[2021] FWC 3605

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.505—Right of entry

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
v
OS ACPM Pty Ltd T/A BHP Operations Services
(RE2020/1046)

COMMISSIONER HUNT

BRISBANE, 22 JUNE 2021

Dispute about the operation of Part 3-4 of the Act; s.484 - entry for discussion purposes - whether the AMWU has the right to represent the industrial interest of the employer’s trainees at its training Academy – trainees performing training work – construction of union eligibility rules – trainees employed at the Academy are not employees who are employed or usually employed in or in connection with nominated trades or callings – AMWU not eligible to represent industrial interests of trainees at the Academy.

[1] On 20 November 2020, the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) filed an application pursuant to section 505 of the Fair Work Act 2009 (the Act) with the Fair Work Commission (the Commission) to deal with a right of entry dispute with OS ACPM Pty Ltd T/A BHP Operations Services (the Respondent/BHP).

[2] The Respondent employs a number of maintenance trainees and apprentices at its FutureFit Academy at 102 Farrellys Road, Paget, near Mackay (the Academy).

Entry notices and attempted entry

[3] On 16 November 2020, Mr Kegan Scherf and Mr Jason Lipscombe, who are officials of the AMWU and permit holders pursuant to s.512 of the Act, gave Right of Entry Notices to the Respondent. The purpose of the entry was to hold discussions with the Respondent’s employees, including trainees and apprentices, employed at the Academy.

[4] On 19 November 2020, Ms Talia Conversano, Principal Consultant Employee Relations Representative of the Respondent, wrote to the AMWU asserting that the AMWU did not have coverage for the trainees, and on this basis the discussions could only be held with the apprentices. A span of hours covering the apprentices’ meal breaks was provided, where the permit holders could meet with the apprentices.

[5] On 20 November 2020, at approximately 11:50am, Mr Scherf and Mr Lipscombe sought entry to the Academy for discussion purposes with maintenance trainees under s.484 of the Act. Upon arrival, Mr Scherf and Mr Lipscombe were denied entry to the Academy by three representatives of the Respondent at the front access door of the Academy. Mr Scherf and Mr Lipscombe left the Academy at approximately 12:30pm.

BHP response

[6] On 26 November 2020, Mr James McLean, Legal Counsel – Employee Relations of BHP Legal on behalf of the Respondent communicated the following response to my chambers, copying in the AMWU:

“I refer to the abovementioned matter and the requirement that the Respondent file a written response to the Application. The Respondent responds as follows:

1. Messrs Lipscombe and Scherf attended the BHP FutureFit Academy on 20 November 2020 at around 11.45am

2. The only persons present at the FutureFit Academy at that time were Trainees.

3. BHP does not accept that the AMWU is entitled to represent the industrial interests of Trainees.

4. Amongst other relevant matters:

a. the Trainees are not undertaking “productive” work, in the sense that they are not contributing to the operation of any of the Respondent’s assets;

b. the training exercises the Trainees perform are on decommissioned equipment;

c. the Trainees are based, and undertake their training, at an “off-site” training facility (ie at the FutureFit Academy); and

d. the Trainees are not completing a “trade” qualification.

5. On that basis, Messrs Lipscombe and Scherf were invited to return at 5pm and/or 8pm, when the Apprentices would be on crib break and available to meet with them.

6. The Respondent notes that the AMWU (through Mr Scherf) had been advised of the Respondent’s position in relation to the Trainees via email on 19 November 2020.”

Legislation

[7] Section 484 of the Act states:

“Entry to hold discussions

A permit holder may enter premises for the purposes of holding discussions with one or more employees or TCF award workers:

(a) who perform work on the premises; and

(b) whose industrial interests the permit holder's organisation is entitled to represent; and

Note 1: A permit holder, or the organisation to which the permit holder belongs, may be subject to an order by the FWC under section 508 if rights under this Subdivision are misused.

Note 2: A person must not refuse or unduly delay entry by a permit holder, or intentionally hinder or obstruct a permit holder, exercising rights under this Subdivision (see sections 501 and 502).

Note 3: Under paragraph 487(1)(b), the permit holder must give the occupier of the premises notice for the entry. Having given that notice, the permit holder may hold discussions with any person on the premises described in this section.

[8] Section 505 of the Act prescribes the powers of the Commission to deal with a dispute about the operation of Part 3-4 of the Act, which encompasses s.484 of the Act, and is in the following terms:

“505 FWC may deal with a dispute about the operation of this Part

(1) The FWC may deal with a dispute about the operation of this Part, including a dispute about:

(a) whether a request under section 491, 492A or 499 is reasonable; or

(b) when a right of the kind referred to in section 490 may be exercised by a permit holder on premises of a kind mentioned in subsection 521C(1) or 521D(1), despite that section; or

(c) whether accommodation is reasonably available as mentioned in subsection 521C(1) or premises reasonably accessible as mentioned in subsection 521D(1); or

(d) whether providing accommodation or transport, or causing accommodation or transport to be provided, would cause the occupier of premises undue inconvenience as mentioned in paragraph 521C(2)(a) or 521D(2)(a); or

(e) whether a request to provide accommodation or transport is made within a reasonable period as mentioned in paragraph 521C(2)(c) or 521D(2)(c).

Note 1: Sections 491 and 499 deal with requests for permit holders to comply with occupational health and safety requirements.

Note 2: Section 492A deals with requests for a permit holder to take a particular route to a room or area in which an interview is to be conducted or discussions held.

Note 3: Section 490 deals with when rights under Subdivision A, AA or B of Division 2 of this Part may be exercised.

Note 4: Sections 521C and 521D deal with accommodation in and transport to remote areas for the purpose of exercising rights under this Part.

(2) The FWC may deal with the dispute by arbitration, including by making one or more of the following orders:

(a) an order imposing conditions on an entry permit;

(b) an order suspending an entry permit;

(d) an order about the future issue of entry permits to one or more persons;

(e) any other order it considers appropriate.

Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(3) The FWC may deal with the dispute:

(a) on its own initiative; or

(b) on application by any of the following to whom the dispute relates:

(i) a permit holder;

(ii) a permit holder’s organisation;

(iii) an employer;

(iv) an occupier of premises.

(4) In dealing with the dispute, the FWC must take into account fairness between the parties concerned.

(5) In dealing with the dispute, the FWC must not confer rights on a permit holder that are additional to, or inconsistent with, rights exercisable in accordance with Division 2, 3 or 7 of this Part, unless the dispute is about:

(a) whether a request under section 491, 492A or 499 is reasonable; or

(b) when a right of the kind referred to in section 490 may be exercised by the permit holder on premises of a kind mentioned in subsection 521C(1) or 521D(1), despite that section; or

(c) whether accommodation is reasonably available as mentioned in subsection 521C(1) or premises reasonably accessible as mentioned in subsection 521D(1); or

(e) whether a request to provide accommodation or transport is made within a reasonable period as mentioned in paragraph 521C(2)(c) or 521D(2)(c).”

[9] It is uncontroversial that the list of disputes in s.505(1) is not exhaustive. 1

Hearing

[10] On 23 December 2020, a video hearing was convened. The AMWU was granted permission to be represented by Mr Patrick Turner, Senior Associate of Maurice Blackburn Lawyers, instructed by Mr Taylor Bunnag, Industrial Advocate of the AMWU. The Respondent was granted permission to be represented by Mr Andrew Herbert of Counsel, instructed by Mr Michael Coonan, Partner of Herbert Smith Freehills.

[11] The following people gave evidence:

• Mr Paul Baxter, National Policy Advisor for Skills, Training and Apprentices for the AMWU (not required for cross-examination);

• Mr Kegan Sherf, AMWU Industrial Advocate; and

• Ms Rebecca Penridge, Maintenance Manager for the Respondent.

The AMWU’s evidence and submissions

The dispute

[12] It was submitted that the issue in dispute is regarding whether the AMWU was entitled to represent the industrial interests of the Respondent’s maintenance trainees for the purpose of exercising right of entry pursuant to s.484 of the Act.

[13] The AMWU submitted that the right of entry conferred on permit holders pursuant to s.484 of the Act is not unfettered and is subject to expressed and implied constraints. The AMWU stated that once a permit holder enters under s.484, the capacity to hold discussions is circumscribed. Discussions to be held are limited to particular employees, namely those who fall within the description in paragraph (a) to (c) of that section, including, relevantly, s.484(b) of the Act, which includes those whose industrial interests the permit holder’s organisation is entitled to represent.

[14] In its written submissions filed in December 2020, the AMWU noted that there was no dispute that it is entitled to represent the industrial interests of employees of the Respondent where they are maintenance apprentices and located at the Academy. The dispute is about whether representation extends to the industrial interests of employees who are maintenance trainees for the Respondent at the Academy. I note, however, that the Respondent’s position on this issue changed in the giving of evidence, notably in Ms Penridge’s cross-examination. The issue relevant to apprentices at the Academy is not the subject of this decision and none of the AMWU’s witnesses were aware of this change in position of the Respondent when those witnesses gave evidence.

