Association of Professional Engineers, Scientists and Managers, Australia v Great Southern Energy Pty Ltd T/A Delta Coal, Whitehaven Coal Mining Ltd, Peabody Energy Australia Coal Pty Ltd, Ulan Coal Mines Ltd
[2024] FWCFB 253
•23 AUGUST 2024
| [2024] FWCFB 253 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.248 - Application for a single interest employer authorisation
Association of Professional Engineers, Scientists and Managers, Australia
v
Great Southern Energy Pty Ltd T/A Delta Coal, Whitehaven Coal Mining Ltd, Peabody Energy Australia Coal Pty Ltd, Ulan Coal Mines Ltd
(B2023/1339)
| DEPUTY PRESIDENT HAMPTON | ADELAIDE, 23 AUGUST 2024 |
Application by the Association of Professional Engineers, Scientists and Managers, Australia for a single interest employer authorisation.
Introduction
This matter concerns an application by the Association of Professional Engineers, Scientists and Managers, Australia (APESMA)[1] under s.248 of the Fair Work Act 2009 (Cth) (FW Act) for a single interest employer authorisation (Authorisation). The Authorisation is sought in respect of bargaining for a proposed multi-enterprise agreement to cover certain employees (the SIEA Employees) engaged by a small number of employers operating in the black coal mining industry in New South Wales (Industry). In particular, in its current form, the application seeks authorisation for the commencement of bargaining with the following employers who operate underground black coal mines (collectively identified as the Respondent Employers):
Peabody Energy Australia Coal Pty Ltd at Wambo Underground Coal Mine (Peabody);
Ulan Coal Mines Ltd at Ulan No.3 Underground Coal Mine (Ulan);
Whitehaven Coal Mining Ltd at Narrabri Coal Mine (Whitehaven); and
Great Southern Energy Pty Ltd T/A Delta Coal at Chain Valley Colliery (Delta Coal).
The Respondent Employers oppose the making of the Authorisation.
Wollongong Resources Pty Ltd (Wollongong Resources) was named in APESMA’s original application. On 23 February 2024, during preliminary proceedings,[2] Wollongong Resources advised that its relevant operations at the Russell Vale Colliery were ceasing. APESMA formally advised that in light of that development, it would no longer be pursuing the matter in relation to Wollongong Resources and the application was amended accordingly.
The SIEA employees to be covered by the Authorisation, and who are intended to be covered by the proposed enterprise agreement, are those engaged as:
Deputies, including where known as Crew Supervisors;
Undermanagers, including where known as Shift Undermanagers;
Shift Engineers, including where known as Mechanical or Electrical Shift Engineers, Mechanical or Electrical Shift Supervisors, Mechanical or Electrical Supervisors, Trade Supervisors or Shift Trades Supervisors, Maintenance Supervisors, or Leading Hands at Chain Valley Colliery only; and
Control Room Operators, including where known as Control Room Officers, Control Room Supervisors, Senior Control Room Officers or Senior Control Room Operators.
Although the detailed functions of the respective SIEA Employees may vary from mine to mine, the following general descriptions reflect the roles performed by the SIEA Employees drawn from the position descriptions provided to the Commission by the Respondent Employers.[3]
An Undermanager is responsible for managing the mining operations of the underground mine site. They provide for planning, coordination, control and the statutory compliance of activities for the whole of the mine site. They also lead and mentor all personnel working on the mine site, including the Deputy and Leading Hands.
A Deputy is responsible for leading the underground mine’s production team and ensuring site priorities are maintained. They are responsible for ensuring compliance with statutory obligations, attending pre and post shift meetings to plan and allocate resources, and managing and monitoring work crews. The Deputy reports to the Undermanager.
A Shift Engineer is responsible for the maintenance and associated activities in the underground mine and for the shifts of employees undertaking that work. Their duties include assisting Deputies with establishing area plans with respect to trade priorities, shift reporting, shift technical support for trades and participating in pre and post shift planning and review processes. In general terms, the Leading Hands at the Chain Valley Colliery perform similar functions. As with all of the underground SIEA Employee positions, there is a strong emphasis upon work health and safety in these roles.
Control Room Operators manage and control the day-to-day underground communication and reporting process. They are also responsible for the initial management and control of any emergency that occurs within the underground mine site.
The Shift Engineer, Deputy and Undermanager roles are statutory functions under the Work Health and Safety (Mines and Petroleum Sites) Regulation 2022 (NSW) (WHS (Mines and Petroleum Sites) Regulation). Control Room Operators fulfil the function of the ‘surface contact’[4] person under the WHS (Mines and Petroleum Sites) Regulation.
The SIEA Employees are employed at the following underground black coal mines operated by the Respondent Employers or related entities:
Wambo Underground Coal Mine (Wambo Mine) – Peabody
Ulan No.3 Underground Coal Mine (Ulan No.3) – Ulan
Narrabri Coal Mine (Narrabri Mine) – Whitehaven
Chain Valley Colliery – Delta Coal.
This application is the first significant contested application of this particular kind since the legislative amendments to the FW Act made by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (SJBP Act) commenced on 6 June 2023.
On 5 March 2024, we granted permission[5] for both the Australian Council of Trade Unions (ACTU) and Minerals Council of Australia (MCA) to intervene. Intervention was generally limited to the making of submissions and/or filing of materials to enable the Commission to inform itself about the application.
The ACTU supported the application. The MCA opposed the making of the application. Both the ACTU and MCA also made submissions regarding the approach that the Commission should adopt regarding the construction and application of the relevant provisions. The MCA also tendered evidence about the nature and impact of the Industry.
At the commencement of the matter, the Respondent Employers were directed to file, by Friday 19 January 2024, a response to APESMA’s application which included a response as to whether the following facts arising from the requirements for the making of the Authorisation were contested:
a.At 6 December 2023, it employed at least 20 employees.
b.At 6 December 2023, it employed at least 50 employees.
c.At 6 December 2023, it had not made an application for a single interest employer authorisation that had not yet been decided in relation to the SIEA Employees.
d.At 6 December 2023, it was not named in a single interest employer authorisation or supported bargaining authorisation in relation to the SIEA Employees.
e.At 15 December 2023, it and the SIEA Employees were not covered by an enterprise agreement that had not passed its nominal expiry date.
f.It had not agreed in writing with any employee organisation that is entitled to represent the industrial interests of one or more of the SIEA Employees to bargain for a proposed single- enterprise agreement that would cover the employer and the SIEA Employees or substantially the same group of those employees.
g.That a majority of the SIEA Employees employed by it wished to bargain for the proposed enterprise agreement.
With two exceptions, the Respondent Employers did not contest these propositions. All of the Respondent Employers, other than Delta Coal, contested proposition g. above. Further, Delta Coal contended that in its case, the SIEA Employees were covered by an enterprise agreement that had not passed its nominal expiry date.
A number of materials filed in the Commission contained details that were claimed by the Respondent Employers to be confidential material. This included details of individual pay arrangements, operating costs and metrics of the mines involved, and related commercially sensitive materials. We observe that the nature of the statutory considerations and issues that arise in a contested application of this kind are likely to require the disclosure of commercially sensitive and otherwise confidential information. In this case, the confidential material was generally subject to a series of confidentiality orders[6] and other arrangements that still permitted APESMA, the Respondent Employers and the witnesses of each of these parties, to properly access the information and seek and confirm instructions and present their respective cases. Some of the proceedings were conducted in private.[7]
Ultimately, we conducted six days of hearings on 29-30 April, 2-3 May, and 8-9 May 2024 (collectively, the Hearing).
For the reasons set out below, we have decided to grant the application and make the Authorisation. However, we have excluded Delta Coal from the Authorisation in accordance with s.250(2) of the FW Act on the basis that we are not satisfied that all of the relevant requirements of s.249 have been met in its case.
The statutory framework
The objects of Part 2-4 of the FW Act are set out in s.171 as follows:
“171 Objects of this Part
The objects of this Part are:
(a) to provide a simple, flexible and fair framework that enables collective bargaining in good faith, particularly at the enterprise level, for enterprise agreements that deliver productivity benefits; and
(b) to enable the FWC to facilitate good faith bargaining and the making of enterprise agreements, including through:
(i) makingbargaining orders; and
(ii) dealing with disputes where the bargaining representatives request assistance; and
(iii) ensuring that applications to the FWC for approval of enterprise agreements are dealt with without delay.”
The FW Act has previously provided for single interest authorisations,[8] however the basis and operation of the authorisations was significantly amended by the SJBP Act.
The SJBP Act introduced a mechanism for employers and bargaining representatives to make an application for a single interest employer authorisation. This amendment was intended ‘to make it easier to obtain a single-interest authorisation’.[9]
Sections 248 to 250 of the FW Act now provide:
“248 Single interest employer authorisations
(1) The following may apply to the FWC for an authorisation (a single interest employer authorisation) under section 249 in relation to a proposed enterprise agreement that will cover two or more employers:
(a) those employers;
(b) a bargaining representative of an employee who will be covered by the agreement.
(2) The application must specify the following:
(a) the employers that will be covered by the agreement;
(b) the employees who will be covered by the agreement;
(c) the person (if any) nominated by the employers to make applications under this Act if the authorisation is made.
249 When the FWC must make a single interest employer authorisation
Single interest employer authorisation
(1) The FWC must make a single interest employer authorisation in relation to a proposed enterprise agreement if:
(a) an application for the authorisation has been made; and
(b) the FWC is satisfied that:
(i) at least some of the employees that will be covered by the agreement are represented by an employee organisation; and
(ii) the employers and the bargaining representatives of the employees of those employers have had the opportunity to express to the FWC their views (if any) on the authorisation; and
(iii) if the application was made by 2 or more employers under paragraph 248(1)(a)—the requirements of subsection (1A) are met; and
(iv) if the application was made by a bargaining representative under paragraph 248(1)(b)—each employer either has consented to the application or is covered by subsection (1B); and
(v) the requirements of either subsection (2) or (3) (which deal with franchisees and common interest employers) are met; and
(vi) if the requirements of subsection (3) are met—the operations and business activities of each of those employers are reasonably comparable with those of the other employers that will be covered by the agreement.
(1AA) If:
(a) the application for the authorisation was made by a bargaining representative under paragraph 248(1)(b); and
(b) an employer that will be covered by the agreement employed 50 employees or more at the time that the application was made;
it is presumed that the operations and business activities of the employer are reasonably comparable with those of the other employers that will be covered by the agreement, unless the contrary is proved.
Additional requirements for application by employers
(1A) The requirements of this subsection are met if:
(a) the employers that will be covered by the agreement have agreed to bargain together; and
(b) no person coerced, or threatened to coerce, any of the employers to agree to bargain together.
Additional requirements for application by bargaining representative
(1B) An employer is covered by this subsection if:
(a) the employer employed at least 20 employees at the time that the application for the authorisation was made; and
(b) the employer has not made an application for a single interest employer authorisation that has not yet been decided in relation to the employees that will be covered by the agreement; and
(c) the employer is not named in a single interest employer authorisation or supported bargaining authorisation in relation to the employees that will be covered by the agreement; and
(d) a majority of the employees who are employed by the employer at a time determined by the FWC and who will be covered by the agreement want to bargain for the agreement; and
(e) subsection (1D) does not apply to the employer.
(1C) For the purposes of paragraph (1B)(d), the FWC may work out whether a majority of employees want to bargain using any method the FWC considers appropriate.
(1D) This subsection applies to an employer if:
(a) the employer and the employees of the employer that will be covered by the agreement are covered by an enterprise agreement that has not passed its nominal expiry date at the time that the FWC will make the authorisation; or
(b) the employer and an employee organisation that is entitled to represent the industrial interests of one or more of the employees of the employer that will be covered by the agreement have agreed in writing to bargain for a proposed single‑enterprise agreement that would cover the employer and those employees or substantially the same group of those employees.
Franchisees
(2) The requirements of this subsection are met if the employers carry on similar business activities under the same franchise and are:
(a) franchisees of the same franchisor; or
(b) related bodies corporate of the same franchisor; or
(c) any combination of the above.
Common interest employers
(3) The requirements of this subsection are met if:
(a) the employers have clearly identifiable common interests; and
(b) it is not contrary to the public interest to make the authorisation.
(3A) For the purposes of paragraph (3)(a), matters that may be relevant to determining whether the employers have a common interest include the following:
(a) geographical location;
(b) regulatory regime;
(c) the nature of the enterprises to which the agreement will relate, and the terms and conditions of employment in those enterprises.
(3AB) If:
(a) the application for the authorisation was made by a bargaining representative under paragraph 248(1)(b); and
(b) an employer that will be covered by the agreement employed 50 employees or more at the time that the application was made;
it is presumed that the requirements of subsection (3) are met in relation to that employer, unless the contrary is proved.
