1 Fair Work Act 2009 s.739—Dispute resolution Australian Workers’ Union, The v Cobar Management Pty Ltd (C2022/7051) COMMISSIONER P RYAN SYDNEY, 9 JUNE 2023 Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] Introduction [1] This decision concerns an application by the Australian Workers’ Union (AWU/Applicant) pursuant to s.739 of the Fair Work Act 2009 (FW Act) in respect of a dispute with Cobar Management Pty Ltd (Respondent) (Application). [2] The Application was made in accordance with clause 18 of the Cobar Management Pty Ltd Operations Enterprise Agreement 20201 (2020 Agreement) which came into operation from 13 November 20202 and has a nominal expiry date of 6 November 2024.3 [3] Clause 18 of the 2020 Agreement sets out the dispute resolution procedure and, following compliance with the steps set out in clauses 18.1-18.4, confers jurisdiction on the Commission to resolve disputes by mediation, conciliation or other methods it considers appropriate, and if unsuccessful, by arbitration. [4] Clause 19 of the 2020 Agreement deals with hours of work. Clause 19.10 of the 2020 Agreement sets out arrangements in relation to the shift commencement and finishing times. [5] The dispute relates to the interpretation of clause 19.10 of the 2020 Agreement and whether pre-start and crossover meetings must take place above ground. [6] The matter was unable to be resolved at conciliation and proceeded to arbitration. There is no dispute between the parties as to jurisdiction, and I am satisfied on the materials before the Commission that I have jurisdiction to arbitrate the dispute. [7] The parties agreed on the following question to be determined by arbitration: [2023] FWC 1364 DECISION [2023] FWC 1364 2 In relation to underground employees, does clause 19.10 of the Cobar Management Pty Ltd Operations Enterprise Agreement 2020 require crossover meetings and pre-start meetings to take place on the surface? [8] The matter was heard via Microsoft Teams on 20 December 2022. [9] I exercised my discretion to grant permission to both parties to be represented by a lawyer, as I was satisfied as to the matters set out in s.596(2)(a) of the FW Act. The Applicant was represented by Ms L Doust. The Respondent was represented by Ms J Jaffray. [10] Witness statements were tendered from the following persons: • Mr Ron Cowdrey, Vice President of the AWU NSW Branch (Exhibits A1 and A2); • Mr Peter Christen, employed by the Glencore Australia Pty Ltd as General Manager of CSA Mine (Exhibit R1); and • Mr Jade Buckman, employed by the Respondent as Ore Processing Manager at the CSA Mine (Exhibit R2). [11] Each of the above persons also gave evidence at the hearing. Background to the Dispute [12] The Respondent, which is part of the Glencore group of companies, owns and operates the CSA Mine located at Cobar in New South Wales. [13] The CSA Mine is one of Australia’s oldest copper mines. It produces between 40,000 and 50,000 tonnes of copper each year as copper concentrate. The CSA Mine operates 24 hours a day, seven days a week, with 500 to 520 employees and 100 to 150 contractors working at the mine site. [14] The underground employees access the mine by a cage lift which can accommodate approximately 35 persons at a time and takes 4-5 minutes in each direction to travel to 9 Level, a safe work area which includes an underground training room, located 810 metres below ground. [15] In October 2022, the Respondent announced that pre-start meetings and crossover meetings, which are currently held above ground, were to be moved underground to 9 Level. [16] A pre-start (or pre-shift) meeting occurs at the commencement of each new 7-day roster panel. A crossover (or cross-shift) meeting occurs at the crossover (or changeover) between the day shift and the night shift. [17] A pre-shift meeting is held by a supervisor with the employees they are responsible for and provides information to employees relevant to incidents and hazards, safety matters, specific tasks assigned to that crew, SIMOPS, details of work performed by other departments/crews and any relevant human resource or community information. [2023] FWC 1364 3 [18] A cross-shift meeting is held between two employees who fulfill the same duties where one works the day shift and the other works the night shift. The purpose of these meetings is to handover information relevant to the specific work area to the oncoming person at the shift changeover time. [19] The AWU contends that clause 19.10 of the 2020 Agreement precludes the holding of these meetings underground and that the conduct of these meetings underground is not safe. [20] The dispute turns on the interpretation of clause 19.10 of the 2020 Agreement. Relevant Provisions of the 2020 Agreement [21] Clause 19.10 of the 2020 Agreement states: 19.10 In relation to the shift commencement and finishing times, the following applies to all Employees: 19.10.1 Employees will be changed and ready to commence work at the designated shift commencement time; 19.10.2 Shift Employees are to be “on the job” to facilitate an effective shift changeover at least 15 minutes prior to the shift commencement time; 19.10.3 Mining department Employees are to be “on the job” to facilitate an effective first shift back meeting for the first shift of each new roster panel 30 minutes prior to the shift commencement time; 19.10.4 For underground Employees, “on the job” is a point on the surface as designated by the Employer which is not necessarily the pre-shift meeting room e.g. cage brace. In normal circumstances, expected on-site hours will not normally exceed 12 hours 45 minutes per day. Additional hours associated with this clause will be paid in accordance with Clause 22 - Work Outside Normal Rostered Hours and in compliance with the fatigue management plan. 19.10.5 Employees will remain on the job until the designated shift finishing time; and 19.10.6 Employees may be required in some positions to attend work to allow “hot seat changing” to occur. [22] Clause 21.4 of the 2020 Agreement states: 21.4 The base salary constitutes the total fixed component of an Employee’s