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.

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.

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.

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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] FWC 3418
Decision Date: 6 DECEMBER 2024

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by the Mining and Energy Union for a regulated labour hire arrangement order concerning PIMS Mining (NSW) Pty Ltd. The union sought the order for work performed by PIMS Mining employees for Illawarra Coal Holdings Pty Ltd at the Appin Colliery. The dispute centred on the classification of the employees under a labour hire arrangement and the associated entitlements. The Commission had to determine whether the employees were entitled to be paid the applicable award wages and conditions, and if so, which award applied.

The central legal issue was whether the employees of PIMS Mining working at Appin Colliery should be classified under the relevant mining award or a different award applicable to the labour hire industry. This classification was crucial as it determined the employees' entitlements, including wages, leave, and other benefits. The Commission had to consider the nature of the work performed by the employees, the contractual relationship between PIMS Mining, Illawarra Coal Holdings, and the employees, and the applicable industrial instruments.

The Fair Work Commission found that the employees were engaged under a labour hire arrangement but were primarily performing mining work. The Commission held that the employees were entitled to the protections and entitlements under the mining award rather than the labour hire award. The Commission reasoned that the nature of the work and the industry in which the work was performed were decisive factors. Consequently, the employees were entitled to be paid the applicable mining award wages and conditions. The Commission made a regulated labour hire arrangement order in favour of the union, ensuring that PIMS Mining employees working at Appin Colliery would receive the correct entitlements under the mining award.

Orders