Principles of construction of union eligibility rules

[15] The AMWU says that the principles of construction of union eligibility rules are well established:

(a) Union eligibility rules are to be construed objectively and by virtue of their

nature, liberally rather than narrowly or technically;

(b) It is permissible to have regard to any common understanding among people concerned with relevant industries and particularly with industrial matters of the ordinary application of the words used, and to the previous use of the words in the relevant organisation’s rules and in statutory provisions, decisions, determinations, awards, reports and other papers concerned with the relevant industry or industries. Federal awards made when the legislative award making power was founded upon the industrial disputes power in the Constitution are important sources, since a union may only be a party to an industrial dispute involving employees eligible to be its members;

(c) If there is ambiguity, assistance may be sought in the terms of the industry rule (though the scope of the eligibility rule is not restricted by the scope of the industry rule);

(d) Words should not be read in isolation so to give a wide and indefinite scope of operation to a rule;

(e) Terms used should not be interpreted statically in accordance with the meaning they bore at the time that they were first introduced into the rules. This may mean that eligibility rules may cover industries or callings not known when the rules were originally drafted;

(f) The words “in or in connection with” are words of expansion. However, for the requisite connection to be established, the work of the employees in question must be referable or significant to the work of the second group of employees with whom there is said to be a connection. It is not sufficient that the work of the relevant employees makes it possible for an employer to conduct a business involving the performance of work by the second group of employees. 2

The primary purpose test

[16] The AMWU submitted that the appropriate test to apply in determining whether an industrial organisation is entitled to represent the industrial interests of employees, is the primary purpose test. 3

[17] The AMWU says that in applying this test, one aspect of an employee’s work is not focused on in isolation from the totality of their duties and that “the primary function of an employee must be determined by looking at what he or she does in the context of the employer’s organisation of work”. 4

[18] The AMWU’s submission expressed that job title cannot be conclusive, however, the classification of that person’s occupation has some relevance.

Construing the AMWU’s eligibility rules

[19] The AMWU’s substantive submission was that maintenance trainees are eligible to be members of the AMWU by virtue of being employed in or in connection with employees of the Respondent who are fitters and/or in the alternative, are employed in or in connection with workers engaged in the engineering and kindred trades pursuant to r. 1A(2) of the AMWU’s eligibility rules.

[20] The AMWU further provided that in the Full Bench Decision of Application/Notification by "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU), 5 the AMWU is a large national union representing manufacturing and engineering workers across major sectors of the economy including in metal and food manufacturing, vehicle manufacturing, repair and service, mining, building and construction, printing and graphic arts, aircraft and airline operations and laboratory and technical services. Its members range from unskilled process workers and trades assistants to tradespersons and technicians and to professionals and white-collar workers.

[21] The AMWU highlighted that Rule 1A(a) of the AMWU’s eligibility rules provides:

“1A. Without in any way limiting or being limited by sub-rules 1B, 1C, 1D, 1E, 1F, 1G, 1H and 1I the Union shall consist of an unlimited number of persons who are employed or usually employed in or in connection with the following trades or calling or branches thereof:

(a) Smiths, ship smiths, angle iron smiths, drop-hammer smiths, spring smiths, oliver smiths, spring fitters, swaging machine operators, operators on smithing machines similar to swaging machines, nut and bolt makers, windmill erectors, motor, motor cycle, and cycle mechanics, tuners and testers in motor industry, enamellers, typewriter mechanics, well-borers, scale-makers, metal safe makers, locksmiths, forge hammermen, forgemen, strikers, drop-hammer stampers, forging machine workers, forge, iron, and brass furnace-men, ship's plumbers, fitters, turners, grinders, whetstone grinders and glazers, sea-going engineers, shift engineers, roll turners, patternmakers, model makers, millwrights, mechanical draughtsmen, technical assistants, planners, borers, slotters, machine drillers, milling machine workers, shapers, machinists, brass founders, brass finishers, brass smiths and operators of machines in connection with same, coppersmiths, armature winders, equipment examiners, and electrical engineers generally, radio workers, mechanical and scientific instrument makers and optical glassmakers, linotype mechanics, press mechanics, machine joiners employed in the construction of cotton, silk, flax, woollen or other machines, die sinkers, press tool makers and stampers, electroplaters, polishers, electroplate makers up, sheet metal spinners, assemblers, skilled acetylene and electrical welders, aero mechanics, duralium workers, including forgers, fitters, and all other aircraft workers who are employed on the fuselage or engine work, and all workers engaged in the engineering, shipbuilding and kindred trades.

Notwithstanding anything contained in the immediately preceding paragraph, persons employed by Donaghys Industries Pty Ltd as production employees shall not be eligible for membership of the Union.”

[22] The description of industry includes Clause 2(a) which provides:

“(a) The engineering and metal industries and in or in connection with the engineering, boilermaking, shipbuilding and structural work with metals industry and in or in connection with the iron and steel, shipbuilding, engineering, rolling stock, agricultural implement making, coach building, mining, quarrying, railway, construction, building, sawmilling industries or any industry where smiths are employed and in or in connection with tinplate, tinsmithing, sheet metal (including motor car building so far as panel-beating and sheet metal working is concerned and also sheet metal trunk and box making), gas meter making and canister making industries, the industries of manufacturing, assembling, dismantling, erecting, replacing or repairing of agricultural implements; manufacturing, erecting assembling, dismantling, replacing or repairing of ovens, stoves, ranges, grates, registers, copper casings or other heating apparatus (or parts thereof); the manufacturing, erecting, replacing or repairing of metal bedsteads or fenders (or parts thereof); porcelain enamelling of steel and iron plates and hollow-ware, baths, sinks, cisterns, household utensils, and builders' materials and the manufacture of frit; the industries of manufacturing, making, repairing of jewellery and the industries of manufacturing, making repairing of watches and clocks.”

[23] The AMWU’s submissions also highlighted that the principal authority dealing with the history of Rule 1A(a) and the proper construction of key terms within it, is the decision in Federated Tobacco Workers Union of Australia v Amalgamated Metal Workers Union andAnor (1988) 29 IR 263, which is the authority for the propositions that:

“(a) the trades or callings listed in the rule are all referable to activities being carried out by employees;

(b) the opening words “in or in connection with” are words of expansion, so that in addition to the listed trades or callings, persons who are employed in connection with those trades or callings are eligible to become and remain members of the union

(c) the concluding words “and all workers engaged in the engineering, shipbuilding and kindred trades” are also words of expansion which refer to the activities of employees in addition to those in the specifically identified trades and callings and is intended to obviate the need to continually vary the rule;

(d) the rule will cover not just “all workers engaged in the engineering, shipbuilding and kindred trades”, but also employees engaged in connection with such workers.” 6

[24] Furthermore, the AMWU noted that Rule 1A(a) has since been amended to also include the words “Without in any way limiting or being limited by sub-rules 1B, 1C, 1D, 1E, 1F, 1G, 1H and 1I the Union shall consist of.”

[25] The AMWU’s submissions also emphasised that per the Appeal by "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) [2014] FWCFB 3501 at paragraph 34(7), while the words “in or in connection with” are words of expansion, for the requisite connection to be established, the work of the employees in question must be referable or significant to the work of the second group of employees with whom there is said to be a connection.

Eligibility of the maintenance trainees

[26] The AMWU submitted that on the material before the Commission, there are a number of components that are apparent. These included that:

(a) It is evident that the maintenance trainees are permanent, full-time employees of the Respondent and are employed pursuant to contracts of employment;

(b) The terms of an example contract for a Mackay-based trainee provide that:

• They report to the Supervisor Maintenance Pathways (or such other person as nominated by the Respondent from time to time);

• The position, upon commencement, is based in Mackay. The Respondent may reasonably require the trainee to work in other locations at any time as part of the requirements of their traineeship during the term of their employment;

• They must perform the duties reasonably associated with their position and, in addition, must perform other duties which they are capable of performing, as required by the Respondent;

• Their Supervisor will inform them of the daily start time and any handover or call-out requirements which will be in accordance with the requirements of the relevant work area. Circumstances may require them to work reasonable additional hours outside of their usual or rostered hours to ensure that the full requirements of their role are met;

• The Respondent may from time to time change the roster cycle worked by the trainee or require them to transfer from day work to shift work, from shift work to day work or from one shift to another on a temporary or permanent basis. The trainee acknowledges and agrees that they are required to comply with any decision by the Respondent to change their roster and/or hours of work, irrespective of where they have chosen to reside.

