Represented by who?
CFMEU fails in its attempt to allow union reps on site at the start of disputes at Daunia
Wednesday 28 June 2017
The CFMEU has failed in its attempt to allow workers at the BMA owned Daunia mine near Moranbah to be represented by external union officials in the early stages of a dispute.
The CFMEU contended in the Fair Work Commission that the final sentence in clause 21, of the 2014 Enterprise Agreement allowed for an employee to be represented by any person the employee chooses, including an officer of the CFMEU.
Further, they argued CQS Pty Ltd (BMA) had denied employees this right and incorrectly interpreted the clause to mean only representatives also employed by CQS Pty Ltd could get involved.
“There is no wording in the clause to suggest that the term “representative” is limited in any way and accordingly, the term must be given the widest possible meaning,” they argued.
“The CFMEU further submits that clause 27 of the Agreement sets out the rights of an “employee representative” who is chosen to represent another employee.
“The CFMEU contends that if a “representative” in clause 21 were intended to be limited to an “employee representative” by clause 27 of the Agreement, then the same term would have been used in both clauses.”
For its part CQS Pty Ltd argued that the meaning of “representative” in clause 21.1 couldn't be used in isolation, instead, it had to be used in context and consider the full meaning of clause 21 as a whole.
Further, they argued that such an interpretation of who was a “representative” would turn conflict resolution into a circus.
“The result would be that any number of unknown persons would be able to enter the Mine any time that an employee had an issue arising in the course of employment that he or she wished to raise, even an issue raised in the first instance with a supervisor,” they said.
“Such an interpretation would create an absurdity and significantly hinder the Company’s ability to resolve issues that arise in the course of employment with employees, in a timely manner.”
In making her decision, Deputy President Asbury agreed with the CFMEU that clause 21.1 could be interpreted to mean any representation if viewed in isolation.
However more broadly she sided with BMA in so far that she agreed that an Enterprise Agreement had to be considered in its entirety and that a “narrow or pedantic” approach should not be taken.
Further, she said it was clear within the agreement generally, what the agreed terms were for how CFMEU officials might enter a mine site.
“The Object of the Act includes enabling fairness and representation at work through freedom of association and the right to be represented,” she said.
“The interpretation of the agreement discussed above is not inconsistent with this object.
"It allows for employees to be represented by a fellow employee who may be an Officer of a Union, or by a full-time Officer of a Union when the matter is referred to the Commission."