Applications by Mining and Energy Union re Capcoal Surface Operations
[2024] FWCFB 411
•1 NOVEMBER 2024
| [2024] FWCFB 411 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.306E—Application for a regulated labour hire arrangement order
Applications by Mining and Energy Union re Capcoal Surface Operations
(C2024/5507, C2024/5508)
| JUSTICE HATCHER, PRESIDENT VICE PRESIDENT ASBURY VICE PRESIDENT GIBIAN | SYDNEY, 1 NOVEMBER 2024 |
Applications for regulated labour hire arrangement orders in respect of WorkPac Pty Ltd, WorkPac Mining Pty Ltd and Mobilise Group Pty Ltd t/a AWX Pty Ltd in relation to work performed for Anglo Coal (Capcoal Management) Pty Ltd at Capcoal Surface Operations.
The Mining and Energy Union (MEU) has made two applications under s 306E of the Fair Work Act 2009 (Cth) (FW Act) for regulated labour hire arrangement orders (RLHA orders). In respect of both applications, Anglo Coal (Capcoal Management) Pty Ltd (Anglo) is the regulated host, the Capcoal Surface Operations Enterprise Agreement 2022 (Agreement) is the covered employment instrument, and Capcoal Surface Operations, an open cut black coal mining operation in the German Creek mining area near the town of Middlemount in Queensland (Mine), is the relevant work site. In matter C2024/5507, WorkPac Pty Ltd and WorkPac Mining Pty Ltd (collectively, WorkPac) are the employers. In matter C2024/5508, the employer is Mobilise Group Pty Ltd trading as AWX Pty Ltd (AWX). Because of the substantially overlapping facts, evidence and submissions in each matter, it is convenient to deal with them together.
In matter C2024/5507, Anglo and WorkPac have declined to file any evidence and submissions in the matter and have indicated that, if the Commission is satisfied that the RLHA order sought by the MEU should be made pursuant to s 306E of the FW Act, they do not oppose the order sought being issued. Anglo and AWX have taken the same position in matter C2024/5508. No other person has indicated an interest in respect of either application. The parties agree that the matters can be determined on the papers.
The evidence before the Commission in matter C2024/5507 comprised the following two witness statements filed by the MEU:
·Statement of Russell Herdman dated 16 September 2024. Mr Herdman is employed by Anglo as an Open Cut Examiner (OCE) at the Mine.
·Statement of Brody Kelly dated 17 September 2024. Mr Kelly is an employee of WorkPac Pty Ltd who works as a mineworker at the Mine.
In matter C2024/5508, the MEU filed the same statement made by Mr Herdman and, in addition, filed a witness statement made by Tayla Walker, an employee of AWX performing work at the Mine, dated 18 September 2024.
Based on this evidence, we make the following factual findings in respect of both matters:
·Anglo and its production employees at the mine are covered by the Agreement, which provides for four classifications for production employees, namely Trainee Coal Operator, Coal Operator in Training, Coal Operator and OCE.
·The Mine operates 24 hours a day, seven days per week for 363 days of the year. The production workforce consists of Anglo employees and employees of third-party providers including WorkPac and AWX.
·The production tasks at the Mine involve the operation of plant and equipment to strip topsoil above the coal seam, drill and blast rock above the coal seam, dig up overburden above the coal seam and extract coal. The coal is then transported to the Coal Handling and Processing Plant to be processed and then loaded onto trains.
·Anglo operates several items of plant and equipment to perform the extraction, mining and transportation work, including dragline excavators, hydraulic excavators, dozers, loaders, haul trucks, graders and water carts.
·The plant and equipment used for the production work at the mine is all owned or leased by Anglo. Neither WorkPac nor AWX provide any plant or equipment that is used at the mine. Anglo also supplies any consumable products used by production workers, including WorkPac and AWX employees. All personal protective equipment (PPE) for WorkPac employees is supplied by Anglo. AWX supplies its employees with a safety hat, but all other PPE is supplied by Anglo. However, WorkPac does supply its employees with shirts, pants and jackets with the WorkPac logo, and AWX supplies its employees with boots, pants and shirts.
·Anglo, WorkPac and AWX employees attend the same pre-start meeting each day where the work to be performed is detailed by a supervisor under the direction of Anglo. Anglo allocates both its own employees and WorkPac and AWX employees the machines they are to operate and assigns the production work they are to perform for each shift.
·In the performance of their work, Anglo, WorkPac and AWX employees work alongside each other, operate the same machines and equipment and perform the same production work.
·Anglo has, consistent with its obligations under the Coal Mining Safety and Health Act 1999 (Qld), a Safety and Health Management System (SHMS) in place at the Mine and applies to all workers regardless of employer. The SHMS requires all employees to undertake a site induction prior to commencing work at the Mine. Anglo, WorkPac and AWX employees must all undertake this induction, which is conducted by Anglo.