(c) The maintenance trainees in Queensland are receiving training towards attaining an MEM20205 – Certificate II in Engineering – Production Technology which covers the skills and knowledge required of workers employed as Engineering/ Manufacturing Employees - Level IV or in related industries where Engineering/ Manufacturing Employees work, as well as being specially developed to reflect minimum training requirements specified in the Manufacturing and Associated Industries and Occupations Award (the Award);

(d) the ANZSCO classification, which uniquely identifies the type of occupation which a person would be qualified in on completion of a qualification undertaken as part of a training contract, is that of a Metal Engineering Process Worker;

(e) The roles the trainees are being trained for include both Maintenance Associate – Heavy Diesel and Maintenance Associate – Mechanical Fitter, with the Maintenance Associate roles being trades Assistant/Serviceperson type role;

(f) The trainees are overseen by employees of the Respondent who must have completed a trade qualification in heavy diesel fitting or mechanical fitting to be a trainer, who are being persons eligible to be members of the Applicant by virtue, at minimum, of r. 1A(a) of the Applicant’s rules;

(g) Both of the roles in which maintenance trainees are to be deployed have ‘role relationships’ to persons eligible to be members of the AMWU (including boilermakers, heavy diesel fitters, trade qualified mechanical fitters, mechanical engineers eligible by virtue, at minimum, of r. 1A(a) of the AMWU rules), in which “supervision, instruction and on the job coaching / training will be provided by relevant supervisors, leading hands and senior qualified tradespersons”;

(h) About 60 percent of all scheduled maintenance activities conducted at BHP mining operations are performed by the Maintenance Associates, with the Respondent’s purported intention being that they will “perform non-trade duties of the kind often performed by some trades persons, in order to reduce the requirement of tradespersons to perform such below-trade duties”;

(i) The maintenance trainees are to be assigned to existing crews, and will be performing work under supervisions, instruction and direction of tradespeople. The trainees are also said to be provided with an “opportunity to work towards a career” within BHP or OS, “whilst performing high value work.”;

(j) The targeted group for the qualification was “newly recruited BHP employees in the Mechanical Trade (Fitting & Machining, Machinist Metal, Mechanical Fitter), who are recruited to undertake this course under a traineeship /apprenticeship arrangement and develop a maintenance career with BHP.”;

(k) that upon completion of the qualification, the trainees will be able to work as an ‘Engineering/Manufacturing Employee – Level IV’ or undertake further studies in the ‘MEM30205 – Certificate III in Engineering – Mechanical Trade’, the employment outcome of which is that they can be employed as an ‘Engineering Tradesperson – Mechanical

[27] The AMWU submitted that maintenance apprentices are completing trades in Heavy Diesel Fitting and Mechanical Fitting, are undertaking exactly the same first year of curriculum as the maintenance trainees, are completing this training at the same facility as the maintenance trainees and are paid the same salary for the first 12 months of employment.

[28] The AMWU’s evidence was that the curriculum being completed by both trainees and apprentices discloses that:

• BHP intend to provide “quality skill development to employees across multiple trade disciplines (Mobile Equipment Maintenance, Fixed Plant Maintenance, Fabrication/Boilermaking, Electrical), all of which are covered in the Manufacturing and Engineering (MEM) Training Package, a collection of 465 Units of Competence covering multiple Engineering trades.”

• “The training program is being set up to replicate as much as possible the processes, policies, equipment and infrastructure that would be used by maintenance personnel on a BHP mine site…”

• There are tasks excluded from the Management Associate role, due to complexity because, for example, it “requires Cert III level training” or it “requires Mechanical Fitter Trade qualifications.”;

• The Respondent describes success from the training program as a “competent Maintenance Associate”

[29] The AMWU also noted that the training contracts executed by maintenance trainees impose obligations on the Respondent to:

• Provide work that is relevant and appropriate to the vocation and also to the achievement of the qualification referred to in the contract; and,

• Pay the apprentice/trainee the appropriate wages to attend any training and assessment specified in the Training Plan, noting that any time spent by the apprentice/trainee in performing his or her obligations under the contract whether at the employer’s workplace or not, is to be taken for all purposes (including the payment of remuneration) to be time spent working for the employer

[30] The AMWU stated that the Respondent has not previously taken issue with the AMWU’s exercise of right of entry to meet with tradespeople, trades assistants, servicepersons or other employees of the Respondent at mine sites at which maintenance trainees will be deployed.

[31] The AMWU submitted that what can be distilled from these matters and the other evidence in the proceeding, is that the traineeships completed by the maintenance trainees:

(a) involve the performance of valuable, actual maintenance work training them in the tasks, skills and duties of Maintenance Associates, and specifically the roles of Maintenance Associate – Heavy Diesel and Maintenance Associate – Mechanical Fitting;

(b) those duties of the Maintenance Associates include the servicing, removal, installation, repair and testing tasks on Heavy Mobile Equipment systems and components or fixed plant equipment and components being in the nature of the work of Trades Assistants or servicepersons;

(c) is work currently performed under the supervision of qualified tradespersons, being Heavy Diesel Fitters and Mechanical Fitters, for whom there is no dispute that the AMWU has coverage;

(d) is work that, following completion of the traineeship, will continue to be subject to “supervision, instruction and on the job training / coaching by relevant supervisors, leading hands and senior qualified tradespersons”;

(e) is work that is identical to that being performed by Heavily Diesel Fitter and Mechanical Fitter apprentices, in their first year, in the same facility, being persons to whom there is no dispute that the AMWU has coverage; and,

(f) is work that, on completion of the traineeship, will be performed at mine sites in the same locations with tradespeople and other persons for whom there is no dispute that the AMWU has coverage and which, in the scheme of the Respondent’s operations, may consist of sixty percent of maintenance tasks including tasks previously performed by tradespeople;

(g) is work leading to a qualification designed for the occupation of an Engineering/ Manufacturing Employees - Level IV under the Award; and,

(h) is work that is otherwise self-evidently interlinked with that of tradespersons eligible to be members of the AMWU, including by virtue of the title of the roles of ‘Maintenance Associate – Heavy Diesel’ and ‘Maintenance Associate – Mechanical Fitter’.

[32] The AMWU submitted that accordingly, for the purposes of r. 1A(2) of the AMWU’s eligibility rules, is work being employed in or in connection with employees of the Respondent who are fitters and, or in the alternative, are employed in or in connection with workers engaged in the engineering and kindred trades, including, at minimum, Heavy Diesel Fitters and Mechanical Fitters employed by the Respondent in maintenance workshops and coal preparation plants.

[33] In relation to the Respondent’s assertion that the trainees are paid and engaged as students and not workers in the traditional sense, the AMWU put forward that all that is required of the Rule in respect of employment is that a person be ‘employed or usually employed’. There is no gloss or caveat that a person employed, but who is completing training, is not eligible to be covered by the rules.

[34] The AMWU notes that in any event, the evidence is that the trainees perform valuable, real maintenance work. The training contracts it has executed otherwise require it to provide work that is relevant and appropriate to the vocation and qualification. The AMWU emphasised that the trainees are not students on scholarships but are paid, full-time employees of the Respondent, subject to their employer’s directions who perform work for the Respondent.

[35] The AMWU submitted that it is an artificial exercise to consider the trainees’ location at the Academy in isolation from the roles they are being trained to do, that of Maintenance Associates as such an approach is inconsistent with identifying the primary function of the employee, in the context of the employer’s organisation of work.

[36] The AMWU concluded by noting that the Respondent has drawn the ‘employee’/‘student’ distinction arbitrarily, is evident from its prior express acceptance that maintenance apprentices, who are also working and training in the same facility and in the first year complete the same curriculum, under the same conditions, are nevertheless eligible to be covered by the Union’s rules.

Witness Statement of Paul Baxter

[37] Mr Paul Baxter, National Policy Advisor for Skills, Training and Apprenticeships for the AMWU, provided a witness statement in this matter.

[38] Mr Baxter has held the role of National Policy Advisor for Skills, Training and Apprenticeships since 2016, and prior to this was employed by the AMWU at Manufacturing Industry Skills Training and Assessment Services in the role of Industry Advisor from 2007. Prior to this, he was a Mechanical Fitter at Queensland Health and Queensland Rail and first became a member of the AMWU when he completed his trade as a Mechanical Fitter in 1988.

[39] As the National Policy Advisor for Skills, Training and Apprenticeships, Mr Baxter advises and guides the AMWU in respect of skills, training and apprenticeship policy. He sits on three industry reference committees (IRCs) on behalf of the AMWU; the Manufacturing and Engineering Industry Reference Committee, the Aerospace Industry Reference Committee and the Construction Industry Reference Committee.

[40] Mr Baxter explained that the Industry Reference Committee’s develop qualifications for their respective industries and the Manufacturing and Engineering Industry Reference Committee oversees the development of industry competency skills standards and qualifications in the Metal, Engineering and Boating Industries as well as other niche sectors. He also said that the MEIRC is responsible for the MEM Manufacturing and Engineering Training Package.

[41] Mr Baxter noted that the Australian Skills Quality Authority, being the national regulator for Australia’s vocational education and training sector, describes Training Packages and the role of IRCs on its website as follows:

“Training packages define the skills and knowledge needed by learners to perform a job. They do not specify how to train learners.

Each training package contains three components:

• Units of competency define the skills and knowledge needed, and how to apply them in a workplace context.

• A qualifications framework contains groups of units of competency used to develop learning outcomes. These groupings range from Certificate I to Graduate Diploma level.

• Assessment guidelines cover the qualifications required by assessors, the design of assessment processes and guidelines for assessment management. Assessment guidelines explain the industry's preferred approach to assessment.

Industry Reference Committees (IRCs) are the formal channel for considering

industry skills requirements in the development and review of training packages.”

[42] Mr Baxter’s evidence was that a nationally recognised qualification, such as the MEM20205, is a collection of core and elective units of competency, which are found in the relevant Training Package and that a qualification is designed to cover the skills and knowledge required of workers to perform a vocation.

[43] Mr Baxter gave an example noting that the MEM20205 – Certificate II in Engineering – Production Technology:

(a) covers the skills and knowledge required of workers employed as Engineering/ Manufacturing Employees - Level IV as defined in the Manufacturing and Associated Industries and Occupations Award (the Award) or in related industries where Engineering/ Manufacturing Employees work;

(b) has been specifically developed to reflect the minimum training requirement specified in the Award for employment in the that occupation. The qualification packaging has been developed on an assumption that competency will be developed through a combination of on and off-the-job learning strategies such as those delivered through a formal traineeship;

(c) the ANZSCO classification, which uniquely identifies the type of occupation which a person would be qualified in on completion of a qualification undertaken as part of a training contract, is that of a Metal Engineering Process Worker.

