Bis Industries Limited v Construction, Forestry, Maritime, Mining and Energy Union
[2021] FCA 1374
FEDERAL COURT OF AUSTRALIA
Bis Industries Limited v Construction, Forestry, Maritime, Mining and Energy Union [2021] FCA 1374
File number: NSD 354 of 2020 Judgment of: WHITE J Date of judgment: 8 November 2021 Catchwords: INDUSTRIAL LAW – Applicant sought declarations that the Black Coal Industry Mining Award 2010 (the Black Coal Award) did not cover its Field Services Representatives (FSRs) – only the CFMMEU and three FSRs (the Specific Employees) named as respondents – application considered in relation to the Specific Employees – whether the Specific Employees within the definition of “coal mining employees” in the Black Coal Award – consideration of cl 4.8 of the Black Coal Award – whether the Manufacturing and Associated Industries and Occupations Award 2010 contains the “most appropriate” classification for the Specific Employees’ work – Applicant succeeds in part. Legislation: Fair Work Act 2009 (Cth) ss 48, 143
Workers’ Compensation Act 1987 (NSW) of s 7A(4)
Work Health and Safety (Mines and Petroleum Sites) Regulation 2014 (NSW) regs 135-137
Cases cited: ALDI Foods Pty Limited v Shop, Distributive & Allied Employees Association [2017] HCA 53; (2017) 262 CLR 593
Allgood v Kal Tire (Australia) Pty Ltd [2020] FWCFB 5816
Australian Colliery Staff Association and Queensland Coal Owners Association – No. 20 of 1980, 22 February 1982
Australian Workers’ Union v Cleanevent Australia Pty Ltd [2015] FCA 1477
Australian Workers’ Union v Coffey Information Pty Ltd [2013] FWCFB 2894; (2013) 232 IR 266
Canadian Pacific Tobacco Co Ltd v Stapleton [1952] HCA 32; (1952) 86 CLR 1
Carpenter v Corona Manufacturing Pty Ltd (2002) 122 IR 387
Central West Group Apprentices Ltd v Coal Mines Insurance Ltd [2008] NSWCA 348
Choppair Helicopters Pty Ltd v Bobridge [2018] FCA 325
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
Construction, Forestry, Maritime, Mining and Energy Union v Spotless Facility Services Pty Ltd [2020] FWCFB 1235
Dyno Nobel Asia Pacific Limited v Construction, Forestry, Mining and Energy Union [2005] AIRC 622
GJ Coles & Co Ltd v Retail Trade Industrial Tribunal (1986) 7 NSWLR 503 at 524
Groves v Kal Tire [2020] FWC 3689
Herscu v The Queen [1991] HCA 40; (1991) 173 CLR 276
Kuypers v Ashton Coal Operations Pty Ltd [2014] NSWSC 1276
R v Central Reference Board; Ex parte Thiess (Repairs) Pty Ltd [1948] HCA 9; (1948) 77 CLR 123
R v Coldham; Ex parte the Australian Workers’ Union [1983] HCA 35; (1983) 153 CLR 415
R v Drake‑Brockman; Ex parte National Oil Pty Ltd [1943] HCA 35; (1943) 68 CLR 51
R v Hibble; Ex parte Broken Hill Proprietary Company Limited [1921] HCA 15; (1921) 29 CLR 290
R v Hickman; Ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598
R v Moore, Ex parte Australian Workers’ Union (1976) 51 ALJR 266
R v Moore; Ex parte Federation of Miscellaneous Workers’ Union of Australia [1978] HCA 51; (1978) 140 CLR 470
Re Award Modernisation [2008] AIRCFB 717; (2008) 177 IR 8
Re Award Modernisation [2008] ARICFB 1000; (2008) 177 IR 364
Re CQ Industries Pty Ltd [2017] FWC 5667
Re Transfield Services (Australia) Pty Ltd [2014] FWC 5368
Spotless Facility Services Pty Ltd [2019] FWC 5890
Transport Workers’ Union of Australia v Coles Supermarkets Australia Pty Ltd [2014] FCAFC 148; (2014) 245 IR 449
Truck Moves Australia Pty Ltd v Simmonds [2015] FCA 1071
Division: Fair Work Division Registry: New South Wales National Practice Area: Employment and Industrial Relations Number of paragraphs: 319 Date of hearing: 14 and 15 December 2020 Counsel for the Applicant: Mr M Follett with Ms J Finn Solicitor for the Applicant: MinterEllison Counsel for the First Respondent: Mr S Crawshaw SC with Mr P Boncardo Solicitor for the First Respondent: Construction, Forestry, Maritime, Mining and Energy Union (Mining and Energy Division) Counsel for the Second, Third and Fourth Respondents: The Second, Third and Fourth Applicants appeared in person ORDERS
NSD 354 of 2020 BETWEEN: BIS INDUSTRIES LIMITED (ACN 125 202 253)
Applicant
AND: CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION
First Respondent
BEAU JON DAVIS
Second Respondent
RUSSELL LEIGH WEST (and another named in the Schedule)
Third Respondent
ORDER MADE BY:
WHITE J
DATE OF ORDER:
8 NOVEMBER 2021
THE COURT ORDERS THAT:
1.The parties confer with a view to agreeing upon the form of the orders to be made by the Court to give effect to the reasons published today and, in the event of agreement, submit the orders to the Court with a view to them being made in their absence.
2.In the absence of agreement on the form of the appropriate orders by 12 November 2021:
(a)the Applicant file and serve by 4 pm (AEDT) on 12 November 2021 the form of orders it proposes to give effect to the Court’s judgment today; and
(b)the Respondents file and serve by 4 pm (AEDT) on 16 November 2021 the form of orders they propose to give effect to the Court’s judgment today.
3.The matter be adjourned to 2.45pm (AEDT) on Thursday, 18 November 2021 for consideration of the orders to be made.
4.There be liberty to the parties to apply.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
WHITE J:
Introduction
[1]
The circumstances giving rise to the litigation
[13]
The evidence in the trial
[17]
The Black Coal Award
[20]
The FW Act and Award Coverage
[22]
The Coverage clause in the Black Coal Award
[30]
Award history
[40]
Court and tribunal decisions
[43]
The business of Bis
[83]
Mr Beau Davis
[97]
Mr Russell West
[112]
Mr Lindsay O’Neile
[115]
The FSRs – general
[120]
The Bis Position Description for FSRs
[128]
The Longwall
[137]
Continuous Miners and Shuttle Cars
[140]
The equipment maintained by the FSRs
[143]
Nature of the FSRs’ work
[147]
The locations at which the FSRs undertake work
[167]
The Bis Log Books
[172]
Competencies
[177]
Site inductions
[188]
Shift/rostering arrangements
[193]
Supervision of the FSRs
[197]
Compliance with the client’s rules, policies and procedures
[206]
Ongoing training
[209]
Tools and equipment
[213]
The application of the Black Coal Mining Award to the Specific Employees
[214]
Are the Specific Employees employed in the black coal mining industry?
[215]
Mr Davis and Mr West
[221]
Mr O’Neile
[233]
Do the Specific Employees carry out their duties at or about a place at which black coal is mined?
[238]
Are the duties of the Specific Employees directly connected with the day to day operation of a black coal mine?
[248]
Employment in a classification or class of work in Schedule A to the Black Coal Award
[266]
Conclusion on cl 4.1(b)(ii)
[276]
Are the Specific Employees within the cl 4.1(b)(i) definition?
[277]
The Bis alternative case: the Manufacturing Award is more appropriate
[283]
The Manufacturing Award
[287]
The parties’ submissions
[295]
Consideration
[302]
Conclusion
[316]
Introduction
This is a judgment on a dispute about award coverage.
