SUPREME COURT OF QUEENSLAND
CITATION: | Construction, Forestry, Mining & Energy Union v BM Alliance Coal Operations Pty Ltd & Ors [2011] QSC 381 |
PARTIES: | CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION BM ALLIANCE COAL OPERATIONS PTY LTD (ACN 096 412 752) |
FILE NO/S: | BS 9863 of 2011 BS10122 of 2011 |
DIVISION: | Trial Division |
PROCEEDING: | Application |
ORIGINATING COURT: | Supreme Court at Brisbane |
DELIVERED ON: | 8 December 2011 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 21 November 2011 |
JUDGE: | Martin J |
ORDER: | 1. In BS 9863 of 2011, application dismissed. 2. In BS 10122 of 2011, application dismissed. |
CATCHWORDS: | STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – GENERAL PRINCIPLES – where the Coal Mining Safety and Health Act 1999 (Qld) (“the Act”) establishes a regime that involves the election of Site Safety and Health Representatives (“SSHRs”) – where there are two applications before the court concerning the process for electing SSHRs at the Gregory Mine in Central Queensland – where on the first application, the Construction, Forestry, Mining and Energy Union (“CFMEU”) seeks declarations that the election process it proposes complies with the Act, and that the respondents are not entitled to interfere with that process – where the respondents BM Alliance Coal Operations Pty Ltd, BHP Coal Pty Ltd and Michael Nucifora (“BMA”) apply by cross-application for a declaration that conduct of the election of SSHRs is vested in the site senior executive (“SSE”) of the coal mine, and that the electoral procedure proposed by BMA satisfies the requirements of the Act – where the Act fails to prescribe any method for conducting an election or any guidance as to who might call or conduct an election for SSHRs - whether the election process proposed by the CFMEU complies with the Act – whether the electoral procedure proposed by BMA satisfies the requirement of the Act Acts Interpretation Act 1954 (Qld), s 14A, s 32CA Coal Mining Safety and Health Act 1999 (Qld) s 6, s 7, s 25, 28, s 32, s 41, s 42, s 62, s 92, s 93, s 94, s 95, s 96, s 97, s 98, s 99, s 100, s 101, s 102, s 103, s 104, s 105, s 106, s 107 Bropho v Western Australia (1990) 171 CLR 1, cited CFMEU v Oaky Creek Coal Pty Ltd [2003] QSC 33, considered IW Applicant v City of Perth (1997) 191 CLR 1, considered Kingston v Keprose Pty Ltd [1987] 11 NSWLR 404, cited Minister Administering the Crown Lands Act v NSW Aboriginal Land Council (2008) 237 CLR 285, cited R v Young (1999) 46 NSWLR 681, considered Ravenscroft v Nominal Defendant [2008] 2 Qd R 32, considered Saraswati v The Queen (1991) 172 CLR 1, cited Sevmere Pty Ltd v Cairns Regional Council [2010] 2 Qd R 276, considered Waugh v Kippen (1986) 160 CLR 156, cited Wentworth Securities v Jones [1980] AC 74, considered |
COUNSEL: | R Gotterson QC and C Hartigan for the applicant/respondent P Roney SC for the respondent/applicant |
SOLICITORS: | Hall Payne for the applicant/respondent Blake Dawson for the respondent/applicant |
The Act
“[3] By 1999, deficiencies in the regulatory regime covering safety and health in coal mines were widely recognised. That regime ‘concentrate[d] on telling industry how things must be done rather than the standards of safety which must be achieved while doing the task.’ The Coal Mining Safety and Health Act 1999 "focuses on the standards of safety and health that must be met and allows the mine operator to use the most appropriate methods and technology to achieve these standards’. It is intended to ‘provide a modern legislative framework for the safety and health of those involved with Queensland's most important industry’. Its objects are:
‘(a)to protect the safety and health of persons at coal mines and persons who may be affected by coal mining operations; and
(b) to require that the risk of injury or illness to any person resulting from coal mining operations be at an acceptable level.’
[4] It specifies eleven methods by which those objects are to be achieved. Among them are:
‘(a) imposing safety and health obligations on persons who operate coal mines or who may affect the safety or health of others at coal mines; and
(b) providing for safety and health management systems at coal mines to manage risk effectively; and
(c) making regulations and recognised standards for the coal mining industry to require and promote risk management and control; and
(d) …
(e) providing for safety and health representatives to represent the safety and health interests of coal mine workers; …’.