remuneration and incorporates all penalty payments, bonuses and allowances including, but not limited to, shift work, annual leave loading, public holidays, disability and industry allowances, shift change over, scheduled pre-shift meetings and first shift back [2023] FWC 1364 4 meetings. The base salary amount will be used to calculate payment of personal/carers leave, compassionate leave and superannuation. It is acknowledged that the two (2) public holidays (Easter Saturday and Sunday) gazetted previously to the 2020 OEA have been compensated for existing Employees by a one off payment comprised of 14 hours at the Employee’s hourly rate which is included in the payment referred to in clause 21.1 above. Salaries in this Agreement have also been increased to account for these two (2) Public Holidays. For existing Employees, in addition to any other increase, salaries will be increased by 14 hours at their hourly rate as part of the 2020 annual salary review to compensate for these two (2) Public Holidays going forward. It is agreed that the removal of Communication and Consultation Days for this Agreement compensates existing and future employees for the 30 minutes “first shift back” and 15 minutes pre-start meetings currently being worked. There are no further claims regarding this issue. Applicant’s Evidence Mr Ron Cowdrey [23] Mr Cowdrey is the Vice President of the AWU NSW Branch and is the AWU organiser responsible for its members employed at the CSA Mine.4 [24] In or about October 2022, Mr Cowdrey stated that he received telephone calls from AWU members who were concerned that the Respondent had announced its intention to move pre-start meetings and crossover meetings underground.5 [25] Mr Cowdrey stated that he was a representative for the AWU in bargaining for the 2020 Agreement.6 [26] Mr Cowdrey stated that he attended a bargaining meeting on 11 December 2019 during which an employee representative requested the removal of the reference to meetings being held underground in clause 19.10(d) of the Cobar Management Pty Ltd Operations Enterprise Agreement 2015 (2015 Agreement). The minutes of this meeting were annexed to Mr Cowdrey’s statement.7 [27] Mr Cowdrey stated that the deletion of the reference to underground changeover was a “protracted point of contention” throughout the bargaining process.8 [28] Mr Cowdrey stated that the minutes of a bargaining meeting held on 28 January 2020 record that the issue was not agreed.9 [29] Mr Cowdrey stated that at a bargaining meeting held on 5 February 2020, Mr Hamilton or Mr Purdie, both representatives of the Respondent, stated words to the effect of “we did not want the cross-shift and pre-start meetings to be locked into the current meeting room, and we would like the ability to hold the meetings at other points on the surface.”10 [2023] FWC 1364 5 [30] The minutes of the bargaining meeting held on 5 February 2020 record that the issue was not agreed.11 [31] On or about 18 March 2020, Mr Cowdrey received a copy of the 2015 Agreement which was labelled ‘working draft’ and contained various amendments in mark-up form. The text of the document was colour-coded as follows: black – current text, green – agreed amendment, blue – amendment proposed by the Employer, purple – amendment proposed by the Employees. Proposed amendments to clause 19.10(d) were in purple text denoting that the amendment was proposed by the Employees and was not agreed.12 [32] On or about 27 May 2020, Mr Cowdrey received an amended version of the ‘working draft’ document. In this version, the text of clause 19.10(d) was in green font and stated: (d) For underground employees, “on the job” is a point on the surface as designated by the Company which is not necessarily the pre–shift meeting room e.g. cage brace. In normal circumstances, expected on-site hours will not normally exceed 12 hours 45 minutes per day. Additional hours associated with this clause will be paid in accordance with Clause 22 - Work Outside Normal Rostered Hours and in compliance with the fatigue management plan.13 [33] Mr Cowdrey stated that based on his experience and knowledge of working in the mining industry and as a union organiser representing workers in the mining industry, it is not common practice for shift changeover meetings to be held underground.14 [34] Mr Cowdrey stated that moving the pre-shift and cross-shift meetings underground would increase the number of workers underground at shift changeover, increase the time spent underground by each worker, delay workers at the end of shift, and result in increased risk to the health and safety of workers in the event of an emergency or evacuation.15 [35] Under cross examination, Mr Cowdrey agreed that the record in the minutes of the bargaining meeting held on 25 February 2020 that “Ron would like company to add wording to protect employees for payment of additional time worked” was correct and that the purpose was to ensure the employees were properly remunerated for spending more time underground if pre- shift and cross-shift meetings were held there.16 Respondent’s Evidence Mr Peter Christen [36] Mr Christen is employed by Glencore Australia Pty Ltd, a related body corporate of the Respondent, in the role of General manager of the CSA Mine.17 As General Manager, Mr Christen is responsible for the overall operations of the CSA Mine, including mining operations, processing, health and safety, construction projects, exploration, and human resources.18 [37] Mr Christen stated the current practice in relation to pre-shift and cross-shift meetings as follows: [2023] FWC 1364 6 • The shift commences on the surface immediately prior to the commencement of the pre-shift meeting; • The pre-shift meeting occurs in a designated area such as a meeting room or outdoor area. While the pre-shift meeting occurs, underground workers who are finishing their shift return to the surface; • A cross-shift meeting will then take place between relevant workers; • After the completion of the pre-shift meeting and any cross-shift meetings, underground workers who are commencing their shift proceed to the cage lift