Calculating number of employees
(3AC) For the purposes of calculating the number of employees referred to in paragraph (1AA)(b), (1B)(a) or (3AB)(b):
(a) employee has its ordinary meaning; and
(b) subject to paragraph (c), all employees employed by the employer at the time that the application for the authorisation was made are to be counted; and
(c) a casual employee is not to be counted unless, at that time, the employee is a regular casual employee of the employer; and
(d) associated entities of the employer are taken to be one entity.
Operation of authorisation
(4) The authorisation:
(a) comes into operation on the day on which it is made; and
(b) ceases to be in operation at the earlier of the following:
(i) at the same time as the enterprise agreement to which the authorisation relates is made;
(ii) 12 months after the day on which the authorisation is made or, if the period is extended under section 252, at the end of that period.
249A Restriction on making single interest employer authorisations
The FWC must not make a single interest employer authorisation in relation to a proposed enterprise agreement if the agreement would cover employees in relation to general building and construction work.
250 What a single interest employer authorisation must specify
What authorisation must specify
(1) A single interest employer authorisation in relation to a proposed enterprise agreement must specify the following:
(a) the employers that will be covered by the agreement;
(b) the employees who will be covered by the agreement;
(c) the person (if any) nominated by the employers to make applications under this Act if the authorisation is made;
(d) any other matter prescribed by the procedural rules.
Authorisation may relate to only some of employers or employees
(2) If the FWC is satisfied of the matters specified in subsection 249(2) or (3) (which deal with franchisees and common interest employers) in relation to only some of the employers that will be covered by the agreement, the FWC may make a single interest employer authorisation specifying those employers and their employees only.
(3) The FWC may make a single interest employer authorisation that does not specify one or more employers specified in an application for the authorisation, and the employees (the relevant employees) of those employers specified in that application, if the FWC is satisfied that:
(a) the employers are bargaining in good faith for a proposed enterprise agreement that will cover the employers and the relevant employees, or substantially the same group of the relevant employees; and
(b) the employers and the relevant employees have a history of effectively bargaining in relation to one or more enterprise agreements that have covered the employers and the relevant employees, or substantially the same group of the relevant employees; and
(c) on the day that the FWC will make the authorisation, less than 9 months have passed since the most recent nominal expiry date of an agreement referred to in paragraph (b).
(4) If the effect of subsection (3) is that no employers would be specified in the authorisation, the FWC may refuse the application for the authorisation.”
The revised Explanatory Memorandum to the SJBP Act stated the purpose of the amendments leading to these new provisions in the following terms:
“1006.Part 21 of Schedule 1 to the Bill would amend Division 10 of Part 2-4 of the FW Act to remove unnecessary limits on access to single interest employer authorisations and simplify the process for obtaining them, and facilitating bargaining by:
· removing the requirement for two or more employers with common interests who are not franchisees to obtain a Ministerial declaration before applying a single interest employer authorisation;
· providing for employee bargaining representatives to apply for a single interest employer authorisation to cover two or more employers, subject to majority support of the relevant employees;
· permitting employers and employee bargaining representatives to apply to vary a single interest employer authorisation to add or remove the name of an employer from the authorisation, subject to meeting specified requirements; and
· inserting new Subdivision AD—Variation of single interest employer agreement to add employer and employees, into Division 7 of Part 2-4 of the FW Act to permit employers and employee organisations to apply to the FWC for approval of a variation to extend coverage of an existing single interest employer agreement to a new employer and its employees, subject to meeting specified requirements.”[10]
… …
“1066.New subsection 249(1) would delineate the requirements of which the FWC must be satisfied before making a single interest employer authorisation depending on whether the application for the authorisation was made by the employer and its employees, or an employee organisation. It would also clarify the requirements of which the FWC must be satisfied depending on whether the single interest employer authorisation is to operate in respect of two or more common interest employers or franchisees. The term ‘common interest employers’ would be introduced by these amendments and used to identify those employers who may be included in a single interest employer authorisation but who are not franchisees.”[11]
If a single interest employer authorisation is issued, the employers named in the authorisation are required to bargain together for an enterprise agreement that would cover a certain cohort of employees. The employers would, in effect, be obligated to bargain for a period of at least 12 months, or until an enterprise agreement to which the authorisation relates is made.[12] The 12 month period may also be extended upon application by a bargaining representative.[13] The Commission may vary the authorisation to extend the period if it is satisfied that there are reasonable prospects that the agreement will be made if the authorisation is in operation for a longer period and it is appropriate in all the circumstances to extend the period.[14] In the course of bargaining, the parties are subject to the good faith bargaining requirements[15] and have access to a range of bargaining mechanisms under the FW Act. These include the potential for protected industrial action,[16] an intractable bargaining declaration,[17] bargaining orders[18] and the direct assistance of the Commission to deal with a bargaining dispute.[19]
The FW Act also provides a scheme to add and remove employers from any Authorisation issued, and any multi-enterprise agreement that might be made. The parties subject to an authorisation may apply either jointly, or separately, to the Commission for the variation of an authorisation. Separate rules apply depending on whether the application is made by an employer or bargaining representative of an employee who will be covered by the proposed enterprise agreement.
In very general terms, the requirements for an application to add an employer to an authorisation are largely the same as those that apply for the making of an authorisation.[20]
Sections 251(1) to 251(4A) provide for the removal of an employer from an authorisation. The Commission must vary an authorisation to remove an authorisation if it is satisfied that an application has been made and either s.251(2A) or (2B) is satisfied. Section 251(2A) is satisfied if, amongst other things, because of a change in the employer’s circumstances, it is no longer appropriate for the employer to be specified in the authorisation.[21] Section 251(2B) applies if an application is made by a bargaining representative, and the Commission is satisfied that, amongst other things, the employees employed by the relevant employer have approved the removal of the relevant employer’s name by voting for the removal.[22]
In very general terms, the requirements for approval by the Commission to add an employer to a single interest employer agreement are largely the same as those that apply for the making of a SIEA, and those that apply to the variation of an enterprise agreement more generally.[23] Amongst other requirements, if the application was made by an employer the Commission must also be satisfied that the variation has been genuinely agreed to by the affected employees. If the application is made by an employee bargaining representative, the employer must have at least 20 employees and the majority of the affected employees must want to be covered by the agreement. Further, the affected employees must not be covered by another enterprise agreement that has not passed its nominal expiry date.
The requirements for approval to remove an employer from a single interest employer agreement are set out within Subdivision AE of Division 7 of Part 2-4 of the FW Act. Under these provisions, an employer and affected employees may jointly make a variation to a multi-enterprise agreement to cease being covered by the agreement. The affected employees are ‘the employees employed at the time who will cease to be covered’ if the Commission approves the variation.
This matter has exposed competing positions about the proper construction of s.249 and related provisions of the FW Act. This involves both the general ‘policy’ arising from the objects of the legislation and the import of most of the key requirements for making an authorisation of this kind. These aspects are clearly linked, and we will for convenience deal with the general framework of the FW Act as context for the later conclusions.
Objects of the Act
The Commission is required to approach the construction of s.249 by construing it in a manner that best promotes the legislative objects and purpose of the FW Act.[24] As such, we commence the task of construction by looking at the objects of the FW Act.
The overall object of the FW Act is set out in s.3 as follows:
“3 Object of this Act
The object of this Act is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by:
(a) providing workplace relations laws that are fair to working Australians, promote job security and gender equality, are flexible for businesses, promote productivity and economic growth for Australia’s future economic prosperity and take into account Australia’s international labour obligations; and
(b) ensuring a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions through the National Employment Standards, modern awards and national minimum wage orders; and
(c) ensuring that the guaranteed safety net of fair, relevant and enforceable minimum wages and conditions can no longer be undermined by the making of statutory individual employment agreements of any kind given that such agreements can never be part of a fair workplace relations system; and
(d) assisting employees to balance their work and family responsibilities by providing for flexible working arrangements; and
(e) enabling fairness and representation at work and the prevention of discrimination by recognising the right to freedom of association and the right to be represented, protecting against unfair treatment and discrimination, providing accessible and effective procedures to resolve grievances and disputes and providing effective compliance mechanisms; and
(f) achieving productivity and fairness through an emphasis on enterprise‑level collective bargaining underpinned by simple good faith bargaining obligations and clear rules governing industrial action; and
(g) acknowledging the special circumstances of small and medium‑sized businesses.”[25]
Accordingly, the overall object is to provide ‘a balanced framework for cooperative and productive workplace relations’ including by ‘ … achieving productivity and fairness through an emphasis on enterprise – level collective bargaining underpinned by simple good faith bargaining obligations and clear rules governing industrial action’.[26] (emphasis added)
We earlier referred to s.171 of the FW Act which more specifically states the objects of Part 2-4 of the legislation, which contains the immediately relevant provisions.
The immediate tension in the positions of the parties concerns the emphasis that is given by the objects to bargaining for and the making of single enterprise agreements, rather than multi-employer enterprise agreements.
APESMA and ACTU
The ACTU ultimately submitted that the object of the FW Act to encourage bargaining was not limited to single (employer) enterprise bargaining.
The ACTU contended that historically, federal industrial relations legislation had focused on centralised wage fixation. However, there was a gradual shift toward more decentralised wage fixation and later bargaining. The ACTU referred to the former Industrial Relations Act 1988 (Cth) and noted that the object of the legislation prior to the 1993 reforms was a clear focus on centralised conciliation and arbitration and wage fixation by settlement of disputes. Enterprise bargaining was introduced to the federal industrial relations system following the enactment of the Industrial Relations Reform Act 1993 (1993 Act). One of the objects of the relevant part within the 1993 Act (Part VIB) was to ‘encourage the use of agreements, particularly at the workplace or enterprise level’.[27] The ACTU asserted that the Workplace Relations Act 1996 (Cth) (WR Act) represented a “high water mark” of decentralised wage fixation. A principal object of the WR Act was to provide a framework for cooperative workplace relations by ‘providing an economically sustainable safety net of minimum wages and conditions for those whose employment is regulated by this Act’. Section 170L was introduced in the WR Act, which stated that the object of the certified agreements sub part was to ‘facilitate the making, and certifying by the Commission, of certain agreements at the level a single business or part of a single business.
Against that history, the ACTU submitted that the enactment of the FW Act represented a change in the focus between centralisation and enterprise level bargaining. It contended that Parliament had moved away from a focus on single enterprise level bargaining. As such, the reference to ‘enterprise level’ within the objects of the FW Act should not be understood to mean a single enterprise.
The ACTU further submitted that there is no statutory presumption against the making of a single interest employer authorisation and that any such presumption would be inconsistent with the inclusion of a regime for multi-enterprise bargaining. The new multi-enterprise bargaining regime includes a number of presumptions in favour of an applicant. Further, there is an absence of any residual discretion once the statutory criteria are established and an absence of special circumstance criteria that might otherwise indicate a preference for single enterprise bargaining.
APESMA largely adopted the submissions of the ACTU. It submitted that the object of the FW Act should be construed as being directed to collective bargaining which achieves productivity and fairness through collective bargaining at the level of the relevant enterprises.
The Respondent Employers
The Respondent Employers noted that the objects and purposes of the FW Act include ‘achieving productivity and fairness through an emphasis on enterprise level collective bargaining…’.[28] Specific to Part 2-4 of the FW Act, it is ‘to provide a simple, flexible and fair framework that enables collective bargaining in good faith, particularly at the enterprise level ...’.[29] They contended that a multi-employer agreement would apply to multiple enterprises, so the collective bargaining process for such an agreement goes beyond the ‘enterprise level’. In that light, they contended that the priority within the FW Act is given to single enterprise agreements underpinned by minimum award standards.
MCA
The MCA submitted that despite the changes brought about by the SJBP Act, the FW Act continues to recognise the primacy of single enterprise bargaining in relation to the bargaining scheme. That is, the objects of the FW Act at ss.3(g) and 171(a) are directed at achieving productivity and fairness through an emphasis on single enterprise bargaining.
The MCA further observed that whilst the collective bargaining scheme established under the FW Act generally proceeds on the basis that bargaining is a voluntary process initiated or entered into by employers willingly, this was not always the case. The consequences being that this exposes the employers to the risk of operational disruption arising from protected industrial action and the potential for an arbitrated outcome arising from an intractable bargaining declaration. In addition, the MCA noted there are several circumstances in which an authorisation cannot be granted. These circumstances include those where employers are bargaining for a single enterprise agreement, employers that have a history of effectively bargaining for single enterprise agreements and where employers are covered by an existing single enterprise agreement. The MCA submitted that the above exclusions point to Parliament’s intention to retain the primacy of single enterprise bargaining. At the same time, the MCA also relied on the Revised Explanatory Memorandum and Second Reading Speech made in relation to the SJBP Act[30] to contend that it was Parliament’s intention to retain the primacy of single enterprise bargaining.