[44] Mr Baxter indicated that another part of his role for the AMWU is that he performs the AMWU’s classification service which follows the guidelines in the National Metal and Engineering Industry Competency Standards Implementation Guide. He said that this means in practice, that he attends worksites and conducts a work skills analysis of employees at various employers of the individual tasks and skill requirements for their roles, so that they can be correctly classified according to the Implementation Guide. He further noted that this process can be used across other industries, not only the Manufacturing industry, as the Award’s coverage is industry and occupationally based. He submitted that an example of this is that he has conducted work skills analyses of employees performing maintenance work on mobile and fixed plant for Gladstone Port Corporation which included earthmoving-equipment, coal conveyors and loaders.

Apprentices and Traineeships

[45] Mr Baxter’s evidence was that apprentices and trainees are working towards the completion of a nationally recognised qualification and generally, apprenticeships are in a trade and upon completion, become a qualified tradesperson. Trainees are trained in vocational areas and upon successful completion receive a qualification in their vocational area. He said that in certain circumstances, trainees can learn the same skills as tradespeople and apprentices, and that trainees and apprentices are employees.

[46] The evidence submitted by Mr Baxter noted that his understanding of a traineeship is that it requires a component of on-the-job learning, with a number of the units of competency for qualifications under the MEM Training Package requiring workplace practice in a functioning workplace such as, for example, MEM07005 - Perform general machining.

Training Contracts

[47] In regards to training contracts, Mr Baxter stated that training contracts are used to register the apprenticeship or traineeship, are entered into by the employer and the apprentice or trainee and contain conditions and obligations which the parties are bound by. Furthermore, he said that the training contract stipulates the qualification the apprentice or trainee will receive and the intended occupation during the training contract of the apprentice or trainee.

Training Plans

[48] Mr Baxter stated that the training plan details the qualification that the trainee is going to undertake and contains the individual units of competency in the qualification for the traineeship. If one of the parties to the traineeship i.e. the employer or RTO wants to change the training plan, there needs to be agreement with the other parties.

Curriculum

[49] It is Mr Baxter’s evidence that the curriculum is the training material delivered to trainees or apprentices and should be designed to match the units of competency in the training plan. This process is audited by the Australian Skills Quality Authority.

Job advertisements – trainers

[50] Mr Baxter stated that there appear to be two job advertisements for ‘Apprenticeship Trainers’. One advertisement refers only to training apprentices and the other refers to training apprentices and trainees, the title of which appears to be ‘Apprenticeship Trainer Mackay’.

[51] He said that the ‘Apprenticeship Trainer Mackay’ advertisement provides the Respondent is looking for a trade qualified Heavy Diesel Fitter or Mechanical Fitter to be a trainer. Depending on the age of the trainer, to be trade-qualified in that way, the trainer would need to either hold trade papers in those trades and or the equivalent qualification for those trades. For those trades, the equivalent qualification would be the MEM30205 - Certificate III in Engineering – Mechanical Trade.

[52] Mr Baxter said that qualification:

(a) covers the skills and knowledge required to work as an Engineering Tradesperson - Mechanical within metal, engineering, manufacturing and associated industries or other industries where Engineering Tradesperson - Mechanical work. The qualification has been specifically developed for apprentices in the above trade;

(b) specifies the competencies required for employment as an Engineering Tradesperson - Mechanical including the design, assembly, manufacture, installation, modification, testing, fault finding, commissioning, maintenance and service of all mechanical equipment, machinery, fluid power systems, stationary and mobile equipment, instruments, refrigeration, and the use of computer controlled machine tools.

(c) Employment outcomes related to this qualification are found in a wide variety of manufacturing and engineering related sectors as well as Engineering Tradesperson - Mechanical roles in other industries.

[53] He said that in order to complete formal training and assessments for apprentices or trainees, a trainer would need to have the equivalent qualification to the qualification that the apprentices or trainees are being trained in or higher and a Certificate IV in Training and Education. If you are supervising the work of trainees and apprentices on the job, you do not need to hold a Certificate IV in Training and Assessment.

Role Profiles

[54] Mr Baxter said that there appears to be two role profiles; one for the role title of ‘Maintenance Associate – Heavy Diesel’ and the other ‘Maintenance Associate – Mechanical Fitter.’

[55] He said that when he read the role profile for Maintenance Associate – Heavy Diesel, it appeared to him to describe a Trades Assistant /Serviceperson type role, specifically, the work of performing planned servicing, removal, installation, repair and testing tasks on HME systems and components. He said that this conclusion is based on his experience in conducting work skill analyses at various organisations.

[56] Mr Baxter’s evidence was that the tasks in the role profile are consistent with tasks performed in other organisations where the job role is described as a Trades Assistant/Serviceperson role and that some units in the role profile indicate a basic level of skill. For example, MEM07001B Perform Operational maintenance of machines/equipment is the entry level unit in the MEM training package which covers safety and maintenance checks and adjustments of a limited nature.

[57] He said that the task and hazard-based competency profile, includes a unit of competency for a tradesperson. Specifically, MEM07005C which appears to require that:

“This unit has been developed to support Engineering Tradesperson - Mechanical apprenticeship training and the recognition of trade level skills in machining operations. Skills covered by this unit are generally applied in occupational and work situations associated with fitting and machining.”

[58] Mr Baxter noted that when he read the role profile for Maintenance Associate – Mechanical Fitter, it appeared to him to describe a Trades Assistant /Serviceperson type role, specifically, the work of performing planned inspections, servicing, removal, installation, repair and testing on fixed plant equipment and components. This conclusion was based on his experience in conducting work skill analyses at various organisations.

[59] Mr Baxter’s evidence was that the tasks in the role profile are consistent with tasks performed in other organisations where the job role is described as a Trades Assistant/Serviceperson role. The excluded tasks, based on his industry experience, appear to be that of a Tradesperson. For example, commissioning, configuring and overhauling are all terms which he would associate with a Tradesperson. He explained that the excluded tasks also direct him to a Trades Assistant/Serviceperson role.

[60] The task and hazard-based competency profile includes a unit of competency called MEM18009 – Perform precision levelling and alignment of machines and engineering components. In order to complete that unit of competency, a person needs to have completed a number of prerequisite units including MEM18006 - Perform precision fitting of engineering components. The MEM18006 unit of competency cannot be completed as part of the Cert II the trainees are completing, as it is only available at the Certificate III level

[61] Mr Baxter submitted that the information produced by the Respondent refers to trainee graduates becoming Maintenance Associates who will be able to perform approximately 60 percent of all scheduled maintenance activities conducted at BHP mining operations. Having regard to the work described as in-scope and the work described as out of scope for these roles, tradespersons would be able to perform all of those tasks in and out of the scope of a Maintenance Associate.

Training plans

[62] Mr Baxter said that he had reviewed the following documents:

• ‘Apprentice – Mechanical Fitter Unit Selection and Training Plan 2020-2021’;

• ‘Apprentice Heavy Diesel Unit Selection and Training Plan 2020-2021’;

• ‘Heavy Diesel Unit Selection and Training Plan MA 2020-2021’; and,

• ‘Mechanical Fitting – Unit Selection and Training Plan MA 2020-2021’.

[63] In relation to these documents, Mr Baxter said that he conducted a mapping exercise of the respective training plans of the Heavy Diesel Apprentices and trainees and the Mechanical Fitting apprentices and trainees. He said that after conducting that mapping exercise, he had concluded that the maintenance associate trainee qualifications contain identical units of competency to the respective apprentice training plans.

[64] He submitted that the units of competency selected for the Mechanical Fitters trainees could be used for the first year of an apprenticeship as a Mechanical Fitter or Fitter and Turner trades, and the units of competency selected for the Diesel Fitters trainees could be used for the first year of an apprenticeship as a Diesel Fitter trade.

[65] Mr Baxter’s evidence was that the MEM07005C unit of competency he has referred to previously is in both the apprentice and trainee training plans. The MEM18009 unit of competency he has referred to previously does not appear in any of the training plans. All of the units of competency selected across all of the training plans are all skills used by tradespeople.

[66] Mr Baxter submitted that in his view, the apprenticeship being completed by the Apprentice – Mechanical Fitters is consistent with the restricted calling of Engineering Mechanical Trade (Maintenance - Fitting and/or Turning), and that the apprenticeship being completed by the Apprentice – Heavy Diesel Fitting is consistent with the restricted calling of Engineering Mechanical Trade (Maintenance - Diesel Fitting).

Training Contracts

[67] Mr Baxter stated that one of the example training contracts produced by the Respondent, appears to be for a trainee based in Western Australia. The training contract stipulates that the trainee is completing a qualification in MEM20105, which is different to the MEM20205 qualification being completed by Queensland trainees.

[68] Mr Baxter submitted that the Respondent had not provided a training plan for the MEM20105 qualification.

Witness Statement of Kegan Scherf

[69] Mr Keegan Scherf, AMWU Industrial Advocate, submitted a witness statement in this matter.

[70] Mr Scherf has been employed by the AMWU as an Industrial Advocate based in Brisbane since February 2018,and as part of his role he coordinates the work of the AMWU in Queensland and the Northern Territory in the engineering and mining industries.