·Anglo also maintains and enforces policies and procedures including Standard Operating Procedures (SOPs) for plant and equipment at the Mine, which deal with risks arising from the conduct of particular work or the operation of the items of plant and equipment and detail how the work is to be performed. These policies, procedures and SOPs apply equally to WorkPac and AWX employees. Anglo’s policies determine which workers (including WorkPac and AWX employees) will operate which equipment.
·Anglo trains, and assesses for competency, all workers at the Mine (including WorkPac and AWX employees) on the SOPs which apply to particular plant and equipment. Anglo will only permit a worker at the Mine to operate a piece of plant and equipment if it has assessed the worker as competent. Anglo keeps an electronic record of competencies for all employees at the Mine, including WorkPac and AWX employees. The system used tracks the skills of each employee, the date the skills were achieved and when they expire and need refreshing. WorkPac and AWX do not keep an electronic record of the competencies/skills of their employees at the Mine.
·Anglo organises and directs the day-to-day conduct of work by workers at the Mine. Supervisors employed by Anglo direct, instruct and monitor the work performed by all production workers. Any issues that workers may have about their work are dealt with by these supervisors. Those supervisors, in turn, report to Anglo-employed superintendents and Anglo’s manager. Workpac and AWX do not have any role in directing how their employees perform their work on a day-to-day basis, including as to the allocation of their work, the manner of its performance, the hours of work or the quality of work.
·Consistent with its statutory obligations, Anglo employs a prescribed number of OCEs to ensure the safe conduct of mining operations. The OCEs issue directions to the production workers, and control the work performed by production workers to ensure that work is performed safely in accordance with the SHMS. All production workers at the Mine regardless of employer are required to comply with any direction issued by an OCE that relates to safety and health.
·Anglo, WorkPac and AWX employees are rostered on the same rosters, which are prepared and distributed by Anglo, and allocated into the same production crews.
·Overtime is managed by Anglo through its supervisors. WorkPac’s approval is not required for the performance of overtime by its employees, although WorkPac is usually notified through timesheets required to be completed. The same applies to AWX and its employees.
·When WorkPac and AWX employees perform work and when they take leave is determined by Anglo. WorkPac employees are required to notify Anglo about taking personal or carers leave. The same applies to AWX employees, but they also text AWX if they are sick and cannot attend work.
·WorkPac and AWX employees take breaks at times determined by Anglo and at the same time as Anglo employees. In doing so they share crib facilities with Anglo employees.
·WorkPac does not have an office at the Mine and when, occasionally, WorkPac representatives visit the Mine, they do not usually have any substantial interaction with WorkPac employees. If any incident occurs, WorkPac employees will notify their Anglo supervisor in the first instance, who will organise a response and investigation by Anglo. The employee will then inform WorkPac as soon as practicable.
·AWX employees do not have any contact with AWX on a day-to-day basis. The closest AWX office is about 100 kilometres away from the Mine at Emerald. An AWX manager normally visits the Mine for approximately one hour at the start of each swing, but does not engage in significant interaction with AWX employees.
Consideration
In Application by MEU re Callide Mine[1], a Full Bench of the Commission outlined a number of principles concerning the proper interpretation and application of s 306E.[2] We apply, but do not repeat, the principles stated in that decision.
Matter C2024/5507
In respect of this application, we are satisfied, for the purposes of s 306E(7)(c) of the FW Act, that the MEU is an employee organisation that is entitled to represent the industrial interests of both employees supplied by WorkPac to perform work for Anglo at the Mine and employees of Anglo at the Mine. Accordingly, the MEU is entitled make this application for a regulated labour hire arrangement order under s 306E of the FW Act.
We are further satisfied that the requirements in s 306E(1) of the FW Act, in relation to which we must be satisfied to trigger the obligation to make a regulated labour hire arrangement order, are met. Specifically, we are satisfied on the material before us, that:
(a)WorkPac supplies workers which it employs to Anglo to perform mining production work at the Mine.
(b)The Agreement would apply to the employees of WorkPac supplied to perform work at the Mine if Anglo were to employ those employees directly to perform the same kind of work. Clause 1.5.1 of the Agreement provides that it covers Anglo in respect of its employees engaged in its ‘Surface Operations’ who are covered by the classifications set out in this Agreement. The definition of ‘Surface Operations’ in clause 1.3 encompasses the Mine the subject of the MEU’s application. The classifications in the Agreement would cover the mining production work undertaken by WorkPac employees at the Mine.
(c)Anglo is not a small business employer.
For the purposes of s 306E(1A) of the FW Act, we are satisfied that the performance of work is not or will not be for the provision of a service, rather than the supply of labour. In forming that view, we have had regard to the matters set out in subsection (7A). In relation to the matters set out in s 306E(7A), we make the following findings:
(a)There is no evidence that WorkPac has any involvement in matters relating to the performance of work by its employees working at the Mine.
(b)The evidence indicates that Anglo directs, supervises and controls the work of WorkPac employees working at the Mine. Anglo, and not WorkPac, is responsible for management of rostering, allocating tasks and the supervision of the way in which work is conducted. There is no evidence that WorkPac, or any person on behalf of WorkPac, directs, supervises or controls the employees supplied to Anglo when they perform work at the Mine.
