAW – respondent previously found to have contravened s 346 of Fair Work Act 2009 (Cth) in dismissing employee – employee reinstated pursuant to court order - application for consequential or ancillary orders and for imposition of pecuniary penalty on respondent – whether dismissal of employee terminated employee's position as site safety and health representative pursuant to Coal Mining Safety and Health Act 1999 (Qld) – whether orders should be made to preserve employee's position as site safety and health representative pursuant to Coal Mining Safety and Health Act 1999 (Qld) – whether pecuniary penalty should be imposed on the respondent – matters relevant to imposition of pecuniary penalty Legislation: Fair Work Act 2009 (Cth) Coal Mining Safety and Health Act 1999 (Qld) Cases cited: Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 3) [2012] FCA 1218 Date of hearing: Heard on the papers Date of last submissions: 14 December 2012 Place: Melbourne Division: FAIR WORK DIVISION Category: CATCHWORDS Number of paragraphs: 20 Counsel for the Applicant: Ms C Howell Solicitor for the Applicant: Hall Payne Lawyers Counsel for the Respondent: Mr I Neil SC with Mr R Dalton Solicitor for the Respondent: Ashurst Australia IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY FAIR WORK DIVISION QUD 248 of 2012 BETWEEN: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION Applicant AND: BHP COAL PTY LTD Respondent JUDGE: JESSUP J DATE OF ORDER: 21 DECEMBER 2012 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. Further to Order 1 made on 7 November 2012, the respondent treat Henk Doevendans' service as unbroken for all purposes. 2. The respondent pay a pecuniary penalty in the amount of $7,500 in respect of its contravention of s 346 of the Fair Work Act 2009 (Cth) identified in the reasons of the court published in this proceeding on 7 November 2012. 3. The said penalty be paid to the applicant. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY FAIR WORK DIVISION QUD 248 of 2012 BETWEEN: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION Applicant AND: BHP COAL PTY LTD Respondent JUDGE: JESSUP J DATE: 21 DECEMBER 2012 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 In my reasons for judgment in this proceeding delivered on 7 November 2012 (Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 3) [2012] FCA 1218), I gave the parties leave to file further written submissions as to penalties, and as to any remedial or consequential orders which ought to be made in the light of those reasons. The parties have now filed such further submissions, and the reasons which follow deal with the questions raised thereby. 2 The applicant seeks an order pursuant to s 545(1) of the Fair Work Act 2009 (Cth) ("the FW Act") that Mr Doevendans' service with the respondent be treated as unbroken for all purposes. An order in those terms is not opposed by the respondent, and I shall make it. 3 The applicant next seeks a declaration – … that the termination of Mr Doevendans' employment by the respondent on 21 May 2012 did not have the effect of terminating his position as a Site Safety and Health Representative ("SSHR") elected in accordance with s. 93 of the Coal Mining Safety and Health Act 1999 (Qld). The making of an order in those terms is opposed by the respondent. 4 Under the Coal Mining Safety and Health Act 1999 (Qld) ("the CMSH Act"), a "site safety and health representative" – … is a coal mine worker elected under section 93 by coal mine workers at the coal mine to exercise the powers and perform the functions of a site safety and health representative mentioned in part 7 division 2. A "coal mine worker" is – … an individual who carries out work at a coal mine and includes the following individuals who carry out work at a coal mine — (a) an employee of the coal mine operator; (b) a contractor or employee of a contractor. Division 2 of Part 7 of the CMSH Act provides for the election of site safety and health representatives by coal mine workers "at a coal mine". 5 Under s 99 of the CMSH Act, the functions of a site safety and health representative are the following – (a) to inspect the coal mine to assess whether the level of risk to coal mine workers is at an acceptable level; (b) to review procedures in place at the coal mine to control the risk to coal mine workers so that it is at an acceptable level; (c) to detect unsafe practices and conditions at the coal mine and to take action to ensure the risk to coal mine workers is at an acceptable level; (d) to investigate complaints from coal mine workers at the mine regarding safety or health. 6 Section 94 of the CMSH Act provides, in effect, for the relevant coal mine workers to elect alternate site safety and health representatives if the representative originally elected "is not available when a coal mine operation is considered unsafe by affected coal mine workers". 7 Section 96 provides for the circumstances in which a coal mine worker ceases to be a site safety and health representative, in the following terms: A coal mine worker stops being a site safety and health representative if the worker – (a) tells the site senior executive that the worker resigns as site safety and health representative; or (b) stops being a worker at the mine; or (c) is removed from office by a vote of coal mine workers. 8 It is submitted on behalf of the applicant that the dismissal of Mr Doevendans on 21 May 2012 is now known to have been unlawful, and could not, therefore, have put an end to the contractual relationship of employer and employee existing as between himself and the respondent. That being the case, it is submitted that Mr Doevendans did not stop being a worker at the Saraji mine within the meaning of s 96(b) of the CMSH Act. Thus he continued to be a site safety and health representative at the mine. 9 Although the CMSH Act defines the term "coal mine worker", it does not define the word "worker" which is used in s 96(b). In my view, however, the "worker" to whom that paragraph refers is the "coal mine worker" mentioned in the opening line of the section. It is apparent from the definition of "coal mine worker" in the CMSH Act that, to qualify for such a description, an existing employee must "carry out work at a coal mine". That is to say, being an employee of the employer concerned is not sufficient: the individual must also carry out work at the mine. Section 96(b) should, in my opinion, be construed accordingly. It contemplates that an employee may stop being a worker at the mine, even if his or her employment continues uninterrupted (in circumstances where, for example, he or she is transferred to a position in another mine, or in a city location). 