DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Construction, Forestry, Maritime, Mining and Energy Union
v
BHP Coal Pty Ltd
(C2020/5375)

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)].

Background

[1] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) applies under s.739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a dispute in accordance with the dispute settlement procedure in clause 37 of the BMA Enterprise Agreement 2018 (the 2018 Agreement). The Respondent in this matter is BHP Coal Pty Ltd (BHP/the Company).

[2] The dispute concerns an employee of BHP Mitsubishi Alliance (BMA), Mr Robert Duthie. Mr Duthie is employed as a Coal Mine Worker at the Goonyella Riverside Mine (the Mine). Specifically, the dispute concerns a meeting between supervisory employees of BHP and Mr Duthie on 15 May 2020, and the extent of BHP’s obligations under clause 38.4 of the 2018 Agreement to advise Mr Duthie of the purpose of that meeting. Clause 38.4 of the 2018 Agreement provides as follows:

“38.4 Where the Company calls a meeting requiring the attendance of a particular Employee (other than for the purposes of an Individual Development and Performance Review under clause 36), the Company will advise the Employee of the purpose of the meeting to allow the Employee to nominate an Employee Representative. The Company will consult the Employee and their Employee Representative as early as possible to attempt to identify a mutually convenient time. The Employee Representative will then make every reasonable effort to attend the meeting.

Where the Employee’s nominated Employee Representative is unable to attend, the Employee will be required to nominate an alternative Employee Representative who is available to attend.”

[3] The CFMMEU and BHP have exchanged correspondence that sets out their positions. The dispute was not resolved in conciliation and the CFMMEU sought that it be determined under the Dispute Settlement Procedure in clause 37 of the 2018 Agreement. It is common ground that the steps in the Dispute Settlement Procedure have been complied with and that the Commission is empowered to determine the dispute by answering questions for arbitration agreed to by the parties.

[4] The parties agreed on two questions for arbitration. Directions were filed requiring parties to file and serve material upon which they intended to rely to enable the Commission to determine those questions. The following questions for arbitration were agreed by the parties:

1. In respect of the meeting that was held on 15 May 2020, did the Company advise Mr Duthie of the purpose of that meeting as required by clause 38.4 of the BMA Enterprise Agreement 2018?

2. If the answer to question 1 is no, what additional information was the Company required by clause 38.4 of the BMA Enterprise Agreement 2018 to provide to Mr Duthie in respect of that meeting?

[5] The matter was listed for Hearing on 7 December 2020. The following persons provided statements of evidence on behalf of the CFMMEU:

•  Mr Simon West – Vice President of the GRM Lodge of the CFMMEU and employee of BHP 1; and

•  Mr Robert Duthie – Coal Mine Worker at the Goonyella Riverside Mine and an employee of BHP.

[6] A statement of evidence on behalf of BHP was provided by Mr Lachlan McNamara, Superintendent – Coal Mining at the Goonyella Riverside Mine. Mr West was not required for cross-examination. Mr Duthie and Mr McNamara were required for cross-examination and attended the hearing to give their evidence.

[7] The Dispute Settlement Procedure in the Agreement provides for both parties to be represented in proceedings before the Commission as of right. At the hearing, the CFMMEU was represented by its National Legal Officer Mr Adam Walkaden and BHP was represented by Mr James McLean, Legal Counsel Employee Relations, and Ms Caitlin Ryan, Principal Employee Relations.

Agreed Statement of Facts

[8] The parties provided an agreed statement of facts as follows:

1. Mr Robert Duthie is employed as a Coal Mine Worker by BHP Coal Pty Ltd.

2. Mr Duthie works at the Goonyella Riverside Mine (the Mine), which is an open cut coal mine that is managed by the BHP Mitsubishi Alliance (BMA).

3. The BMA Enterprise Agreement 2018 covers and applies to Mr Duthie in respect of his employment with BHP.

Meeting arranged for 15 May 2020

4. At about 8:00am on 15 May 2020, Mr Duthie received a telephone call from Mr Matthew Line. Mr Line is a Supervisor at the Mine. Words to the following effect were said:

Line: Can you make yourself available for a meeting this afternoon. I am not sure yet where we are going to have the meeting, I will get back to you on that.

Duthie: Not a problem.

Line: Do you want to nominate an employee rep for the meeting?

Duthie: Yes, Nick Dickson.

Line: Nick is not able to attend the meeting, if you want a rep, you will have to nominate someone else.

Duthie: I will nominate Simon West then.

5. At about 8:18am on 15 May 2020, Mr Lachlan McNamara made a telephone call to Mr West. Mr McNamara is a Superintendent at the Mine. Mr West is a Coal Mine Worker at the Mine and also the Lodge President. Mr West was unable to answer the telephone call. Mr West then sent Mr McNamara a text message, which said: “I am in a meeting, I will call you when it’s over”.

6. At about 8:19am on 15 May 2020, Mr McNamara sent a text message to Mr West, which said: “Thanks – Robert Duthie has nominated you as his rep for a meeting here on site at 1pm”.

7. At about 8:45am on 15 May 2020, Mr West made a telephone call to Mr Duthie. Words to the following effect were said:

West: Why have you asked for me to be your Employee Rep mate, I thought Nick was looking after you.

Duthie: I had a call from Linesy and he said that Nick was not available to attend the meeting, so I told him to get you to attend the meeting as my rep.

8. At about 8:45am on 15 May 2020, Mr West made a telephone call to Mr Nicholas Dickson. Mr Dickson was a Coal Mine Worker at the Mine and also Lodge Vice President. Words to the following effect were said:

West: I have been contacted by Rob Duthie. He has been asked to attend a meeting on site at 1pm today. He has been told that you are not available to attend the meeting, are you able to attend the meeting as his rep?

Dickson: I am right to attend the meeting.

9. Just before 9:00am on 15 May 2020, Mr West sent a text message to Mr McNamara, which said: “Thanks Lachlan. Nick Dickson is Roberts preferred Rep, and he is available”.

10. At about 9:08am on 15 May 2020, Mr McNamara made a telephone call to Mr West. Mr West was unable to answer the telephone call as he was participating in a meeting as an elected Councillor of the Issac Regional Council. Mr West then sent Mr McNamara a text message, which said: “I am in a meeting, I will call you when it’s over”.