Bis Industries Limited (Bis) provides services to clients in the mining industry. It does so in four distinct divisions, known as the Logistics Division, the Material Handling Division, the Consulting Division and the Underground Services Division. The Underground Services Division comprises the activities of four separate and distinct legal entities: Bis itself; UGM Mining Services Pty Ltd (UGM Mining); UGM Engineers Diesel Services Division Pty Ltd (UGM Diesel); and Jaxam Pty Ltd. Each of UGM Mining, UGM Diesel and Jaxam is a wholly owned subsidiary of Bis but this judgment concerns only employees of Bis itself, and none of the employees of the other three entities.
The Underground Services Division within Bis itself comprises six business units:
(a)Longwall Relocation Equipment;
(b)Run of Mine Casual Hire Fleet;
(c)Development and Production Equipment Hire;
(d)Underground Mining Services;
(e)Tyre Services; and
(f)Field Services.
In the Field Services Division, Bis employs employees with the titles “Underground Diesel Fitter”, “Field Services Technician”, “Field Services Electrician”, and “Field Services Representative”. These are employees with trade qualifications (mechanical or electrical) whose principal tasks are to service, maintain and repair equipment owned by the clients, equipment which has been hired by Bis to clients, and equipment owned by other contractors of the clients. Despite their different position titles, the position descriptions of these employees are the same, and Bis refers to them collectively as “Field Services Representatives” (FSRs).
Bis has workshops at Tomago in New South Wales and at Mackay in Queensland. Tomago is approximately 20 kms from Newcastle. There was also one reference in the evidence to Bis having a workshop at Narrabri in NSW but, as will be seen, that is the workshop at the Narrabri Underground Coal Mine to which Bis supplies the diesel fitters.
Mr O’Neile, the fourth respondent, is one of the FSRs. The second and third respondents (Mr Davis and Mr West) were, until their retrenchments on 14 July 2020 and 20 August 2020 respectively, also employed by Bis as a FSR. Each of Mr Davis, Mr West and Mr O’Neile (together “the Specific Employees”) has worked at black coal mines in New South Wales to which Bis has contracted to provide services.
The first respondent, the CFMMEU, has contended and continues to contend, that the Specific Employees are covered by the Black Coal Industry Mining Award 2010 (the Black Coal Award) and should be paid in accordance with its terms. Each of the Specific Employees supports that position.
Bis disputes that contention and, with a view to obtaining some certainty as to award coverage, seeks a declaration that the FSRs are not “coal mining employees” as defined in cl 4.1(b) of the Black Coal Award.
Bis advances a second position in the alternative. That is that it is bound by both the Black Coal Award and the Manufacturing and Associated Industries and Occupations Award 2010 (the Manufacturing Award); that Classification C10 in the Manufacturing Award is “most appropriate” to the work of the FSRs; and that the effect of cl 4.8 in the Black Coal Award is, accordingly, that it is the Classification C10 in the Manufacturing Award, and not the classification in the Black Coal Award which covers the employments of the FSRs. It seeks a declaration, in the alternative, to that effect.
The respondents also dispute that Bis is entitled to this alternative form of declaration.
The CFMMEU did not claim to represent the interests of all the FSRs in the proceeding, and acknowledged that it had instructions from the Specific Employees only. As the other FSRs were neither parties to the proceedings nor represented in them, any declarations which the Court might make would not bind them. They would declare the position only as between Bis, the CFMMEU and the Specific Employees. However, the declarations would be likely, in practice, to have that effect. There is accordingly scope for unfairness to the other FSRs if the Court purported to make determinations concerning their employment without them being heard. That, together with an absence of evidence as to how representative the Specific Employees are of all FSRs, is a strong discretionary reason for not granting relief in the wide terms sought by Bis. I have accordingly considered it appropriate to focus on the circumstances of the Specific Employees. If Bis is entitled to declaratory relief, it should be in respect of those employees only. This does not preclude regard being had to the position of FSRs generally insofar as it assists in the determination of the issues concerning the Specific Employees.
I have concluded that the Specific Employees are coal mining employees for the purpose of the Black Coal Award but that Classification C10 in the Manufacturing Award is “most appropriate” to their work, with the consequence that that Classification applies to their employment to the exclusion of the Black Coal Award. My reasons follow.
The circumstances giving rise to the litigation
The circumstances giving rise the present litigation commenced on 14 June 2019 when the CFMMEU informed Bis that it considered that the Black Coal Award applied to the employment of Mr West, one of the FSRs. Bis resisted that claim.
In July 2019, the CFMMEU applied to the Fair Work Commission (the FWC) for it to deal with a dispute in accordance with the dispute settlement procedure contained in the Black Coal Award concerning the application of the Award to the employment of three employees, being the Specific Employees. Resolution of the dispute was not achieved by conciliation and, on 15 August 2019, Bis declined to consent to the dispute being arbitrated by the FWC. Subsequently, on 19 August 2019, the CFMMEU discontinued its application in the FWC and, at or about the same time, foreshadowed enforcement action in respect of the breaches of the Black Coal Award it alleged in respect of the Specific Employees.
During 2020, the CFMMEU continued to assert the application of the Black Coal Award to the FSRs based in New South Wales, including by asserting entitlements to exercise rights of entry pursuant to Pt 3‑4 of the FW Act. Bis continued to deny that the Black Coal Award was applicable. Ultimately, on 26 March 2020, Bis commenced the present proceeding seeking the declaratory relief identified at the commencement of these reasons.
Initially, the CFMMEU was the sole respondent to the proceedings. However, shortly before the trial, and on the application of Bis, the Specific Employees were joined as respondents to the proceedings. The Specific Employees did not have representation in the trial. Instead they adopted the submissions of the CFMMEU. It had filed affidavits of the Specific Employees in the preparation of its own case.
The evidence in the trial
Bis led evidence from five witnesses: Ms Kathryn Winter, its Employee Relations Manager originally based in Perth but now in Brisbane; Mr Adrian Buttigieg, the Operations Manager of its Field Services Division for New South Wales and Queensland, who is based at Tomago; Mr Mark Doyle, the General Manager of the Underground Coal Services Division, who is also based at Tomago; and Ms Jennifer Flinn, a solicitor with MinterEllison who is based in Perth.
The CFMMEU led evidence from Mr Davis, Mr West, Mr O’Neile and from Mr Adam Walkaden, its Senior National Legal Officer.
The evidence in chief of all witnesses was given by affidavit. Ms Flinn and Mr Walkaden were not required to attend for cross‑examination. Although there were some differences in the evidence, I thought that, generally, each witness gave evidence honestly and was endeavouring to assist the Court. I will refer to some of the differences in the course of these reasons.
The Black Coal Award
The Black Coal Award is a modern Award made by the Fair Work Commission (the FWC) under Pt 2‑3 of the Fair Work Act 2009 (Cth) (the FW Act). It commenced on 1 January 2010. The coverage clause, cl 4 provides (relevantly):
4.1 This award covers:
(a) employers of coal mining employees as defined in clause 4.1(b); and
(b) coal mining employees.
Coal mining employees are:
(i)employees who are employed in the black coal mining industry by an employer engaged in the black coal mining industry, whose duties are directly connected with the day to day operation of a black coal mine and who are employed in a classification or class of work in Schedule A—Production and Engineering Employees or Schedule B—Staff Employees of this award;
(ii)employees who are employed in the black coal mining industry, whose duties are carried out at or about a place where black coal is mined and are directly connected with the day to day operation of a black coal mine and who are employed in a classification or class of work in Schedule A—Production and Engineering Employees or Schedule B—Staff Employees of this award; and
(iii)employees employed by a mines rescue service.