[5] The Act seeks co-operation to achieve its objects:
‘Cooperation is an important strategy in achieving the objects of the Act and is achieved –
(a) at an industry level by -
(i)the establishment of the coal mining safety and health advisory council under part 6; and
(ii)the appointment of industry safety and health representatives under part 8; and
(b)at coal mine level by—
(i)the election of site safety and health representatives under part 7; and
(ii) the process of involving coal mine workers in the management of risk.’
Many of the subsequent provisions of the Act reflect that strategy.
[6] The first method referred to above for achieving the Act’s objects is the imposition of safety and health obligations on just about everyone at a coal mine, from the workers upward. Depending upon the circumstances, breach of these obligations can result in imprisonment for up to two years. The second method is providing for safety and health management systems to manage risk effectively. The relevant provisions deal with management personnel, safety and health management systems and the records and reporting requirements. The third method is implemented by provisions permitting the Minister to make recognised standards for safety and health. There is no particular standard relevant in the present case. Lastly (for present purposes), provision is made for workers at a coal mine to elect two of their number to be site safety and health representatives and for the definition of their functions and powers; and for the union to appoint industry safety and health representatives (“ISHR”) and for the definition of their functions and powers.
[7] There is considerable interaction among the sections providing these four methods. A coal mine operator is obliged to appoint a site senior executive (“SSE”) and to ensure that the executive develops and implements a safety and health management system for the mine. An SSE is the most senior officer employed by the operator who is located at or near the mine and who has responsibility for it. Mr Payne was the SSE at Oaky Creek's mine. A statutory obligation was imposed upon him to develop and implement a safety and health management system for the mine. A safety and health management system is one ‘that incorporates risk management elements and practices that ensure safety and health of persons who may be affected by coal mining operations’. It ‘must be an auditable documented system that forms part of an overall management system that includes organisational structure, planning activities, responsibilities, practices, procedures, processes and resources for developing, implementing, achieving, reviewing and maintaining a safety and health policy’.
[8] The safety and health management system is of central importance in both the operation and interpretation of the Act. It constitutes a primary method by which the objects of the Act are to be achieved, as I have already observed. A coal mine operator must provide adequate resources to ensure its effectiveness and implementation. Obligations of leaseholders, owners, contractors and workers are defined by reference to it. It must
‘provide for the following basic elements-
(a)risk identification and assessment;
(b) hazard analysis;
(c) hazard management and control;
(d) reporting and recording relevant safety and health information and data.’
However its contents are not exclusively mandated in that section. Some requirements appear in the Act. … ”
“7 How objects are to be achieved
The objects of this Act are to be achieved by—
…
(b)providing for safety and health management systems at coal mines to manage risk effectively; and
…
(e)providing for safety and health representatives to represent the safety and health interests of coal mine workers; and
…
(h)requiring management structures so that persons may competently supervise the safe operation of coal mines;
…”
“25 Meaning of site senior executive
(1)The site senior executive for a coal mine is the most senior officer employed or otherwise engaged by the coal mine operator for the coal mine who—
(a) is located at or near the coal mine; and
(b) has responsibility for the coal mine.
…”
“28 Meaning of site safety and health representative
A site safety and health representative for a coal mine is a coal mine worker elected under section 93 by coal mine workers at the coal mine to exercise the powers and perform the functions of a site safety and health representative mentioned in part 7 division 2.”
“32 Cooperation to achieve objects of Act
(1)This Act seeks to achieve cooperation between coal operators, site senior executives and coal workers to achieve the objects of the Act.
(2)Cooperation is an important strategy in achieving the objects of the Act and is achieved—
(a)at an industry level by—
(i) the election of site safety and health representatives under part 7; and
(ii) the process of involving coal mine workers in the management of risk.”
“41 Obligations of coal mine operators
(1)A coal mine operator for a coal mine has the following obligations—
(a)to ensure the risk to coal mine workers while at the operator’s mine is at an acceptable level, including, for example, by providing and maintaining a place of work and plant in a safe state;
…
(b)to provide adequate resources to ensure the effectiveness and implementation of the safety and health management system.”
“42 Obligations of site senior executive for coal mine
A site senior executive for a coal mine has the following obligations in relation to the safety and health of persons who may be affected by coal mining operations—
…
(c)to develop and implement a safety and health management system for the mine;”
“62 Safety and health management system
(1)A safety and health management system for a coal mine is a system that incorporates risk management elements and practices that ensure safety and health of persons who may be affected by coal mining operations.