11. At about 9:11am on 15 May 2020, Mr McNamara sent a text message to Mr West, which said: “No worries – in the circumstances it’s not appropriate for Nick to be present as representative. Let me know if you can attend at 1pm otherwise I believe Bob and Rob are on site today”.

12. At about 10:26am on 15 May 2020, Mr West sent Mr McNamara a text message, which said:

“Lachlan as you would expect I completely disagree with your above assessment. To help me understand your thinking, can you please shoot me of a quick email explaining why you think Nick is not appropriate. Could you also clarify if your refusing the meeting if Nick is the Employee Rep. thanks Simon”.

13. At about 10:26am on 15 May 2020, Mr McNamara made a telephone call to Mr West. Mr West was unable to answer the telephone call as he was participating in a meeting as an elected Councillor of the Issac Regional Council. Mr West then sent Mr McNamara a text message, which said: “I am in a meeting, I will call you when it’s over”.

14. At about 11:00am on 15 May 2020, Mr McNamara made a telephone call to Mr Duthie. The substance of this conversation is a matter of conjecture.

15. At about 12:27pm on 15 May 2020, Mr West made a telephone call to Mr McNamara. The substance of this conversation is a matter of conjecture.

Meeting is held on 15 May 2020

16. At about 1:00pm on 15 May 2020, Mr Duthie attended a meeting with Mr McNamara. Mr Robert (Bob) Grieve, who is a Coal Mine Worker at the Mine 4 and also Lodge Secretary, attended the meeting in his capacity as an Employee Representative.

17. At the meeting, the BMA representatives interviewed Mr Duthie about misconduct allegations that were being made against Mr Dickson. The allegations related to comments that Mr Dickson is alleged to have made when attending an earlier meeting as an Employee Representative of Mr Duthie (who was also facing allegations of misconduct). 2

Relevant Agreement provisions

[9] Clause 38 of the 2018 Agreement, in which the disputed clause is found is entitled “Employee Representatives, and is in the following terms:

“38.1 Definitions

“Employee Representative” in this Agreement means an Employee who is employed

at the same Mine as the Employee.

“per year” means calendar year (1 January-31 December).

“off site” means any time the Employee Representative spends away from site.

“person day” means an Employee’s shift.

38.2 Lodge Officers and Delegates of each Union will, upon written notification to the HR Manager at their relevant Mine, be duly recognised as an Employee Representative at the Mine at which they are employed.

38.3 An Employee may nominate an Employee Representative to represent them in relation to matters arising under this Agreement or in the course of their employment including for purposes of providing assistance in workers’ compensation / rehabilitation matters. Due to the nature of a matter and/or the availability of an Employee Representative, the person nominated as Employee Representative may change from time to time. Except as outlined under clause 38.13, for the avoidance of doubt, an Employee is only entitled to one Employee Representative at any particular point in time.

38.4 Where the Company calls a meeting requiring the attendance of a particular Employee (other than for the purposes of an Individual Development and Performance Review under clause 36), the Company will advise the Employee of the purpose of the meeting to allow the Employee to nominate an Employee Representative. The Company will consult the Employee and their Employee Representative as early as possible to attempt to identify a mutually convenient time. The Employee Representative will then make every reasonable effort to attend the meeting.

Where the Employee’s nominated Employee Representative is unable to attend, the Employee will be required to nominate an alternative Employee Representative who is available to attend.

38.5 The role of Employee Representative will not detract from an Employee’s primary responsibility which is to do the job they are employed to do at the Mine.

38.6 Employee Representatives will not be permitted time away from the job on issues where there has not been a genuine attempt to resolve the issue at the workgroup level in accordance with the dispute settlement procedure.

38.7 Employee Representatives will be released from normal duties without loss of pay (ie as if the Employee Representative had worked in accordance with their roster, including RDO swaps) to discuss with Employees and site management matters affecting the employment of Employees covered by this Agreement, where to do so does not interfere with the safe and productive operation of the Mine and prior approval has been obtained from the departmental manager or their nominated representative (which will not be unreasonably withheld).

38.8 Employees and Employee Representatives agree that they will not hold any meetings during normal hours of work without the prior approval of the departmental manager or their nominated representative. Any meetings held on site will be at a place designated by management.

38.9 Employee Representatives will be allowed unpaid leave from a site pool of total person days which does not exceed 25 person days per year off site, on the basis that at least 14 days notice is provided and that site operations will not be adversely affected. Failure to provide adequate notice may result in the Company refusing leave applications under this provision.

38.10 The 25 person days per year will not include appearances by Employees or Employee Representatives if an application is made to FWC through the dispute settlement procedure or to another court.

38.11 An Employee Representative who under the rules of the relevant Union holds elected office on the Union’s Board of Management or Central Council will, subject to a minimum of 14 days notice (or where a special Board of Management meeting is called at short notice, immediately) and subject to business operational requirements, be entitled to unpaid leave to attend the relevant Board or Council meetings.

38.12 The Company will respond to an Employee Representative’s request for leave under clause 38.11 within seven days of receiving such requests or shorter notice subject to business operational requirements. Such absences will not count towards the 25 person day pool of unpaid leave allowable at their mine. Failure to provide adequate notice may result in the Company refusing leave applications under this provision.

38.13 The Company will pay on a “without loss of pay” basis (ie as if the Employee Representative had attended work in accordance with their roster, including RDO swaps) for up to two Employee Representatives’ attendance at proceedings (other than directions hearings) together with reasonable travel and accommodation costs and reasonable cost of meals, not including alcohol, provided that the two Employee

Representatives are nominated at the time that the application to FWC is made. The Company will not pay for attendance, travel, accommodation or meals for or in relation to any union/Employee appeals against a decision of FWC. Where a nominated Employee Representative is unable to attend due to exceptional circumstances (eg personal sickness), a substitute Employee Representative will be allowed to attend where:

(a) more than 48 hours notice is provided to the Company; and

(b) the substitute Employee Representative has been previously involved in the matter.

Providing they are nominated prior to a directions hearing or directions being agreed between the parties (whichever occurs first), necessary witnesses may, in accordance with the arrangements above, attend any matters being arbitrated by FWC.

This clause 38.13 does not apply to alleged unfair dismissal proceedings or matters not covered by the dispute settlement procedure at clause 37.