Considerations arising from the statutory objects
There is force in the propositions made by both the ACTU and the MCA/Respondent Employers. The FW Act and its objects should be understood as changing the emphasis from agreement making at the level of a single business or part of a single business to bargaining at an enterprise level. In that light, the inclusion and ‘promotion’ of multi-enterprise bargaining is consistent with the existing objects as understood in that way. There is also force in the proposition that some priority is given by the FW Act to single enterprise bargaining. This is evident from the limitations that are placed upon the making of multi-enterprise authorisations such as those set out in ss.249(1D) and 250(3) of the FW Act.
As a result, we consider that the import of the objects of the FW Act for present purposes is that the legislation promotes collective bargaining which achieves productivity and fairness through collective bargaining at the level of the enterprise, including where authorised and subject to the express provisions giving some priority to single enterprise agreements, at a multi-enterprise level.
Context for the Application and the matters is dispute
APESMA is seeking to bargain collectively with the Respondent Employers based upon what it states are the concerns of its membership, which include:[31]
a desire to preserve the unique black coal industry condition of payment of accrued personal leave on termination of employment in certain circumstances;
concerns regarding employer use of guarantees of annual earnings, with the consequence that conditions in the Black Coal Mining Industry Award 2020 (Black Coal Award) do not apply;
concern to maintain and improve entitlements to accident pay;
protection of redundancy entitlements;
concerns about unilateral changes to workplace policies and the impact of those changes on employment conditions;
access to effective dispute resolution; and
the desire to address those matters and otherwise protect terms and conditions by the making of an enterprise agreement.
APESMA, on behalf of SIEA Employees, has previously made some attempts to obtain enterprise agreements on an enterprise-by-enterprise basis with some of the employers in the black coal mining industry.[32] These attempts have largely been unsuccessful. APESMA did not approach any of the Respondent Employers or seek to bargain individually with any of them prior to engaging with its members about potentially making an application of this kind.
There is presently no bargaining underway involving any the SIEA Employees and the Respondent Employers.
Various local meetings with its membership have been conducted by APESMA to discuss matters in relation to bargaining and the SJBP Act reforms.
More meetings between APESMA and the SIEA Employees were conducted on 28 April 2023, 19 May 2023, 11 August 2023, 20 October 2023 and 18 November 2023.
In November 2023, APESMA engaged Vero Engagement and Voting Solutions Pty Ltd (Vero Voting) to conduct a ballot of SIEA Employees in relation to whether the employees supported bargaining for a multi-employer agreement (Ballot).[33] The Ballot question involved proposed bargaining with the following employers:
1. Wollongong Resources Pty Ltd at Russell Vale Colliery
2. Great Southern Energy Pty Ltd t/as Delta Coal at Chain Valley Colliery
3. Whitehaven Coal Mining Ltd at Narrabri Coal Mine
4. Peabody Energy Australia Coal Pty Ltd at Wambo Underground Coal Mine
5. Ulan Coal Mines Ltd at Ulan No. 3 Underground Coal Mine.
The Ballot was subsequently conducted by Vero Voting between 24 November and 5 December 2023.[34] 143 of the 179 eligible voters voted ‘yes’ to bargaining for a single interest employer enterprise agreement.[35] It is also not contested that a majority of eligible SIEA Employees at each of the Respondent Employers, voted in favour of the proposed resolution.
As a result of the Ballot results, on 5 December 2023, APESMA wrote to the Respondent Employers, proposing the negotiation of a multi-employer agreement.[36] Subsequently, APESMA made an application for the Authorisation, which is the subject of the current proceedings.
We will return to the detail and implications of the pre-ballot information and other processes adopted by APESMA because they are in issue between the parties.
The Key Statutory Issues
The requirements for making an authorisation under s.249 of the FW Act vary, depending upon the nature of the applicant and the circumstances of the respondents. In this case, the applicant is APESMA as a bargaining representative of employees who would be covered (s.248(1)(b)). This means that the “additional” requirements of s.249(1B) and related provisions apply, while the “additional” requirements of s.249(1A) do not apply.
We are required to consider the following criteria in determining whether the Authorisation should be made in the present circumstances:
whether a valid application has been made;[37]
whether at least some of the SIEA Employees are represented by an employee organisation;[38]
whether the parties have had the opportunity to express their views;[39]
whether, given the absence of consent, each of the Respondent Employers employed at least 20 employees at the time that the application was made;[40]
whether any Respondent Employer has made an application for a single interest employer authorisation that has not yet been decided in relation to the SIEA Employees;[41]
whether a Respondent Employer is named in an existing single interest employer authorisation or supported bargaining authorisation in relation to the SIEA Employees;[42]
whether a majority of the SIEA Employees who are employed by each Respondent Employer want to bargain for the proposed agreement;[43]
whether s.249(1D), which concerns the existence of an ‘in-term’ enterprise agreement, applies to any of the Respondent Employers;[44]
whether the requirements of s.249(3) have been met, that is:[45]
I.whether the Respondent Employers have clearly identifiable common interests;[46] and
II.whether it is not contrary to the public interest to make the Authorisation;[47]
if s.249(3) has been met, whether the operations and business activities of the Respondent Employer are reasonably comparable with those of the other Respondent Employers;[48]
whether the circumstances contemplated in ss.250(3) and (4) – which in general terms contemplate that an authorisation would not be made where bargaining is already underway for an enterprise agreement that would cover the same employees – apply; and
whether the proposed agreement covers employees in relation to general building and construction work, noting that if it does, the Authorisation cannot be made.[49]
There was no dispute between the parties, and we are satisfied, about the following requirements for the making of the Authorisation:
· A valid application was made.[50]
· At least some of the employees who will be covered by the proposed agreement are represented by an employee organisation, namely APESMA.[51]
· Each party to the application has had an opportunity to express their views.[52]
· Each of the Respondent Employers employed at least 20 employees at the time that the application was made.[53]
· None of the Respondent Employers are named in a single interest employer authorisation or supported bargaining authorisation in relation to the SIEA Employees.[54]
· The proposed agreement will not cover employees in relation to general building and construction work.[55]
· The proposed authorisation specifies each of the matters required by s.250(1) of the FW Act.
· The circumstances contemplated in ss.250(3) and (4) do not apply.
The major issues in dispute
Given the positions of the parties and the relevant terms of the FW Act, the major issues in dispute in this matter ultimately concern the following:
· Whether a majority of the employees who are employed by each of the Respondent Employers at a time determined by the Commission and who will be covered by the agreement want to bargain for the agreement[56] – Majority Support.
· Whether each of the Respondent Employers have clearly identifiable common interests[57] - Clearly Identifiable Common Interests.
· Whether it is not contrary to the public interest to make the authorisation[58] - Public Interest.
· Whether the operations and business activities of each of the Respondent Employers are reasonably comparable with those of the other employers that will be covered by the agreement[59] - Comparable Operations and Business Activities of Respondent Employers.
· Whether Delta Coal and the SIEA Employees who will be covered by the proposed agreement are covered by an enterprise agreement that has not passed its nominal expiry date –Delta Coal Agreement coverage.
Noting that each of the Respondent Employers employed 50 employees or more at the time the Application was made, the ‘rebuttable presumptions’ concerning the common interest and public interest requirements of s.249(3), and the reasonable comparability of operations and business activities of the employers under s.249(1)(b)(vi), apply.[60] The operation of these provisions was also in dispute and we will return to this shortly.
The Cases Advanced by the Parties
APESMA
APESMA contended that the Commission would find that each of the statutory criteria under Part 2-4 Division 10 of the FW Act for the making of the Authorisation have been satisfied and that it should be issued to cover all of the Respondent Employers.
In support of its application, APESMA relied upon the following evidence:
· Statement of Catherine Bolger, Director, Collieries Staff Division (CSD); [61]
· Reply Statement of Ms Bolger;[62]
· Statement of Robert Coluccio, Senior Legal Officer, CSD; and[63]
· Supplementary Statement of Mr Coluccio.[64]
Both Ms Bolger and Mr Coluccio were cross-examined during the Hearing.
APESMA contends that the majority support criterion was satisfied on the basis that there was sufficient evidence that the Ballot had been properly conducted and that, as a result, there were a sufficient number of employees of each Respondent Employer who voted in favour of the SIEA. APESMA denies it misled the SIEA Employees during its campaign leading up to the Ballot.
APESMA submits the rebuttable presumptions that apply to ss.249(3) and 249(1)(vi) had not been overcome by any of the Respondent Employers.
APESMA contends that each of the Respondent Employers had clearly identifiable common interests on the basis that they each:
· operate underground coal mines;
· conduct their operations in New South Wales;
· employ workers for the operation of those coal mines who are all covered by the same modern award;
· are all covered by the Black Coal Award in respect of all SIEA Employees;
· are regulated in respect of the employment by common statutes, namely the FW Act and the Coal Mining Industry (Long Service Leave) Administration Act 1992 (Cth) (CMI (Long Service Leave) Administration Act);
· have a common industry regulator, namely the Secretary of the Department of Regional New South Wales;
· must be licenced to, and comply with, the Mining Act 1992 (NSW) (Mining Act) in order to operate their respective mines;
· are covered by the Coal Industry Act 2001 (NSW) (CI Act) and in particular s.31 of the CI Act which requires employers in the coal industry to obtain and maintain workers compensation insurance for their employees. The approved insurer is currently Coal Mines Insurance. The Respondent Employers pay a premium in exchange for workers compensation coverage and the premiums also support the provision of statutory services that protect workers’ health and safety including coal industry specific obligations such as dust monitoring;
· are subject to compliance obligations set by the CI Act, including compliance with Order 34, which gives directions to the Respondent Employers about what is required in training schemes and management for health and safety; and
· are statutorily required to engage and do employ employees in regulated functions such as Undermanagers, Deputies, and Shift Engineers with the role of Control Room Officer often satisfying the requirement in Regulation 105 of the WHS (Mines and Petroleum Sites) Regulation to have competent persons at the surface in a state of readiness to respond to emergencies and alarms, and to switch power on and off.[65]
APESMA contended the public interest presumption has not been rebutted. They argued that the Commission could not be satisfied that it would not be in the public interest to make the Authorisation given that, in doing so, the Commission would be facilitating a process which the Act explicitly permits and encourages. That is, the negotiation and making of an enterprise agreement. They further contend that it is irrelevant, for the purposes of this criteria, that the Respondent Employers may have a preference to avoid bargaining on a multi-employer basis because of a view that it would be deleterious to their interests.
Further, APESMA submits that the operations and business activities of each of the Respondent Employers are reasonably comparable.
APESMA further contended that the SIEA Employees employed by Delta Coal are not covered by the Delta Coal Enterprise Agreement 2022 (Delta 2022 Agreement).
Peabody
Peabody contended that the Commission would not be satisfied that each of the statutory criteria under Part 2-4 Division 10 of the FW Act for the making of the Authorisation have been satisfied and that contrary findings should be made in relation to each of the relevant contested major issues.
In support of its position, Peabody relied upon the following witness statements:
· Statement of Malcolm Roberts, Chief Marketing Officer, Peabody Coalsales Pacific Pty Ltd;[66]
· Supplementary Statement of Mr Roberts;[67]
· Further supplementary statement of Mr Roberts;[68]
· Statement of Michael Carter, Vice President of Technical Services, Peabody Energy Australia Coal Pty Ltd;[69]
· Supplementary Statement of Mr Carter; and[70]
· Further Supplementary Statement of Mr Carter.[71]
Both Mr Roberts and Mr Carter were cross-examined during the Hearing.
Peabody contended that the Commission could not be satisfied that there is majority support. They argued that the majority in the present circumstances was a facial majority, which is insufficient. Peabody argued that the SIEA Employees were not properly informed of the context, operation, benefits or consequences of a SIEA. As a result, Peabody argued that the SIEA Employees were misled by APESMA.
Further, Peabody contended that the Respondent Employers did not have clearly identifiable common interests. It argued that there are fundamental differences in the economics of its Wambo Mine compared to the other relevant mines. As such, Peabody submitted each of the Respondent Employers would adopt a different approach to bargaining, including adopting a different agenda.
Peabody further submitted that the Commission could not be satisfied that it is not contrary to public interest to make the Authorisation. It argued that the Commission would form the view that enterprise bargaining is unlikely to be facilitated in an efficient manner by the authorisation of the SIEA.
Peabody also posited that the operations and business activities of each of the Respondent employers were not reasonably comparable. It contended that the mining operations and activities at the Wambo Mine are fundamentally different from Ulan No.3 and the Narrabri Mine. Peabody relied on a range of factors including differences in capitalisation of the respective mining operations, the size and scale of each mine, the expected mine life, and cost margins. Further, Peabody submitted that the Chain Valley Colliery operated by Delta Coal is an outlier because it supplies coal directly to its parent company and it does not sell coal to any other customer.
Whitehaven
Whitehaven adopted the submissions of Peabody and advanced further grounds contending that the Authorisation should not be made.