4.2For the purposes of this award, black coal mining industry has the meaning applied by the courts and industrial tribunals, including the Coal Industry Tribunal. Subject to the foregoing, the black coal mining industry includes:
(a)the extraction or mining of black coal on a coal mining lease by means of underground or surface mining methods;
(b)the processing of black coal at a coal handling or coal processing plant on or adjacent to a coal mining lease;
(c)the transportation of black coal on a coal mining lease; and
(d)other work on a coal mining lease directly connected with the extraction, mining and processing of black coal.
4.3 The black coal mining industry does not include:
(a)the mining of brown coal in conjunction with the operation of a power station;
(b)the work of employees employed in head offices or corporate administration offices (but excluding work in town offices associated with the day-to-day operation of a local mine or mines) of employers engaged in the black coal mining industry;
(c)the operation of a coal export terminal;
(d)construction work on or adjacent to a coal mine site;
(e)catering and other domestic services;
(f)haulage of coal off a coal mining lease (unless such haulage is to a wash plant or char plant in the vicinity of the mine); or
(g)the supply of shotfiring or other explosive services by an employer not otherwise engaged in the black coal mining industry.
NOTE: The coverage clause is intended to reflect the status quo which existed under key pre-modern awards in relation to the kinds of employers and employees to whom those awards applied and the extent to which the awards applied to such employers and employees.
An example of the types of issues and some of the case law to be considered when addressing coverage matters can be found in Australian Collieries Staff Association and Queensland Coal Owners Association – No. 20 of 1980, 22 February 1982 … and in the Court decisions cited in this decision.
…
4.8Subject to clauses 4.1 and 4.2, where an employer is covered by more than one award, an employee of that employer is covered by the award classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work.
NOTE: Where there is no classification for a particular employee in this award it is possible that the employer and that employee are covered by an award with occupational coverage.
I will set out relevant portions of the Manufacturing Award later in these reasons.
The FW Act and Award Coverage
Section 48(1) of the FW Act provides that “a modern award covers an employee, employer, organisation or outworker entity if the award is expressed to cover the employee, employer, organisation or outworker entity” (emphasis in the original).
Section 48(5) provides:
Modern awards cover employees in relation to particular employment
(5)A reference to a modern award covering an employee is a reference to the award covering the employee in relation to particular employment.
It can be taken that the term “particular employment” in s 48(5) is a reference to the employee’s job rather than to the actual performance by the employee of the tasks involved in that job: ALDI Foods Pty Limited v Shop, Distributive & Allied Employees Association [2017] HCA 53; (2017) 262 CLR 593 at [75].
Section 143 of the FW Act supplements these provisions by providing:
(1)A modern award must include terms (coverage terms) setting out the employers, employees, organisations and outworker entities that are covered by the award, in accordance with this section.
Employers and employees
(2) A modern award must be expressed to cover:
(a) specified employers; and
(b) specified employees of employers covered by the modern award.
…
How coverage is expressed
(5) For the purposes of subsections (2) to (4):
(a)employers may be specified by name or by inclusion in a specified class or specified classes; and
(b)employees must be specified by inclusion in a specified class or specified classes; and
…
(6)Without limiting the way in which a class may be described for the purposes of subsection (5), the class may be described by reference to a particular industry or part of an industry, or particular kinds of work.
…
The effect of s 48(1) and s 143(5) is that, in order for the FSRs to be covered by the Black Coal Award, they must be within the class of employees whom the Black Coal Award is expressed to cover.
The effect of cl 4.8 in the Black Coal Award (there is no counterpart in the Manufacturing Award) is that if an employer is covered by more than one award, an employee of that employer is covered by the award classification which is “most appropriate” to the work performed by the employee and to the environment in which the employee normally performs the work.
The determination of whether particular employment is covered by a modern Award requires the Court first to construe the coverage clause in the award. This requires the ascertainment of the objective meaning of the words used in the clause taking into account the context in which they appear and the purpose which they are intended to serve: Transport Workers’ Union of Australia v Coles Supermarkets Australia Pty Ltd [2014] FCAFC 148; (2014) 245 IR 449 at [22]. Account must also be taken of the industrial context and background of which the FWC objectively may be taken to have been aware: Truck Moves Australia Pty Ltd v Simmonds [2015] FCA 1071 at [48]. The industrial context is particularly important in the case of the Black Coal Award given the statement in cl 4.2 that the term “black coal mining industry” has the meaning applied by courts and industrial tribunals and the note to cl 4.3 that the coverage clause is intended to reflect the status quo which existed under key pre‑modern awards in relation to the kinds of employers and employees to whom those awards applied.
There is then the factual question of whether, on the award properly construed, the employment is within the scope of the coverage clause.
The Coverage clause in the Black Coal Award
Clause 4.1(a) identifies the employers covered by the Black Coal Award by reference to the definition of “coal mining employees” in cl 4.1(b). That is to say, Bis is covered by the Black Coal Award in respect of its employment of “coal mining employees”. It is accordingly unnecessary to stay with cl 4.1(a).
Clause 4.1(b) states that the Award covers “coal mining employees”. It goes on to give a definition of that term, consisting of three subparagraphs. Despite the use of the conjunctive “and” after subcl (b)(ii), it is plain that the three subparagraphs are alternatives. The third alternative (“employees employed by a mines rescue service”) is not relevant for present purposes and need not be considered further.
There is a considerable degree of overlap between subcll (b)(i) and (ii). This can be seen by setting out the two subclauses side by side:
Clause 4.1(b)(i) Clause 4.1(b)(ii) · employees · employees · who are employed in the black coal mining industry · who are employed in the black coal mining industry · by an employer engaged in the black coal mining industry · N/A · N/A · whose duties are carried out at or about a place where black coal is mined, and · whose duties are directly connected with the day to day operation of a black coal mine · whose duties are directly connected with the day to day operation of a black coal mine · who are employed in a classification or class of work in Schedule A – Production and Engineering Employees or Schedule B – Staff Employees of this Award. · who are employed in a classification or class of work in Schedule A – Production and Engineering Employees or Schedule B – Staff Employees of this Award.
Thus, in each case, the employees must be employed in the “black coal mining industry”, their duties must be “directly connected” with the day to day operation of a black coal mine, and they must be employed in a classification or class or work to which Schedule A or Schedule B refer.
In order to come within cl 4.1(b)(i), the employee must also be employed by an employer who is itself engaged in the black coal mining industry. Clause 4.1(b)(ii) has the effect that, even if not employed by such an employer, the employee will be a coal mining employee for the purposes of the definition if his or her duties are carried out at or about a place at which black coal is mined.
Put more shortly, employees may be employed “in the black coal mining industry” even if their employer is not engaged in that industry. Provided that the other elements in cl 4.1(b)(ii) are satisfied (including that the employees be employed “in” the black coal mining industry), the Black Coal Award will cover their employment if their duties are carried out at or about a black coal mine.
Clauses 4.2 and 4.3 are intended to provide some explication of the term “black coal mining industry”. However, cl 4.2 commences, not altogether helpfully, by stating that the term has the meaning applied by the courts and industrial tribunals, including the Coal Industry Tribunal. This tends to imply that a single meaning of the term has been recognised in the decisions of courts and tribunals but, as will be seen, that is not the case.
Clause 4.2 extends the concept of the black coal mining industry beyond the extraction or mining of black coal so as to include the processing of black coal at a coal handling or coal processing plant on or adjacent to a coal mining lease; to the transportation of black coal on a coal mining lease; and to other work on a coal mining lease directly connected with the extraction, mining and processing of black coal. The term “coal mining lease” can be taken to be a reference to the tenement on which coal mining is undertaken.