38.14 The payment of reasonable travel and accommodation costs by the Company in clause 38.13 in respect of Employee Representatives and witnesses agreed prior to any proceedings and who are Employees of the Company will be subject to:

(a) Those Employee Representatives and witnesses travelling on flights which minimise their time spent away from work and the impact on operations; and

(b) The Company’s fatigue management and fitness for work requirements.

A travel plan must be submitted by each Employee Representative and witness at least 14 days prior to the proceedings and approved by the Company before the commencement of travel. If proceedings are brought on more quickly by FWC, the travel plan must be submitted immediately upon the listing of the matter by FWC and before travel commences.

38.15 Employee Representatives must comply with the notice requirements under this clause 38 for leave to be authorised by the Company prior to taking leave.”

Evidence

[10] Mr Duthie said that at about 11:00am on 15 May 2020, he received a telephone call from Mr McNamara in relation to the meeting to be held on that date, during which words to the following effect were said:

“[Mr McNamara]: The meeting will be held on site. You can’t use Nick as your rep, he is not available. You will need someone else.

[Mr Duthie]: Why not?

[Mr McNamara]: There are 2 alternate reps that you can have on site. You can use either Bob or [another person, the name of which I cannot now recall]. They are both on site this afternoon.

[Mr Duthie]: Why can’t I have Nick as my rep?

[McNamara]: Because he is unavailable.

[Mr Duthie]: What’s the meeting about?

[Mr McNamara]: I will let you know when you get to the meeting.

[Mr Duthie]: Why can’t you tell me what the meeting is about?

[Mr McNamara]: I will let you know when you get here to the meeting.” 3

[11] Mr Duthie said at about 12:10pm on 15 May 2020, he received a telephone call from Mr West. Mr Duthie said the conversation was to the following effect:

“[Mr West]: What’s the meeting about?

[Mr Duthie]: I asked Lachie [McNamara], but he would not say. He said I will tell you when" you get here.” 4

[12] Mr West’s evidence of that conversation was to the same effect as Mr Duthie’s. Mr West said he then called Mr McNamara at 12:27pm that day. Mr West’s account of the conversation is as follows:

“[Mr West]: I am following up from my text earlier, have you sent me an email for not meeting with Nick?

[Mr McNamara]: I don’t have to email you, and won’t be sending you an email.

[Mr West]: Nick is the Rep for the meeting and Nick is ready to attend the meeting.

[Mr McNamara]: It is not appropriate for Nick to attend the meeting.

[Mr West]: Why is that?

[Mr McNamara]: It is not appropriate for Nick to attend the meeting.

[Mr West]: Why is that?

[Mr McNamara]: It’s not appropriate.

[Mr West]: So you are refusing to meet with Rob’s choice for Rep?

[Mr McNamara]: I am not meeting with Nick.

[Mr West]: Rob has asked what the meeting was about, and you said that you will tell him when he gets there. That’s not good enough.

[Mr McNamara]: I told him its to be interviewed. That’s all I have to tell him.

[Mr West]: I don’t believe that’s good enough.

[Mr McNamara]: Rob Oram and Bob Grieves are at work today. I will arrange for one of them to attend the meeting. Do you have Bob ready for the meeting?

[Mr West]: No, I have Bob on stand by. Nick should be attending the meeting.

[Mr McNamara]: Will you arrange for Bob to attend?

[Mr West]: No, you can do it.” 5

[13] Mr McNamara said that as Superintendent – Coal Mining, he has 12 direct and approximately 200 indirect reports and is responsible for managing investigations and disciplinary action in response to misconduct allegations relating to persons in his team. Mr McNamara’s evidence about the background to the meeting on 15 May 2020 was that on 21 April 2020, Mr Line conducted a meeting with Mr Duthie so that BHP could interview Mr Duthie as part of an investigation. Mr McNamara said the investigation related to an incident in which it was alleged Mr Duthie had failed to cooperate with the mandatory temperature screening that had been introduced by BHP at the Mine as a COVID-19 response measure. One of Mr Duthie's co-workers, Mr Dickson, attended this meeting as Mr Duthie's Employee Representative.

[14] Mr McNamara said that Mr Line subsequently reported to him that during the course of the meeting, Mr Dickson had claimed there was no testing in place when he had attempted to access the Mine around the same time as the incident involving Mr Duthie. Mr McNamara said that BHP subsequently investigated Mr Dickson's conduct at the meeting and ultimately determined that the comments Mr Dickson had made were false. A copy of a Findings Letter presented to Mr Dickson on 19 May 2020 detailing the Company's findings in relation to Mr Dickson's conduct at the Meeting of 21 April was attached as Annexure LM-1 to Mr McNamara’s witness statement.

[15] As part of BHP's investigation into the comments Mr Dickson had made at the Meeting of 21 April, Mr McNamara said that he decided that BHP should meet with Mr Duthie to confirm his recollection of events. Mr McNamara said that on the morning of 15 May 2020, he:

•  asked Mr Line to arrange a meeting with Mr Duthie (as Mr Line was Mr Duthie's 2-up leader);

•  reminded Mr Line that he should offer Mr Duthie the opportunity to bring an Employee Representative to the meeting;

•  explained to Mr Line that it was inappropriate for Mr Dickson to again act as Mr Duthie's Employee Representative given Mr McNamara’s questions related to Mr Duthie's recollection of comments Mr Dickson had allegedly made; and

•  suggested to Mr Line that if Mr Duthie nominated Mr Dickson as his Employee Representative, Mr Line should invite Mr Duthie to nominate an alternative.

[16] Mr McNamara said that as he needed to ask Mr Duthie about his recollection of comments Mr Dickson had allegedly made, it would not have been appropriate for Mr Dickson to be present at the meeting. Further, Mr McNamara said he was of the view that if Mr Duthie was told in advance that he would be asked questions about the conduct of Mr Dickson at the Meeting of 21 April, Mr Duthie would be placed in the unenviable position of potentially having to deal with Mr Dickson over the coming hours without disclosing to Mr Dickson that his conduct was under investigation; and in the event that Mr Duthie was not prepared to maintain the confidentiality of the process, then his knowledge that the meeting was to confirm his recollection of the comments made by Mr Dickson created the undesirable possibility that Mr Duthie may discuss matters with Mr Dickson in advance of the meeting with the effect that the integrity of BHP’s investigation would be compromised.