In support of its position, Whitehaven relied upon the following witness statements:
· Statement of Grant Case, General Manager, Narrabri Coal Operations Pty Ltd;[72]
· Statement of Ian Humphris, Executive General Manager – Operations, Whitehaven Coal Limited; and[73]
· Supplementary Statement of Mr Humphris.[74]
Only Mr Case was cross-examined during the Hearing.
Whitehaven submitted that the Commission cannot be satisfied that a majority of the SIEA Employees want to bargain for the proposed agreement on the basis that APESMA failed to properly inform the SIEA Employees of the course of action they were approving. Whitehaven posited that there was a lack of evidence that demonstrated the SIEA Employees were advised of the implications of bargaining for a multi-employer enterprise agreement.
Further, Whitehaven noted that any majority support was only provided for an Authorisation covering all the Respondent Employers, including at the time Wollongong Resources. As such, noting that the Respondent parties have argued Delta Coal is a clear outlier, Whitehaven contended that it would not be open for the Commission to issue an Authorisation that did not include all Respondent Employers. Whitehaven submitted that it would create unfairness and that the SIEA Employees may have a different view if the composition of employees in the Authorisation differs from the group that was proposed at the time of the Ballot. We observe that Whitehaven noted that their proposition did not extend to the fact that Wollongong Resources were no longer a party to proceedings on the basis that Wollongong Resources no longer trades.
Whitehaven contended that the Respondent Employers did not have clearly identifiable interests. It argued that the different geographical locations of the relevant mines gives rise to differences in mine economics such as quality of coal mined, yield and profit margins. Further, it argued that the different geographical locations also impact the employment and retention of employees.
Whitehaven submitted that the Commission could not be satisfied that it is not contrary to public interest to make the Authorisation. Noting that each Respondent Employer has different commercial interests, Whitehaven argued that inherently inefficient bargaining would result from the Authorisation being made.
Whitehaven contended that their operations and business activities are not reasonably comparable with the other Respondent Employers. It emphasised that their operational function is limited to its role as an employer and in contracting suppliers and other service providers. Whitehaven does not operate any coal mines. The operation of the Narrabri Coal Mine is managed by a wholly owned subsidiary of Whitehaven Coal Limited. On the other hand, Whitehaven noted that the other Respondent Employers’ primary operational function is the operation of underground mines.
Delta Coal
Delta Coal ultimately contended that the Commission would not be satisfied that each of the statutory criteria under Part 2-4 Division 10 of the FW Act for the making of the Authorisation have been satisfied.
In support of its position, Delta Coal relied upon the following witness statements:
· Statement of Joshua Cornford, Mine Manager, Delta Coal;[75]
· Supplementary Statement of Mr Cornford; and[76]
· Statement of Stuart Ambridge, Executive Manager, Delta Coal.[77]
Both Mr Cornford and Mr Ambridge were cross-examined during the Hearing.
Delta Coal did not contest the majority support issue.
Delta Coal submitted that it does not have clearly identifiable common interests with the other Respondent Employers. Delta Coal premised its submission on the basis that it:
is not part of the same nature of corporate group as the other Respondent Employers;
does not have some common “ideological” approach with the other Respondent Employers;
has a single interest that is solely supplying coal to its related company;
has no interest or goal in producing, and exporting, a higher-quality thermal coal;
has no interest in generating a profit for commercial gain;
has a different geographical location to compared to the other Respondent Employers;
has an acute interest in minimising environmental impacts of surface subsidence; and
has not previously sought or negotiated terms and conditions for any of its employees in common with employees of the other Respondent Employers.
Delta Coal contends that the Authorisation would result in the non-fulfilment of the objects of the FW Act. As such, it submits that the non-fulfilment would be a factor that makes it contrary to the public interest to make the authorisation.
Delta Coal submitted that the operations and business activities of Delta Coal are not reasonably comparable with the other Respondent Employers for reasons that include:
It uses significantly different machinery compared to the other Respondent Employers.
Unlike the other Respondent Employers, Delta Coal utilises the bord and pillar method of mining.
Each Respondent Employer extracts different amounts of coal.
It does not undertake any activities of washing extracted coal
Delta Coal supplies its extracted coal for the sole purpose of electricity generation, whereas the other Respondent Employers also supply their coal for the purpose of steel making.
Delta Coal sells extracted coal directly to a related company.
Delta Coal may be subject to legislation which does not apply to the other Respondent Employers, such as the Essential Services Act 1988 (NSW) (ES Act).
Mining at the Chain Valley Colliery does not involve any exploration, transportation or commercial marketing.
Delta Coal does not employ Shift Engineers free from coverage of an existing enterprise agreement.
Delta Coal also contended that s.249(1D) of the FW Act applies to its circumstances. That is, the Delta 2022 Agreement provides for “step-up allowances” that covers the work of one or more SIEA Employees and this means that there is an existing in-term enterprise agreement which would prevent the making of an authorisation including itself.
Ulan
Ulan also contended that the Commission should not make the Authorisation.
In support of its position, Ulan relied upon the following witness statements:
· Statement of Peter Ostermann, General Manager, Glencore Coal Assets Australia Pty Ltd;[78]
· Supplementary Statement of Mr Ostermann;[79] and
· Further Supplementary Statement of Mr Ostermann.[80]
Mr Ostermann was cross-examined during the Hearing.
Ulan contended that the majority support arising from the Ballot was influenced by misrepresentations and therefore, the consent of the SIEA Employees has been vitiated.
Ulan submitted that it does not have clearly identifiable common interests with the other Respondent Employers. Ulan forms part of the Glencore Group, which is the world’s largest producer and export of thermal coal. Ulan noted that the relevant mines are geographically dispersed, resulting in very real practical consequences such as differing environmental requirements and efficiency of coal delivery. Further, the terms and conditions of employment at Ulan differ, and are unique, compared to the other Respondent Employers.
Ulan further submitted the making of the Authorisation would not be consistent with the objects and scheme of the Act. Ulan’s position is that the object of the Act promotes bargaining at a single enterprise level rather than multi-enterprise level. Further, Ulan argued that it is in the public and community interest that it is not constrained in the flexibility it currently has in relation to its employment arrangements.
Ulan also contended that the operations and business activities of the Respondent Employers were not reasonably comparable for a number of reasons, including:
The differences in mining methods used.
The differences in the yield from each relevant mine.
Life of mine.
Environmental aspects and stressors unique to each relevant mine.
Mine production and capacity.
Properties, and volume, of coal extracted at each relevant mine.
Contribution to commercial market.
Engagement surrounding communities.
Engagement with the workforce.
ACTU
The ACTU submissions in these proceedings were largely confined to the interpretation and construction of the FW Act. We will deal with these shortly. However, the ACTU also contended that the consequence of refusing to grant APESMA’s application would be that no bargaining will occur between each Respondent Employer and APESMA.
MCA
The MCA contended that the Authorisation should not be made.
The MCA largely adopted and supported the submissions of the Respondent Employers.
The MCA relied on the statement[81] of Mr Reuben Lawerence. Mr Lawrence is the principal of Lawrence Consulting. The MCA engaged Mr Lawrence to provide an expert report in relation to the economic and social impacts of the Industry on the New South Wales and Australian economies.
Mr Lawrence was not required for cross-examination.
MCA contended that majority support of the SIEA Employees was not obtained as the employees were unable to give free and informed support for bargaining for a multi-enterprise agreement. They contended that the phrase ‘want to bargain’ within s.249(1B)(c) of the Act imports a consideration of the employees’ intent, or desire, which must be freely and genuinely given.[82] The MCA does not contend that s.249(1B)(c) imposes a statutory obligation on a union to provide a fulsome explanation of the Ballot process or the bargaining process. Instead, they posit that in circumstances where a union does give an explanation in order to obtain support for their campaign, the fact that the explanation contains material misrepresentations would be sufficient, in some cases, to vitiate consent given by the employees. Relevant to the present proceedings, the MCA contended that APESMA’s campaign did involve the making of material misrepresentations.
The MCA asserted that APESMA did not properly engage with the task required by the clearly identifiable common interest criterion. The MCA was of the view that APESMA merely addressed the criterion in general terms. The MCA noted that each of the Respondent Employers are located in NSW. However, it contended that without more, it does not say anything about the interests of each Respondent Employer. Further, it noted that there are different factors that impact the interests of each Respondent Employer.
The MCA submitted the making of the Authorisation would not be consistent with the objects and scheme of the Act. The MCA emphasised that the object of the FW Act promotes bargaining at a single enterprise level rather than multi-enterprise level. Further, the MCA noted that there is a potential for additional employers to be roped into the bargaining process if the Authorisation was made.
The MCA submitted that the operations and business activities of the Respondent Employers were not reasonably comparable. It submitted that, having regard to the evidence and submissions of the Respondent Employers, there are critical differences in the operations and business activities between each of the Respondents which together, displace the presumption in s.249(1AA) that the reasonably comparable criterion is satisfied for the purposes of s.249(1)(b)(v).
The circumstances of the Respondent Employers
We will, where necessary, return to the detail of the Respondent Employers as part of our consideration of the relevant statutory tests. However, some broad findings about the nature of the Industry and the circumstances of the Respondent Employers are appropriate.
In making these findings, we have had regard to the evidence of Mr Lawrence as providing a broad overview of the Industry. We have also considered the material provided by the Respondent Employers that relied on or referred to industry data provided by Wood Mackenzie. Wood Mackenzie is a data and analytics consultant that provides services to clients, particularly in the energy sector. This includes providing reports to and about the coal mining industry, including the operations and assets of mines such as those concerned here. It was of some contextual assistance.
However, the Wood Mackenzie material was not provided to the Commission as expert evidence and was largely unable to be tested given that the authors and the detailed sources of the information relied upon were not made available. It is evident from a number of witnesses called on behalf of the Respondent Employers that the data provided to or used by Wood Mackenzie may come from that supplied by the businesses concerned or from publicly available materials. Although seeking to rely upon the reports, we observe that a number of the Respondent Employers sought to correct and qualify the data related to their business and also confirmed that any data that they had provided was unaudited and qualified. In these circumstances, we have placed little weight upon the detail flowing from or relying upon the Wood Mackenzie data except where it was supported by direct evidence from the employer concerned.
Black coal is principally used to make coke for industrial purposes, combustion, power generation, general furnace heating and pulverised coal injection.[83]
Black coal is a combustible sedimentary rock comprised mostly of carbon and other elements such as hydrogen, sulphur, water, oxygen, and nitrogen.[84] Coal from different deposits will have different quantities of the above elements. The composition of coal will determine its grade.
Extracted black coal will comprise of properties to form either thermal coal, or metallurgical coal.[85] Metallurgical coal is sold at a higher price point because it is not capable of substitution.[86]
Australia is the world’s second largest exporter of thermal coal, having exported 182 million tonnes of thermal coal in 2022-23.[87]
The Industry has a significant direct, and indirect, impact on the New South Wales and Australian economy. This includes by way of its contribution to national and state gross product.[88]
Further, the Industry spends relatively significant amounts to operate and this includes making contributions to every relevant region across New South Wales, including Sydney, the Hunter Valley, Lake Macquarie and Central West.[89] In addition, royalties, rates and tax payments are significant. For instance, the Industry made a total of $64.4 million in payments to local governments and $5.6 billion was paid to the State government in 2022/23.[90]
The Industry is also a significant employer. The total New South Wales workforce in the Industry in 2022/23 was comprised of 25,336 full-time equivalent workers, including direct employees and contractors.[91] The SIEA Employees are a small component of this overall workforce.
There are generally various stages of mining within an underground coal mine site. The stages relevant to this application are the initial development, production and closure stages.
The lifecycle of an underground black coal mine in Australia begins with the development phase, which encompasses exploration, feasibility studies, design, and construction. Initially, extensive geological surveys and feasibility studies are conducted to ascertain the viability of the coal deposit. This phase involves securing necessary permits and approvals from regulatory bodies, addressing environmental impact assessments, and engaging with local communities and stakeholders. During this period, the mine infrastructure is constructed, which includes the development of shafts and tunnels for access, ventilation systems, and surface facilities for processing and storage. The design and construction phase is critical in ensuring that the mine meets stringent safety standards and is capable of efficient operation. At this stage, operators of the underground coal mine make a large capital investment, induing for the provision of significant machinery and plant.
Once the mine is operational, the production phase begins, characterised by the extraction of coal using methods such as longwall mining and bord and pillar mining. Throughout the production phase, continuous monitoring and maintenance are essential to ensure the safety and efficiency of the mining operations. This includes managing ventilation to control dust and gas levels, monitoring ground conditions to prevent collapses, and implementing robust safety protocols to protect workers. The environmental impact of mining activities, such as water management and waste disposal, is also rigorously controlled. There are reduced capital costs at this stage, and operational and employment costs become the main expenditure. The mine area continues to expand as existing and new seams of coal are opened up and mined. Equipment and infrastructure continues to be maintained and developed during this stage. It is at this stage that productivity and returns are likely to be at their highest.