The elaboration of the meaning of the term “black coal mining industry” in cl 4.2 so as to encompass the four activities specified is expressed to be “subject to the foregoing”, which indicates that the inclusions of the specified activities is qualified by any contrary view in the decisions of courts and tribunals. That understanding is confirmed by the statement in the Note in cl 4.3, that the coverage clause is intended to reflect the pre‑modern award status quo.
The first sentence in cl 4.2 makes it necessary to have regard to the history of the Black Coal Award and to the consideration of the term “black coal mining industry” before 2010 in decisions of the courts and industrial tribunals. The Note in cl 4.3 requires attention to the pre‑modern award status quo. To a considerable extent, these two matters overlap.
Award history
When the Black Coal Award was first made, the Full Bench of the Australian Industrial Relations Commission (the AIRC) said that it would not include the first sentence of the present cl 4.2: Re Award Modernisation [2008] AIRCFB 717; (2008) 177 IR 8 at [36]‑[39]. The Full Bench said that it had decided not to include this clause:
[B]ecause, from a legal perspective, it adds nothing and is apt to confuse or intimidate lay readers of the award. Our draft is based on the assumption that the Commission, its successor body or any Court will give the expression “black coal mining industry” the meaning applied by courts and industrial tribunals, including the former Coal Industry Tribunal, subject to any express inclusions or exclusions in the application clause of the Coal Mining Award.
However, in a later decision, the Full Bench revised that position and said that it would include the clause in the terms proposed by the CFMMEU (then known as the CFMEU) and the Coal Mining Industry Employer Group (CMIEG): Re Award Modernisation [2008] ARICFB 1000; (2008) 177 IR 364 at [156]‑[157].
[156]… We note that the stated goal of the CFMEU and the CMIEG was to achieve a coverage clause that as closely as possible reflects the status quo in terms of the existing application of the key federal pre-reform awards both in relation to the kinds of employers to whom those awards apply and the extent to which the awards apply to such employers. We agree with that goal and intend that the award we have made should neither expand nor contract the reach of the key pre-reform awards both in relation to the kinds of employers to whom those awards apply and the extent to which the awards apply to such employers. It follows that we reject submissions that sought to have mechanical and electrical contractors invariably covered by awards other than the modern award for the black coal mining industry.
[157]However, we are concerned that the clause as drafted is not simple to understand nor easy to apply. In particular, contractors who perform some work at or about coal mines may have difficulty in determining whether the award covers them. We acknowledge that significant attempts were made by the parties to agree on a form of words that described the industry in a clear and direct way. We intend to vary cl.4 before the award commences so that it contains a clearer description of the black coal mining industry albeit a description that reflects as closely as possible the status quo. We recognise that the difficulties in developing such a description are substantial and that this should not be done without further consultation with interested parties.
(Emphasis added)
It seems that the present wording of cl 4.2 reflects the attempt by the Full Bench to provide “a clearer description” of the black coal mining industry.
Court and tribunal decisions
Before 2008, a number of authorities had considered the term “black coal mining industry” or a cognate and may be taken to be the decisions to which the chapeau to cl 4.2 and the Note to cl 4.3 refer. In addition to the assistance to be derived from their consideration of particular factual situations, these authorities also indicate different approaches to the resolution of the issue.
In R v Drake‑Brockman; Ex parte National Oil Pty Ltd [1943] HCA 35; (1943) 68 CLR 51, the question was whether employees engaged in the extraction of crude oil from shale, and the subsequent processes to obtain petrol, were within the “shale mining industry” so as to come within the definition of “coal mining industry” for the purposes of a wartime regulation. It was held by majority (Latham CJ, Rich and Williams JJ) that they were not. That was so even though the extraction process was conducted at the place at which the shale was mined.
Latham CJ said at 56:
In my opinion the coal-mining industry is the industry which produces coal as the consequence of mining operations. Coal-mining operations include, not only the actual excavation of the coal from the seam, but also the removal of it from the pit to the surface and placing it upon the surface in a disposable form. All those operations would, according to the ordinary use of language, properly be included within coal‑mining operations and would be conducted as part of the coal-mining industry. The subsequent treatment of coal, however, by turning it into gas or into petrol or into dyes or other products, would not, in my opinion, be part of the coal-mining industry. The result of such processes would not be coal, but something else.
Later, at 57, Latham CJ said that “the fact that two industries are carried on at the same place does not abolish the distinction between them. If a single company mined coal and then used the coal to manufacture gas in works alongside the mine, it would nevertheless still be the case that two industries were carried on by that company, one the mining of coal and the other the manufacture of gas”.
Rich J, at 58, regarded the crude oil extraction process as “separate, distinct and independent from the operation which constitutes mining”. Likewise, Williams J, at 65, said that “the industry of coal mining would not include the manufacture of coal into other substances such as the manufacture of coal into gas”.
Starke J in dissent said, at 59, that “expressions such as the … “coal‑mining industry” … are not technical expressions, but popular general descriptions without any definite or clear boundary lines. The character of the operations, their connected processes and usage must, in the end, determine the industrial classifications under which the operation should be placed”.
In R v Hickman; Ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598, the issue was whether a haulage company and its employees transporting coal from a coal mine to a railway siding were engaged “in the coal mining industry” for the purposes of the same wartime regulation. It was held that they were not.
Latham CJ said at 608:
The fact that a person is engaged in carrying coal does not show that he is engaged in the coal mining industry. A coal merchant or carrier may deal in or with coal without it being possible to suggest that he was engaged in the industry of mining coal. It may be added that a man employed by a colliery owner to drive a lorry for the purposes of the colliery could be engaged in the coal mining industry though he never carried any coal. These examples are sufficient to show that the mere fact of coal‑carrying is not in itself decisive of the question whether the carrier is engaged in the coal mining industry.
Dixon J noted, at 614, that the term “coal mining industry” was a “very indefinite expression”, but later, at 618, characterised the term “in the coal mining industry” as one of limitation. His Honour also considered it likely that there would be a common understanding of the meaning of the term “coal mining industry” but noted that the Court had not been referred to documents containing such an understanding.
In R v Central Reference Board; Ex parte Thiess (Repairs) Pty Ltd [1948] HCA 9; (1948) 77 CLR 123 (Thiess Repairs), the issue was whether the Central Reference Board, established for the prevention or settlement of industrial disputes in “the coal mining industry”, had jurisdiction to hear a complaint about the dismissal from employment of a fitter in an engineering workshop located adjacent to a coal mine. Major repairs on the machinery used in the coal mine were carried out in the workshop and that work formed the greater part of its work. The coal mine and the workshop were conducted by different entities but both companies were under the control of one person, the coal mine’s governing director. Minor repairs on the coal mine machinery were undertaken at its own on‑site workshop. Both the workshop and the coal mine’s on‑site workshop were under the supervision of a supervising engineer (not an employee of either company, the payment for whose services was allocated between the two companies).
Latham CJ, who with Rich and Starke JJ formed the majority, held that the dismissed fitter was not working in the coal mining industry. His Honour said at 130‑1:
“Coal mining industry “ is not a technical term … It is a question of fact depending upon all the circumstances of the case whether a particular employer or employee is engaged in the coal-mining industry, with the result that an industrial question arising between the employer and the employee or an organization consisting of employees is a dispute or other matter in that industry. The line between industries is in many cases not clear. One industry may be entirely concerned with the service of another industry, and yet may not be part of that other industry. A laundry company may do work for hotels and restaurants but, to take a case at one end of the line, if the laundry business were conducted by a laundry company completely separate from any of the hotels and restaurants for which it did work (as for other customers) upon ordinary commercial terms, it would not be possible to say that the laundry was part of the hotel industry. A case at the other end of the line would be found where a hotel employed some laundresses on the hotel premises who did work exclusively for the hotel and were completely under the control of their employer. In such a case the laundresses might well be held to be working in the hotel industry.