[17] Mr McNamara said that at 8:18am on 15 May 2020, after Mr Line had spoken with Mr Duthie, he attempted to call Mr West who did not answer and sent Mr McNamara a message that read “I am in a meeting. I will call when it's over”. Mr McNamara sent Mr West a text message at 8:19am that read “Robert Duthie has nominated you as his rep for a meeting here on site at 1pm.”

[18] Mr McNamara said Mr West replied at 8:59am and said “Thanks Lachlan. Nick Dickson Is Roberts (sic) preferred rep, and he is available.” Mr McNamara said he attempted to call Mr West at 9:08am but he did not answer and sent a message stating he was in a meeting and would call when the meeting was over. Mr McNamara said he sent a further text 9:11am that said: “No worries - in the circumstances it's not appropriate for Nick to be present as representative. Let me know if you can attend at 1pm otherwise I believe Bob and Rob are on site today.”

[19] Mr McNamara said he called Mr Duthie at 11.00am. Mr McNamara’s account of the conversation is as follows:

“[Mr McNamara]: As Matt discussed with you this morning, you're required on site at 1 pm to participate in an interview as part of an ongoing investigation. I haven't been able to get onto Simon to confirm his attendance. Do you want to nominate an alternative in case I can't get in touch with him? I know Bob Grieve and Rob Oram are both on site today?

Mr Duthie: Can Nick Dickson not attend?

[Mr McNamara]: In the circumstances, it's inappropriate for Nick to attend. I'm happy to discuss why at the meeting at 1 pm. Do you want to nominate an alternative in case I can't get onto Simon?

Mr Duthie: I've been speaking to Simon on the phone all morning.

[Mr McNamara]: About the 1pm meeting?

Mr Duthie: Yes.

[Mr McNamara]Well did you want to nominate an alternative in case he can't make it?

Mr Duthie: I'll talk to him about it.” 6

[20] Mr McNamara said that at around 12:27pm, he received a call from Mr West and had a Conversation to the following effect:

“Mr West: I'm waiting for you to send me an email setting out the reasons Nick Dickson can't attend as Robert's employee representative”

[Mr McNamara]: I'm not sending you an email. In the circumstances, it's not appropriate for Nick to attend. I've spoken with Robert and told him I would be happy to explain the reasons why when we meet at 1 pm.

Mr West: What is the meeting for?

[Mr McNamara]: I explained to Robert this morning that we need him to attend an interview as part of an ongoing investigation.

Mr West: So you're refusing to meet with Nick?

[Mr McNamara]: No, I need to meet with Robert and it is not appropriate for Nick to attend as Robert's employee representative. Robert nominated you as an alternative representative

Mr West: Bob Grieve will be attending as employee representative, but no one has been in contact with him.

[Mr McNamara]: That's because until this call no one had mentioned that Bob was Robert's employee representative.

Mr West: Nick is the employee representative.

[Mr McNamara]: As I have explained, it is not appropriate for Nick to attend. I will contact Bob and arrange for him to attend the meeting at 1 pm.”

[21] Mr McNamara said that at no time did he say to Mr West “I told him it's to be interviewed. That's all I have to tell him”. Mr McNamara said he had already explained to Mr Duthie that he was required to attend a meeting to participate in an interview as part of an ongoing investigation.

[22] Mr McNamara also said that at around 1:45pm he and Mr Russell Duncan, Supervisor, met with Mr Duthie. Mr Grieve attended as Mr Duthie's employee representative. Mr McNamara said that at the outset of this meeting, he explained to Mr Duthie that it was not appropriate for Mr Dickson to attend as his employee representative as Mr McNamara needed to ask Mr Duthie some questions about Mr Dickson's conduct.

[23] Mr McNamara said he then summarised the morning's developments, including by noting that:

•  Mr Duthie had been contacted at around 8.00 am that morning to advise him he was required to attend for an interview as part of an ongoing investigation;

•  Mr Duthie had nominated Mr Dickson as his employee representative, but was told it was inappropriate for Mr Dickson to attend the meeting and was invited to nominate an alternative representative;

•  Mr Duthie had nominated Mr West, but Mr McNamara had been unable to contact Mr West (at which time Mr Duthie indicated he had been able to contact Mr West without issue); and

•  Mr Duthie had then been offered the opportunity to nominate another employee representative; and

•  Mr West had subsequently contacted Mr McNamara to advise that Mr Grieve would be attending the meeting with Mr Duthie.

[24] Mr McNamara said that during the course of the meeting, he asked Mr Duthie a number of questions about the meeting of 21 April, including in relation to comments made by Mr Dickson at that meeting. Mr McNamara said he asked Mr Duthie whether he recalled Mr Dickson commenting that he had “accessed the bath house the week before”. Mr McNamara said in his statement that this was the false comment that was the focus of BHP's investigation. Mr McNamara said that Mr Duthie was evasive when answering this question, and indicated that he “wasn't listening” and “didn't recall” what Mr Dickson had said. A copy of Mr Duncan's notes from the 15 May meeting was attached to Mr McNamara’s witness statement as Annexure LM – 2.

[25] Mr McNamara also made a number of general observations that did not directly relate to the meeting on 15 May 2020. Mr McNamara said that many of the employees working at the Mine are residential workers, residing in the local town of Moranbah, and he had observed that their relationships with each other often extend beyond that of co-workers, as they and their families live and work in the same tight-knit communities. This results in a healthy collegiate atmosphere at the Mine but also means that employees may be placed in potentially uncomfortable positions when they are asked to participate in investigations that BHP is conducting into allegations made against their colleagues and friends.

[26] Mr McNamara also said that it would not be uncommon for an employee to be notified of a meeting at the start of their shift, then be required to spend several hours in the same light vehicle or crib room as the co-worker under investigation before actually attending that meeting and answering questions. For this reason, Mr McNamara said BHP goes to great lengths to preserve the confidentiality of investigation processes and the identity of witnesses.

[27] While BHP is required to give employees advanced notice of interviews, in his experience, line leaders generally avoid disclosing to employees in advance the identity of the co-worker under investigation, in large part to avoid placing the employee in a situation where they are required to continue to live and work side by side with that co-worker in the knowledge they are soon to be answering questions about that co-workers conduct.

[28] Mr McNamara said that in addition to sparing employees’ discomfort, BHP also has an interest in preserving the integrity of its investigations. Mr McNamara said that an ability to investigate incidents, and to have confidence in the subsequent findings, is essential to BHP being able to both ensure the safety and wellbeing of its workforce, and that unsafe practices need to be identified, disrespectful behaviours addressed, and underperforming workers supported.