…
(3)The safety and health management system must be adequate and effective to achieve an acceptable level of risk by—
(a)defining the coal mine operator’s safety and health policy; and
(b)containing a plan to implement the coal mine operator’s safety and health policy; and
(c) stating how the coal mine operator intends to develop the capabilities and support mechanisms necessary to achieve the policy; and
(d)including principal hazard management plans and standard operating procedures; and
(e)containing a way of—
(i)measuring, monitoring and evaluating the performance of the safety and health management system; and
(ii)taking the action necessary to prevent or correct matters that do not conform with the safety and health management system; and
(f)containing a plan to regularly review and continually improve the safety and health management system so that risk to persons at the coal mine is at an acceptable level; and
(g) if there is a significant change to the coal mining operations of the coal mine—containing a plan to immediately review the safety and health management system so that risk to persons is at an acceptable level.”
“an individual who carries out work at a coal mine and includes the following individuals who carry out work at a coal mine—
(a) an employee of the coal mine operator;
(b) a contractor or employee of a contractor.”
“Part 7Site safety and health representatives
Division 1 Purposes of part
92 Purposes of pt 7
The main purposes of this part are to provide for the election of site safety and health representatives and to state their functions and powers.
Division 2 Site safety and health representatives
93 Election of site safety and health representatives
(1)The coal mine workers at a coal mine may elect up to 2 of their number to be site safety and health representatives for the mine for the term decided by the coal mine workers.
(2)If there is more than 1 site senior executive at a coal mine, the coal mine workers in each part of the mine for which a site senior executive has responsibility may elect 2 coal mine workers to be site safety and health representatives for each part for the term decided by the coal mine workers.
(3)A person elected under subsection (1) or (2), becomes a site safety and health representative only if the person holds the appropriate safety and health competencies accepted by the committee for a site safety health representative.
(4)When performing functions or exercising powers under this part, a site safety and health representative is taken to be performing part of the coal mine worker’s duties as a coal mine worker.
94 Further election if site safety and health representative not available
(1)If a site safety and health representative is not available when a coal mine operation is considered unsafe by affected coal mine workers, coal mine workers at the mine or part of the mine may elect 2 coal mine workers who are practical miners to inspect the coal mining operation.
(2)A person elected under subsection (1) is taken to be a site safety and health representative for the period—
(a)a site safety and health representative is not available; and
(b)the coal mining operation is considered unsafe by affected coal mine workers.
95 Person must be qualified to act as site safety and health representative
(1)A person must not act as a site safety and health representative unless the person holds the competencies mentioned in section 93(3).
Maximum penalty—40 penalty units.
(2)Subsection (1) does not apply to a person elected under section 94.
(3)A site safety and health representative must perform the functions and exercise the powers of a site safety and health representative under this Act for safety and health purposes and for no other purpose.
Maximum penalty for subsection (3)—40 penalty units.
96 Ceasing to be a site safety and health representative
A coal mine worker stops being a site safety and health representative if the worker—
(a)tells the site senior executive that the worker resigns as site safety and health representative; or
(b)stops being a worker at the mine; or
(c)is removed from office by a vote of coal mine workers.
97 Removal from office by Minister
(1)The Minister may remove a site safety and health representative from office by notice if the Minister considers the representative is not performing the representative’s functions satisfactorily.
(2)The notice must contain the Minister’s reasons for removing the site safety and health representative from office.
98 Election after removal from office
If a site safety and health representative is removed from office by the Minister, another site safety and health representative may be elected under this division.
(2)However, another person must not be elected to be a site safety and health representative until after—
(a)the time for filing an appeal under part 14, division 1 has ended; or
(b)if an appeal against the Minister’s decision has been filed—an Industrial Magistrates Court has confirmed the Minister’s decision to remove the site safety and health representative.
(3) The provisions of this division apply to the election.
99 Functions of site safety and health representatives
(1)A site safety and health representative for a coal mine has the following functions—
(a)to inspect the coal mine to assess whether the level of risk to coal mine workers is at an acceptable level;
(b)to review procedures in place at the coal mine to control the risk to coal mine workers so that it is at an acceptable level;
(c)to detect unsafe practices and conditions at the coal mine and to take action to ensure the risk to coal mine workers is at an acceptable level;
(d)to investigate complaints from coal mine workers at the mine regarding safety or health.
(2)The site senior executive and supervisors at the coal mine must give reasonable help to a site safety and health representative in carrying out the representative’s functions.
Maximum penalty—40 penalty units.
(3)The site senior executive or the site senior executive’s representative may accompany the site safety and health representative during an inspection.