(Emphasis added)
Later, at 133, Latham CJ said:
Plainly the workshops are connected with the coal-mining industry in so far as they execute repairs to machinery used in that industry, and plainly the execution of such repairs by the company or some other engineering service is essential to the maintenance of the opencut workings. But a full admission of the truth of these propositions does not show that the prosecutor company itself is engaged in the coal‑mining industry.
Later, at 134-5, his Honour said:
[T]he fact that enterprise A is “closely associated” with enterprise B does not in itself establish either that enterprise A is engaged in the same industry as B or that enterprise B is engaged in the same industry as A.
Many industries supply goods to or provide services for other industries. A motor garage may be almost exclusively engaged in repairing trucks for a transport company, and it may do such work under a contract under which it is entitled to obtain and bound to do all the transport company's work. But it would not follow that the motor garage was in the transport industry. Similarly, an engineering workshop which does all the repairs for a coal mine and a gold mine and a shipping company would not, according to the ordinary use of language, be said to be engaged in the coal-mining industry, the gold-mining industry and the shipping industry. There would be as much reason for saying that it was engaged in any one of them as for saying that it was engaged in any other of them. There are obvious difficulties in saying that it is at one and the same time in each of these industries and in the engineering industry as well. Thus the fact that an enterprise provides a service for a particular industry cannot be held to identify that enterprise with that industry so as to make it a part of the industry.
(Emphasis added)
Latham CJ concluded that the issues were to be resolved by consideration of the “substantial character” of the industry in which the employer and employee were involved, at 135:
In my opinion the question to be asked is – What is the substantial character of the industrial enterprise in which the employer and employee are concerned? … [T]he more important fact is that [the workshop’s] operations are separate from and different in kind from the operations carried on at the open cut. It supplies certain needs of the coal-mining industry in the same way as do many other industrial enterprises. But these facts do not show that all such suppliers of goods or services to that industry are themselves engaged in that industry.
(Emphasis added)
Dixon J, who with McTiernan J was in dissent, considered that the question was to be resolved by considering the separateness or degree of connection of the two enterprises. His Honour said at 140‑1:
The function or activity with which we are concerned is the major repair and overhaul of the earth-moving and excavating equipment used in removing the over-burden and in winning the coal from the open cut. As a matter of reason, it seems to me that such repairs and overhauls may be carried out as an integral part of the operations of open‑cut mining so as to form an indivisible element in the undertaking or may be relegated to separate and independent engineering operations outside the undertaking. In the one case I should have thought that they might quite well be considered part of the industry. In the other case I do not think they ought to be so considered. The difference must depend upon circumstances, the chief of which must be separateness of establishments in point of control, organization, place, interest, personnel and equipment. It must in the end come down to a matter of degree …
In the present case the prosecutor has not satisfied me that the major repair and overhaul of the machines is conducted otherwise than as an integral part of the mining undertaking, because of the following factors. The operations, although carried on by a distinct company, are under one control and management with the mining operations. The distinct company is a subsidiary. The works are situated close to the open cut, about three-quarters of a mile away, and the site was obviously chosen for that reason. The site is variously described as "upon" the open cut, as adjacent to but outside the area of the open cut and as upon the mine-owner's land but outside the fence. Although some other work has been done, the repair and overhaul of the mining machinery was the purpose of setting up the engineering shop and substantially, it has no other present purpose. It was set up because of the inconvenience, and I would assume cost, of having the work done by outside engineering establishments. Another workshop for minor repairs and adjustments is in the open cut. Though that belongs to the mining or excavating company there is an interchange of tools and spare parts. The major repair and overhaul of the machines doing the mining is of course essential to the mining operation and to do it as part of the same undertaking may be considered to give all the advantages of expedition, co-ordination and reduction of cost that are supposed to arise from unity of control and proximity. The fact that the operations of mining and of major mechanical repair are divided between distinct legal entities ought not, where the question is whether they form a main and an incidental part of the same undertaking, to weigh against the facts that they are under one control and management and conducted in the same interest.
(Emphasis added)
As is apparent, the particular features which led Dixon J to conclude that the workshop was an integral part of the mining operation included that it was under the same control and management as the mining company (it was a subsidiary), its close proximity to the mine, the workshop had no other current purpose than the repair and overhaul of mining machinery, there was an interchange of tools and parts with the mine’s own workshop in which it undertook minor repairs, and the repair and maintenance of the equipment was essential to the mining operation.
The “substantial character” test adopted by Latham CJ in Thiess Repairs was applied by Barwick CJ, in the judgment of the High Court, in R v Moore, Ex parte Australian Workers’ Union (1976) 51 ALJR 266 at 268‑9 (Poon Bros Case). The Court held that employers providing catering and cleaning services to mine workers at Newman in the Pilbara (which had been established for the purpose of accommodating those workers) were not themselves engaged in metalliferous mining so as to be within a union coverage clause framed with reference to the industries or callings in which the employees were engaged. In accordance with R v Hibble; Ex parte Broken Hill Proprietary Company Limited [1921] HCA 15; (1921) 29 CLR 290 at 297, this required consideration of the industry in which the employer was engaged. Barwick CJ said in the Poon Bros Case that:
The business of the respondent companies was quite distinct and separate from that of the mining companies engaged in metalliferous mining. True it is that the respondent companies served the mining companies and provided them with commodities and services the provision of which was desirable if not indeed necessary for the maintenance of the workforce to carry on the mining operations. But that does not mean that in contracting to provide and in providing these commodities and services the respondent companies entered into the business of the mining companies so as themselves to be carrying on metalliferous mining; nor were their employees employed in connection with that industry. Their businesses remained distinct. Those serving the mining industry, the respondent companies did not carry on metalliferous mining or a business or industry in connection with metalliferous mining. Although employees of the mining companies who provided food or services of the kind furnished by the respondent companies, might have been held to be working in the industry of metalliferous mining, such work done by an independent contractor has a different nature or quality. It cannot be said to be done as an integral part of the metalliferous mining operation. Sir Owen Dixon in [Thiess Repairs] thought that the separateness of the establishments in point of control, organization, place, interest, personnel and equipment might furnish a relevant discrimen in deciding the question of fact. Sir John Latham in the same case, at p 135, thought that the substantial character of the industrial enterprise in which the employer and employee were concerned was decisive of the question whether the employee was engaged in an industry of given description. Here the substantial character of the industrial enterprise in which the respondent companies are engaged is that of catering and of providing cleaning, etc. services. That they should at a particular place perform such work exclusively for mining companies and under contract with them does not require or permit the conclusion that in doing so the respondent companies carry on an activity in or in connexion with metalliferous mining or that their employees are employed in or in connexion with such an industry.
(Emphasis added)
In R v Moore; Ex parte Federation of Miscellaneous Workers’ Union of Australia [1978] HCA 51; (1978) 140 CLR 470 (The Uranium Mines Case), Jacobs J at 477, summarised the result in the Poon Bros Case succinctly by saying:
Catering and cleaning services were far removed from any concept of metalliferous mining which was the relevant industry in that case.
The employees were instead engaged in the industry of the provision of the catering and cleaning services.
The substantial character test was also applied in The Uranium Mines Case in which it was held that the industry of “metalliferous mining” for the purpose of the eligibility clause in the Australian Workers’ Union encompassed the construction of a mine, a treatment plant and associated facilities before the actual mining commenced. Likewise, in R v Coldham; Ex parte the Australian Workers’ Union [1983] HCA 35; (1983) 153 CLR 415, it was held that workers engaged in the construction of workshops and other buildings, a power plant, a conveyer belt, refinery tanks, roads and bridges at a bauxite mine were engaged in the industry of metalliferous mining.