[29] Mr McNamara also said that he was aware of instances in the past in which the integrity of an investigation had been compromised by individuals failing to respect the confidentiality of the process. Mr McNamara specifically referred to an incident in mid-2018 where he issued an employee with a Final Written Warning for inappropriately discussing an investigation with witnesses in a matter in which he had been involved as an Employee Representative. A copy of this Final Written Warning was attached to Mr McNamara’s witness statement as Annexure LM-3.

[30] Further, Mr McNamara said that in his experience, it is often necessary for BHP to arrange meetings at short notice, in circumstances where it is not necessarily clear what the precise nature of the matters in issue may be, or where BHP may not yet have the full context. Mr McNamara said that in some circumstances, it would be near impossible for BHP to accurately advise an employee of the exact nature, timing, or location of an incident, or even of the identity of the person or persons involved. Mr McNamara said that BHP always invites employees to bring an Employee Representative and does its best to ensure that the interview process is one that facilitates the employee providing an honest and accurate account, including, where appropriate, by adjourning meetings, convening follow-up meetings, or providing an employee an opportunity to track down relevant documentation.

[31] Mr McNamara maintained that if BHP was required to provide the specifics the CFMMEU suggests to an employee before being entitled to meet with them, it would mean that many meetings would never be able to be arranged, and many incidents would not be able to be properly investigated.

Submissions

[32] The CFMMEU submitted that the only significant factual contest in this matter concerns the telephone conversation between Mr McNamara and Mr Duthie in the hours before the 15 May 2020 meeting. The CFMMEU contended that the agreed statement of facts and witness evidence the CFMMEU filed provided a sufficient basis to accept the CFMMEU’s submissions. However, the CFMMEU said that it may also be the case that whatever evidence is filed by BHP may make little difference to the outcome, as it may be the case that the CFMMEU’s contentions in relation to the correct answers to questions 1 and 2 could be accepted even on the evidence filed by BHP.

[33] In relation to question 1, the CFMMEU submitted that clause 38.4 of the Agreement requires BHP to advise the employee (that is being called into, and required to attend, the meeting) of the “purpose of the meeting”. The CFMMEU submitted that this meant, in very simple terms, that the employee must be told what the meeting is about. The CFMMEU submitted that clause 38.4 of the Agreement is directed at any meeting that an employee may be required to attend, other than for the purposes of an Individual Development and Performance Review (IDPR). The CFMMEU argued that it is not the case that clause 38.4 of the Agreement only has application to “disciplinary meetings” or meetings where BHP are investigating allegations of misconduct, poor performance, or similar.

[34] The CFMMEU submitted that clause 38.4 of the Agreement plainly requires specification of the purpose of the meeting “to allow the employee to nominate an Employee Representative”. The CFMMEU argued that such a clause makes perfect sense as there may be a range of meetings that an employee may be required to attend that they do not wish to bring along an Employee Representative to, and conversely, there may be meetings where the employee will absolutely want to bring along an Employee Representative. The CFMMEU submitted that an employee can only make an informed choice about the desirability of bringing along an Employee Representative once informed by BHP of the purpose of the meeting.

[35] The CFMMEU said that its evidence established that Mr Duthie was not advised of the purpose of the 15 May meeting. Mr Duthie was not told what the meeting was about, and when Mr Duthie asked what the meeting was about, he was told by Mr McNamara “I will let you know when you get to the meeting”. The CFMMEU said that on that basis, notification as to the meeting in those terms did not comply with the requirements of clause 38.4 of the Agreement.

[36] In relation to question 2, the CFMMEU argued that even if Mr Duthie had been told that he was required to attend an interview or the meeting request was expressed in otherwise generic terms, that would not be enough to satisfy clause 38.4. The CFMMEU submitted that the information that is required to be conveyed by clause 38.4 of the Agreement will differ depending on the circumstances. In general terms, BHP must provide sufficient information about the meeting to ensure that the employee knows what the meeting is about, as if this was not the case, the relevant part of clause 38.4 of the Agreement would have no utility.

[37] The CFMMEU submitted that the requirement imposed on BHP to advise of the purpose of the meeting would be devoid of any meaning or effect if it were the case that BHP could simply tell the relevant employee that the purpose of the meeting was to answer some questions, have a chat, or have a catch up. The CFMMEU argued that simply conveying the information in generic terms – such as being asked to attend an interview, disciplinary meeting, have a chat, catch up etc – would not be enough for the purposes of clause 38.4.

[38] The CFMMEU also submitted that it would be absurd to suggest that the requirements in clause 38.4 have been met in circumstances where the employee was told that the purpose of the meeting was to attend a meeting. The same argument was advanced in relation to the employee simply being told that the purpose of the meeting was to attend an interview. In either instance, the CFMMEU submitted the employee would have no idea what the meeting was about and the requirements in clause 38.4 would not be satisfied.

[39] The CFMMEU submitted that it was now clear that the meeting concerned allegations of misconduct against Mr Dickson. BHP called Mr Duthie to the Meeting to interview him about those allegations. The CFMMEU submitted that, at minimum, the additional information that BHP was required to provide to Mr Duthie in respect of the meeting included:

•  That the purpose of the Meeting was to interview Mr Duthie in respect of allegations of misconduct that BHP was investigating in respect of Mr Dickson;

•  The general character of the misconduct alleged against Mr Dickson (for example “safety breach”, “bullying and harassment” or similar);

•  The location where the misconduct alleged against Mr Dickson was said to have taken place; and

•  The date or dates when the misconduct alleged against Mr Dickson was said to have occurred.

[40] In reply submissions, the CFMMEU said that there is a factual dispute between Mr Duthie and Mr McNamara as to the conversation that preceded the meeting on 15 May 2020. In summary, Mr Duthie’s evidence is that Mr McNamara told Mr Duthie he would let Mr Duthie know what the meeting was about when Mr Duthie got there, and Mr McNamara’s evidence is that he told Mr Duthie that he was required on site to participate in an interview as part of an ongoing investigation. The CFMMEU submitted that the factual dispute does not need to be resolved and that even on Mr McNamara’s evidence, it is evident that question 1 must be resolved in favour of the CFMMEU on the basis that simply telling an employee that they are required to attend a meeting to be interviewed as a part of an ongoing investigation does not comply with clause 38.4 of the Agreement.