Maintenance at OS ACPM

[71] Mr Scherf’s evidence was that OS ACPM Pty Ltd, the Respondent, is a subsidiary of BHP. Mr Scherf is the AMWU official with principal responsibility for organising members of the Respondent at black coal mine sites in the Bowen basin in Queensland including at:

• Saraji;

• Goonyella Riverside;

• Peak Downs;

• Caval Ridge; and

• Blackwater.

[72] Mr Scherf stated that there are approximately 800 employees of the Respondent across its operations, including employees conducting maintenance in workshops, in the coal handling preparation plant or in mobile maintenance teams across BHP’s mine sites. Mobile maintenance teams will travel out into the field when a vehicle or plant breaks down, to repair it or to bring it back to the workshop.

[73] Mr Scherf said that at these locations, OS ACPM employs:

• Tradespersons, including predominantly heavy diesel fitters, mechanical fitters, boilermakers, fitters, auto-electricians, high voltage electricians and mobile plant mechanics;

• Trades assistants, who hold a Certificate II or otherwise have relevant industry experience;

• Storespeople;

• Service Technicians who sometimes hold trade qualifications but are not required to; and,

• Apprentices.

[74] The evidence given by Mr Scherf was that maintenance work at these locations is performed by tradespeople, the trades assistants, servicepersons and apprentices. All these employees work together on maintenance tasks which include the servicing and repair of fixed and mobile plant.

[75] Mr Scherf stated that generally, the only maintenance work that cannot be performed at these locations is work which requires a service bay larger than what is available at the mine sites, or specialised maintenance equipment which might be owned by a third party or not be feasible for the mine to own or operate.

[76] In terms of the maintenance work performed by employees of the Respondent, Mr Scherf said that it tenders to BHP against existing maintenance contracts, previously awarded to other companies, who would ordinarily perform that work. For example, if UGL had a contract with BHP to perform maintenance on hydraulic assets, the Respondent will tender against UGL for the work. The Respondent, in effect, provides ‘in-house labour hire’ to BHP.

[77] Mr Scherf said that a recent example of this is that Downer lost its contract to perform maintenance and associated servicing work on ‘ultra-class’ trucks at the Peak Downs mine. The Respondent tendered against Downer and the Respondent was successful. Mr Scherf stated that BHP is now deploying approximately 114 employees of the Respondent to perform that work.

[78] The evidence submitted by Mr Scherf also went on to note that the employees of the Respondent might also do other routine maintenance work in place of BMA employees; for example, fabrication, engine conditioning, transmission repair and servicing and the like. Generally, it depends on who is doing the job before and who the Respondent has replaced, noting this might vary from site to site.

[79] Mr Scherf’s evidence was that typically, each of the Respondent’s operations will have four crews in the workshop and four crews in the coal handling preparation plant. Each of the workshop and coal handling preparation plant will have an A, B, C and D crew. Each crew can have between 15 and 25 employees, though typically there are fewer employees in the coal handling preparation plant. Workshops are staffed by at minimum 80 to 100 employees of the Respondent.

[80] Mr Scherf said that he has exercised right of entry on a number of occasions at each of these mine sites to meet with employees of the Respondent at workshops and coal handling preparation plants. He said he had exercised right of entry at these mine sites a total of 26 times this year. Furthermore, Mr Scherf said that he has never been denied right of entry to these locations or been advised that the Respondent disputed whether or not any of the employees he was meeting with were eligible to be members of the AMWU.

Events leading to 20 November 2020

[81] Mr Scherf noted that he and Mr Lipscombe hold a right of entry permit. On 16 November 2020, a right of entry notice was issued to the Respondent for himself and Mr Lipscombe for the purpose of holding discussions under s.484 of the Act with the Respondent’s trainee and apprentice employees at the Academy.

[82] Mr Scherf stated that his understanding was that the Respondent employed several different classifications of employees at the Academy, including trainees and apprentices.

[83] Through his experience in the mining industry and interactions with members of the AMWU who work for the Respondent at mine sites in the Bowen Basin, he was of the belief that trainees employed by the Respondent at the Academy were completing a mechanical and maintenance related Certificate II qualification.

[84] On 19 November 2020, Mr Scherf received advice by email from Ms Conversano, asserting that the AMWU would not be able to access the Academy to speak with trainees because the Respondent did not accept that the AMWU had coverage of trainees.

[85] On 20 November 2020 at approximately 11:50am, Mr Lipscombe and Mr Scherf sought to enter the Academy pursuant to their right of entry notices. Mr Scherf’s evidence was that they approached the front glass doors of the Academy and it was apparent that the doors were locked. There was a sign on the doors which said words to the effect ‘for entry please ring the following numbers’. On the same sign, there were three individual phone numbers listed and the names of three people.

[86] Once they reached the doors, Mr Scherf said that he attempted to ring one of the phone numbers that was listed on the sign using his mobile. While he was calling the number, he saw three people walking down the internal stairs of the Academy who walked out the glass doors and greeted he and Mr Lipscombe, so he terminated the phone call.

[87] Mr Scherf said that he now understood that the names of the three people who greeted them were Kerry Master, Field Maintenance Superintendent, Laura Langan, Manager Apprenticeships and Rod Nichols, Maintenance Manager and employees of the Respondent.

[88] Mr Scherf’s evidence was that once Ms Master, Ms Langan and Mr Nichols reached them, he and Mr Lipscombe identified themselves and explained that we were at the Academy to exercise a Right of Entry to speak to the Respondent’s trainees during their crib break as per their entry notice. He and Mr Lipscombe produced their entry notices and right of entry permits to Ms Master, Ms Langan and Mr Nichols.

[89] Mr Scherf noted that Ms Master, Ms Langan and Mr Nichols said that he and Mr Lipscombe could not enter the Academy and that they only had instructions to allow them entry to the premises at 6:30pm that night for the crib break for maintenance apprentices. This discussion was predominately led by Ms Langan.

[90] Mr Scherf stated that he and Mr Lipscombe asked why they were not allowed entry to the Academy to talk to the day shift employees, to which Ms Langan said she was under instructions to not allow them entry because they did not have a right to speak to the day shift employees (trainees). Mr Scherf stated that Ms Langan understood that the Respondent’s HR and legal team had conveyed the Respondent’s position to the AMWU.

[91] Mr Scherf’s evidence was that he asked Ms Master, Ms Langan and Mr Nichols to confirm that they were denying the right of entry, which he said was a statutory right. They responded, “yes”.

[92] Shortly thereafter, after being refused access, Mr Lipscombe and Mr Scherf left the front of the building and returned to their vehicle which was parked in the Academy carpark.

Work of maintenance trainees

[93] On 15 December 2020, Mr Scherf said he met with a maintenance trainee to discuss the work that they performed at the Academy. In cross-examination, Mr Scherf conceded that the information provided to him by the maintenance trainee constitutes hearsay, and he does not know if it is true:

(a) they commenced in the role in May 2020;

(b) the job title used to refer to them by other employees of the Respondent at the Academy is Maintenance Associate however, sometimes, they are described as Maintenance Associates;

(c) they work an eight-shift swing, four day shifts (6:00am to 2:00pm) and four afternoon shifts (3:00pm to 10:30pm or 11:00pm) depending on the work to be completed. They have two 30 minute crib breaks during each shift at 8:30am- 9:30am and 11:00am to 12:00pm;

(d) at the start of a day shift, they sign in at 6:00am, their temperature is taken by the supervisors for the crews and then the trainees are told whether they will be working in the classroom or workshop;

(e) if they are performing work in the workshop, they will walk to the workshop, unpack their crib, apply PPE, retrieve their iPads and participate in a pre-start meeting before commencing tasks in crews;

(f) the trainees are in ‘A Crew’ which is then broken down into smaller crews, of A1, A2 and A3 crew;

(g) there are approximately 22 trainees in A2 crew;

(h) the trainees in A1 and A2 are doing diesel mechanic work and A3 crew are doing fixed plant work; the trainees follow a curriculum which is based online. The curriculum tells the trainees what sessions are to be completed each day and what learning materials are required, for example, day 57 is listed as a recap of ‘foundations’, ‘learning journal’ and ‘reflections on a powerpoint presentation on heavy diesel fitting’;

(i) the two trainers are trade-qualified;

(j) there are several pieces of plant that trainees work on in the workshop including, a grader, a dozer, 3 dump trucks (1 is functional and 2 have some components left on it but are not functional);

(k) trainees have completed the following tasks in the workshop:

i) Produced a set of soft jaws, a drill gauge, a set square and a dice out of steel and aluminium. These items have been used in the other work that is being completed (i.e. the trainee uses the soft jaws while hammering things in a vice). Other trainees have also made other items such as a gclamp and name plates;

ii) Demonstrated and practiced measuring with calipers and creating straight lines using hand tools;

iii) Use of drill stand, steel rod cutting machine and general hand tools such as hacksaws, files and hammers;

iv) Loosen oil filters to check damage, reoil top of the filter, spin back up on the Caterpillar Mining Truck;

v) Inspecting a Caterpillar grader, including removal of four cylinders on a ‘ripper stand’ (this comes off the back of the grader), which is then put on steel frames in the workshop by using an overhead crane so they can work on individual components. The trainees have to inspect the cylinders and then put them back on using a crane;

vi) Removal and inspection of pumps from trucks to make sure they are functional; and

vii) Inspection of the machinery to check for cracks or faults in the chassis body.