Circumstances slightly more like the present were considered by the Court of Appeal in New South Wales in Central West Group Apprentices Ltd v Coal Mines Insurance Ltd [2008] NSWCA 348 (Central West). The issue was whether an entity (CWGA) providing workers and apprentices to workplaces was, in respect of its provision of employees to coal mines, an “employer in the coal industry” for the purposes of s 7A(4) of the Workers’ Compensation Act 1987 (NSW). If so, the insurer (CMI) was obliged to indemnify CWGA and another insurer with respect to the compensation payments made to a worker injured whilst working in a mine. Allsop P, with whom Giles J and Bell JA agreed, referred to the substantial character test and attached significance to the preposition “in” in the phrase “employer in the coal industry”, at [46]. His Honour held that to be “in” the coal industry, there needed to be a “substantive connection” between the entity and the coal industry, at [50]. Merely being the employer of a person who works in and about a mine was insufficient. The appeal seems to have been argued on the basis that the application of that approach meant that CWGA was not an employer in the coal industry.
In Kuypers v Ashton Coal Operations Pty Ltd [2014] NSWSC 1276, Hoeben CJ at CL considered the application of s 7A(4) of the Workers’ Compensation Act (NSW) in relation to a drilling contractor providing drilling services generally, and not just to the coal industry. His Honour held that it was not an employer in the coal industry.
In Australian Colliery Staff Association and Queensland Coal Owners Association – No. 20 of 1980, 22 February 1982 (Colliery Staff Case) (which is referred to in the Note to cl 4.3 in the Black Coal Award), the question was whether the office employees of seven different coal mining companies were employed in the coal mining industry so that the Coal Industry Tribunal had jurisdiction to deal with a log of claims. In nearly all cases, the employees worked in offices away from the mines or were based in such offices. The case involved a detailed examination of the manner in which the employees worked in the performance of their services for the seven different collieries.
Commissioner Cross determined the dispute by examining the factors mentioned by Dixon J in Thiess Repairs, namely, the separateness of the establishments in point of control, organisation, place, interest, personnel and equipment, while noting that it could come down to the degree of connection. He regarded the separation of the employer’s offices from the mining operation as a relevant factor; said that the presence of employees on a mine site was a relevant factor, but not a “final determinant”; said that the mere fact that the employer’s enterprise was characterised as being in the coal mining industry did not mean that everything done by the employer to further that enterprise was within that industry; and said that, to be in the coal mining industry, the relationship between the employer and employee had to have some connection with the activity of coal mining, whether it be industrial (i.e, usage); physical (i.e, place); concerned with production; preparatory (i.e, the sinking of a shaft); or ancillary (i.e, keeping of records, stores or effecting pays).
The Commissioner then found that, in the case of only one of the seven employers, was the relationship between the office workers and the employer “in the coal mining industry”. The features which led the Commissioner to conclude in the single case that such a relationship existed were that the employer, Dampier Mining Co Ltd (Dampier) was engaged in the mining and marketing of coal; it was a respondent to coal mining awards; the employees in question were based in Emerald, some 61 kms from one of Dampier’s mines (at Gregory); the General Superintendent in control of the mining operations was also responsible for the Emerald office; the wages for the mine were paid (by cheque) from the Emerald office; Emerald, while not itself a mining town, was one of two residential areas for the Gregory employees; there was a degree of transfer of personnel between the mine and the Emerald office; there was a close connection between the office and the mines, in particular because a considerable proportion of the work performed at the office was “traditional colliery work”; and of the 14 employees in the Emerald office, nine were either substantially or significantly “involved with coal mining operations” and a further two were “slightly involved”.
The “substantial character” test was applied in the AIRC before the making of the Black Coal Award (see Dyno Nobel Asia Pacific Limited v Construction, Forestry, Mining and Energy Union [2005] AIRC 622 at [59]‑[60] (by the majority)) and has been applied by the FWC since its making: see Re Transfield Services (Australia) Pty Ltd [2014] FWC 5368 at [13]‑[17]; Re CQ Industries Pty Ltd [2017] FWC 5667 at [37]‑[53]; and Re Spotless Facility Services Pty Ltd [2019] FWC 5890.
Dyno Nobel manufactured and supplied explosives and provided various “explosive related services” to its customers, including customers in the coal mining industry. A relatively small number of its overall workforce were engaged in services which included ensuring that Dyno Nobel stock was properly stored at coal mines, providing advice as to the placement of the explosives to be used, preparing for shot firing, shot firing itself and providing training to mining employees.
The question was whether Dyno Nobel employees engaged in this work were “engaged in or in connection with the coal and shale industries” for the purposes of the eligibility rule of the CFMMEU (then the CFMEU). The majority (Lawler VP and Hamberger SDP) considered, consistently with R v Hibble and the Poon Bros Case, that this question was to be resolved by considering whether Dyno Nobel itself was engaged “in or in connection with” the coal industry. The majority concluded that the predominant purpose of the single integrated business of Dyno Nobel was the manufacture and supply of explosives. This meant that the substantial character of the industry in which it was engaged was the chemical industry, at [60]. As was the case with the catering and cleaning services provided by Poon Bros, the services which Dyno Nobel provided to coal mines were properly to be seen as the supply of a service to employers in one industry by an employer whose business was in another industry, at [59].
In Transfield Services, Asbury DP considered that Transfield’s employees performing maintenance and miscellaneous service work at surface mining sites were not covered by the Black Coal Award. The Deputy President noted, amongst other things, that Transfield was not under the control of the mine owners or contractors conducting mining operations, did not itself undertake any mining activities, undertook itself the supervision of its employees performing the work at the mines, and that its employees were not “embedded in or supplementary to the workforce of the mines” at [15]. She considered that the circumstances of the case were virtually identical to those considered in Thiess Repairs.
CQ Industries involved the question of whether the Black Coal Award was to be considered when addressing the “better off overall” test in the approval of an enterprise agreement. Asbury DP accepted that some employees of a contractor providing maintenance services to coal mines were covered by the Black Coal Award, reasoning:
(a)the Black Coal Award recognised that an employer may be in more than one industry, at [47]-[48];
(b)the earlier cases had not been concerned with labour hire arrangements, at [48];
(c)the employees who go onto black coal mine sites to perform “project work” such as maintenance shutdowns or installations of new equipment which CQ had contracted to perform as a package were not within the Black Coal Award, even if they were working alongside the mine workforce, at [49]; and
(d)the CQ employees hired to coal mines to provide coverage during periods of leave were covered by the Black Coal Award because, in particular, they were integrated into the workforce of the coal mine operator, their work was directly connected to the day to day operations of the coal mine, they were supervised by the coal mine operator and their work was within a classification in the Black Coal Award, at [50]‑[51].
In Re Spotless at first instance, the question was whether Heavy Industry Cleaners who, with other employees (service attendants, cooks, chefs, security guards, administrative officers, technical trades, other trades, and non‑trade personnel) were supplied by Transfield at black coal mines or at the camps, houses and town services, which supported those mines, were covered by the Black Coal Award. Lake DP considered a number of aspects of the employment and employment arrangements of the Heavy Industry Cleaners and, applying the approach in the Colliery Staff Case, concluded that they were not employees in the coal industry and were not covered by a classification in the Black Coal Award.
An application for leave to appeal against the decision of Lake DP was refused: Construction, Forestry, Maritime, Mining and Energy Union v Spotless Facility Services Pty Ltd [2020] FWCFB 1235. The Full Bench held that the question of award coverage was to be determined by reference to the Cleaning Award which not only covered the work of the Heavy Industry Cleaners but also provided that it applied “to the exclusion of any other modern award”, at [24]. That provision by itself resolved any issue as to the competing coverage of the two awards.