[41] The CFMMEU further submitted that notification in those terms gives the employee absolutely no idea what the meeting is about. It certainly does not advise the employee of the purpose of the meeting. The employee is left with absolutely no idea whether the meeting concerns allegations of misconduct or poor performance, or some other topic. If the meeting concerns allegations of misconduct or poor performance, the employee is left with no idea as to the general character of the matters.

[42] The CFMMEU accepts, as submitted by BHP, that the principles to be applied in interpreting enterprise agreement are well established. However, the CFMMEU submits that it appears that BHP is urging a results-based approach to interpretation. Such an approach is entirely misconceived and the CFMMEU submits that whatever is motivating BHP’s managers to provide as little detail as possible to employees before directing them to attend a meeting is completely irrelevant. The questions for arbitration are to be answered by reference to the words found in clause 38.4 of the Agreement considered in light of the context and purpose.

[43] In relation to question 2, the CFMMEU submits that BHP’s written outline mistakes the task before the Commission. Question 2 is directed at the meeting. Contrary to BHP’s written outline, question 2 does not require the Commission to consider what additional information must be provided ‘’more generally’’ – that is, in respect of each and every meeting that falls within the scope of clause 38.4 of the Agreement. Moreover, the CFMMEU submits that BHP has completely misrepresented the CFMMEU’s position. The CFMMEU does not contend that the additional information set out in paragraph 15 of its first outline should be provided so the employee is “in a position to offer different answers”. Rather, the provision of the additional information would have enabled Mr Duthie to know what the meeting was about. Expressed in the language of the purpose of the meeting this is the obligation imposed on BHP by clause 38.4 of the Agreement.

[44] BHP submitted that on 21 April 2020, Mr Matthew Line (Superintendent) met with Mr Duthie in the course of an investigation the Respondent was conducting into allegations of misconduct against Mr Duthie (Meeting of 21 April). One of Mr Duthie’s co-workers, Mr Nick Dickson, attended this meeting as Mr Duthie’s Employee Representative. Following this meeting, the Respondent commenced a separate investigation into comments that Mr Dickson allegedly made at the Meeting of 21 April that the Respondent considered to be untrue.

[45] On the morning of 15 May 2020, Mr Line contacted Mr Duthie and asked whether Mr Duthie could make himself available for a meeting that afternoon. The substance of this conversation is set out in the Agreed Statement of Facts, however, on BHP’s case, the contents of this conversation are not material to the real issue in dispute. Later that same morning, Mr McNamara also contacted Mr Duthie and confirmed that Mr Duthie was required to attend a meeting. There is some disagreement between the parties as to the substance of this discussion, however, on the BHP’s evidence, Mr Duthie was advised to the effect that the purpose of the meeting was so he could be “interviewed as part of an ongoing investigation.”

[46] Early that afternoon, Mr McNamara had a conversation with Mr West, during which it was established that Mr Bob Grieve, CFMEU Lodge Secretary, would be attending the meeting with Mr Duthie. Later that afternoon, Messrs Line and McNamara met with Mr Duthie. Mr Grieve also attended this meeting. During this meeting, Mr Duthie was asked to provide his recollection of what Mr Dickson had said at the Meeting of 21 April.

[47] BHP submitted that the principles governing the interpretation of industrial instruments are well established and that of particular relevance to the present dispute are:

•  the desirability of a construction that contributes to a sensible industrial outcome; 7

•  the presumption that a construction which produces an absurd, extra-ordinary, capricious, irrational or obscure outcome was not intended 8; and

•  the general predisposition against the implication of a term. 9

[48] In relation to the construction of clause 38.4 of the Agreement, BHP submitted that it is important that the obligation to notify of “purpose” is not conflated with the provision of “detail”. Once the purpose of a meeting has been communicated, BHP said there is then an infinite level of “detail” that it could theoretically provide. BHP argued that to arbitrarily identify a point on this continuum of detail and suggest that the notification of purpose necessitates the provision of that particular level of detail is to adopt a construction of clause 38.4 grounded in artificiality.

[49] BHP submitted that there was no basis for maintaining that clause 38.4 requires an employee be notified of the “date” and “location” of an incident, but not the identity of the other persons present nor the time at which the incident occurred, which tended against its adoption as an interpretation for the clause. BHP argued that once the purpose of a meeting has been communicated, the level of supplementary detail that BHP provides is a matter within BHP’s prerogative, and if the intention of the parties was otherwise, the clause would have been drafted to reflect this.

[50] BHP submitted that if the Commission concluded the term “purpose” is ambiguous such that there are a number of different ways in which the “purpose” of a meeting could be properly characterised, then which of those available characterisations of “purpose” is communicated to the employee is a matter falling within BHP’s managerial prerogative. BHP argued the fact that Clause 38.4 is silent as to the details, particulars or specificity that should be provided to the employee is a strong indication that BHP retains this discretion, and provided BHP communicated one of these characterisations, it would discharge its obligation under the clause.

[51] BHP also submitted that clause 38.4 is a provision of broad application, being directed toward any meeting that an employee is required to attend, other than an IDPR. For this reason, BHP argued that any suggestion that prescription be inferred or read into the clause should be approached with great caution, as the vast range of potential scenarios in which clause 38.4 may operate means that reading words or unwritten requirements into the clause could produce undesirable and/or industrially nonsensical outcomes in other scenarios.

[52] BHP further submitted that a degree of deference ought be afforded to the realities of its operating environment. In this regard, Mr McNamara’s evidence showed that the nature of BHP’s operations often necessitates meetings being arranged by site-based managers, on short notice, or in circumstances where BHP itself has very little context. BHP argued the parties could not have intended for BHP to be constrained by an excessively formal process whenever it desires to meet with one of its employees, and that a construction imposing such formality should be avoided given the implications such a construction would have for BHP’s ability to efficiently and effectively conduct its operations.

[53] To the extent that the meaning of the clause 38.4 obligation is sought in the balance of the Agreement, BHP submitted that the only other comparable reference to “purpose” is contained in clause 38.4 itself. BHP argued that clause 38.4 acknowledges that a meeting may be “for the purposes of an Individual Development and Performance Review.” BHP characterised this description as suggesting that the “purpose” refers to the general thrust of a meeting, but not necessarily the specifics of the topics that will be canvassed in that meeting.