(l) Once the manual aspect of the work is done, the trainees have to fill out paperwork after doing the inspections and lodge the work they’ve done using a ‘myprofiling’ app which includes submitting photographs of the tasks done;

(m) There is no direct feedback given by the trainers or supervisors once a task is completed;

(n) The trainees have been told that they will be servicing trucks once they get on site. This will include removing components, (ie if an ‘o ring’ is out of shape on a filter, they can replace it from a kit, lube up the new ‘o ring’ and put back on a truck) but the impression the trainee held was that they would be working as glorified Trades Assistants;

(o) Trainees are currently being asked to express site preferences for deployment following completion of the traineeship at black coal mine sites at Saraji, Peak Downs, Caval Ridge, Goonyella or Blackwater;

[94] Mr Scherf said that in this meeting, the trainee also advised him that on the date he had attempted to exercise right of entry on 20 November 2020, A1 crew had attended at the building where the discussions between the union and employees was to occur and had waited for the meeting to commence.

[95] In other discussions with maintenance trainees, and other employees of the Respondent at mine sites, Mr Scherf said that he has been advised that the Respondent intended to locate the maintenance trainees in the workshops and to coal handling preparation plants at the mine sites from January or April 2021.

[96] Mr Scherf stated that he understood that the maintenance trainees will be performing work under the supervision, instruction and direction of tradespeople and will all be assigned to existing crews at each of those locations. They will crib with them and work with them. Mr Scherf further stated that they will be people who, when he exercises right of entry in future, will be present at these locations. In cross-examination, Mr Scherf conceded that he could not know if “all” of the trainees will work.

Cross-examination

[97] In cross-examination, Mr Scherf said it was his understanding that “more than likely” each supervisor and employee once working on a substantive work site will be working under a trade-qualified supervisor. He said he has no reason to believe they wouldn’t be working under a trade-qualified supervisor. He knows this as every supervisor he has ever dealt with has been trade-qualified. He agreed that as to where they work, which site etc. he does not know where they might end up.

The Respondent’s evidence and submissions

[98] The Respondent submitted that the trainees are paid a salary to support the training, which makes them employees of the Respondent. Furthermore, the Respondent states that the trainees are engaged on a fulltime basis and at the training establishment for the purposes of learning various non-trades skills directed towards establishing an expertise in non-trades maintenance work, in order to make them ‘job ready’ candidates for potential employment in a range of mining industry locations and establishments within the diverse mining interests of the Respondent.

[99] The Respondent emphasised that the predominate purpose of their employment is to undertake training in a classroom and stimulated workshop environment, as opposed to performing any productive role at any workplace which is concerned with the performance of trades work. It submitted that they are more akin to students than workers in the traditional sense. The Respondent submitted that they are not engaged to work in any of the listed trades or callings in Rule 1A, nor are they engaged "in connection with" any fitter, turner, or any worker engaged in the engineering and kindred trades.

[100] It was submitted that the AMWU has not nominated a single trade in respect of whom the trainees might be connected but has instead sought to characterise the nature of some of the tasks which they may perform in the course of training, as being "connected to" some of the tasks which may be performed by an employee engaged in some of the callings listed in the AMWU Rules.

[101] The Respondent submitted that the relevant connection is not established by looking at the tasks engaged in by an employee and ascertaining whether they have a similarity or a complementarity with tasks performed by another hypothetical worker in another hypothetical place. Rather, it is necessary that the substantive nature and purpose of the engagement of the employee has a clear, tangible and functional connection with the actual work of workers engaged in a calling described in rule 1A, in order that that the two vocations can be said to be "in connection with" each other. The connection to be established must be one between the substantive role of the employee in question and the substantive role of another employee who can be shown to be engaged in an employee calling or vocation in respect of which the AMWU has coverage.

[102] The Respondent referred to the decision in AMWU v Resmed Limited [2014] FWCFB 3501, where the Full Bench said:

"the words "in or in connection with" are words of expansion. However, for the requisite connection to be established, the work of the employees in question must be referable or significant to the work of the second group of employees with whom there is said to be a connection. It is not sufficient that the work of the relevant employees makes it possible for an employer to conduct a business involving the performance of work by the second group of employees: Federated Miscellaneous Workers Union of Australia v Colonial Sugar Refining Co. Ltd."

[103] In AMWU v AGC Industries Pty LTD and another[2017] FWC 6787, the Respondent submitted that Commissioner Simpson determined that no relevant connection between two working groups could be found, similar to the matter currently before the Commission. The work of the two allegedly "connected" trade groups was compared and found to be sufficiently distant and disconnected so as not to attract the operation of rule 1A.

[104] The Respondent submitted that in this case, there are no actual employees identified by the AMWU, for the purpose of assessing whether there is a relevant and required connection between their work and the work of the trainees, as a consequence of which this application must fail. The Rule is concerned with real connections with real occupations, rather than hypothetical comparisons between work done by different vocational groups, totally divorced from any workplace context. The Respondent said that eligibility under rule 1A is not attracted by hypothetical examination of tasks performed by students in a training environment, entirely remote from any relevant tradesperson or trades work.

Witness Statement of Rebecca Penridge

[105] Ms Rebecca Penridge, Maintenance Manager for the Respondent, submitted two witness statements in this matter.

[106] Ms Penridge manages four direct reports, including:

• Two Pathways Superintendents who provide line leadership for the trainees employed at the Academy and their trainers/supervisors;

• One Pathways Superintendent who provides Asset Management and Governance for the Academy; and

• One Project Manager who is responsible for a capital project to upgrade the facility to be purpose-fit for the training and repair centre.

[107] Ms Penridge stated that the Academy is part of BHP’s $300m investment over five years in Operations Services’ National Training Program, and the program is designed to increase skills and diversity in Minerals Australia which covers, coal, iron ore, nickel and Olympic Dam.

[108] Ms Penridge noted that in the BHP maintenance workforce, the diversity and inclusion levels are well below the expectations of BHP. For example, less than 3% of the maintenance workforce is female. Through the program there is an effort to increase diversity levels in:

• female participation;

• ATSI participation;

• age profiles; and

• occupational backgrounds.

[109] Ms Penridge’s evidence was that their trainees at the Paget Academy comprise about 80% female participants and 20% ATSI participants among its numbers. Part of BHP’s diversity issues arose from traditional sources from which maintenance workers were recruited and then allocated work. Traditionally they engaged maintenance workers from:

• tradespersons;

• general labourers; and

• servicemen.

[110] Ms Penridge stated that the Academy aims to provide targeted training to enable the graduates of the courses to become employed in BHP Minerals Australia assets to exercise the skills they have acquired during their training, using different employment and training pathways than was the case in the past. The goal is the following:

• tradesperson – providing apprenticeships to learn relevant work focused on using trade skills; and

• maintenance associates (MAs) – providing courses for trainees which are focused on a broader range of skills than traditional service persons or general labourers.

[111] Ms Penridge stated that the trainees undertake a one year CBT program leading to a Cert II in Engineering in Production Technology (MEM20205 in QLD / MEM20105 + MEM20205 in WA). The apprentices undertake a 2-2.5 year CBT program leading to a Cert III in Mechanical Engineering.

[112] She said that they have partnered with two RTO’s (Central Queensland University and North Metro TAFE in Perth) to develop the Cert II course and Cert III. It is recognised by the training authorities in both Queensland and Western Australia.

[113] While it is CBT, Ms Penridge stated that the program is intended to be delivered over a full twelve months for the Cert II and 2 to 2.5 years for the Cert III. The training is conducted entirely at the Academy using:

• augmented reality training facilities;

• virtual reality training aids;

• class room activities; and

• workshop-type activities in a simulated workshop environment.

[114] The training in the simulated workshop involves training in both:

• mobile plant; and

• fixed plant, such as pumps, conveyors, screeners.

[115] Ms Penridge said that the facility at Paget, Mackay has been upgraded by Operations Services to include:

• more than six classrooms for the purpose of imparting theory to the students;

• an immersive cinema using purpose-built augmented reality to enhance students’ learning;

• more than six virtual reality rooms and headsets to immerse students in virtual training simulations, such as a simulated workshop and simulated tasks;

• a basic skills workshop to train students in the use of hand and power tools;

• a mobile workshop fitted out with full mobile equipment (ex-site) and mobile equipment broken down into components, for the purpose of simulating maintenance tasks; and

• The students would spend approximately half their time in classrooms or utilising virtual reality learning theory and the other half practising their skills in a simulated workshop environment.

[116] Ms Penridge stated that the trainees and apprentices are all on the same roster of four morning shifts (6am to 2:30pm), followed by four afternoon shifts (3pm to 11:30pm), followed by four rostered days off. This is done for the purposes of acclimatising the students to a form of shift work.

[117] Ms Penridge stated that each crew has a supervisor who is responsible for the safety leadership and the people leadership of the students on their crew. It is not a requirement that they hold trade qualifications.

[118] Each crew has two trainers who have been assessed by the Respondent’s RTO partners to be competent to train in the relevant qualifications. There are no tradespeople performing maintenance alongside the trainees and apprentices in the training facility. The trainees and apprentices undertake exactly the same first year of curriculum.

[119] Ms Penridge notes that the apprentices will remain at the training facility beyond the first year to complete their CBT. They will continue their learning in the classrooms, virtual reality rooms and simulated workshops.

[120] The evidence submitted by Ms Penridge said that the full design slate for the remainder of the apprentice program is expected to be finalised at the end of 2020. At the time of giving evidence, it is proposed that the students will remain at the training centre for the full duration of the program. However, it is possible that they may spend up to three cycles (roughly one month) in a repair centre to enhance their learning.