Counsel for the CFMMEU also referred to the decision in Groves v Kal Tire [2020] FWC 3689. The question in that case was whether employees of Kal Tire engaged in providing on‑site tyre fitting and maintenance services to coal mines were covered by the Black Coal Award rather than the Vehicle Manufacturing, Repair, Services and Retail Award 2010 (the Vehicle Award). Saunders DP decided the application of the Black Coal Award by reference to cl 4.1(b)(ii) and considered whether there was a “substantial connection” between the employees and the black coal industry, at [105]. In so doing, the Deputy President adopted the approach of the Court of Appeal in NSW in Central West. The Deputy President concluded that the tyre fitters were engaged in the black coal mining industry and that their work was directly connected to the day to day operations of the mines. However, the Deputy President considered that he could not give effect to that view because the Vehicle Award contained an exclusion clause in the same terms as that in the Cleaning Award considered by the Full Bench in Re Spotless.
An application by the unsuccessful employees for leave to appeal against the decision of Saunders DP was refused: Allgood v Kal Tire (Australia) Pty Ltd [2020] FWCFB 5816. The Full Bench regarded Re Spotless as correctly decided, with the effect that, even if the employees would otherwise have been within the coverage of the Black Coal Award, its application was precluded by the exclusion clause in the Vehicle Award. The correctness or otherwise of the reasons of Saunders DP concerning the application of the Black Coal Award in the absence of that exclusion clause was not put in issue on the application for leave to appeal.
This review of the authorities suggests that the following conclusions may be drawn about the term “black coal mining industry” and employment in that industry:
(a)the terms “coal mining industry” and “black coal mining industry” are not capable of clear definition: Drake‑Brockman per Starke J at 59; R v Hickman at 614 (Dixon J). The difficulty of definition is reflected in cll 4.2 and 4.3 of the Black Coal Award;
(b)the industry is the production of black coal by mining operations. Those operations include the excavation of the coal from the seam; its removal from the pit; and the placement of coal on the surface in disposable form: Drake‑Brockman per Latham CJ at 56. This seems to be reflected in cl 4.2(a) of the Black Coal Award which states that the industry includes the extraction or mining of black coal on a coal mining lease by means of underground or surface mining methods;
(c)the industry does not include all the forms of subsequent processing, treatment or use of black coal (Drake‑Brockman at 56) but does include its processing at a coal handling or processing plant on or adjacent to a coal mining lease (cl 4.2(c));
(d)the industry does include the transportation of black coal on a coal mining lease (cl 4.2(c)) but not the haulage of the coal away from the mine site: R v Hickman;
(e)the mere fact that the activities are carried on at a mine site does not necessarily mean that they are undertaken in the coal mining industry;
(f)correspondingly, the fact that activities in connection with coal mining operations are carried on at locations geographically separate from the coal mine will not necessarily mean that the activities are not part of the coal mining industry;
(g)the control exercised by the mine operator of the work is an important consideration (Thiess Repairs; Transfield Services; CQ Industries);
(h)whether particular employment is in the black coal mining industry is to be determined as a question of fact by consideration of the “substantial character” of the industrial enterprise in which the employer and the employee are concerned (Thiess Repairs per Latham CJ at 130‑1, 135; Poon Bros Case at 454‑5) and by consideration of the degree of connection or separateness between the activity in question and the mining operations (Thiess Repairs per Dixon J at 140‑1; Colliery Staff Case at 16; Central West at [50]); and
(i)some activities associated with coal mines have not been regarded as part of the coal mining industry. These include:
(i)the haulage of the coal by an independent contractor from the mine to an offsite location: R v Hickman and see cl 4.3(f);
(ii)the maintenance of equipment used in a mine by employees of an entity separate from the mine operator which is undertaken in a workshop separate from, but adjacent to, the mine: Thiess Repairs; Transfield Services; and
(iii)the provision of catering and cleaning services to mining companies by the employees of independent contractors: Poon Bros Case at 454‑5; Re Spotless and see cl 4.3(e).
The authorities do not undermine the need to construe the Award provision in accordance with ordinary principles.
Counsel for the CFMMEU submitted that it was inappropriate to apply the “substantial character test” in the present context. He referred to TWU v Coles Supermarkets in which the Full Court (Siopis, Buchanan and Flick JJ) said:
[21]The “substantial character” test is one which was developed and expressed by the High Court in relation to union eligibility rules … In our view, the “substantial character” test was not the appropriate test for deciding whether the Transport Award applied.
[22]The test that should be applied is to discern the objective meaning of the words used bearing in mind the context in which they appear and the purpose they are intended to serve. Here, the definition in question expressly extended to work ancillary to the principal business. That was the true question for examination.
(Citations omitted)
As is apparent, the Court considered that the substantial character test is applicable in the construction of union eligibility rules but not in the construction of industrial awards. I observe that, while the Poon Bros Case and the Uranium Mines Case concerned the construction of union eligibility rules, Thiess Repairs did not concern that question, being concerned instead with the construction of a term in a wartime regulation. Further, as the authorities reviewed above indicate, the test has been applied on several occasions in contexts other than the construction of union eligibility rules. Nevertheless, as the Full Court noted, the Court is concerned to discern the objective meaning of the words used in the award. In the present case, the Black Coal Award itself directs attention to the meaning applied by the courts and industrial tribunals and to the pre‑modern award status quo. There is a difficulty in identifying those matters appropriately without reference to the approach which the courts and tribunals have applied. Accordingly, I do not regard the substantial character test as being immaterial to the resolution of the issues presently before the Court.
Counsel for Bis submitted that the status quo to which the Note to cl 4.3 refers was that the major mechanical, electrical or other contracting entities which provided mechanical or electrical trades, or other services (haulage, food and laundry, etc) to a range of different entities and a range of different industries, which may include (even extensively) the black coal industry, are not employers engaged in the industries to which they provide those services, and did not engage employees who were themselves employed in that industry. He cited the passages in Thiess Repairs at 131 and 134‑5 (Latham CJ) set out earlier in these reasons as authority for this proposition.
In my opinion, the existing position is not so clear as counsel supposed. Latham CJ was not purporting to state some form of a priori proposition. To the contrary, in the very passage in Thiess Repairs on which counsel relied, Latham CJ said that it was “a question of fact depending upon all the circumstances of the case whether a particular employer or employee is engaged in the coal‑mining industry” (emphasis added). Further, his Honour’s postulation of a criterion with an evaluative content, namely, “the substantial character of the industrial enterprise in which the employer and employee are concerned” is an indication that he was not purporting to lay down some hard and fast rule.
This submission of Bis is also inconsistent with the rejection by the Full Bench, when making the Black Coal Award, of the submissions “that sought to have mechanical and electrical contractors invariably covered by awards other than the modern award for the black coal mining industry” – see [156] of the reasons of the Full Bench quoted in [41] above. The Full Bench thereby recognised that there were instances in which employees of mechanical and electrical contractors had been covered by predecessors of the Black Coal Award. In this respect, it is also pertinent that, while cll 4.2 and 4.3 in the Black Coal Award do seem to reflect some of the previous decisions (Drake‑Brockman in cl 4.2(a), R v Hickman in cl 4.3(f), Colliery Staff Case in cl 4.3(b), and Dyno Nobel in cl 4.3(g)), they do not purport to address, at least directly, the provision by contractors of engineering and maintenance services. Had the position been as clear as counsel’s submission supposed, it is likely that some attempt would have been in the Black Coal Award itself to address those services.