The closure phase is a complex process that involves decommissioning the mine, rehabilitating the site, and managing long-term environmental and social impacts. Mine closure planning begins well before the cessation of operations, integrating environmental, social, and economic considerations. Decommissioning involves dismantling and removing infrastructure, sealing shafts and tunnels, and managing residual environmental risks such as acid mine drainage and subsidence. The site rehabilitation process includes reshaping the land, replacing topsoil, replanting vegetation, and monitoring the recovery of ecosystems. The aim is to return the land to a state that is safe, stable, and suitable for future use, whether for agriculture, conservation, or community development. Equipment is relocated or sold, where feasible. Employees are either redeployed or made redundant.
The length of a mine’s lifecycle generally depends on many factors including development approvals, the size and quality of the coal deposits, its development and operational costs and the revenue and profit that may be generated from the mining. The evidence also reveals that the mining may, in certain circumstances, be suspended, sometimes for many months or years, and then resume when circumstances make it profitable to do so.[92] For instance, in 2020, Peabody implemented a partial cessation of mining operations at the Wambo Mine.[93]
There are two main methods used by Australian coal mine producers to extract coal from underground mines: longwall mining and bord and pillar mining. Most mines use a combination of these methods, at least in the case of roads and access in a longwall mining operation.
Longwall Mining
The initial phase of longwall mining involves the use of a continuous miner to develop tunnels and coal panels in the underground mine.[94] During the coal extraction phase, a “shearer” is then used to cut the coal seam laterally across the width of the coal panel.[95] The coal is then deposited onto a conveyer belt system which carries the coal to the surface of the mine. The roof of the underground mine is temporarily supported by hydraulic support and is designed to collapse once extraction of coal in the relevant section is complete.[96] Longwall mining may also involve some bord and pillar mining.[97]
The cost of procuring equipment to establish and operate a longwall mining operation is approximately $250 million.[98] The equipment takes approximately 18 months to be made and delivered to the mine.[99] Installation of the equipment takes approximately two months.
The total time required to establish a longwall mining operation is approximately three to four years, assuming there is an existing basic mine structure.[100] The cost of labour and ancillary equipment[101] to establish a longwall mining operation is approximately $450 million.[102]
It is generally accepted that a longwall mining operation requires a larger labour workforce than a bord and pillar mining operation. Roughly 50 individuals are required to operate the longwall itself.[103] An additional 350 individuals are required in various supporting roles such as development and outbye operations.[104]
Bord and Pillar
Bord and pillar mining also involves the use of a continuous miner when establishing a new mining area.[105] During the initial phase, roadways (bords) are created parallel to each other into a coal seam.[106] They are then joined by driving cross roads into the seam, which creates ‘cut throughs’.[107] The above process creates the pillars of uncut coal. During coal extraction, the coal is extracted from the pillars.[108] At the same time the pillars of untouched coal are left to support the roof of the underground mine.[109] The roof support and untouched pillars are designed in such a way to prevent roof collapse.[110]
Delta Coal utilises the herringbone bord and pillar method at the Chain Valley Colliery Mine.[111] This method involves a continuous miner moving down a roadway and then mining at an angle to extract coal.[112] The miner is then withdrawn from the pillar and is moved down the roadway to the other side of the pillar before again mining at an angle.[113]
Equipment to establish and operate a bord and pillar mining operation costs approximately $25 million.[114] The equipment takes approximately 12 months to be made, delivered and installed.[115]
A bord and pillar mine takes approximately six months to be established. It costs around $30 million to establish the mine.
A single bord and pillar unit requires roughly 50 workers to operate the unit itself.[116] An additional 35 workers are required for supporting roles.[117]
It is appropriate to broadly outline the relevant mining operations of each of the Respondent Employers.
Peabody
Peabody operates the Wambo Mine which is an underground mine forming part of a black coal mining complex (Wambo Complex) in Warkworth, New South Wales.[118]
Peabody’s current longwall operation at the Wambo Mine is 250 metres in width and 700 to 800 metres in length.[119] Three continuous miners are used at the Wambo Mine.[120] The majority of the longwall equipment used at the Wambo Mine was purchased in 2006.[121] This has impacted operating and maintenance costs and productivity.
The Wambo Complex is located is located approximately 220 kilometres from Sydney, 100 kilometres from Newcastle and 25 kilometres from Singleton.[122]
Production at the Wambo Mine commenced in 1969. Peabody acquired the Wambo Mine in 2006 and commenced the current longwall operations in 2007.[123] Since Peabody’s acquisition of the mine, production has occurred continuously apart from a temporary closure in 2020.[124] Although there is some uncertainty and conjecture about this aspect, and there are some variables involved, the currently anticipated remaining mine life of the present operation is relatively short. The details of this are in the evidence before the Commission and have been taken into account, but we have not found it necessary to include such detail in this published Decision. On this basis, we will subsequently refer to this aspect as the anticipated mine life when referring to Peabody’s Wambo mine.
Peabody holds a mining lease under the Mining Act in relation to the Wambo Mine.[125] The mining lease grants Peabody the exclusive right to mine over a specific area of land.
Extracted coal from the Wambo Mine is transported approximately 2.5 kilometres, by truck, to the Wambo Coal Handling and Preparation Plant (CHPP). At the CHPP, the coal is washed, crushed and sorted. Afterwards, the coal is transported, by train, to Port Waratah, Newcastle.[126] The round-trip journey between the Wambo Complex and Port Waratah is approximately 11.5 hours.[127] Any coal that cannot be sold is transported, by truck, to old pits within the Wambo Complex for storage and rehabilitation.
There are currently geological challenges with the remaining coal at the Wambo Mine.[128] The remaining minable section is obstructed by a major regional dyke. The presence of the dyke, and faulting, results in a higher rock content in the material that is extracted from the coal seam. The obstruction increases the time required to extract coal as Peabody has to navigate its mining activities around the dyke. Further, a more onerous washing process is required at the CHPP. The higher rock presence also results in a lower yield of saleable coal.
The coal produced from the Wambo Mine is predominately sold to customers in Asia.[129] The majority of the coal is sold in the branded market. This market segment is comprised of customers from Taiwan, Japan and Korea. This market is the most profitable for Peabody, as the customer is paying for coal from a known source and, based on their knowledge of and relationship with Wambo, is prepared to pay a premium in exchange for a perceived security in supply.[130] Any coal not sold on the branded market is then sold through the generic specification market or global coal specification market. Countries in those markets include Vietnam, China, South Korea and other Southeast Asian countries.[131]
A substantial proportion of the coal produced at the Wambo Mine is sold on longer-term fixed contracts.
As at February 2024, Peabody employed approximately 228 employees at the Wambo Mine.[132] Those employees are employed in various roles relating to production, engineering and mine preparation. There are also 133 non-employees who work at the Wambo Mine. The non-employees assist with various tasks such as building and maintaining supporting infrastructure.[133]
Peabody employs its own operator and supervisory workforce at the Wambo Mine.[134]
Peabody has experienced difficulty attracting and retaining employees for its Wambo Mine.[135] The Wambo Mine is not located near any residential centres or close to any attractive lifestyle factors such as the coast. Its workforce predominately commutes to work on a daily basis, with employees residing locally in the region. Peabody competes for key skilled labour with other producers, not just in the Hunter Valley region but throughout Australia given the drive-in, drive-out (DIDO) or fly-in, fly-out (FIFO) nature of mining work.[136] Accordingly, this impacts Peabody’s attitude towards recruitment and human resources matters more generally.
Most employees at the Wambo Mine, including the SIEA Employees, are employed under contracts of employment and are covered by the Black Coal Award. [137] Those employees generally work a 3-4 roster with three days on, four days off, with 12-hour shifts.[138] Some employees are engaged on a guarantee of annual earning arrangement (GAE arrangement) which impact upon the application of the Black Coal Award.
Wambo Mine has also had some difficulty attracting employees due to the fact that potential employees, and current employees, are aware of the anticipated mine life.
Ulan Coal Mines
Ulan No. 3 is an underground mine which forms part of a black coal mining complex (Ulan Complex) in Ulan, New South Wales.[139]
Ulan’s current longwall operation at Ulan No.3 is 300 to 400 metres in width and 2.5 to 3.6 kilometres in length.[140] Due to an operational change in 2006, Ulan purchased and installed new mining equipment. Subsequently, Ulan has made significant capital investments in the maintenance and modernisation of its equipment.[141]
The Ulan Complex is located approximately 45 kilometres from Mudgee and 25 kilometres from Gulgong. Mudgee is the largest town in the Mid-Western Regional Council Local Government Area with a population of approximately 13,000 people.
Production at Ulan No.3 is expected to continue until 2033 subject to the approval of a mining extension application.[142]
Ulan holds a mining lease under the Mining Act in relation to Ulan No.3. The mining lease grants Ulan the exclusive right to mine over a specific area of land.
The Ulan Complex has an environmental protection licence issued under the Protection of the Environment Operations Act 1997 (NSW) (PEO Act).[143]
Mining at Ulan No.3 is conducted using the longwall mining method. There is currently no bord and pillar operation at the Ulan Complex.[144] Only thermal coal is extracted at Ulan No.3.[145]
Extracted coal from Ulan No.3 is transported, by train, to Port Waratah, Newcastle. The round-trip journey from the Ulan Complex and Port Waratah is approximately 22.7 hours.[146]
There are currently operational challenges that affect mining at Ulan No. 3.[147] Strata conditions, such as stress magnitude and geology, interfere with the efficiency of mining operations. These factors affect the geotechnical stability of Ulan No.3. As such, production levels are reduced.
The coal produced from Ulan No. 3 is sold to international markets. The majority of the coal mined at Ulan No.3 is sold to customers in South East Asia, and specifically, China and Japan.[148] Each of Ulan’s customers require coal with certain specifications, pertaining to values such as calorific value and moisture content.[149]
As at February 2024, the workforce at Ulan No.3 comprised of approximately 250 individuals, which includes employees and contractors.[150] 46 of those individuals are SIEA employees, broken down as follows:
(a)5 Control Room Operators;
(b)10 Shift Trade Supervisors;
(c)26 Deputies; and
(d)5 Undermanagers.
Employees at Ulan No. 3 are employed either as ‘wages staff’[151] or ‘salary staff’.[152]Those employed as a wages staff are covered by the Ulan Coal Mines Pty Limited Underground Enterprise Agreement 2021. Salary staff are subject to individual employment contracts. All of the SIEA Employees receive annual earnings approximate to the ‘high-income threshold’ within the meaning of the FW Act.[153]
Due to the Ulan Complex’s close proximity to Mudgee, Ulan Coal Mines has an established community investment program.[154] The program involves investment and support in local initiatives such as sporting teams and education programs.[155]
The close proximity to Mudgee also means that a large proportion of the workforce at Ulan No.3 live locally. Ulan does not foster or encourage a DIDO workforce.[156]
Further, Ulan has implemented a number of initiatives to attract and retain employees. These initiatives include study assistance and accommodation allowances.[157]
Ulan has tailored its roster to meet development consent conditions, including a requirement that start and finish times not coincide with school bus travel times. [158] As a result day shifts commence at 6.45am and end at 4.45pm, afternoon shift commences at 2.30pm and night shift finishes at 8.30am.[159] Rosters have taken into account employee preference to work 10 hour shifts over four days rather than nine hours over five days.[160] Employees work pursuant to a fixed roster whereby full-time employees work four 10-hour fixed shifts per week or three 12 hour fixed shifts (which covers weekends).[161]
Conclusions
We are satisfied that all of the requirements for making the Authorisation have been met in relation to each of the Respondent Employers, with the exception of Delta Coal. Accordingly, we are obliged to issue the Authorisation under s.249(1) of the FW Act in relation to the remaining employers and their SIEA employees.
The Authorisation has been issued separately in PR777608.
The Authorisation specifies each of the relevant matters required by s.250(1) of the FW Act.
Pursuant to s.249(4) of the FW Act, this Authorisation comes into operation on the day it is made (23 August 2024) and will cease to have effect on the earlier of the day on which the proposed enterprise agreement is made or 12 months after the date of this Authorisation, subject to any extension pursuant to s.252 of the FW Act.
The Commission stands ready to assist the parties with the bargaining for the proposed multi-employer agreement should that be sought, such as under a s.240 application or a joint request to conduct a collaborative approaches process to utilise interest-based bargaining.
DEPUTY PRESIDENT
Appearances (all with permission):
L Doust of Counsel for The Association of Professional Engineers, Scientists and Managers, Australia, instructed by AEN Legal.
R Dalton KC of Counsel with J Mclean for Peabody Energy Australia Coal Pty Ltd, instructed by Herbert Smith Freehills.
A Gotting of Counsel for Great Southern Energy Pty Ltd T/A Delta Coal, instructed by Bartier Perry.