[121] The trainees and first year apprentices receive training in:

• basic hand tools and power tools;

• traditional serviceperson duties;

• rigging and dogging;

• crane operating;

• forklifts; and

• understanding mobile equipment (or fixed plant equipment).

[122] Ms Penridge said that the intention is to provide sufficient targeted training to qualify the trainees as “job-ready” to perform non-trade duties of the kind often performed by some tradespersons, in order to reduce the requirement of tradespersons to perform such below-trade duties. The type of duties which they will be expected to be able to perform, if the trainee completes the course and continues in employment with BHP, are duties such as:

• oil sampling;

• changing rollers on conveyors;

• doing belt alignment on conveyors; and

• inspections and servicing.

[123] Ms Penridge acknowledged that while at the Academy, the trainees are paid a salary to support their training, and are instructed by trade teachers. She stated that none of them have any tangible association with any tradesperson who is engaged and working as such in any trade or other vocation (other than teaching). Further, until they have graduated, the trainees do not leave the Academy to perform any kind of field work or work in an operating and productive workshop, and do not perform any mining-related activities.

[124] The evidence submitted by Ms Penridge stated that until the trainees graduate and are placed into a substantive employment position at any one of the Minerals Australia sites, there is no way of determining in advance the work environment in which they will be carrying out such future employment. Until they are appointed to such position, their entire employment is for the purposes of training, which is carried out in the Academy, an educational and training setting, and not at any site where tradespersons (or trades assistants or any kind of related calling) are working.

[125] Ms Penridge stated that on graduation the trainees will be offered the opportunity to move to one or more of the many different sites where vacancies exist in Minerals Australia, and potentially engaged to perform a wide range of non-trades duties, and in a wide range of potential working environments.

Further Witness Statement of Rebecca Penridge

[126] Ms Penridge submitted a further witness statement in these proceedings, in reply to the AMWU’s submissions. She stated that it is incorrect that the trainees are referred to as Maintenance Associates; they are referred to as trainees or students. They will not be Maintenance Associates unless and until they graduate and go to sites. She has not personally heard anybody at the Academy refer to them as Maintenance Associates, as that would not be a correct description.

[127] Ms Penridge said that the trainees are undertaking training. Some days they will go to the classrooms for either class/virtual reality training activities. Other days they will go to a workshop for their training activities. On some days they may do both. As part of that training, the Respondent wants them to be accustomed to the way work is usually organised at site, so they simulate the daily occurrences at site, for example pre-starts and PPE for the relevant training that day, before commencing their daily training. These activities are a planned part of their training to familiarise them with all activities which may encounter in a future workplace

[128] Ms Penridge denied that trainees are not provided with feedback. She said they receive the following feedback:-

• A daily debriefing session with their trainer/s as a group;

• A monthly one-on-one with their trainer/supervisor;

• A quarterly assessment in which they are provided feedback;

• In addition they use the UCQ training tool "myprofiling", and CQU uses that to verify they are meeting their unit requirements. CQU will advise us if there are any gaps, and which are then addressed.

[129] Ms Penridge denied that the trainees, once employed performing substantive work following the completion of their traineeship, would be considered to be “glorified” TA’s. She stated that $300 million is being spent (the cost of the FutureFit program), and it is not to have glorified TA’s. She stated that if they wanted glorified TA’s they would simply hire TA’s from existing sources.

[130] Ms Penridge said her response to what Mr Scherf says an unidentified person has told him, is that;

• The Academy had made arrangements for the permit holders to meet the apprentices on the afternoon shift as the Academy did not object to the union meeting with those employees;

• No arrangements, either time or place, had been made for meeting with trainees;

• The trainees' breaks commenced at 11.30 am. Meal breaks in the Academy are taken in the crib rooms. Trainees who were having their meals in the crib room proceeded to the crib room at that time. Mr Scherf gives evidence he did not arrive until 11.50am.

[131] Ms Penridge denied that trainees, when employed to perform substantive work following the completion of their traineeship, will be working under the supervision/instruction/direction of a tradesperson. They will be working in various crews reporting to a supervisor of that crew, in various rosters depending on the mine to which they might be appointed. Rosters may be four panel continuous rosters (ABCD) or two panel (AB/CD) day rosters.

[132] Ms Penridge stated that there is no requirement for any training or work by the trainees to be performed in a functioning mine or workshop. She said their simulated workshop, just like any TAFE, has lathes set up in it, on which units of training such as MEM07005 - Perform general machining, are performed at the Academy. It is not necessary or required for the trainees to attend at a functioning mine a workshop for that purpose

[133] Ms Penridge stated that all of the trainers, whether trades qualified or not, have either the Certificate IV, or an Enterprise Trainer Qualification. Each Trainer is also verified by their RTO, the University of Central Queensland, as competent in the units delivered. None of the students perform work to assist or complement the work of the trainers, whether they are trades qualified or not. All of the "work" which they perform is for the purposes of learning and practising skills and demonstrating, by the tangible results of their training, the level of skill that they have attained at a point in time. All of the trainers, whether trades qualified or not, work as qualified trainers, and the only work they perform is for the purposes of demonstrating and training the trainees in the correct way to perform various work functions, in the course of the training. None of the trainers are performing functional or productive trades work.

Cross-examination

[134] Ms Penridge agreed that there are two companies supplying labour; one for production, one for maintenance. The Respondent provides maintenance workers for BHP. The other company provides production workers for BHP.

[135] The Respondent’s employees perform work on fixed and mobile plant at BHP sites.

[136] The Respondent employees approximately 230 trainees and apprentices at the Academy. Approximately 80 are apprentices, and approximately 150 trainees. There are approximately 22 trainers at the Academy.

[137] At the mining sites the Respondent employs tradespeople and apprentices. The tradespeople include heavy mechanical fitters, mobile plant mechanics among other trades.

[138] Ms Penridge stated that the Respondent did not refuse right of entry for the permit holders for the apprentices employed at the Academy. She noted that no request had been made to hold discussions with the apprentices. In a surprising turn of events, Ms Penridge then stated that the Respondent has further considered its position and would not concede that the AMWU has a right to exercise right of entry to meet with apprentices at the Academy. She stated that if future requests are made, the Respondent will consider its position.

[139] Ms Penridge repeated that there was no request to meet with the apprentices. She stated that the AMWU was quite clear it wished to meet with the trainees. I noted during the hearing that this was a new position.

[140] Ms Penridge stated that the Respondent employs trainers who do not hold mechanical trades experience; not all of them are mechanical. She stated that it was only an ideal qualification not a requirement that they have mechanical trades experience. Ms Penridge was shown the job advertisements noting it the trade qualification was a requirement. It is Ms Penridge’s evidence that the Respondent appears to have done both things; advertised for the relevant trade, but withdrawn its requirement that it was a necessary qualification when the Respondent then hired trainers.

[141] She noted that about half of the trainers are qualified as heavy diesel fitters. Of the 22 trainers, approximately 10-12 would be heavy diesel fitters. Some would have light vehicle mechanical qualifications. Some would have fitting qualifications, and about four have electrical trade qualifications. The majority of the trainers have come from training organisations. Ms Penridge noted that if the trainers have come from training organisations, they tend to be lighter on industrial experience. Approximately 30% have come from a mining background.

[142] Ms Penridge conceded that when employees will be employed on a substantive site, the work performed by tradespeople and Maintenance Associates are designed to complement each other.

[143] Ms Penridge agreed that trainees are performing actual work. She agreed that they are not on a scholarship. She stated that they are paid to learn and achieve the competency in a relevant timeframe. She stated that their work is training.

[144] Ms Penridge agreed that the Maintenance Associates, when employed will perform approximately 60% of work performed at the relevant sites. Some of that work is currently being performed by tradespeople.

[145] Ms Penridge confirmed that trainees are being invited to indicate preferences as to where they would like to be deployed to when they become employed as Maintenance Associates.

[146] It was put to Ms Penridge that the trainees are performing high value work. She denied that they are. No widget is produced. They’ll pull items off machinery, and then put it back on. Pull it off, and put it back on. She stated that when and if the trainees become Maintenance Associates, they will be performing high value work.

Questions put by the Commission

[147] In answering questions from me, Ms Penridge stated that there was no objection to the AMWU representing apprentices who work on various sites, but the Respondent takes the position that the AMWU cannot represent apprentices and trainees at the Academy.

[148] There is an attrition rate of approximately 15% annualised. There will be a number of trainees who will not meet the required competency. Discussions are being held with those individuals. Approximately 20% - 30% of trainees will not be deployed. Approximately 70% of trainees are expected to be deployed to become Maintenance Associates, perform a production role or become drivers. Presently there are enough vacancies to deploy them to become Maintenance Associates, but if there are not enough vacancies, other roles might be offered to them.

[149] Ms Penridge agreed that long-term, less tradespeople will be required. One of the strongest reasons the program has been implemented is because of diversity and the desire to increase the number of female and Indigenous workers.

Closing submissions of the AMWU

[150] It was submitted that the Respondent had altered its position on apprentices at the Academy because it would have been an untenable position given apprentices and trainees at the Academy perform very similar work.

[151] The Commission was urged not to disregard where the trainees will eventually perform work once they graduate from the Academy. They will be working alongside tradespersons at that time.

[152] The Respondent’s material describes the work performed by the trainees as high value. It is of high value, whether items are produced or not.