and travel underground.19 [38] Mr Christen stated that it is common for the pre-shift meetings to be interrupted by workers who are finishing their shifts so that they can conduct their cross-shift meeting and leave the site without being delayed by the pre-shift meeting.20 [39] Mr Christen described the proposed change to pre-shift and cross-shift meetings as follows: • The shift will commence on the surface at the cage brace. The shift commencement times for different crews will be staggered to relieve waiting times for the cage lift; • The workers will then proceed underground in the cage lift to 9 Level; • Each crew will travel together in the cage lift to ensure that pre-shift and cross-shift meetings are not delayed; • The cross-shift meetings will take place prior to pre-shift meetings; • After completion of cross-shift meetings, those finishing their shift return to the surface, whereas those commencing their shift attend the pre-shift meeting before travelling to their particular work area underground.21 [40] Mr Christen stated that the purpose of the proposed change is to improve efficiencies in the way in which workers travel to and from underground and improve the way in which pre- shift and cross-shift meetings take place.22 [41] Mr Christen stated that based on his experience and knowledge from working in the mining industry, it is common practice to hold pre-shift and cross-shift meetings underground, provided there is a designated safe work area to do so.23 [42] Mr Christen’s involvement in bargaining for the 2020 Agreement was limited to attending the first meeting.24 [43] Mr Christen stated that the proposed change to hold pre-shift and cross-shift meetings underground will not create any safety issues. Mr Christen stated that the Respondent has acquired additional ‘self-rescuers’25 to ensure that every individual underground will have their [2023] FWC 1364 7 own self rescuer.26 Mr Christen stated that the Respondent has sufficient communications systems in place to ensure that persons underground can communicate with those on the surface via fixed line telephone or radio.27 Mr Jade Buckman [44] Mr Buckman is employed by the Respondent as Ore Processing Manager at the CSA Mine and manages the ore processing function.28 [45] Mr Buckman reports to Mr Christen and manages approximately 120 employees comprising engineers, operators and tradespeople who perform work both underground and on the surface.29 [46] Mr Buckman stated that he was one the Respondent’s representatives in bargaining for the 2020 Agreement and that in addition to the AWU, there were a number of employee bargaining representatives.30 [47] Mr Buckman stated that bargaining for the 2020 Agreement took the form of negotiating changes to the 2015 Agreement.31 [48] Mr Buckman stated that in one of the bargaining meetings the bargaining team became aware that the Respondent was considering potentially changing the location of the pre-shift and cross-shift meetings to be held underground and sought the removal of the words “…this may be underground” in clause 19.10(d) of the 2015 Agreement. Mr Buckman stated that an employee member of the bargaining team explained they wanted the reference to underground removed because employees would have to be ready for work approximately 15-30 minutes earlier in order to catch the cage underground without being paid for that time.32 [49] Mr Buckman stated that he does not recall Mr Hamilton or Mr Purdie stating the words attributed to them by Mr Cowdrey in the meeting on 5 February 2020, and stated that there was no concession by the Respondent that pre-shift and cross-shift meetings could only occur on the surface.33 [50] Mr Buckman stated that the minutes for the bargaining meeting held on 25 February 2020 record Mr Cowdrey seeking wording to be added to clause 19.10(d) to protect employees for the payment of additional time worked at changeover.34 [51] Mr Buckman stated that at no point during bargaining were then any discussions about safety concerns in relation to the holding of pre-shift and cross-shift meetings underground.35 [52] Mr Buckman stated that no safety issues arise with respect to the holding of pre-shift and cross-shift meetings underground at 9 Level. Mr Buckman noted that it is a common practice within the industry and that 9 Level is a fresh air base with direct access to the access shaft and decline.36 [53] Mr Buckman was shown a document detailing the results of a heat survey conduct at 9L between 6:30am-7:00am on 11 November 2022.37 Mr Buckman stated that the survey indicates the temperatures at 9 Level were comparable to the surface temperatures on that day.38 [2023] FWC 1364 8 Call for document – Email titled “RE: Meeting 1 - Working EA and draft minutes” [54] During the cross examination of Mr Cowdrey, the Respondent called for documents relating to any emails that Mr Cowdrey had sent to the Respondent identifying errors or issues within the minutes of bargaining meetings. One email trail was produced in response to the call.39 [55] Counsel for the Respondent did not seek to tender the document until making their closing submissions due to a delay in receiving the document. Counsel for the Applicant objected to the tender of the document on the basis that the parties had closed their case and the parties were making closing submissions, and that it has been deprived of an opportunity to make submissions in respect of the document. [56] I reserved my ruling on the tender and indicated to the parties that I would give consideration to the issue and determine whether the document is admitted into evidence as part of my consideration of the matter. [57] The Applicant’s objection is based on the timing of the tender and a denial of procedural fairness arising from the late tender. [58] However, I am not satisfied that any prejudice or denial of procedural fairness to the Applicant arises for the following reasons. First, the late tender arose from a delay in the document being provided to Counsel for the Respondent. Second, Counsel for the Applicant had the opportunity to make submissions on the