[54] BHP acknowledged that notification of the “purpose” of a meeting is required in order to “allow the employee to nominate an Employee Representative”. BHP further accepted the submission that a notification to the effect of “it’s to attend a meeting” would likely be inadequate. However, BHP submitted that, in at least in relation to the 15 May 2020 meeting, BHP would have satisfied its obligations under clause 38.4 if it had notified Mr Duthie that the meeting was so he could be “interviewed as part of an ongoing investigation”. BHP maintained that it had done so.

[55] BHP said that once it advised Mr Duthie in these terms, Mr Duthie would have understood that the purpose of the meeting was so that the Respondent could ask him questions as part of an investigation, as distinct, for example, from BHP meeting with Mr Duthie to advise him of matters relevant to his employment, or to consult with him about proposed changes, to solicit his feedback about developments at the Mine, or to conduct an Individual Development and Performance Review.

[56] In relation to the four categories of information that the CFMMEU contends that BHP was required to provide to Mr Duthie in advance of the meeting, BHP contended that a finding that it was required to provide such information would necessitate an extraordinary construction of Clause 38.4, which would produce an outcome that is certainly not industrially “sensible”. In this regard, the factual background set out in the statement of Mr McNamara is of relevance:

•  Mr Duthie and Mr Dickson were clearly close colleagues;

•  BHP had concerns that Mr Dickson had provided false information during a prior interview in an attempt to assist Mr Duthie;

•  BHP was conducting an investigation into serious allegations of misconduct, and the answers provided by Mr Duthie at the Meeting of 15 May 2020 were clearly going to be integral to the outcome of that investigation; and

•  In such circumstances, providing Mr Duthie with forewarning of the conduct under investigation would have jeopardises the integrity of the process.

[57] BHP submitted that there is an obvious desirability in retaining some discretion as to how much information can be provided, and it is in the interest of all parties to the Agreement that investigations are, insofar as is possible, free from suggestion of witness collusion or interference. There is no basis for suggesting that the parties intended otherwise when the terms of Clause 38.4 were settled, and no such intention should be inferred given the plain impracticality of a finding that the Respondent is deprived of the discretion that may be necessary to preserve the integrity and confidentiality of an investigation.

[58] In any event, it is not clear what proper utility the provision of that information identified by the CFMMEU would have served, either in the case of the meeting of 15 May 2020 nor indeed more generally. Whilst it is understandable that an employee may be more vested in the situation of one co-worker than in that of another, the employee’s obligation when participating in an investigation interview remains the same – to provide an honest and candid account of what they can recall. For this reason, any suggestion that the CFMMEU’s construction ought be favoured on the basis that it may somehow result in the employee being in a position to offer different answers during the course of the interview should be afforded short shrift.

[59] BHP contended that the answer to Question 1 is “Yes”, and in such circumstances, Question 2 does not arise for consideration by the Commission.

The approach to construction of enterprise agreements

[60] The approach and the principles relevant to the task of construing the terms of an enterprise agreement was most recently set out in a Decision of 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 Ltd 10 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.

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 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.”

[61] The following observations of the Full Court of the Federal Court in WorkPac Pty Ltd v Skene 11 are also apposite in the present case:

“[197] The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context: City of Wanneroo v Holmes (1989) 30 IR 362 (Holmes) at 378 (French J). The interpretation “… turns on the language of the particular agreement, understood in the light of its industrial context and purpose …”: Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241; 138 IR 286 (Amcor) at [2] (Gleeson CJ and McHugh J). The words are not to be interpreted in a vacuum divorced from industrial realities (Holmes at 378); 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 (Holmes at 378–9, citing George A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503 (Street J)). 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: see Kucks v CSR Ltd (1996) 66 IR 182 at 184 (Madgwick J); Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16] (Marshall, Tracey and Flick JJ); Amcor at [96] (Kirby J).” 12

[62] Further, as BHP points out, it is desirable that the construction of an enterprise agreement is one that contributes to a sensible industrial outcome. 13 It is also well established that there is a presumption that a construction which produces an absurd, extra-ordinary, capricious, irrational or obscure outcome was not intended.14 However, this is not a license for the Commission to rewrite the terms of an agreement to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written in the agreement.15 Finally, there is a general predisposition against the implication of a term.16

Consideration

[63] The starting point is the text of the disputed term. The first point I note is that clause 38.4 deals with meetings that an employee is “required” to attend. The clause also excludes meetings for the purposes of an Individual Performance and Development Review (IDPR) under clause 36 of the Agreement. This is consistent with clause 36.2 which provides that no Employee Representative will be permitted to attend or participate in an employee’s performance, training and development discussion with their supervisor. It is immediately apparent that a meeting where the employee’s attendance is “required” is a meeting where there could be adverse consequences for the employee concerned, or another employee, in terms of disciplinary outcome.

[64] It is also clear from the text of the clause that the Company is required to “advise the Employee of the purpose of the meeting”. The term “advise” is used as a verb. The plain meaning of the term in this context is to inform or notify of something. 17 The employee required to attend a meeting is required to be advised of the “purpose” of the meeting. The term “purpose” is used as a noun and its ordinary meaning in this context is a thing to be done or an object to be obtained or the reason for which something is done.18

[65] It is also relevant that clause 38.4 is found in clause 38 which deals with employee representatives and provides for their recognition by BHP. Essentially, clause 38 provides for mutual rights and obligations in relation to employee representation including:

•  rights of employees to be represented and the circumstances in which representation is to be facilitated by the Company;

•  rights of employees acting in a representative capacity;

•  obligations placed on employees and persons acting as representatives – for example not to hold meetings during normal hours of work without approval; and

•  circumstances in which representatives will be entitled to be provided with benefits such as release from duty without loss of pay and travel expenses to participate in proceedings in the Commission.

[66] The entire clause speaks of the importance of representation to employees. It also speaks of agreement by the Company to facilitate representation and to recognise representatives. In the context of the clause, the employee is required to be advised of the purpose of a meeting, so that the employee can nominate an employee representative. The right of an employee to nominate an employee representative includes the right to choose whether to have a representative at all, and if so, the identity of that representative. In my view that right cannot be exercised by an employee unless the employee has sufficient information about the meeting to make an informed choice, including deciding whether to have a representative at the meeting, and if so, who the representative will be. An employee possessed of this information may then choose a representative that the employee believes is best qualified depending on the nature of the matters to be discussed at the meeting.