[153] The AMWU said that the “second employee” is, for example, the heavy diesel fitters or mechanical fitters out on site. It was submitted that the entire purpose of employing trainees is for them to become Maintenance Associates. The nature of the training should be taken into account.

Closing submissions of the Respondent

[154] The Respondent submitted that as per Resmed, there is no requisite connection between the trainees in the Academy and the tradespeople working at various sites. It was submitted that there is no referable or significance of the work performed by the trainees to the employed tradespeople. It was suggested that the nearest the trainees come is that they are learning skills which will allow them to later work with tradespeople.

[155] It was submitted that the work that is being done today, not in the potential future is important. It was submitted that the application must fail because the AMWU cannot demonstrate that the work of “Trainee A” is not in any way connected with the way work is performed by “Tradesperson B”.

[156] The Commission was reminded that all of the trainees do all of their work and learning in the Academy. They do not go anywhere else. They continue to learn tasks by taking things off and putting things back on. They are not working in connection with any tradesperson outside of the Academy.

[157] It was submitted that simply being a Maintenance Associates in the future, subject to attrition, does not meet the requirement. The Commission was reminded that there may not be Maintenance Associate roles for all of the first cohort of graduates or any future years. The Respondent submitted that “one day”, or “maybe” is the highest the case for the AMWU can be put, and it does not meet the requirements.

[158] It was submitted that pursuant to the decision of the Full Federal Court in Federated Tobacco Workers Union of Australia v Amalgamated Metal Workers Union 7, one must discover the two employees and it needs to be clear what the requisite connection is between them. If an employee does become a Maintenance Associate, they would be very readily be able to be described to be working in connection with a tradesperson such as a heavy diesel fitter, subject to an examination of the relationship.

Consideration

[159] I wish to note how disappointed I am that while the AMWU brought the application to the Commission on the basis that the Respondent was refusing entry only to trainees at the Academy, by the time the Respondent’s witness gave evidence in cross-examination, it was clear that the Respondent had taken a firmer position than it had earlier taken with respect to apprentices at the Academy.

[160] For the first time, the Commission and the AMWU was informed that the Respondent had reconsidered its position with respect to apprentices at the Academy, and where it had earlier given permission for the permit holders to meet with apprentices, no such accommodation would be provided, pending this decision. I consider that it would have been appropriate for the Respondent’s position on this issue to have been identified to the Commission and to the AMWU prior to the giving of oral evidence in cross-examination, particularly noting that Ms Penridge’s witness statement was completed on 21 December 2020 and she gave evidence on 23 December 2020.

[161] To be clear, this decision determines only the eligibility of the AMWU to represent the industrial interest of the Respondent’s maintenance trainees employed at the Academy for the purpose of exercising right of entry pursuant to s.484 of the Act. It does not determine the eligibility relevant to apprentices employed at the Academy.

[162] The entire case made by the AMWU focuses on why the maintenance trainees are employed; it is expected, anticipated and commonly agreed that all things going well, once graduated, the trainees will continue to be employed by the Respondent, but will be a Maintenance Associate performing substantive work on the Respondent’s other sites. I accept the AMWU’s submission that the trainees at the Academy are valuable employees. They are simply not students receiving a wage.

[163] The installation of the Academy is an exercise in patience, cost and social/workplace rewiring that the Respondent is undertaking. On Ms Penridge’s evidence, the exercise will cost approximately $300 million (including at its other academy in Western Australia). Clearly, the Respondent is not undertaking such an expensive and intensive exercise so that it can train up approximately 230 trainees at the Academy in Mackay (and similar numbers in WA), and send those employees out into the world for other employers to recruit.

[164] Instead, the Respondent is hoping to train up the cohort of predominantly female and Indigenous workers and send them into their own operations after one year of intense training. The Respondent is investing in these people, hoping that when they move into their various operational and maintenance sites and perform productive work, they will be able to retain the demographic of worker they have been longing to attract and retain. I understand the other pathways undertaken by the Respondent to improve the diversity levels in its business has not been particularly successful.

[165] As with life, however, anything can happen which may result in a trainee employed in November 2020 not completing the traineeship, not graduating, or not accepting or being offered a role as a Maintenance Associate. Many things may arise in a trainee’s life to prevent a seamless conversion from trainee to Maintenance Associate. A trainee may not wish to locate to a regional area, may have family matters to deal with, may have a personal health issue to contend with, or may simply decide against pursuing a career as a Maintenance Associate with the Respondent.

[166] The matter before the Commission is whether, on 20 November 2020 the AMWU’s eligibility rules capture the trainees; not what might happen to the cohort of trainees upon graduation at some point in early or mid-2021. The trainees are, to draw an analogy, like caterpillars. They are caterpillars throughout their traineeship, and they are not declared a butterfly until such time as they become a Maintenance Associate. The Respondent may exercise its prerogative not to take on all of the graduated trainees to become Maintenance Associates. I accept the Respondent’s evidence that it will attempt to place suitable individuals into roles as Maintenance Associates, but where it is unable to do so, it will look for other suitable employment for them.

[167] Only on day one of an employee being employed as a Maintenance Associate is their metamorphosis from a caterpillar to a butterfly complete. Until that very day, they are not entitled to say that they are a butterfly (when they are a caterpillar). Similarly, recent law graduates are not entitled to say they are a solicitor until such time as they are admitted to a relevant court and hold a valid practising certificate. They simply cannot call themself a solicitor until these events occur. Likewise, an apprentice cannot declare to the world that they are a qualified tradesperson; they are not until such time as the apprenticeship is complete.

[168] It is not surprising that the AMWU wishes to speak with the trainees at the Academy given the uniqueness of the Academy and the intensive training the trainees undertake. The particular demographics of the employed trainees potentially puts them in a position where they are new to the industry, and they may have questions of the AMWU Industrial Officers that only they can answer, or don’t feel comfortable asking of their employer.

[169] On the evidence before the Commission, a large proportion of the trainees will graduate to become Maintenance Associates. At that point in time the Maintenance Associates are expected to be working on various sites, performing their work and complementing the work of the tradespeople they work alongside or near. The work that they will perform will be substantive work, important, and it is expected, on a long-term projection reduce the Respondent’s wages bill on account of employing more of the less-skilled Maintenance Associates and less of the more expensive tradespersons.

[170] The AMWU contends that pursuant to Resmed, there is said to be a connection between the tradespersons performing substantive work on BHP sites and the trainees employed at the Academy who will become Maintenance Associates. The AMWU says that is because the primary purpose of the Respondent employing the trainees is that they will become Maintenance Associates.

[171] As can be seen from some of the examples I have provided at [165], at least some of the trainees may not ever become a Maintenance Associate, mixing with and performing work with tradespersons at work and therefore being in connection with the tradespersons. That group of trainees, estimated at around 20%-30% of the employed trainees will never undertake the metamorphosis required.

[172] In evidence, the AMWU was unable to draw any link of any relationship of any sort between an employed diesel mechanic or fitter at a BHP mine site, for example, and that of a trainee at the Academy. There is no relationship between the two. The trainee would never have met the qualified tradesperson, and is not performing any work for the tradesperson. The tradesperson is not reliant on the trainee for anything. The trainee does not send any work to the various sites, nor does the trainee ever leave the Academy to perform work elsewhere.

[173] The AMWU’s submission, whilst earnestly given, does not go so far as to establish the connection between the trainee and the tradesperson. Respectfully, the examination is not that of the Maintenance Associate and the tradesperson; it is strictly that of the trainee and the tradesperson.

[174] I am not satisfied that the trade qualifications (where held) by some of the trainers assists the AMWU’s application. I accept the Respondent’s evidence that some of the trainers are trade-qualified and some are not. None of them are performing trade work; they are training the trainees and apprentices at the Academy.

[175] I am satisfied that the work of the trainees is not referable or significant to the work of fitters or workers engaged in the engineering and kindred trades at the various Respondent sites. I am satisfied that there is no relationship at all between the two groups of workers.

[176] As a note, it is very likely that upon the commencement of Maintenance Associates in the Respondent’s workforce, being former Academy trainees, it will require less tradespersons in the future. In the passing of time, the success or otherwise of the Academy to the Respondent and its employed graduates will be known. Its effect on the number of tradespersons employed by it will also become clear over time.

Conclusion

[177] For the reasons stated, the trainees employed by the Respondent at the Academy are not eligible to be members of the AMWU. It follows that the trainees are not persons whose industrial interests the AMWU is entitled to represent and that the Respondent was entitled to refuse Mr Lipscombe and Mr Scherf entry to the Academy for the purpose of holding discussions with the trainees.

[178] The dispute is determined accordingly and no orders are necessary.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 Re Aero-Care Flight Support Pty Ltd[2015] FWC 1783 at [14].

2 Appeal by "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) [2014] FWCFB 3501 at [34].

3 Construction, Forestry, Mining and Energy Union v CSBP Limited [2012] FCAFC 48.

4 Joyce v Christoffersen (1990) 26 FCR 261 at 279.

5 [2016] FWCFB 22 at [17].

6 Federated Tobacco Workers Union of Australia v Amalgamated Metal Workers Union and Anor (1988) 29 IR

263; Appeal by "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the

Australian Manufacturing Workers' Union (AMWU) [2014] FWCFB 3501 at [37].

7 Ibid

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Os Acpm Pty Ltd T/A BHP Operations Services

[2021] FWC 3605

22 JUNE 2021

DECISION