document as part of submissions in reply. Third, the relevant parts of the email trail are short and go no further than confirming the evidence Mr Cowdrey gave under cross examination that he had written to Mr Purdie seeking corrections and amendments to the draft minutes of the bargaining meeting held on 11 December 2019.40 [59] Accordingly, the email trail titled “Re: Meeting 1 – Working EA and Draft Minutes” will be admitted into evidence and marked Exhibit R4. Summary of Submissions Applicant’s Written Submissions [60] The Applicant submitted that it is seeking that the Commission confirm its interpretation of clause 19.10 of the 2020 Agreement. [61] The Applicant submitted that the principles to be applied concerning the proper construction of the 2020 Agreement were set out by a Full Bench of the Commission in “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Berri Pty Ltd41 (Berri). [62] With reference to Berri, the Applicant submitted that the task of interpreting an enterprise agreement involves determining what was agreed upon by the parties by extrapolating the common intention of the parties. The Applicant submitted that the common [2023] FWC 1364 9 intention is to be identified objectively by reference to what “a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.”42 [63] The Applicant submitted that the language of a particular agreement needs to be understood “in light of its industrial context and purpose”43 and that “the words are not to be interpreted in a vacuum divorced from industrial realities; rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament.”44 [64] The Applicant submitted that clause 19.10 has a plain and ordinary meaning that does not lend to any ambiguity, nor is it susceptible to one or more meanings. The Applicant submitted that on the plain and ordinary meaning of the clause, it clearly intends for pre-shift and cross-shift meetings to take place on the surface and not underground. The Applicant submitted that this is supported by the example of a location in the clause being the cage brace. [65] The Applicant submitted that the words “on the job” in clause 19.10 are a designator for a location, namely the pre-shift meeting room, or another location on the surface. [66] The Applicant submitted that the commencement of a shift could not conceivably start underground, and that the interaction between clauses 19.10.3 and 19.10.4 leads to a conclusion that “on the job” is a point on the surface and that the pre-shift and cross shift meetings must take place at a point on the surface. [67] In the alternative, the Applicant submitted that if the Commission determined that the clause was ambiguous, the evidence of the surrounding circumstances supports a conclusion that the Respondent ‘bargained away’ the right to hold pre-shift and cross-shift meetings underground. In support of this submission, the Applicant submitted that the evidence of what took place at bargaining meetings amendments and the amendments made to the wording in 2015 Agreement to remove the reference to meetings being held underground. [68] The Applicant also submitted that in any event, the practice of holding pre-shift and cross-shift meetings underground was unsafe and illogical as part of those meetings, workers are briefed on underground conditions and they would not receive that information prior to going down to 9 Level under the Respondent’s proposal. Respondent’s Written Submissions [69] The Respondent submitted that the principles which apply to construing industrial instruments are well settled, citing the decision in Berri. [70] The Respondent also cited the more recent decision of the Federal Court in James Cook University v Ridd,45 where the Full Court of the Federal Court summarised the relevant principles applicable to the interpretation of an enterprise agreement as follows: (i) The starting point is the ordinary meaning of the words, read as a whole and in context (City of Wanneroo v Holmes [1989] FCA 553; 30 IR 362, 378; City of Wanneroo [2023] FWC 1364 10 v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 [53]; WorkPac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536 [197]). (ii) A purposive approach is preferred to a narrow or pedantic approach — the framers of such documents were likely to be of a “practical bent of mind” (Kucks v CSR Limited [1996] 66 IR 182, 184; Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 [16]; WorkPac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536 [197]). The interpretation “turns upon the language of the particular agreement, understood in the light of its industrial context and purpose” (Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; 222 CLR 241 [2]). (iii) Context is not confined to the words of the instrument surrounding the expression to be construed (City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 [53]). It may extend to “… the entire document of which it is a part, or to other documents with which there is an association” (Short v FW Hercus Pty Ltd [1993] FCA 51; 40 FCR 511, 518; Australian Municipal, Administrative, Clerical and Services Union v Treasurer of the Commonwealth of Australia [1998] FCA 249; 82 FCR 175, 178). (iv) Context may include “… ideas that gave rise to an expression in a document from which it has been taken” (Short v FW Hercus Pty Ltd [1993] FCA 51; 40 FCR 511, 518). (v) Recourse may be had to the history of a particular clause “Where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form…” (Short v FW Hercus Pty Ltd [1993] FCA 51; 40 FCR 511, 518). (vi) A generous construction is preferred over a strictly literal approach (Geo A Bond and Co Ltd (in liq) v McKenzie [1929] AR 499, 503-4; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 [57]), but “Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties” (City of Wanneroo v Holmes [1989] FCA 553; 30 IR 362, 380). (vii) Words are not to be interpreted in a vacuum divorced from industrial realities but in the light of the customs and working conditions of the particular industry (City of Wanneroo v Holmes [1989] FCA 553; 30 IR 362, 