10 The present is not, in my opinion, the appropriate occasion for the court to consider the much-debated distinction between the ending of a contract of employment and the ending of the corresponding employment relationship. Whether or not Mr Doevendans remained in the employ of the respondent after his dismissal on 21 May 2012, I take the view that he thereupon stopped being a worker at the Saraji mine within the terms of s 96(b) of the CMSH Act. It likewise follows that this conclusion is not affected, with respect to the period after 25 May 2012, by the interlocutory reinstatement ordered by Greenwood J on that day. By that order, Mr Doevendans was returned to his former employment on the terms and conditions that applied to him prior to 21 May 2012, but he still was not a worker at the Saraji mine. 11 For the above reasons, I reject the applicant's application for a declaration that the termination of Mr Doevendans' employment did not have the effect of terminating his position as a site safety and health representative. 12 In the alternative, the applicant sought the following order: An order that the termination of Mr Doevendans' employment by the respondent on 21 May 2012 be treated as of no effect for the purpose of Mr Doevendans' position as a Site Safety and Health Representative ("SSHR") elected in accordance with s. 93 of the Coal Mining Safety and Health Act 1999. For the court to make such an order would be to require the respondent to "treat" the dismissal of Mr Doevendans otherwise than in accordance with law. If the effect of the CMSH Act is that Mr Doevendans did stop being a site safety and health representative on 21 May 2012, it would be both wrong and antagonistic to the judicial function for the court to require the respondent to treat that event otherwise. I do, therefore, reject the alternative form of relief which the applicant seeks in relation to Mr Doevendans' former position as site safety and health representative. 13 The next matter raised by the written submissions recently filed by the parties concerns penalties. Section 346 of the FW Act, which was contravened by the respondent, is a "civil remedy provision" in relation to which penalties apply under s 546 of that Act. The maximum penalty available under the Act is $33,000. The applicant sought the imposition of a "substantial penalty" for the respondent's contravention, while the respondent submitted that no penalty should be imposed at all. 14 The factors which are, in my view, relevant to the determination of a penalty are the following. The dismissal of Mr Doevendans was done by the decision of senior management at the Saraji mine. It was, therefore, no incidental or accidental act by a supervisor in a subordinate position. Although this means that the respondent is in no position to avoid full responsibility for the dismissal, at the same time the respondent deserves some credit for the careful and considered way in which Mr Doevendans' transgressions, as perceived by management, were handled. Indeed, the respondent's management was conscious that its decision might be challenged, and appeared to take care to ensure that it was defensible. This was not a dismissal done in reckless disregard of Mr Doevendans' legal rights. 15 On the other hand, the otherwise carefully documented record of the decision-making process which led to Mr Doevendans' dismissal does not appear to contain any clear references to the areas with which subparas (iii) and (v) of s 347(b) of the FW Act are concerned. There is evidence that, before it dismissed Mr Doevendans, the respondent sought legal advice, and it is to its credit that it did so. However, the court does not know what that advice was. Thus, the care which the respondent displayed in the processes leading to Mr Doevendans' dismissal can be taken only so far. On the evidence before the court, it could not be said that the respondent gave specific attention to the proscriptions for which s 347(b) provides. I could not, therefore, treat the case as being one in which the respondent made every attempt to comply with the relevant law, but was ultimately held to be wrong on a matter of construction, for instance. Indeed, as the applicant points out in its written submissions, the respondent was placed squarely on notice, before dismissing Mr Doevendans, that the "victimisation" provisions of the FW Act would most likely be activated by any such dismissal as was being proposed. 16 Save to the extent referred to above, I do not think that there was anything about the circumstances surrounding the dismissal of Mr Doevendans in particular which requires present consideration. 17 With respect to the question of deterrence, I would be disposed to apply a fairly light weighting to the matter of specific deterrence. There is no evidence that the respondent has previously contravened provisions of the relevant kind, or disregards its obligations under the FW Act generally. The concern which its management showed to comply with its legal and contractual obligations in relation to Mr Doevendans, incomplete though it seems to have been, gives rise to some confidence that the outcome of the case itself, together with the imposition of such penalty as may be warranted by other considerations, will be a sufficient specific deterrence for the respondent itself. 18 On the other hand, I am disposed to think that there would be some value in the incorporation of a general deterrence factor in the range of matters by reference to which I determine a penalty in the present case. The provisions which were contravened by the respondent, at least in the terms in which they were expressed (and therefore in the definitions of their boundaries) were new in the FW Act. I consider it important that, when new legislation is enacted, those who have business engaging in activities covered thereby should take care that any assumptions and protocols which inform the conduct of management are appropriately, and promptly, modified to reflect the terms so introduced. It would, in my view, be salutary if the outcome of the present case sent a message to both employers and unions that the new provisions of the FW Act may, and often will, require modifications to protocols and behaviours. 19 I take the view that imposition of a penalty of $7,500 would reflect the considerations referred to above, and would otherwise be appropriate in the circumstances of the case. 20 The applicant sought an order under s 546(3)(b) of the FW Act that any penalty imposed by the court be paid to itself. The respondent made no submission in opposition to that proposal, and I shall give effect to it. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup. Associate: Dated: 21 December 2012