(4)A site safety and health representative who makes an inspection of the coal mine must—
(a)make a written report on the inspection; and
(b)give a copy of the report to the site senior executive; and
(c)if the inspection indicates the existence or possible existence of danger, immediately—
(i)notify the site senior executive or the responsible supervisor; and
(ii)send a copy of the report to aninspector.
(5)If a site safety and health representative believes a safety and health management system is inadequate or ineffective, the representative must inform the site senior executive.
(6)If the site safety and health representative is not satisfied the site senior executive is taking the action necessary to make the safety and health management system adequate and effective, the representative must advise an inspector.
(7)The inspector must investigate the matter and report the results of the investigation in the mine record.
100 Powers of site safety and health representative
A site safety and health representative for a coal mine has the following powers—
(a)to enter any area of the coal mine at any time to carry out the functions of the site safety and health representative, if reasonable notice is given to the site senior executive or the site senior executive’s representative;
(b)to examine any documents relevant to safety and health held by the site senior executive under this Act, if the site safety and health representative has reason to believe the documents contain information required to assess whether procedures are in place at the coal mine to achieve an acceptable level of risk to the coal mine workers.
101 Stopping of operations by site safety and health representatives
(1)This section applies if a site safety and health representative reasonably believes a danger to the safety or health of coal mine workers exists because of coal mining operations.
(2)The safety and health representative may, by written report to the site senior executive stating the reasons for the representative’s belief, order the suspension of coal mining operations.
(3)If the site safety and health representative reasonably believes there is immediate danger to the safety and health of coal mine workers from coal mining operations, the representative may—
(a)stop the operations and immediately advise the supervisor in charge of the operations; or
(b)require the supervisor in charge of the operations to stop the operations.
(4)The site safety and health representative must give a written report to the site senior executive about the action taken under subsection (3) and the reasons for the action.
102 Effect of report
If the site senior executive receives a report under section 101(2), the site senior executive must stop the coal mining operations mentioned in the report.
Maximum penalty—200 penalty units.
103 Site senior executive not to restart operations until risk at an acceptable level
The site senior executive must ensure that the coal mining operations stopped under section 101 are not restarted until the risk to coal mine workers from the operations is at an acceptable level.
Maximum penalty—200 penalty units.
104 Site safety and health representative not to unnecessarily impede production
A site safety and health representative must not unnecessarily impede production at a coal mine when exercising the functions.
Maximum penalty—200 penalty units.
105 Protection of site safety and health representatives performing functions
A coal mine operator, site senior executive, contractor or other supervisor must not—
(a)prevent or attempt to prevent a site safety and health representative from performing his or her functions; or
(b)penalise a safety and health representative for performing his or her functions.
Maximum penalty—200 penalty units.
106 Site senior executive to tell site safety and health representatives about certain things
(1)A site senior executive for a coal mine must tell a site safety and health representative at the mine about the following things—
(a)an injury or illness to a person from coal mining operations that causes an absence from work of the person;
(b)a high potential incident happening at the coal mine;
(c)any proposed changes to the coal mine, or plant or substances used at the coal mine, that affect, or may affect, the safety and health of persons at the mine;
(d)the presence of an inspector or inspection officer at the coal mine if the representative is at the mine;
(e)a directive given by an inspector, inspection officer or industry safety and health representative about a matter.
Maximum penalty—40 penalty units.
(2)For subsection (1), the site senior executive must tell each representative as soon as practicable after the thing comes to the site senior executive’s knowledge.
107 Site senior executive to display identity of site safety and health representatives
(1)A site senior executive for a coal mine must display a notice as required by subsections (2) and (3) advising the identity of each site safety and health representative for the mine.
Maximum penalty—40 penalty units.
(2)The site senior executive must display the notice within 5 days after the site senior executive is notified of the representative’s election.
(3)The site senior executive must display the notice in 1 or more conspicuous positions at the mine in a way likely to come to the attention of workers at the mine.”
History
The case for the CFMEU
The case for BMA
“A site senior executive for a coal mine has the following obligations in relation to the safety and health of persons who may be affected by coal mining operations—
…
Part 7 of the Act
“The main purposes of this part are to provide for the election of site safety and health representatives and to state their functions and powers.”
Consideration
“(1) In the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation.”
“… beneficial and remedial legislation, … , is to be given a liberal construction. It is to be given ‘a fair, large and liberal’ interpretation rather than one which is ‘literal or technical’. Nevertheless, the task remains one of statutory construction. Although a provision of the Act must be given a liberal and beneficial construction, a court or tribunal is not at liberty to give it a construction that is unreasonable or unnatural.”
