ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application to deal with a dispute under BMA Daunia Mine Enterprise Agreement 2014 (the Agreement) – dispute concerns proper construction of clause 21 of Agreement – whether employee has right under clause 21.1 to be represented by any person including full time official of the CFMEU for the purposes of the Procedure at any stage – respondent submitted interpretation only allows for representation from fellow employee during initial stages prior to being referred to Commission as opposed to a union – applicant submitted Agreement is not ambiguous – Agreement refers to both representatives and employee representatives throughout – given clause 21.1 only discusses representative this indicates it was not intended to be limited to employee representatives otherwise alternative terminology would have been used – respondent submitted clause 21.1 is ambiguous and thus regard should be had to the context and purpose of clause as well as document as a whole, other associated documents and legislative background – respondent submitted wide interpretation would open floodgates and allow potentially unlimited representation which would cause significant disruption should respondent be required to induct a wide range of persons seeking entry to the Mine as well as create absurdity and significantly hinder respondents ability to resolve disputes – whereas applicant submitted that meetings could continue to be held at offices in Murrumba and Mackay to continue to limit disruption – respondent submitted reading Agreement as a whole namely clauses 21.1 and 27 which discuss representatives and employee representatives demonstrates it was contemplated by the parties that a representative of an employee for the purpose of clause 21.1 would be a person employed by the respondent – respondent also submitted several subclauses of clause 21 could not operate if representative was interpreted to include non-employee representatives – Golden Cockerel considered – Commission not satisfied Golden Cockerel is a series of steps that must be followed nor an exhaustive code of principles but a collection of authorities on interpretation of industrial instruments which distil into a number of major points relevant to such a task – Commission not satisfied if language in Agreement has clear meaning that context cannot be considered – Commission satisfied plain reading of clause 21.1 of Agreement suggests employees in disputes with respondent regarding application of Agreement or NES are entitled to be represented by a person of their choice without restriction – contextual matters considered – Commission noted references in clauses 21.1 and 21.7 to employees being able to nominate a representative of their choice to represent them at any stage of the Procedure but found changes in terminology from employer, employee or a representative of the employee in the early stages to ‘parties’ or a ‘party’ when dispute is referred to the Commission create a clear distinction with respect to the interpretation of representative – Commission considered that to find that any person nominated by an employee can be a representative at the stages of the dispute procedure in clause 21.1 to 21.7, could result in a person with no local connection becoming involved in an issue involving an employee which would be inconsistent with the objective that issues raised by employees are dealt with at a local level to the maximum extent possible – Commission satisfied limiting representative to an employee of the respondent was in keeping with the objective of the clause – Commission satisfied clause 21 and clause 27 should be read in association and that representative and employee representative are the same – Commission satisfied that disputes could not be efficiently resolved if non employees could enter the site for the purpose of representation and the notion of offsite meetings further hindered the efficient resolution of disputes – Commission found Agreement does not extend to having any person they elect as a representative during a dispute and is limited to a representative who is employed by respondent for the stages in sub-clauses 21.1 to 21.7 of the Issue Resolution Procedure in clause 21 of the Agreement. Construction, Forestry, Mining and Energy Union-Mining and Energy Division Queensland District Branch v Central Queensland Services P/L
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