ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application to deal with a dispute related to provisions of Port Kembla Coal Terminal Limited Enterprise Agreement 2012-2015 regarding consultation about major workplace change – dispute arose after Operations Superintendent raised an improvement initiative with Operations Manager and communicated his intention to undertake a risk assessment – parties agreed question to be answered was ‘has the obligation to consult under clause 7 of the Agreement arisen in relation to the initiative to de-man the Rail Shed’ – CFMEU submitted obligation arises when management representative, in the course of exercising management responsibilities, is considering a change – submitted this point had been reached by virtue of Operations Superintendent initiating the risk assessment with Operations Manager’s knowledge – employer contended initiative was still at an embryonic stage of a Superintendent considering feasibility of change – Commission found no ambiguity in words in clause 7 – obligation to consult arises when Company considering introducing a major change – terms of agreement need to be considered in common sense practical manner and not a strict technical way – wrong to consider question by reference to whether the consideration by a staff member is in the course of performing the staff member’s duties – any preliminary consideration would fall into that category – if consideration is undertaken with a view to advising senior management, who have authority to make the decision, whether a proposal is feasible, it suggests that consideration by the company will come at a later point in time – consultation obligation triggered on or around point where manager with authority to decide receives a proposal and commences a consideration of proposal – on facts that point had not been reached – Commission determined obligation to consult had not arisen – Commission determined answer to disputed question was no. Construction, Forestry, Mining and Energy Union v Port Kembla Coal Terminal Limited
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