J Murdoch KC of Counsel for Ulan Coal Mines Pty Ltd, instructed by Corrs Chambers Westgarth.
V Bulut of Counsel for Whitehaven Coal Mining Limited, instructed by Sparke Helmore.
S Kemppi, and later L Saunders of Counsel, for the Australian Council of Trade Unions.
G Giorgi with A Agostino of Corrs Chambers Westgarth for the Minerals Council of Australia.
Hearing details:
Sydney
2024
29, 30 April
2, 3, 8 and 9 May.
<PR774539>
[1] APESMA largely operates through its division, known as The Collieries’ Staff and Officials Association; however, APESMA is the registered organisation and the legal applicant in this matter.
[2] A Directions Conference conducted by Deputy President Hampton on behalf of the Full Bench.
[3] Exhibit 34 – Bundle of Position Descriptions for Ulan Underground, Exhibit 38 – Peabody Position Descriptions, Exhibit 39 – Bundle of Position Descriptions for Delta Coal, and Exhibit 16 – Grant Case Statement (Case Statement) Annexures A – D.
[4] Defined in Reg 105 of the WHS (Mines and Petroleum Sites) Regulation.
[5] [2024] FWCFB 106.
[6] Made under s.594 of the FW Act - PR771848 (28 February 2024); PR771846 (28 February 2024); PR771840 (28 February 2024); PR772242 (11 March 2024); PR772357 (19 March 2024); PR772850 (28 March 2024); PR773599 (17 April 2024); PR774317 (29 April 2024, revised on 2 May 2024); PR774672 (14 May 2024).
[7] FW Act s.593(3).
[8] Sections 247 – 252 of the FW Act as it stood prior to the operation of the SJBP Act.
[9] Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022, Revised Explanatory Memorandum (SJBP Revised EM) at [43].
[10] SJBP Revised EM at [1006].
[11] SJBP Revised EM at [1066].
[12] FW Act s.249(4).
[13] FW Act s.252.
[14] FW Act s.252.
[15] FW Act s.228.
[16] FWAct Div 2, s.437A.
[17] FW Act s.234.
[18] FW Act s.229.
[19] FW Act s.240.
[20] FW Act ss.251(5) – (8).
[21] FW Act s.251(2A) applies to applications made by either an employer or bargaining representative of an employee.
[22] FW Act s.251(2B).
[23] FW Act ss.216D – 218.
[24] Acts Interpretation Act 1901 (Cth) s.15AA.
[25] FW Act s.3.
[26] FW Act s.3(f).
[27] Industrial Relations Reform Act 1993 s.170LA(1).
[28] FW Act s.3(f).
[29] FW Act s.171(a).
[30] PN5220 – PN5221.
[31] Exhibit 1 – Catherine Bolger Statement (Bolger Statement) at [20].
[32] Bolger Statement at [23].
[33] Exhibit 7 – Robert Coluccio Statement at [15] – [20] (Coluccio Statement).
[34] Coluccio Statement at [21].
[35] Coluccio Statement at [26].
[36] Bolger Statement at [26].
[37] FW Act s.249(1)(a).
[38] FW Act s.249(1)(b)(i).
[39] FW Act s.249(1)(b)(ii).
[40] FW Act s.249(1B)(a).
[41] FW Act s.249(1B)(b).
[42] FW Act s.249(1B)(c).
[43] FW Act s.249(1B)(d).
[44] FW Act s.249(1B)(e).
[45] FW Act s.249(1)(b)(v).
[46] FW Act s.249(3)(a).
[47] FW Act s.249(3)(b).
[48] FW Act s.249(1AA).
[49] FW Act s.249A.
[50] FW Act ss. 248 and 249(1)(a).
[51] FW Act s.249(1)(b)(i).
[52] FW Act s.249(1)(b)(ii).
[53] FW Act s.249(1B)(a).
[54] FW Act s.249(1B)(c).
[55] FW Act s.249A.
[56] FW Act s.249(1B)(d).
[57] FW Act s.249(3)(a).
[58] FW Act s.249(3)(b).
[59] FW Act s.249(1)(vi).
[60] FW Act ss.249(3AB), 249(3)(a)-(b), 249(1)(vi), 249(1AA), 249(3)(a)-(b), 249(3AB).
[61] Bolger Statement.
[62] Exhibit 2 – Catherine Bolger Reply Statement (Bolger Reply Statement).
[63] Coluccio Statement.
[64] Exhibit 8 – Robert Coluccio Supplementary Statement (Coluccio Supplementary Statement).
[65] APESMA Submissions [53], Bolger Statement at [30].
[66] Exhibit 13 – Malcolm Roberts Statement (Roberts Statement).
[67] Exhibit 14 – Malcolm Roberts Supplementary Statement (Roberts Supplementary Statement).
[68] Exhibit 15 – Malcolm Roberts Further Supplementary Statement (Roberts Further Supplementary Statement).
[69] Exhibit 24 – Michael Carter Statement (Carter Statement).
[70] Exhibit 25 – Michael Carter Supplementary Statement (Carter Supplementary Statement).
[71] Exhibit 26 – Michael Carter Further Supplementary Statement (Carter Further Statement).
[72] Case Statement.
[73] Exhibit 22 – Ian Humphris Statement (Humphris Statement).
[74] Exhibit 23 – Ian Humphris Supplementary Statement (Humphris Supplementary Statement).
[75] Exhibit 27 – Joshua Cornford Statement (Cornford Statement).
[76] Exhibit 28 – Joshua Cornford Supplementary Statement (Cornford Supplementary Statement).
[77] Exhibit 35 – Stuart Ambridge Statement (Ambridge Statement).
[78] Exhibit 30 – Peter Ostermann Statement (Ostermann Statement).
[79] Exhibit 31 – Peter Ostermann Supplementary Statement (Ostermann Supplementary Statement).
[80] Exhibit 32 – Peter Ostermann Further Supplementary Statement (Ostermann Further Supplementary Statement).
[81] Exhibit 37 – Reuben Lawrence Statement (Lawrence Statement).
[82] The MCA referred the Commission to AMWU v Kinkaid [2009] FWA 1123 [13], AMWU v Edlyn [2011] FWA 7928 [7] and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v South32 Worsley Alumina Pty Ltd[2021] FWC 3784 (‘South32’).
[83] Roberts Statement at [15].
[84] Roberts Statement at [14].
[85] Roberts Statement at [10] and [16].
[86] Roberts Statement at [16] – [17].
[87] Roberts Statement at [11].
[88] Lawrence Statement RL-2.
[89] Lawrence Statement RL-2.
[90] Lawrence Statement RL-2 at page 6 and 18.
[91] Lawrence Statement RL-2 at page 5.
[92] PN3232 to PN3234.
[93] PN3231; Carter Statement at [84] – [85].
[94] Cornford Statement at [30].
[95] Carter Statement at [30].
[96] Carter Statement at [30]; Cornford Statement at [49].
[97] Bolger Reply Statement at [28]; this method is adopted at the Mandalong Mine.
[98] Carter Statement at [34].
[99] Carter Statement at [34].
[100] Carter Statement at [36].
[101] This includes conveyor systems, fans and support infrastructure but does not include the procurement costs.
[102] Carter Statement at [36].
[103] Carter Statement at [38].
[104] Carter Statement at [38].
[105] APESMA Reply Submissions at [51].
[106] Outline of Submissions of Delta Coal at [7].
[107] Outline of Submissions of Delta Coal at [7].
[108] Carter Statement at [31].
[109] Carter Statement at [31]; Cornford Statement at [46].
[110] Carter Statement at [31].
[111] Cornford Statement at [48].
[112] Cornford Statement [48].
[113] Cornford Statement at [48].
[114] Carter Statement at [35].
[115] Carter Statement at [35].
[116] Carter Statement at [39].
[117] Carter Statement at [39].
[118] Carter Statement at [19].
[119] Carter Statement at [51] – [52].
[120] Carter Statement at [61].
[121] A continuous miner was purchased in 2019.
[122] Carter Statement at [21].
[123] Carter Statement at [22].
[124] Carter Statement at [23], [59] – [84].
[125] Carter Statement at [24].
[126] Ostermann Statement at [23].
[127] Ostermann Statement at [23].
[128] Carter Statement at [49].
[129] Roberts Statement at [53].
[130] Roberts Statement at [51] – [53].
[131] Roberts Statement at [54].
[132] Carter Statement at [76].
[133] Carter Statement at [76].
[134] Carter Statement at [77].
[135] Carter Statement at [81].
[136] Carter Statement [82].
[137] Carter Statement at [97].
[138] Carter Statement at [94].
[139] Ostermann Statement at [4].
[140] Ostermann Reply Statement [54] – [59]
[141] Ostermann Reply Statement at [46] – [48].
[142] Ostermann Reply Statement at [26].
[143] Ostermann Reply Statement at [28].
[144] Ostermann Reply Statement at [27].
[145] Ostermann Statement at [30].
[146] Ostermann Statement at [23].
[147] Ostermann Statement at [38] – [45].
[148] Ostermann Statement at [18].
[149] Ostermann Statement at [34].
[150] Ostermann Statement at [51].
[151] Wages staff are those employees involved with production and engineering.
[152] Salary staff are all other employees such as SIEA employees.
[153] Ostermann Statement – [54] – [55].
[154] Ostermann Statement at [71].
[155] Ostermann Statement at [71].
[156] Ostermann Reply Statement at [28] – [29].
[157] Ostermann Reply Statement at [33] – [35] and [51] – [63].
[158] Ostermann at [66].
[159] Ostermann at [66].
[160] Ostermann at [67].
[161] Ostermann at [67].
[162] Carter Statement at [19].
[163] Humphris Statement at [36] – [37]; Case Statement at [13(c)].
[164] Carter Statement at [51] – [52]; Case Statement at [47].
[165] Humphris Statement at [35]; Case Statement at [14].
[166] Humphris Statement at [35].
[167] Case Statement at [18(b)]: note that there is a small bord and pillar operation, which is operated by a third party, Mastermyne Group Limited.
[168] Humphris Statement at [39].
[169] Case Statement at [15(a)].
[170] Case Statement at [18(c)].
[171] Ostermann Statement at [23].
[172] Ostermann Statement at [23].
[173] Ostermann Statement at [23].
[174] Humphris Statement at [38].
[175] Case Statement at [53(b)].
[176] Case Statement at [53(d)].
[177] Case Statement at [53].
[178] Case Statement at [20(a) – (b)].
[179] Case Statement at [20].
[180] Humphris Statement at [29].
[181] Case Statement at [23(a)].
[182] Case Statement at [23].
[183] Case Statement at [43].
[184] Case Statement at [25].
[185] Case Statement at [26(a)].
[186] Case Statement at [26(b)].
[187] Case Statement at [25].
[188] Case Statement at [26] – [38].
[189] Case Statement at [26(d)].
[190] Case Statement at [26], [28].
[191] Case Statement at [27], [30], [34].
[192] Case Statement at [26].
[193] Humphris Statement at [39].
[194] Case Statement at [27].
[195] Case Statement at [30].
[196] Case Statement at [34].
[197] Case Statement at [38].
[198] Case Statement at [38].
[199] Case Statement at [38].
[200] Case Statement at [38].
[201] Case Statement at [38].
[202] Case Statement at [38].
[203] Case Statement at [39].
[204] Cornford Statement at [11].
[205] Cornford Statement at [12].
[206] Cornford Statement at [22].
[207] Cornford Statement at [25].
[208] Cornford Statement at [51].
[209] Cornford Statement at [57].
[210] Cornford Statement at [23].
[211] Cornford Statement at [28] – [29].
[212] Cornford Statement at [29].
[213] Cornford Statement at [23].
[214] Cornford Statement at [30].
[215] Cornford Statement at [26] – [27].
[216] Cornford Statement at [27].
[217] Cornford Statement at [66].
[218] Cornford Statement at [25].
[219] Cornford Statement at [35].
[220] Cornford Reply Statement at [7].
[221] Cornford Statement [36] – [40].
[222] Ambridge Statement at [12].
[223] Cornford Statement at [14].
[224] Cornford Statement at [15] – [16]; Coluccio Statement at [27].
[225] Cornford Statement at [14], [84].
[226] Cornford Statement at [16].
[227] Cornford Statement at [84].
[228] Cornford Statement at [18]; [2023] FWCA 1498.
[229] Cornford Statement at [19].
[230] Cornford Statement at [92].
[231] Cornford Statement at [85].
[232] Cornford Statement at [85], [89].
[233] Cornford Statement at [89].
[234] Cornford Supplementary Statement at [14], [19].
[235] Cornford Statement at [86]; Cornford Supplementary Statement at [15].
[236] Cornford Statement at [86]; Cornford Supplementary Statement at [20].
[237] Cornford Supplementary Statement at [20] – [21].
[238] Cornford Statement at [86].
[239] Cornford Statement at [86].
[240] Cornford Statement at [86].
