Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2011] FCA 1294

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2011] FCA 1294

On the proper construction of the agreement, clause 17.1.2 constitutes an express carve-out; changes to starting and finishing times require the agreement of the majority of affected employees, and clause 17.3 does not permit the respondent to unilaterally trial and implement such changes. In the absence of such agreement, site-specific starting and finishing times under clause 5.5 of Schedule F apply. There is no inconsistency between these provisions.

Jurisdiction
Australia
Judgment Date
08 November 2011
Procedural Posture
Civil Penalty Proceeding / Determination of Separate Question
Outcome
Question answered; proceeding adjourned to a date to be fixed.
Legal Topics
['construction of Workplace Agreements' 'changes to Roster Arrangements' 'agreement of Affected Employees' 'consistency Between Central Agreement and Mine Specific Schedule']
['industrial Law'] ['construction of Workplace Agreements' 'changes to Roster Arrangements' 'agreement of Affected Employees' 'consistency Between Central Agreement and Mine Specific Schedule']

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Procedural Posture

Civil Penalty Proceeding / Determination of Separate Question

Legal Issues

  1. 1 ['Whether clause 17.3 of the BHP Coal Pty Ltd Workplace Agreement 2007 permits the respondent to unilaterally conduct a trial and implement changes to starting and finishing times' 'Whether, having regard to clause 5.5 of Schedule F, starting and finishing times can only be changed by agreement']

Ratio Decidendi

On the proper construction of the agreement, clause 17.1.2 constitutes an express carve-out; changes to starting and finishing times require the agreement of the majority of affected employees, and clause 17.3 does not permit the respondent to unilaterally trial and implement such changes. In the absence of such agreement, site-specific starting and finishing times under clause 5.5 of Schedule F apply. There is no inconsistency between these provisions.

Court Disposition

Question answered; proceeding adjourned to a date to be fixed.

Orders

  • ['On the true construction of the agreement the respondent is not permitted by clause 17.3 to conduct a trial of changed starting and finishing times and after that trial to implement those changes.' "Were the respondent to agree, pursuant to clause 17.1.2, with a group of 'affected employees', changed starting and...