Application by Mining and Energy Union re Appin Colliery

[2024] FWC 3418

[2024] FWC 3418

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.306E—Application for a regulated labour hire arrangement order

Application by Mining and Energy Union re Appin Colliery

(LH2024/11)

JUSTICE HATCHER, PRESIDENT SYDNEY, 6 DECEMBER 2024

Application for a regulated labour hire arrangement order in respect of PIMS Mining (NSW) Pty Ltd in relation to work performed for Illawarra Coal Holdings Pty Ltd at Appin Colliery.

1. The Mining and Energy Union (MEU) has applied under s 306E of the Fair Work Act 2009 (Cth) (FW Act) for a regulated labour hire arrangement order to apply to Illawarra Coal Holdings Pty Ltd (ICH) as the regulated host and PIMS Mining (NSW) Pty Ltd (PIMS) as the employer. The proposed order would apply in respect of employees who perform production and engineering work at the Appin Colliery in New South Wales, which is an underground black coal mine (Mine). The covered employment instrument is the Appin Colliery & West Cliff CPP Enterprise Agreement 2022 (Agreement).[1] ICH and PIMS do not oppose the MEU’s application, and the parties have reached agreement as to the terms of the order to be made. No other person has indicated an interest in the application.

1. The MEU has filed evidence and submissions in support of the application. The evidence filed consists of the following:

·     a witness statement of Scott Barry, an electrician employed by IHC at the Mine and the Vice President of the MEU’s Appin Mine Lodge, dated 10 October 2023;

·     a witness statement of Brian Hinchey, who is a production operator employed by PIMS at the Mine, dated 10 October 2024; and

·     a further witness statement of Mr Hinchey dated 28 November 2024.

1. ICH and PIMS have declined to file any evidence or submissions.

1. On the basis of the evidence, and the uncontradicted contentions of fact stated in the MEU’s submissions, I make the following findings:

·     The production and engineering (P&E) workforce at the Mine consists of fitters, electricians, production operators, deputies, shift maintenance supervisors and undermanagers.

·     ICH has a directly-employed P&E workforce of about 1000 persons at the Mine covering all the roles identified above.

·     PIMs employs about 250 persons as fitters, electricians, operators and deputies who work at the Mine.

·     Both ICH and PIMs P&E employees are rostered on Monday-Thursday day, afternoon and night shifts and Friday-Sunday day, afternoon and night shifts by ICH. ICH is responsible for the rostering of all employees.

·     Shift crews typically contain a mix of ICH and PIMS employees.

·     There is no difference between the work performed by ICH and PIMS operators in the same roles, so that production operators, regardless of who employs them, perform the same work, operate the same machines and perform the same tasks interchangeably. Likewise, ICH and PIMs electricians maintain the same machines and equipment and perform the same routine inspections.

·     All workers at the Mine are required to follow ICH’s policies and procedures, regardless of who employs them, including the Mine Manager’s Rules established by ICH.

·     All workers commencing work at the Mine, including PIMS employees, are required to complete ICH’s site, surface and underground inductions and undergo training in ICH’s code of conduct and behavioural expectations.

·     Inexperienced workers, whether employed by ICH or PIMS, must be trained and assessed as competent in operating each machine before they are allowed to operate it. They must also be accompanied underground by an experienced mineworker until they have been interviewed by an ICH undermanager and approved to work unsupervised.

·     Persons employed by PIMS must be approved by ICH to be able to work at the Mine.

·     ICH keeps a record of the training and competencies of all workers including PIMS employees.

·     If any worker is to perform a non-routine task, they are required to complete a risk assessment or task analysis, which are part of ICH’s safety systems and are used for assessing and mitigating risk.

·     Deputies are assigned to supervise every underground crew’s work, regardless of the employer of the crew’s members. Most deputies are employed by ICH but several are employed by PIMS.

·     Shift maintenance supervisors, who are employed by ICH, assign tasks to maintenance workers, whether ICH or PIMS employees. Fitters and electricians are required to perform work as directed by shift maintenance supervisors unless they have been given an alternative direction by the crew deputy.

·     ICH leases or owns all the machines and equipment used at the Mine, except for several drill rigs that are used for gas drainage.

·     ICH and PIMS workers obtain their personal protective equipment supplied by ICH from their muster rooms.