[241] Cornford Statement at [87].
[242] Cornford Statement at [87].
[243] Cornford Statement at [52].
[244] Cornford Statement at [52].
[245] Cornford Statement at [41], [88].
[246] Cornford Statement at [88].
[247] Cornford Statement at [88].
[248] Cornford Statement at [88].
[249] Cornford Statement at [88].
[250] Cornford Statement at [21].
[251] Cornford Statement at [21]; Cornford Supplementary Statement at [16] – [17].
[252] Peabody Outline of Submissions at [23].
[253] Each of the other Respondent Employers broadly made submissions that align with the submissions of Peabody in relation to the rebuttable presumption.
[254] (2008) 165 FCR 230 (‘McGrath’).
[255] McGrath at [191].
[256] SJBP Supplementary EM.
[257] FW Act s.249(1B)(d).
[258] Coluccio Supplementary Statement at [4]; Coluccio Statement – Annexure RC – 3.
[259] APESMA Outline of Submissions in Reply at [91], citing CFMEU v Australian Industrial Relations Commission (1999) 93 FCR 317 at [126], [155].
[260] Exhibit 6 – APESMA Order for Production Bundle (Production Bundle) at pages 4, 26, 37 and 39: we note that the phrase ‘legally protect your conditions’ contained within the communications on pages 37 and 39 were bolded.
[261] Production Bundle at page 11.
[262] Production Bundle at page 45.
[263] Production Bundle at page 65.
[264] Production Bundle at pages 127 and 130.
[265] Production Bundle at page 60.
[266] Production Bundle at pages 168 and 171.
[267] Production Bundle at pages 168 and 171.
[268] Production Bundle at pages 168 and 172.
[269] South32.
[270] South32 at [119].
[271] South32 at [130].
[272] South32 at [133].
[273] PN5063.
[274] PN5063.
[275] PN5067.
[276] [2016] FWCFB 8372 at [35] to [37].
[277] FW Act s.237(2)(a).
[278] Explanatory Memorandum to the Fair Work Bill 2009 (Cth) para 979.
[279] See Retail and Fast Food Workers Union Incorporated v Coles Supermarkets Australia Pty Ltd T/A Coles Supermarkets[2021] FWCFB 4414 at [16].
[280] See by contrast ss.186(2)(a) and 188 of the FW Act.
[281] See by analogy the approach of the Full Bench in National Tertiary Education Industry Union v Curtin University[2022] FWCFB 204 at [53].
[282] FW Act s.237(2)(a).
[283] See the summary of cases in South32 at [88] - [94].
[284] Bolger Statement at [25].
[285] PN406 – PN410 and PN498.
[286] PN498.
[287] PN500.
[288] Production Bundle at page 35.
[289] Production Bundle at page 167; PN532 – PN534; Exhibit No. 36 – Agreed Facts of Peabody and APESMA.
[290] Production Bundle at page 56.
[291] PN559 and PN589; Production Bundle at page 30.
[292] Production Bundle at pages 56 and 58.
[293] PN606 – PN620.
[294] PN619.
[295] PN566 – PN569.
[296] Production Bundle at page 177.
[297] Production Bundle at page 41.
[298] Production Bundle at pages 4, 26, 37, 39; PN664.
[299] Production Bundle at page 65.
[300] PN645 – PN649; Production Bundle at page 60.
[301] Production Bundle at page 11.
[302] Production Bundle at page 11.
[303] PN814.
[304] PN815.
[305] Exhibit No. 4 – CSOA PowerPoint.
[306] Bolger Statement at [25].
[307] PN856, PN865 and PN4321.
[308] Coluccio Statement - Annexure RC-2.
[309] The detailed position titles within the original document have not been included. Those positions are the positions of the SIEA employees identified earlier in this Decision.
[310] Coluccio Statement - Annexure RC-3.
[311] The numbers were subsequently confirmed by the Commission on 19 January 2024 following a process of comparison agreed to by the parties.
[312] Production Bundle at page 16.
[313] PN480 – PN481; see letter sent to Delta Coal at Bolger Statement - Annexure CB-1.
[314] Bolger Statement at [26].
[315] PN488; see also Ostermann Reply Statement at [37].
[316] Via a majority support determination under s.236 of the FW Act.
[317] See the scheme of the FW Act in Part 2-4 including ss.180A, 182 and 184.
[318] See Association of Professional Engineers, Scientists and Managers Australia v Peabody Energy Australia Coal Pty Ltd [2022] FCA 945.
[319] Delta 2022 Agreement Cl 1.2.
[320] Delta 2022 Agreement Cl 2.1.
[321] Delta 2022 Agreement Cl 2.1.
[322] [2023] FWCFB 177 (IEU v CEWA).
[323] [2023] FWCFB 176 (UWU & Ors).
[324] UWU & Ors at [34].
[325] APESMA Outline of Submissions at [53].
[326] ACTU Outline of Submissions in Reply [21].
[327] PN4584.
[328] PN4585.
[329] PN4585.
[330] ACTU Outline of Submissions in Reply at [23].
[331] MCA Outline of Submissions at [15].
[332] UWU v Ors.
[333] IEU v CEWA.
[334] MCA Outline of Submissions at [17].
[335] MCA Outline of Submissions at [18].
[336] MCA Outline of Submissions at [21].
[337] MCA Outline of Submissions at [22].
[338] MCA Outline of Submissions at [23].
[339] Peabody Outline of Submissions at [7].
[340] Peabody Outline of Submissions at [10].
[341] Peabody Outline of Submissions at [38]-[39].
[342] Peabody Outline of Submissions at [39].
[343] Peabody Outline of Submissions at [40].
[344] Ulan Outline of Submissions at [9].
[345] PN5023.
[346] UWU & Ors.
[347] Ulan Outline of Submissions at [12].
[348] Ulan Reply Submissions at [4].
[349] Whitehaven Outline of Submissions at [12].
[350] Whitehaven Outline of Submissions at [13].
[351] Whitehaven Outline of Submissions at [14].
[352] PN4893.
[353] PN4901.
[354] Delta Coal Outline of Submissions at [32]-[36].
[355] Delta Coal Outline of Submissions at [37]-[38].
[356] Delta Coal Outline of Submissions at [39].
[357] Delta Coal Outline of Submissions at [40].
[358] Delta Coal Outline of Submissions at [41].
[359] UWU & Ors.
[360] IEU v CEWA.
[361] At [34].
[362] FW Act s.3(f).
[363] Carter Statement at [21].
[364] Humphris Statement at [36].
[365] Cornford Statement at [22].
[366] Humphris Statement at [37].
[367] Ostermann Statement at [42].
[368] Carter Statement at [20].
[369] Carter Statement at [22].
[370] Roberts Statement at [43].
[371] Carter Statement at [23].
[372] Carter Statement at [24].
[373] Carter Statement at [25].
[374] Ostermann Statement at [17].
[375] Ostermann Supplementary Statement [8]-[14].
[376] Humphris Statement at [10].
[377] Humphris Statement at [12].
[378] Humphris Supplementary Statement at [7].
[379] Case Statement at [18].
[380] Cornford Statement at [23].
[381] Cornford Statement at [24]-[25].
[382] Carter Statement at [33]-[35].
[383] Carter Statement at [38].
[384] Carter Statement at [42].
[385] Roberts Statement at [29].
[386] Roberts Statement at [30].
[387] Ostermann Statement at [47].
[388] Roberts Statement at [51]-[53].
[389] Roberts Statement at [56].
[390] Roberts Statement at [57].
[391] Roberts Statement at [59].
[392] Roberts Statement at [62].
[393] Ostermann Statement at [18].
[394] Ostermann Statement at [19].
[395] Ostermann Statement at [34].
[396] Ostermann Supplementary Statement at [67].
[397] Humphris Statement at [28].
[398] Case Statement at [20].
[399] Humphris Statement at [29].
[400] Cornford Statement at [31]-[32].
[401] Cornford Statement at [35]-[36].
[402] Cornford Statement at [38].
[403] Carter Statement at [49].
[404] Carter Statement at [54].
[405] Carter Statement at [56].
[406] Carter Statement at [71].
[407] Carter Statement at [72].
[408] Carter Statement at [75].
[409] Ostermann Statement at [40].
[410] Ostermann Statement at [28].
[411] Ostermann Statement at [29].
[412] Case Statement at [53].
[413] Carter Statement at [80].
[414] Carter Statement at [81].
[415] Carter Statement at [82].
[416] Ostermann Statement at [63].
[417] Case Statement at [57].
[418] Case Statement at [43(d)].
[419] Carter Statement at [103].
[420] Ostermann Statement at [63].
[421] Ostermann Statement at [65].
[422] Ostermann Statement at [63]-[64].
[423] Ostermann Supplementary Statement at [51].
[424] Ostermann Supplementary Statement at [33].
[425] Case Statement at [43(f)].
[426] Case Statement at [39].
[427] Case Statement at [57].
[428] Carter Statement at [86].
[429] Ostermann Statement at [67].
[430] Case Statement at [27], [30], [34].
[431] Case Statement at [38].
[432] Case Statement at [57].
[433] Cornford Statement at [86]-[87].
[434] Cornford Statement at [88].
[435] Carter Statement at [99]-[100].
[436] Carter Further Supplementary Statement at [11(a)].
[437] Carter Further Supplementary Statement at [11(b)].
[438] Ostermann Statement at [52]-[54].
[439] Ostermann Statement at [55], [58].
[440] Case Statement at [25].
[441] Case Statement at [26(d)].
[442] Case Statement at [26(e)-(g)].
[443] Case Statement at [25].
[444] Case Statement at [26].
[445] Case Statement at [27], [30], [34].
[446] Cornford Statement at [84]-[85].
[447] Cornford Supplementary Statement at [14].
[448] Carter Statement at [99]-[100].
[449] Carter Supplementary Statement at [14].
[450] Ostermann Statement at [61].
[451] Ostermann Statement at [62].
[452] Case Statement at [27], [30], [34].
[453] Case Statement at [27].
[454] Cornford Statement at [85].
[455] Carter Statement at [101].
[456] Ostermann Statement at [59]-[60].
[457] Case Statement at [26].
[458] Cornford Statement at [84]-[85].
[459] Cornford Statement at [89].
[460] PN4363.
[461] PN4364.
[462] PN4365.
[463] PN4366.
[464] PN4367.
[465] PN4368.
[466] PN4369.
[467] PN4370.
[468] PN4371.
[469] PN4372.
[470] PN4373.
[471] PN4378.
[472] PN5027.
[473] PN5028-5029.
[474] PN5033.
[475] PN4878.
[476] PN4881.
[477] PN4882.
[478] PN4883.
[479] PN4884.
[480] PN4885.
[481] PN4886.
[482] PN4890.
[483] FW Act s.249(3)(a).
[484] FW Act s.249(3)(b).
[485] (2005) 139 IR 34 (Kellogg Brown).
[486] Kellogg Brown at [40].
[487] See for example Randall v Australian Taxation Office (2010) 198 IR 114 at [11] which deals with s.400(1); Parks Victoria v The Australian Workers' Union and others [2013] FWCFB 950 at [49]-[51] which deals with s.275 and Aurizon Operations Limited [2015] FWCFB 540 at [129] which deals with the former s. 226(a).
[488] SJBP EM.
[489] SJBP EM at [1023].
[490] APESMA Outline of Submissions at [21].
[491] IEU v CEWA.
[492] APESMA Outline of Submissions at [22].
[493] APESMA Outline of Submissions at [23].
[494] APESMA Outline of Submissions at [24].
[495] APESMA Outline of Submissions at [24].
[496] APESMA Submissions in Reply at [39].
[497] APESMA Submissions in Reply at [39].
[498] APESMA Submissions in Reply at [40].
[499] APESMA Submissions in Reply at [40].
[500] APESMA Submissions in Reply at [41].
[501] APESMA Submissions in Reply at [42].
[502] ACTU Outline of Submissions in Reply at [31].
[503] ACTU Outline of Submissions in Reply at [32] – [34].
[504] ACTU Outline of Submissions in Reply at [35].
[505] ACTU Outline of Submissions in Reply at [37].
[506] ACTU Outline of Submissions in Reply at [38].
[507] ACTU Outline of Submissions in Reply at [36].
[508] ACTU Outline of Submissions in Reply at [39].
[509] ACTU Outline of Submissions in Reply at [41].
[510] Peabody Outline of Submissions at [14].
[511] Peabody Outline of Submissions at [16] – [17].
[512] Peabody Outline of Submissions at [16], with reference to to Industry Research & Development Board v Bridgestone Australia Ltd (2001) 109 FCR 564, 581 per Lindgren J with whom Branson J (567, [9]) and Mansfield J (584, [86]) agreed.
[513] Peabody Outline of Submissions at [17].
[514] Peabody Outline of Submissions at [17].
[515] Peabody Outline of Submissions at [18] – [19].