[67] In my view, this construction is also consistent with the purpose of the clause. If an employee does not have sufficient information to exercise the right to be represented – in the sense of deciding whether a representative is necessary and if so the identity of the representative – the purpose of the clause is defeated. It is also consistent with the legislative context under which the Agreement is made, which includes as an object of the Act, fairness and representation at work, freedom of association and the right to be represented. 19 There is no evidence of surrounding circumstances or objective background facts to contradict the plain meaning of the provision in dispute. The construction I favour does not involve the implication of a term into the Agreement. Neither does it impose any obligation on BHP which will undermine the integrity of its disciplinary processes.

[68] In order to comply with the requirements of clause 38.4 of the Agreement in the context of the present case, BHP was required to advise Mr Duthie that the meeting was for the purposes of an investigation into allegations of misconduct involving another employee which he may have witnessed, and that a possible outcome was disciplinary action against that employee. Possessed of that information, Mr Duthie would have been in a position to decide whether he needed representation, based on his assessment that the meeting was not about conduct on the part of Mr Duthie but could have disciplinary implications for one of his work colleagues.

[69] I do not accept that BHP was required to tell Mr Duthie the name of the person or persons against whom the allegations were made. Nor do I accept that Mr Duthie was required to be informed about the location of the alleged misconduct and the time at which it occurred. In this regard, I agree with the submissions of BHP that “purpose” should not be conflated with detail. The details that the CFMMEU assert should have been provided to Mr Duthie in advance of the meeting go beyond information about the purpose of the meeting and require that additional words be implied into the Agreement to the effect if the purpose is to investigate misconduct on the part of another employee, details of who was allegedly involved in the misconduct are also provided. There is no basis for such an implication.

Conclusion

[70] In the present case, I accept that the circumstances were unusual insofar as Mr Duthie was requested to attend a meeting, at which he was entitled to request a representative, in circumstances where the representative Mr Duthie requested was Mr Dickson, who was the subject of the investigation Mr Duthie was being interviewed in relation to. It is probable that the focus on the inappropriateness of Mr Dickson’s role as a representative in the discussion on 15 May 2020, meant that necessary information was not provided to Mr Duthie to meet BHP’s obligations under clause 38.4 of the Agreement.

[71] I conclude that in order to meet the requirements of clause 38.4 of the Agreement, that Mr Duthie be advised of the purpose of the meeting required by clause 38.4 of the Agreement, Mr Duthie was entitled to be advised that the meeting he was being requested to attend was for the purposes of investigating allegations of misconduct against a work colleague that might lead to disciplinary action against that colleague.

[72] I do not accept that Mr Duthie was informed of the purpose of the meeting that he was required to attend on 15 May 2020. It was insufficient for Mr Duthie to be informed that the meeting he was required to attend was so that he could be interviewed as part of an ongoing investigation. What was required was for Mr Duthie to be informed whether he was the subject of the investigation or whether he was a possible witness to alleged misconduct or a safety breach or similar. Mr Duthie was also entitled to be informed that disciplinary action against the person subject of the investigation would be a possible outcome.

[73] It is not necessary to determine whose version of the conversations in relation to this matter should be accepted. I accept that all witnesses were truthful and gave their recollections of the conversations to the best of their ability. The fact that the recollections do not align is not an indication of lack of credit. On any view of the discussions, Mr Duthie was not provided with the information that he was required to be provided with in order for BHP to meet its obligations under clause 38.4 of the Agreement. Accordingly, I answer the questions for arbitration as follows:

Question 1:

1. In respect of the meeting that was held on 15 May 2020, did the Company advise Mr Duthie of the purpose of that meeting as required by clause 38.4 of the BMA Enterprise Agreement 2018?

Answer:

No.

Question 2:

If the answer to question 1 is no, what additional information was the Company required by clause 38.4 of the BMA Enterprise Agreement 2018 to provide to Mr Duthie in respect of that meeting?

Answer:

The Company was required to notify Mr Duthie that the purpose of the meeting was to interview him in connection with allegations of misconduct against a work colleague and that a possible outcome of the investigation would be disciplinary action against the colleague.

DEPUTY PRESIDENT

Appearances:

Mr A Walkaden for the CFMMEU.

Mr J McLean and Ms C Ryan for BHP.

Hearing details:

7 December.

2020.

Brisbane.

Printed by authority of the Commonwealth Government Printer

<PR727577>

 1   Witness Statement of Simon West – Exhibit A2.

 2   Exhibit 1 – Agreed Statement of Facts.

 3   Witness Statement of Robert Duthrie at para 3.

 4   Ibid at para 4.

 5   Ibid at para 5.

 6   Witness Statement of Lachlan McNamara at para 15.

 7   Amcor Limited v Construction, Forestry, Mining and Energy CFMEU (2005) 222 CLR 241 at [69] and [131].

 8   Amcor Limited v CFMEU (2005) 222 CLR 241 at [2], [13]; TWU v Coles Supermarkets Australia Pty Limited (2014) 245 IR 449 at [22], [39], [42].

 9   AMWU v Skilled Engineering Ltd [2003] FCA 260; TWU v Linfox Australia Pty Ltd [2014] FWC 4268 at [107].

 10   [2017] FWCFB 3005 at [14].

 11   [2018] FCAFC 131.

 12   [2018] FCAFC 131; (2018) 264 FCR 536 at 580 [197]. This approach has been applied by the Federal Court (including numerous Full Courts) subsequently.

 13   Amcor Limited v Construction, Forestry, Mining and Energy CFMEU (2005) 222 CLR 241 at [69] and [131].

 14   Amcor Limited v CFMEU (2005) 222 CLR 241 at [2], [13]; TWU v Coles Supermarkets Australia Pty Limited (2014) 245 IR 449 at [22], [39], [42].

 15   Kucks v CSR Limited (1996) 66 IR 182 at 184.

 16   AMWU v Skilled Engineering Ltd [2003] FCA 260; TWU v Linfox Australia Pty Ltd [2014] FWC 4268 at [107].

 17   Shorter Oxford English Dictionary Oxford University Press, Sixth Edition.

 18   Ibid.

 19   Fair Work Act 2009, s. 3(e).