(c)WorkPac employees working at the Mine use Anglo’s plant and equipment to perform their work, and operate under Anglo’s systems of work and safety systems. WorkPac provides no plant or equipment and is not involved in the systems of work and safety at the Mine.
(d)There is no evidence that WorkPac is or will be subject to industry or professional standards or responsibilities in relation to the work of its employees supplied to Anglo.
(e)The evidence indicates that while the work undertaken by WorkPac employees at the Mine requires induction and other training, which is provided by Anglo, it does not involve work of a specialist or professional nature. It is the same mining production work which Anglo’s own production employees at the Mine perform.
Having regard to the considerations referred to in s 306E(7A), it is clear that the performance of work by the employees supplied by WorkPac to Anglo at the Mine is not and will not be for the provision of a service. We are satisfied that WorkPac supplies labour to Anglo.
In relation to s 306E(2) of the FW Act, we are not satisfied that it is not fair and reasonable in all the circumstances to make the order sought by the MEU. Section 306E(2) provides that the Commission is required to have regard to the matters listed in subsection (8) in relation to which submissions have been made. No submissions have been made about any of the matters in subsection (8). Accordingly, we are not required to have regard to those matters.
In those circumstances, we are required by s 306E of the FW Act to make the RLHA order for which the MEU has applied. The order which we make in matter C2024/5507 is published together with this decision. The order sets out the matters specified in s 306E(9) of the FW Act. The operative date of the order will be 4 November 2024, consistent with s 306E(9)(e)(ii).
Matter C2024/5508
We are likewise satisfied that the MEU is entitled to make this application under s 306E(7)(c) as an employee organisation that is entitled to represent the industrial interests of both employees supplied by AWX to perform work for Anglo at the Mine and employees of Anglo at the Mine. We are also satisfied that the requirements in s 306E(1) are met in respect of this application in that:
(a)AWX supplies workers which it employs to Anglo to perform mining production work at the Mine.
(b)The Agreement would apply to the employees of AWX supplied to perform work at the Mine if Anglo were to employ those employees directly to perform the same kind of work, for the same reasons as explained in [8(b)] above.
(c)AWX is not a small business employer.
For the purposes of s 306E(1A) of the FW Act, we are satisfied that the performance of work is not or will not be for the provision of a service, rather than the supply of labour. In relation to the matters set out in s 306E(7A), we make the following findings:
(a)There is no evidence that AWX has any involvement in matters relating to the performance of work by its employees working at the Mine.
(b)The evidence indicates that Anglo directs, supervises and controls the work of AWX employees working at the Mine. Anglo, and not AWX, is responsible for management of rostering, allocating tasks and the supervision of the way in which work is conducted. There is no evidence that AWX, or any person on behalf of AWX, directs, supervises or controls the employees supplied to Anglo when they perform work at the Mine.
(c)AWX employees working at the Mine use Anglo’s plant and equipment to perform their work, and operate under Anglo’s systems of work and safety systems. AWX provides no plant or equipment and is not involved in the systems of work and safety at the Mine.
(d)There is no evidence that AWX is or will be subject to industry or professional standards or responsibilities in relation to the work of its employees supplied to Anglo.
(e)While the work undertaken by AWX employees at the Mine requires induction and other training, which is provided by Anglo, it does not involve work of a specialist or professional nature. It is the same mining production work which Anglo’s own production employees at the Mine perform.
Having regard to the considerations referred to in s 306E(7A), we find that the performance of work by the employees supplied by AWX to Anglo at the Mine is not and will not be for the provision of a service. We are satisfied that AWX supplies labour to Anglo. In relation to s 306E(2) of the FW Act, we are not satisfied that it is not fair and reasonable in all the circumstances to make the order sought by the MEU. No submissions have been made about any of the matters in s 306E(8) and, accordingly, we are not required to have regard to those matters.
We are therefore required by s 306E of the FW Act to make the RLHA order sought by the MEU. The order we make in matter C2024/5508 is likewise being published together with this decision. The order sets out the matters specified in s 306E(9) of the FW Act. The order has an operative date of 4 November 2024, consistent with s 306E(9)(e)(ii).
PRESIDENT
Appearances:
A Nash for the Mining and Energy Union.
T Walthall of MinterEllison for WorkPac Pty Ltd and WorkPac Mining Pty Ltd.
A Piper for Mobilise Group Pty Ltd trading as AWX Pty Ltd.
J Hall with A Wu of Ashurst for Anglo Coal (Capcoal Management) Pty Ltd.
Hearing details:
2024.
Sydney by video link using Microsoft Teams (mention and directions):
3 September.
Determined on the papers.
Written submissions:
Mining and Energy Union: 18 September 2024 (C2024/5507), 19 September 2024 (C2024/5508).
[1] [2024] FWCFB 299.
[2] Ibid [8]–[17].
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