“(1) In an Act, the word may, or a similar word or expression, used in relation to a power indicates that the power may be exercised or not exercised, at discretion.”
Should the CFMEU conduct the election?
Should BMA conduct the election?
Who can call and conduct an election?
“My Lords, I am not reluctant to adopt a purposive construction where to apply the literal meaning of the legislative language used would lead to results which would clearly defeat the purposes of the Act. But in doing so the task on which a court of justice is engaged remains one of construction; even where this involves reading into the Act words which are not expressly included in it. Kammins Ballrooms Co. Ltd. v. Zenith Investments (Torquay) Ltd. [I971] A.C. 850 provides an instance of this; but in that case the three conditions that must be fulfilled in order to justify this course were satisfied. First, it was possible to determine from a consideration of the provisions of the Act read as a whole precisely what the mischief was that it was the purpose of the Act to remedy; secondly, it was apparent that the draftsman and Parliament had by inadvertence overlooked, and so omitted to deal with, an eventuality that required-to be dealt with if the purpose of the Act was to be achieved; and thirdly, it was possible to state with certainty what were the additional words that would have been inserted by the draftsman and approved by Parliament had their attention been drawn to the omission before the Bill passed into law. Unless this third condition is fulfilled any attempt by a court of justice to repair the omission in the Act cannot be justified as an exercise of its jurisdiction to determine that is the meaning of a written law which Parliament has passed. Such an attempt crosses the boundary between construction and legislation. It becomes a usurpation of a function which under the constitution of this country is vested in the legislature to the exclusion of the courts.”
“[11] The three conditions set out by Lord Diplock should not be misunderstood. His Lordship did not say, nor do I take any of their Honours who have adopted the passage to suggest, that whenever the three conditions are satisfied, a court is at liberty to supply the omission of the legislature. Rather, his Lordship was saying that in the absence of any one of the three conditions, the court cannot construe a statute with the effect that certain words appear in the statute.
[12] As I understand the recent cases, they are not authority for the proposition that a court is entitled, upon satisfaction of the three conditions postulated by Lord Diplock, to perfect the Parliamentary intention by inserting words in a statute. The court may construe words in the statute to apply to a particular situation or to operate in a particular way, even if the words used would not, on a literal construction, so apply or operate. However, the words which actually appear in the statute must be reasonably open to such a construction. Construction must be text based.”
“[52] The deficiencies in the Act can be overcome judicially only by a process of construction. And for that to be possible, to put it broadly, the court must conclude that its solution is the one Parliament would have adopted had it become aware of the deficiencies. Consequently, it would be appropriate, rarely if ever, to fill a perceived gap by interfering with the framework or scheme of an Act. Also there are cases in which it is desirable for the court to leave any remedy to Parliament. James Hardie & Coy Pty Ltd v Seltsam Pty Ltd is an example of such a case. In their joint reasons Gaudron and Gummow JJ, having identified problems with the legislation under consideration, said that such considerations:
“... serve to emphasise the need for renovation of the New South Wales legislation, not by judicial grafting to it of tissue which it lacks, but upon detailed reconsideration by the legislature. Judicial interpretative techniques may come close to leaching the existing statutory text and structure of their content and, whilst answering that apparently hard case then before the court, unwittingly lay the ground for other hard cases.”
The election process
Conclusion
[1] Section 6(a) of the Act.
[2] [2003] QSC 33.
[3] Section 7 of the Act.
[4] Section 101 of the Act.
[5] Section 105 of the Act.
[6] See [7].
[7] This term is defined in s 21 of the Act.
[8] Waugh v Kippen (1986) 160 CLR 156.
[9] (1997) 191 CLR 1 at 11.
[10] Minister Administering the Crown Lands Act v NSW Aboriginal Land Council (2008) 237 CLR 285 at 301.
[11] The phrase “up to 2” in s 93(1) would, for those who value precision of expression, also include the possibility of nobody being elected but that would, likewise, be contrary to the clear intention of Part 7.
[12] Section 7(f) of the Act.
[13] Section 99(5) of the Act.
[14] (1999) 46 NSWLR 681.
[15] At 685.
[16] [1980] AC 74 at 105-106
[17] Kingston v Keprose Pty Ltd [1987] 11 NSWLR 404; Bropho v Western Australia (1990) 171 CLR 1; Saraswati v The Queen (1991) 172 CLR 1.
[18] [2008] 2 Qd R 32.
[19] [2010] 2 Qd R 276.
[20] The conduct of an election would fall within the ambit of the subject matter for regulations in Schedule 2 of the Act, in particular, “matters of an administrative nature”.