378-9; WorkPac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536 [197]).46 [71] The Respondent submitted that consistent with the principles relating to the construction of enterprise agreements, the starting point is the ordinary meaning of the words in clause 19.10, having regard to the object and purpose of that clause in the context of the 2020 Agreement overall. [2023] FWC 1364 11 [72] The Respondent submitted that clause 19.10 of the 2020 Agreement is located in Part 3, Hours of Work, Remuneration and Related Matters, clause 19, “Hours of Work” and is concerned with when shifts commence and finish. [73] The Respondent submitted that it is clear from a consideration of clauses 19.10.1 to 19.10.6 of the 2020 Agreement that when an employee’s shift starts and finishes is determined by reference to when that employee is “on the job” and that clause 19.10.4 provides that for underground employees, “on the job” is a point on the surface. That is, clause 19.10.4 operates to ensure that the commencement of the employee’s shift must occur on the surface, but the clause is not otherwise concerned with events or meetings which occur after the employee is “on the job”. [74] The Respondent submitted that there is no provision in clause 19.10 of the 2020 Agreement that provides that pre-shift or cross-shift meetings must occur at a location on the surface, or at any specified location, whether on the surface or underground. [75] The Respondent submitted that it is not necessary to have regard to the surrounding circumstances, but in any event, they support the Respondent’s construction noting: • The employee bargaining representatives became aware that the Respondent was considering changing the location of pre-shift and cross-shift meetings and requested the reference “…this may be underground” to be removed from clause 19.10(d) of the 2015 Agreement; • The employee representatives requested this change because they were concerned that they would be required to be ready for work 15-30 minutes earlier to catch the cage lift to be “on the job” underground; and • The Respondent subsequently agreed that for underground employees, “on the job” would be a point on the surface. [76] The Respondent submitted that its proposal to hold pre-shift and cross-shift meetings underground is common practice and that the Commission should have regard to the customs and working conditions of the industry. [77] The Respondent submitted that the Applicant’s construction of clause 19.10 would require the Commission to impermissibly read additional words into the clause, which is contrary to the ordinary meaning of the clause. [78] The Respondent submitted that no safety issues arise from holding the meetings at 9 Level, noting it has access to fresh air, water, medical supplies, and communications. Applicant’s Written Submissions in Reply [79] The Applicant submitted that the Respondent’s construction of clause 19.10 is incorrect. The Applicant submitted that it is apparent that clause 19.10 deals with both “shift commencement” and “on the job”. [2023] FWC 1364 12 [80] The Applicant submitted that an employee must be changed and ready to commence work at the shift commencement time, but that is not required when “on the job” commences. The Applicant submitted that an employee may be wearing street clothes during the “on the job” period, provided they are in a state of clothed readiness by the “shift commencement time”. [81] The Applicant submitted that clause 19.10.4 of the 2020 Agreement specifies that “on the job” is a point on the surface and this contrasts with the language in clause 19.10(d) of the 2015 Agreement. The Applicant submitted that the arrival by an employee at the point on the surface does not cause the shift to commence. Rather, the clause provides for an obligation for an underground shift employee to be available for a specified period prior to the shift commencement time at a location on the surface designated by the Respondent for the purpose of shift changeover. [82] The Applicant submitted that its construction is consistent with a sensible industrial outcome.47 [83] The Applicant submitted that the holding of the per-shift and cross-shift meetings underground will result in employees spending more time underground, exposing them to safety risks associated with that location. Applicant’s Oral Submissions [84] The Applicant submitted that the determination of the question for arbitration requires the Commission to undertake the task of construing the 2020 Agreement. The Applicant submitted that the principles relevant to that task are well settled and referred specifically to principles 1 and 3 in Berri. [85] The Applicant submitted that evidence Mr Christen’s or Mr Buckman’s subjective intention or understanding of clause 19.10 is irrelevant to the task of construction. [86] The Applicant submitted that clause 19.10 is not limited to dealing with the shifting commencement and finishing times, but also with the obligations that arise immediately prior to the shift commencement and finishing times. [87] The Applicant submitted that clause 19.10.1 requires employees to be changed and ready to commence work at the shift commencement time, and what follows in clauses 19.10.2, 19.10.3 and 19.10.4, is a series of provisions about obligations that arise in the period prior to the shift commencement time. The Applicant submitted that the use of quotation marks in clauses 19.10.2, 19.10.3 and 19.10.4, attaches a very particular meaning to “on the job” in those paragraphs, being the period of 15 or 30 minutes prior to the shift commencement time. The Applicant further submitted that the inclusion of the same words in clause 19.10.5 where there are no quotation marks gives the phrase its ordinary meaning, that is, simply being at work or on shift. [88] The Applicant submitted that being “on the job” is a point on the surface and a state that continues until the shift commencement time and that it does not enable the Respondent to simply direct the employees to be changed and ready to commence work and to proceed underground. [2023] FWC 1364 13 [89] The Applicant submitted