·     ICH and PIMS employees all present for work at one of three portals at the Mine and are required to attend a shift pre-start meeting conducted by the shift undermanagers from a central location and streamed to each of the portals. The deputies then outline the work to be performed on the shift.

·     ICH and PIMS employees working in the same crews take crib breaks, as directed by the crew deputy, in the same crib room.

·     PIMS employees apply for annual leave using a system administered by PIMS but, before the leave is granted, ICH must approve it.

1. Clause 2.2 of the Agreement provides that the Agreement applies and is binding upon ICH in respect of (relevantly) the Mine and ICH’s employees employed at (relevantly) the Mine in the classifications set out in the Agreement. The classifications and rates of pay are set out in Appendix 1 to the Agreement and include: Surface Operator; Surface Trade, Underground Operator, Underground Trades and Specialist. Clause 15.3.1 makes apparent that ‘Trade’ encompasses electrical and mechanical trades.

Consideration

1. In Application by the Mining and Energy Union[2], a Full Bench of the Commission outlined a number of principles concerning the proper interpretation and application of s 306E.[3] I apply, but do not repeat, the principles stated in that decision.

1. I am satisfied, for the purposes of s 306E(7) of the FW Act, that the MEU is an organisation entitled to represent the industrial interests of employees of ICH and PIMS employed to perform P&E work at the Mine. Accordingly, the MEU is entitled to apply for a regulated labour hire arrangement order under s 306E of the FW Act by operation of s 306E(7)(c).

1. I am likewise satisfied that the requirements of s 306E(1) of the FW Act, which must be satisfied in order to enliven the obligation to make a regulated labour hire arrangement order, are met. Specifically, on the evidence before me, I am satisfied that:

(a)PIMS provides its employees to perform P&E work for ICH at the Mine.

(b)The Agreement would apply to PIMS’ employees who perform work for ICH at the Mine if ICH were to employ these employees directly to undertake the same kind of work.

(c)ICH is not a small business employer.

1. For the purposes of s 306E(1A) of the FW Act, I am satisfied that the performance of work is not and will not be for the provision of a service, rather than the supply of labour. In forming this view, I have had regard to the matters set out in subsection (7A). In relation to the matters set out in s 306E(7A), I make the following findings:

(a)PIMS is not involved in matters relating to the performance of P&E work by its employees at the Mine, except only that leave applications must be made to PIMS. As earlier found, ICH must first approve the leave sought before PIMS can grant it.

(b)The evidence demonstrates that ICH directs, supervises and controls the PIMS employees. ICH manages their rosters, assigns their work tasks, and is responsible for their training and safety.

(c)PIMS employees work entirely within ICH’s systems of operations and operate machinery and equipment owned or leased by ICH, and ICH supplies them with personal protective equipment.

(d)There is no evidence that PIMS is or will be subject to industry or professional standards or responsibilities in relation to the work of its employees supplied to ICH.

(e)The work undertaken by PIMS employees at the Mine involves the operation of machinery and equipment within the context of ICH’s system of operations and safety at the Mine, but does not involve work of a specialist or professional nature.

1. Having regard to the considerations referred to in s 306E(7A) of the FW Act, it is clear that the performance of work by PIMS employees supplied to ICH at the Mine is not and will not be for the provision of a service, rather than the supply of labour. I am satisfied that PIMS supplies labour to ICH.

1. In relation to s 306E(2) of the FW Act, I am not satisfied that it is not fair and reasonable in all the circumstances to make a regulated labour hire arrangement order as sought by the SDA. Section 306E(2) requires the Commission to have regard to the matters listed in subsection (8) in relation to which submissions have been made. In this case, no submissions were made in relation to any of the matters listed in subsection (8). Accordingly, I am not required to have regard to those matters.

1. In those circumstances, I am required by s 306E of the FW Act to make the regulated labour hire arrangement order sought by the MEU. I will publish the order together with this decision, setting out the matters specified in s 306E(9) of the FW Act. The operative date of the order will be 9 December 2024, consistent with s 306E(9)(e)(ii).

PRESIDENT

[1] AE517907.

[2]  [2024] FWCFB 299, 333 IR 249.

[3] Ibid [8]–[17].

Printed by authority of the Commonwealth Government Printer

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