[516] Peabody Outline of Submissions at [20].
[517] IEU v CEWA at [34].
[518] Ulan Submissions in Reply at [15].
[519] Ulan Submissions in Reply at [16].
[520] SJBP Supplementary EM at [71].
[521] Ulan Submissions in Reply at [17].
[522] Whitehaven Outline of Submissions at [24]; IEU v CEWA at [34].
[523] Whitehaven Outline of Submissions at [25].
[524] Whitehaven Outline of Submissions at [28].
[525] Whitehaven Outline of Submissions at [27].
[526] Delta Outline of Submissions at [19] – [20].
[527] Delta Outline of Submissions at [21] with reference to Cambridge Dictionary Online (accessed February 2024).
[528] Delta Outline of Submissions at [21] with reference to The Australian Oxford Dictionary, Second Edition, (1999), page 258; Macquarie Concise Dictionary, (2020), page 241.
[529] Delta Outline of Submissions at [24].
[530] Delta Outline of Submissions at [23] – [25].
[531] Delta Outline of Submissions at [27] – [28].
[532] MCA Outline of Submissions in Reply at [28].
[533] MCA Outline of Submissions in Reply at [29], IEU v CEWA at [34].
[534] MCA Outline of Submissions in Reply at [29].
[535] MCA Outline of Submissions in Reply at [30].
[536] MCA Outline of Submissions in Reply at [31].
[537] MCA Outline of Submissions in Reply at [31].
[538] MCA Outline of Submissions in Reply at [33].
[539] MCA Outline of Submissions in Reply at [34].
[540] (1999) 202 CLR 133 (Airservices Australia).
[541] Airservices Australia at [220].
[542] Macquarie Dictionary, accessed 9 June 2024, macquariedictionary.com.au.
[543] SJBP Supplementary EM.
[544] IEU v CEWA at [34].
[545] MCA Outline of Submissions in Reply at [37] – [38].
[546] MCA Outline of Submissions in Reply at [39].
[547] Peabody Outline of Submissions at [23]; Ulan Outline of Submissions at [19].
[548] Peabody Outline of Submissions at [23]; Ulan Outline of Submissions at [19].
[549] Ulan Outline of Submissions at [19].
[550] Peabody Outline of Submissions at [28], [31].
[551] Ulan Outline of Submissions at [19].
[552] Ulan Outline of Submissions at [19].
[553] Peabody Outline of Submissions at [28], [31]; Ulan Outline of Submissions at [19].
[554] Peabody Outline of Submissions at [23], [28].
[555] Peabody Outline of Submissions at [25], [31], [32]; Ulan Outline of Submissions at [19].
[556] Peabody Outline of Submissions at [23], [29], [32]; Ulan Outline of Submissions at [19].
[557] Peabody Outline of Submissions at [29].
[558] Ulan Outline of Submissions at [19].
[559] Peabody Outline of Submissions at [23], [25], [28], [31]; Ulan Outline of Submissions at [19].
[560] Peabody Outline of Submissions at [25], [28], [31].
[561] APESMA Outline of Submissions at [19].
[562] Peabody Outline of Submissions at [20].
[563] Roberts Statement at [42].
[564] Carter Statement at [19].
[565] Carter Statement at [20].
[566] Carter Statement at [7].
[567] Carter Statement at [24].
[568] Carter Statement at [23].
[569] Ostermann Statement at [12].
[570] Ostermann Statement at [13].
[571] Ostermann Statement at [14].
[572] Ostermann Supplementary Statement at [7] – [9].
[573] Ostermann Statement at [36].
[574] Ostermann Statement at [27].
[575] Humphris Statement at [1].
[576] Humphris Statement at [14].
[577] Humphris Statement at [14].
[578] Humphris Statement at [9].
[579] Humphris Statement at [10].
[580] Humphris Statement at [9] – [10]; Humphris Supplementary Statement at [6].
[581] Humphris Statement at [40].
[582] Humphris Statement at [34].
[583] Humphris Statement at [41].
[584] Humphris Statement at [12].
[585] Humphris Supplementary Statement at [7].
[586] Case Statement at [23].
[587] Cornford Statement at [11].
[588] Cornford Statement at [2].
[589] Cornford Statement at [14] – [15].
[590] Carter Statement at [109(a)]; Roberts Statement at [78]; Cornford Statement at [24] – [25].
[591] Cornford Statement at [38] – [39].
[592] Cornford Statement at [30].
[593] Cornford Statement at [39] – [40].
[594] Cornford Statement at [31].
[595] Carter Statement at [19].
[596] Carter Statement at [21].
[597] Ostermann Statement at [4].
[598] Ostermann Statement at [21].
[599] Ostermann Statement at [71].
[600] Ostermann Statement at [71].
[601] Ostermann Statement at [29].
[602] Carter Statement at [13(b)].
[603] Case Statement at [13(c)].
[604] Humphris Statement at [36] – [37]; Case Statement at [13(c)].
[605] Humphris Statement at [36]; Case Statement at [13(b)].
[606] Cornford Statement at [22].
[607] Carter Statement at [109(h)].
[608] Case Statement at [18(a)].
[609] Case Statement at [18(a)].
[610] Case Statement at [18(a)].
[611] Cornford Statement at [42].
[612] Cornford Statement at [61].
[613] Cornford Statement at [62] – [63].
[614] Cornford Statement at [51].
[615] Cornford Statement at [51].
[616] Cornford Statement at [64].
[617] Cornford Statement at [64].
[618] Cornford Statement at [64].
[619] Carter Statement at [25].
[620] Case Statement at [18(b)].
[621] Case Statement at [18(b)].
[622] Cornford Statement at [44].
[623] Carter Statement at [109(e)]; Cornford at [42].
[624] Ostermann Statement at [38].
[625] Carter Statement at [44(a)].
[626] Carter Statement at [49].
[627] Carter Statement at [50].
[628] Carter Statement at [71].
[629] Carter Statement at [73] – [74].
[630] Carter Statement at [73] – [75].
[631] Case Statement at [50(a)].
[632] Case Statement at [52(a)].
[633] Case Statement at [50(a)] – [50(b)].
[634] Case Statement at [53(b)].
[635] Case Statement at [53(b)], [53(d)].
[636] Case Statement at [53].
[637] Case Statement at [53].
[638] Case Statement at [53].
[639] Case Statement at [53].
[640] Case Statement at [53].
[641] Case Statement at [53(i)].
[642] Case Statement at [53(i)] – [53(j)].
[643] Case Statement at [53(k)].
[644] Case Statement at [53(k)].
[645] Ostermann Statement at [38] – [45].
[646] Ostermann Statement at [40].
[647] Ostermann Statement at [28].
[648] Cornford Statement at [47].
[649] Carter Statement at [61].
[650] Carter Statement at [44(b)], [62] – [70], [121] – [123].
[651] Carter Statement at [44] – [45].
[652] Carter Statement at [142].
[653] Carter Statement at [142].
[654] Ostermann Supplementary Statement at [46] – [48].
[655] Cornford Statement at [57].
[656] Cornford Statement at [59].
[657] Cornford Statement at [60].
[658] Cornford Supplementary Statement at [4(b)].
[659] Cornford Supplementary Statement at [4(b)].
[660] Carter Statement at [26].
[661] Ostermann Statement at [23].
[662] Carter Statement at [26].
[663] Carter Statement at [26].
[664] Carter Statement at [27].
[665] Ostermann Statement at [23].
[666] Ostermann Statement at [21].
[667] Ostermann Statement at [23].
[668] Case Statement at [18(c)].
[669] Case Statement at [18(c)].
[670] Case Statement at [18(c)].
[671] Ostermann Statement at [23].
[672] Case Statement at [19(a)].
[673] Ostermann Statement at [23].
[674] Ostermann Statement at [23], Case Statement at [19(a)].
[675] Humphris Statement at [38].
[676] Case Statement at [19(a)].
[677] Cornford Statement at [26] – [27].
[678] Cornford Statement at [27].
[679] Ulan Coal Bundle of Position Descriptions, Delta Coal Bundle of Position Descriptions, Peabody Bundle of Position Descriptions, Case Statement Annexures A – D.
[680] Delta Outline of Submissions at [29.9].
[681] Roberts Statement at [29].
[682] Carter Statement at [33]-[35].
[683] Carter Statement at [42].
[684] Carter Statement at [42].
[685] Case Statement at [47(b)].
[686] Case Statement at [47(c)].
[687] Case Statement at [47(d)].
[688] Carter Statement at [62] – [70], [121] – [123], [142].
[689] Carter Statement at [38].
[690] Roberts Statement at [34].
[691] Roberts Statement at [34].
[692] Carter Statement at [135], Roberts Statement at [41].
[693] Carter Statement at [22].
[694] Carter Statement at [28].
[695] Ostermann Statement at [45].
[696] Ostermann Statement at [43].
[697] Ostermann Statement at [44].
[698] Ostermann Statement at [45].
[699] Ostermann Statement at [45].
[700] Humphris Statement at [35]: Mining at the Narrabri Mine is currently approved until December 2031. An approval has been sought to extend the life of the Narrabri Mine until 2044.
[701] Case Statement at [46].
[702] Humphris Statement at [35], Case Statement at [14].
[703] Case Statement at [14(d)].
[704] Cornford Statement at [23].
[705] Cornford Supplementary Statement at [4(a)].
[706] Cornford Supplementary Statement at [11].
[707] Cornford Statement at [29].
[708] Cornford Statement at [28] – [29].
[709] Cornford Statement at [29].
[710] Cornford Statement at [28]-[29].
[711] Ostermann Statement at [47].
[712] Roberts Statement at [51] – [54].
[713] Ostermann Statement at [18].
[714] Case Statement at [20(a) – (b)].
[715] Case Statement at [20].
[716] Cornford Statement at [25].
[717] Carter Statement at [91]; Roberts Statement at [104].
[718] Roberts Statement at [41], [93], [100].
[719] Carter Statement at [59].
[720] Peabody Outline of Submissions at [29(a)], [32(b)].
[721] Ostermann Statement at [32].
[722] Case Statement at [15(c)].
[723] Case Statement at [15(c)], Humphris Statement at [21].
[724] Humphris Statement at [21].
[725] Humphris Statement at [21].
[726] Cornford Statement at [68].
[727] Cornford Statement at [74].
[728] Roberts Statement at [56].
[729] Carter Statement at [26].
[730] Roberts Statement at [62].
[731] Ostermann Statement at [30].
[732] Ostermann Statement at [34].
[733] Ostermann Statement at [34], Cornford Statement at [72].
[734] Ostermann Statement at [36].
[735] Cornford Statement at [71].
[736] Humphris Statement at [39], Cornford Statement at [75].
[737] Case Statement at [15(a)].
[738] Case Statement at [15(c)], [18(c)].
[739] Case Statement at [15(b)].
[740] Humphris Statement at [22].
[741] Cornford Statement at [34].
[742] Cornford Statement at [66], [68].
[743] Cornford Statement at [70].
[744] Cornford Supplementary Statement at [13].
[745] Carter Statement Annexure MR-9.
[746] Carter Statement Annexure MR-9.
[747] Carter Statement Annexure MR-9.
[748] Carter Statement at [39].
[749] Ostermann Supplementary Statement at [54] – [59].
[750] Carter Statement at [51] – [52];Case Statement at [47].
[751] Case Statement at [47].
[752] Carter Statement at [44].
[753] Carter Statement at [136]; Roberts Statement at [47], [94].
[754] Carter Statement at [140], Roberts Statement at [47], [94].
[755] Cornford Statement at [76].
[756] Carter Statement at [109(e)]; Roberts Statement at [39].
[757] Cornford Supplementary Statement at [22].
[758] Cornford Statement [35] – [40].
[759] Ambridge Statement at [12].
[760] ACTU Outline of Submissions in Reply at [52].
[761] Peabody Outline of Submissions at [36].
[762] FW Act s.171(a).
[763] Ulan Bundle of Position Descriptions, Peabody Bundle of Position Descriptions, Delta Coal Bundle of Position Descriptions, Case Statement Annexures A - D.
[764] Carter Statement at [44(b)], [62] – [70], [121] – [123].
[765] Carter Statement at [59].
[766] Carter Statement at [109(a)]; Roberts Statement at [78];Cornford Statement at [11], [24] –[25].
[767] Cornford Statement at [30].
[768] Cornford Statement at [38].
[769] Cornford Statement at [35].
[770] Cornford Supplementary Statement at [7].
[771] Delta Coal Outline of Submissions at [42.5].
[772] Cornford Statement at [35] – [40].
[773] Ambridge Statement at [12].
[774] Carter Statement at [109(e)], Cornford Statement at [42].
[775] Cornford Statement at [66], [68].
[776] Cornford Statement at [26] – [27].
[777] Cornford Statement at [27].
[778] Delta Coal Outline of Submissions at [29.10].
[779] FW Act s.249A.
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