that recourse may be had to the history of a particular clause, referring to the decision of Short v FW Hercus Pty Ltd, as cited in Ridd. In support of this submission, the Applicant referred to the evidence of Mr Buckman that the drafting of the 2020 Agreement was a process which started with the 2015 Agreement. In this respect, the Applicant submitted that during bargaining there was a demand by employees to remove the shift changeover occurring underground. [90] The Applicant submitted that taking into consideration the safety issues it has raised, the Commission is not limited to simply answering the question for arbitration and has the discretion to give a determination that may lead in another direction to that which has been proposed by the Applicant. The Applicant submitted that the issue of safety informs the background to the extent that it can be taken into account. Respondent’s Oral Submissions [91] The Respondent submitted that clause 19.10 of the 2020 Agreement is concerned with timing and in particular, the shift commencement and finishing times. [92] The Respondent submitted that the phrase “changed and ready to commence work” in clause 19.10.1 of the 2020 Agreement is a composite phrase and that when one reads clause 19.10.1 together with the remaining provisions, an employee is not ready to commence work until they have completed pre-shift and cross-shift meetings. [93] The Respondent submitted clause 19.10.2 of the 2020 Agreement is concerned with shift employees and that they are required to be “on the job” to facilitate an effective shift changeover at least 15 minutes prior to the shift commencement time. The Respondent submitted that clause 19.10.2 does not state where the employees need to be or what happens after that point in time, as the object and purpose of that clause is the timing for shift employees as to when they are “on the job.” [94] The Respondent submitted that clause 19.10.3 is concerned with the time at which employees are “on the job” at the commencement of each 7-day roster. [95] The Respondent submitted that upon an ordinary reading of clause 19.10.4, it is concerned with the location, namely a point on the surface designated by the Respondent, in respect of the point in time identified in the previous clauses. The Respondent submitted that is clear from the first sentence that once an employee is at that spot they do not need to remain there. The Respondent further submitted that the clause envisages that the “on the job” location can be a point on the surface where an employee is required to be fully dressed in their personal protective equipment (PPE) such as the cage lift brace. [96] The Respondent accepted that the phrase ‘on the job” is not in quotation marks in clause 19.10.5, but submitted it supports its construction as it refers to the fact that employees will remain on the job until the designated finishing time. [97] The Respondent submitted that the surrounding circumstances support its construction noting: [2023] FWC 1364 14 • Under the 2015 Agreement, were not “on the job” until they arrived at the pre-shift meeting room, and if this was underground, they would not be paid for the time travelling to the “on the job” spot; • The evidence of Mr Buckman and Mr Cowdrey that an employee bargaining representative raised the issue of removing the reference to underground during bargaining; and • The minutes of the bargaining meeting on 25 February 2020, where Mr Cowdrey was recorded as stating he wanted to protect employees for payment for additional time worked. [98] The Respondent submitted that the safety issues raised by the Applicant are largely speculative and not supported by cogent evidence and to the extent that they exist they should be appropriately dealt with, but they are not relevant to the construction of the 2020 Agreement. Principles of construction of enterprise agreements [99] The dispute before the Commission concerns the proper construction of clauses in the 2020 Agreement. [100] The principles relevant to the approach that the Commission should take to the construction of enterprise agreements was set out in the decision of a Full Bench of the Commission in Berri as follows: 1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from: (i) the text of the agreement viewed as a whole; (ii) the disputed provision’s place and arrangement in the agreement; (iii) the legislative context under which the agreement was made and in which it operates. 2. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties. 3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties. 4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations. [2023] FWC 1364 15 5. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement. 6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement. 7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning. 8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists. 9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement. 10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement. 11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations. 12. Evidence of objective background facts will include: (i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement; (ii) notorious facts of which knowledge is to be presumed; and (iii) evidence of matters in common contemplation and constituting a common assumption. 13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered [2023] FWC 1364 16 by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement. 14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was. 15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post- agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding. [101] In Workpac48, the Full Court of the Federal Court in Skene succinctly restated the principles as follows: “The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context. The interpretation “…turns on the language of the particular agreement, understood in the light of its industrial context and purpose …”. The words are not to be interpreted in a vacuum divorced from industrial realities; rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament. To similar effect, it has been said that the framers of such documents were likely of a “practical bent of mind” and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced.” [references omitted] Consideration Ordinary meaning [102] As stated above, the dispute relates to the interpretation of clause 19.10 of the 2020 Agreement and whether pre-start and crossover meetings must take place above ground. [103] Although the 2020 Agreement contains a definitions clause, it does not contain a definition of any of the relevant words or phrases that are contained in clause 19.10. [104] Therefore, the starting point is to consider the ordinary meaning of the words in the context of which they appear, and whether the 2020 Agreement has a plain meaning or if it is ambiguous or susceptible of more than one meaning. [2023] FWC 1364 17 [105] In my view, in considering the plain and ordinary meaning of the relevant words in clause 19.10 and the context in which they appear, there is no ambiguity for the following reasons. [106] Clause 19.10 of the 2020 Agreement deals with a range of matters in relation to the shift commencement and finishing times. The default position is that all employees will be changed and ready to commence work at the designated shift commencement time (clause 19.10.1). [107] If the employee is a shift employee, and/or an employee in the mining department, there are additional requirements. First, for those employees who are shift employees, there is an additional requirement to be “on the job” to facilitate an effective shift changeover (cross-shift meeting) at least 15 minutes prior the shift commencement time. (Clause 19.10.2). [108] Second, for those employees who are mining department employees, there is an additional requirement to be “on the job” to facilitate an effective first shift back meeting (pre- shift meeting) for the first shift of each new roster panel 30 minutes prior to the shift commencement time (Clause 19.10.3). [109] The effect of clause 19.10.2 and clause 19.10.3 of the 2020 Agreement is to establish a different commencement time for those classes of employees which is either 15 minutes or 30 minutes, as the case may be, prior to the designated shift commencement time. [110] The period of time between when those classes of employees are “on the job” and the designated shift commencement time is time worked in addition to the 12 hour shift and is paid as part of the base salary. In relation to the payment for this additional time, clause 21.4 of the 2020 Agreement provides: 21.4 The base salary constitutes the total fixed component of an Employee’s remuneration and incorporates all penalty payments, bonuses and allowances including, but not limited to, shift work, annual leave loading, public holidays, disability and industry allowances, shift change over, scheduled pre-shift meetings and first shift back meetings. The base salary amount will be used to calculate payment of personal/carers leave, compassionate leave and superannuation. (Emphasis added). [111] Neither clause 19.10.2 or clause 19.10.3 state where those classes of the employees must report to for the purpose of being “on the job”, nor do those clauses state where the pre-shift or cross-shift meetings must be held. [112] Clause 19.10.4 of the 2020 Agreement confirms that, for underground employees, the 15 minute or 30 minute period prior to the designated shift commencement time will commence on the surface at a point designated by the Respondent. Clause 19.10.4 does not state that pre- shift or cross-shift meetings must take place on the surface, nor does it state that they cannot be held underground. [113] Accordingly, “on the job” as it appears in clauses 19.10.2 and 19.10.3 is a point in time when those relevant classes of employees must be on duty for the purposes of facilitating [2023] FWC 1364 18 effective pre-shift and cross-shift meetings. For underground employees, clause 19.10.4 simply confirms that the 15 minute or 30 minute period of duty will begin on the surface. [114] It is also important to note that once an employee commences that 15 minute or 30 minute period, they remain on duty until the designated shift finishing time49, and if the on-site hours exceeds 12 hours 45 minutes, the employee will be entitled to additional payments in accordance with clause 22. [115] I do not accept the Applicant’s submission that clause 19.10 clearly intends for pre-sift and cross-shift meetings to take place on the surface and not underground. As stated above, clause 19.10 does not engage with the location of those meetings. It provides for a period of time for those meetings to occur prior to the designated shift commencement time and confirms for underground employees that the period of time will commence on the surface before those employees travel underground. [116] I also do not accept the Applicant’s submission that employees are only required to be changed and ready in the work attire and any PPE by the designated shift commencement time for the following reasons. First, as I found above, the period of time between when those classes of employees are “on the job” and the designated shift commencement time is time worked in addition to the 12 hour shift and is paid as part of the base salary. Second, once their 15 minute or 30 minute period commences, employees remain on duty until the designated shift finishing time (Clause 19.10.5). Third, clause 19.10.4 of the 2020 Agreement clearly contemplates that the point on the surface can be the cage lift brace – where, all persons must be appropriately attired, including wearing any required PPE. Fourth, the evidence before the Commission is that underground employees currently attend pre-shift and cross-shift meetings appropriately attired with their PPE.50 [117] For the reasons set out above, the provisions of clause 19.10 of the 2020 Agreement are not ambiguous, uncertain or capable of more than one meaning. It is therefore impermissible to call in aid of interpretation, evidence of the ‘surrounding circumstances’. [118] Accordingly, the answer to the agreed question for arbitration is no, clause 19.10 of the 2020 Agreement does not require pre-shift or cross-shift meetings to take place on the surface. Surrounding Circumstances [119] The principles in Berri provide that regard may be had to evidence of the surrounding circumstances to assist in determining whether ambiguity exists, and that where the language of the agreement is ambiguous or susceptible of more than one meaning, then evidence of the surrounding circumstances will be admissible to aide the interpretation.51 [120] If in the alternative, I found the provisions of clause 19.10 of the 2020 Agreement were ambiguous or susceptible of more than one meaning, the evidence of the surrounding circumstances would have led to the same conclusion for the following reasons. [121] First, clause 19.10(d) of the 2015 Agreement states “for underground employees “on the job” is the pre-shift meeting room, this may be underground should travelling arrangements be available.” It is clear that if the pre-shift meeting room was determined by the Respondent [2023] FWC 1364 19 to be underground, employees would not be “on the job” until they had arrived at the underground pre-shift meeting room. The consequence of this is that the 15 minute or 30 minute period prior to the shift commencement time would not begin until the employees had arrived at the pre-shift meeting room and they would not receive payment under clause 21.2 of the 2015 Agreement for the time spent travelling to the underground location. [122] Second, the evidence of Mr Buckman was that the potential of travelling underground to the “on the job” location without payment was an issue raised by an employee bargaining representative during bargaining for the 2020 Agreement.52 Mr Cowdrey gave similar evidence that an employee bargaining representative raised an issue concerning the removing the reference to meetings being held underground.53 [123] Third, the minutes of the bargaining meeting held on 25 February 2020, record Mr Cowdrey seeking payment for additional time worked at shift changeover.54 As set out earlier, Mr Cowdrey agreed that the record in the minutes of the bargaining meeting held on 25 February 2020 was correct and that the purpose was to ensure the employees were properly remunerated for spending more time underground if pre-shift and cross-shift meetings were held there.55 [124] Fourth, the wording in 2020 Agreement addresses the concern raised by the employee bargaining representative and pursued by Mr Cowdrey in that underground employees receive payment for the 15 minute or 30 minute period once they are at the point on the surface designated as “on the job” even if they are then required to travel to 9 Level for the pre-shift and cross-shift meetings. Recourse to the history of the clause [125] I do not accept the Applicant’s submission that recourse to the history of clause 19.10 in the 2015 Agreement assists the task of construing the 2020 Agreement. As set out earlier, clause 19.10(d) of the 2015 Agreement provided the Respondent with the scope to designate the location of “on the job” either on the surface or underground. Whereas the amended wording in clause 19.10.4 of the 2020 Agreement specifically requires that the point in time that underground employees are “on the job” will be at a location on the surface. Safety Issues [126] In relation to the issues of safety raised by the Applicant, I accept the submissions of the Respondent that they are speculative and do not bear upon the construction of the 2020 Agreement. However, despite that and notwithstanding my conclusion, to the extent the Respondent proceeds to conduct pre-shift or cross-shift meetings at 9 Level, the Respondent must comply with any work, health and safety obligations and undertake appropriate consultation with the affected employees. Conclusion [127] In conclusion, the answer to the agreed question for arbitration is: [2023] FWC 1364 20 In relation to underground employees, does clause 19.10 of the Cobar Management Pty Ltd Operations Enterprise Agreement 2020 require crossover meetings and pre-start meetings to take place on the surface? No. COMMISSIONER Appearances: L Doust of counsel for the Applicant. J Jaffray of counsel for the Respondent. Hearing details: 2022. Sydney (via Microsoft Teams video-link): 20 December 2022. Printed by authority of the Commonwealth Government Printer <PR762971> 1 AE509449. 2 [2020] FWCA 5916 at [9]. 3 Ibid. 4 Exhibit A1 at [2]-[3]. 5 Ibid at [4]. 6 Ibid at [10]. 7 Ibid, Annexure RC4. 8 Ibid at [11]. 9 Ibid at [15]-[16], Annexure RC5. 10 Ibid at [18]. 11 Ibid, Annexure RC6. 12 Ibid at [20]-[22], Annexure RC7. 13 Ibid at [23]-[24], Annexure RC8 14 Exhibit A2 at [15]-[17]. 15 Ibid at [25]-[29]. 16 Transcript at PN250, PN257 and PN275. [2023] FWC 1364 21 17 Exhibit R1 at [1]. 18 Ibid at [8]. 19 Ibid at [19]. 20 Ibid at [19(c)], [21]. 21 Ibid at [24], Transcript at PN445-PN447, PN503. 22 Ibid at [26]. 23 Ibid at [10], [25]. 24 Ibid at [37]-[38]. 25 An apparatus that converts carbon monoxide to oxygen and allows an individual to breath in an inhospitable environment. 26 Exhibit R1 at [30]-[34]. 27 Ibid at [35]. 28 Exhibit R2 at [1], [5]. 29 Ibid at [6]. 30 Ibid at [10]-[13]. 31 Ibid at [14]; Transcript at PN716. 32 Ibid at [15]-[17]. 33 Ibid at [18]. 34 Ibid at [17], Annexure JSB1. 35 Ibid at [23]. 36 Ibid at [25]-[28]. 37 Exhibit R3. 38 Transcript at PN638. 39 Transcript at PN209-PN216. 40 Ibid. 41 [2017] FWCFB 3005 at [114]. 42 Berri at [114]. 43 Citing the decision in Amor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA10 (Amcor) at [2] (per Gleeson CJ and McHugh J). 44 Citing the decision in Workpac Pty Ltd v Skene [2018] FCAFC 131 (Workpac) at [197]. 45 [2020] FCAFC 123 (Ridd). 46 Ridd at [65]. 47 Citing Construction, Forestry, Maritime, Mining and Energy Union v Hay Point Services [2018] FCAFC 182 at [9]. 48 [2018] FCAFC 131 at [97]. 49 Clause 19.10.5 of the Agreement. 50 Transcript at PN648. 51 Berri at [114], Principles 8 and 10. 52 Exhibit R2 at [16]. 53 Exhibit A1 at [14]. 54 Exhibit R2, Annexure JSB1. 55 Transcript at PN250, PN257 and PN275.