The business of Bis
At the commencement of these reasons I gave a brief overview of the business of Bis in order to provide the setting in which the issues for the Court’s determination arise. The actual evidence provided by Bis about the structure of its business is not quite as clear as that brief overview may suggest.
In her affidavit of 26 March 2020, Ms Winter described Bis as a “resources logistics company” and said that it provided “logistics, materials handling and specialised equipment … to the global mineral resources sector”, in particular relating to coal, iron ore, cobalt, nickel, gold and manganese. She described Bis as organised into four discrete divisions, being Logistics, Materials Handling, Consulting and Underground Services. Ms Winter provided an organisational chart which showed the business units in each of these four divisions. That chart indicated, in accordance with Ms Winter’s description, that the Underground Services Division comprised the six business units identified at the commencement of these reasons, being:
(a)Longwall Relocation Equipment;
(b)Run of Mine Casual Hire;
(c)Development and Production Equipment Hire;
(d)Underground Mining Services;
(e)Tyre Services; and
(f)Field Services.
The first three of these business units (Longwall Relocation Equipment, Run of Mine Casual Hire, and Development and Production Equipment Hire) are engaged in the “dry hire” of equipment (i.e, Bis does not provide the labour required to operate the equipment). I will refer later to Longwalls and the relocation equipment associated with them. The “Run of Mine” equipment includes low haul dump machines, graders and personnel transporters. The “Development” equipment includes continuous miners, roof bolting equipment, shuttle cars, feeder breakers, power generators and ancillary equipment. Both Run of Mine and Development equipment are necessary for the operation of coal mines.
The final three business units within the Underground Services Division are engaged in the provision of services. These services are the provision of repair, maintenance, testing and fault finding in relation to a client’s own mobile plant and equipment, the mobile plant and equipment which Bis has hired to the client and, on occasion, to the mobile plant and equipment of other contractors to the client. On this understanding, Field Services is a business unit concerned with the provision of FSRs (diesel and electrical fitters) in relation to underground mining.
Mr Buttigieg described the organisational chart provided by Ms Winter as “an old one”; because Bis had reorganised its structure in July or August 2020. He said that, with UGM Diesel and Jaxam, Field Services is now part of the business unit known as Maintenance Services Group within the Underground Services Division. The FSRs in Field Services report to Mr Buttigieg and he in turn reports to the Business Group Manager, in the Maintenance Services Group.
Mr Doyle’s account of the structure of the business of Bis was similar to that of Mr Buttigieg but with more detail. He said that the Underground Services Division of Bis comprises the activities of Bis itself, UGM Mining, UGM Diesel and Jaxam. He also deposed that the Underground Services Division is not internally managed by the separate business units described by Ms Winter as there are in fact five business groups, each managed by a manager or superintendent who reports directly to himself. These are Mining Services (operated by UGM Mining), Equipment Hire and Support (operated by Bis), Maintenance Services (comprising business units operated by each of Bis, UGM Diesel and Jaxam), Product Sales, and Optimisation and Improvement.
Mr Doyle provided an organisational chart for “Underground Coal Services” in Bis. This confirms that each of Bis, Jaxam and UGM Diesel have business units in the Maintenance Services Division. In the case of Bis, the business units comprise the Tomago workshop and “Field Services – Mining”. In the case of UGM Diesel, the business units comprise a workshop (seemingly separate from the Tomago workshop) and “Field Services – Construction and Tunnelling”. No business units are shown for Jaxam.
Mr Doyle described an operational and functional separation between the activities of Bis itself in the Underground Mining Division and those provided by UGM Mining, UGM Diesel and Jaxam, with the effect that each business unit operates separately and independently from the others. He deposed in particular that, while the employees of UGM Mining, UGM Diesel and Bis may on occasions work at the same client site, that is pursuant to separate contracts entered into by the client with each entity and for different purposes. It is made visibly evident by the employees of each entity wearing different uniforms.
I consider that Mr Doyle’s evidence was clearer and more authoritative on this topic than Ms Winter. That may be because he is more “hands on” than Ms Winter. In any event, I accept Mr Doyle’s evidence in preference to Ms Winter’s on this topic.
Mr Doyle described UGM Mining as engaged exclusively in the provision of services to the underground black coal industry, including drilling and blasting operations; the design, installation and maintenance of conveyors; longwall relocation; and the provision of tunnelling and underground infrastructure solutions.
Mr Doyle described UGM Diesel as servicing primarily the civil construction industry undertaking tunnelling but also involved in some workshop based services delivered from workshops at Teralba near Newcastle in New South Wales and Slade Point in Mackay in Queensland. He described Jaxam as offering diesel servicing, fabrication and overhaul services primarily to mining clients and said that it operates out of a workshop located in Glendale near Newcastle. However, Jaxam does not provide field‑based maintenance services.
In relation to Bis itself, Mr Doyle deposed that, while his title is General Manager of “Underground Coal Services”, the services provided by the Underground Services Division of Bis are not limited to the coal industry. This differentiates Bis, UMG Diesel and Jaxam from UGM Mining, which provides services to the coal industry only.
Mr Doyle said, and I accept, that all FSRs employed by Bis are in the Field Services business unit and provide on‑site based maintenance services. Some may work from Bis’ Tomago workshop for short periods as, for example, when undergoing inductions or training or when between assignments. There was a difference between Mr Buttigieg and Mr Doyle on this topic as Mr Buttigieg said that some FSRs spend the majority of their time in the Tomago workshop. The difference was not explored in cross‑examination and there may be a ready explanation for it. However, given the difference, I prefer the evidence of Mr Doyle.
The case was argued on the basis that the issues concerning the application of the Black Coal Award are to be determined by reference to the Field Services business unit only. That is to say, it was not suggested by any party that the Court should also consider the character of the industry in which Bis is engaged by reference to its business activities more broadly.
Mr Beau Davis
Mr Davis is a 42 year old diesel fitter who, since 2004, has worked at numerous underground coal mines in New South Wales. Most of that employment has been with coal mining contractors but, between 2005 and 2016, he was employed directly by Glencore at the West Wallsend Coal Mine. He was employed by Bis from 21 March 2018 until 14 July 2020.
Mr Davis obtained employment with Bis following a contact made through a friend, Mr Derek Van Eden. Mr Davis was interviewed by Mr Buttigieg in early 2018. He said that in the course of the interview Mr Buttigieg said words to the following effect:
I will utilise you like I do with Derek as a longwall fitter as well as diesel servicing.
(Emphasis added)
Soon after, Mr Buttigieg offered Mr Davis permanent employment with Bis but at “the Narrabri Underground”. Mr Davis rejected that offer as he wished to work in mines around the Hunter Valley or on the NSW South Coast. A few weeks later, Mr Buttigieg again offered him employment as an underground diesel fitter but this time in the Hunter Valley or on the South Coast. Mr Davis accepted this offer.
Mr Davis signed his written contract of employment on 13 March 2018. This specified that he was employed in the position of “Underground Diesel Fitter or such other position as determined by Bis Industries from time to time”; that his employment would commence on 19 March 2018; that he would report to the “Operations Manager – Services or to any such position or person as determined by Bis Industries from time to time”; and that he would be based initially at Tomago but may be required to work at other locations of Bis from time to time. Under the heading “Duties”, the contract specified:
3 DUTIES
3.1 You must:
3.1.a.perform to the best of your abilities and knowledge, the duties assigned to you from time to time, whether during or outside Bis Industries’ business hours and for the benefit of whoever Bis Industries directs (including any Group Company or third party);
3.1.b.devote the whole of your time during your hours of work for Bis Industries to your duties for Bis Industries;
3.1.c.faithfully and diligently serve the Group;
3.1.d.act in the Group's best interests and use your best efforts to promote the interest of the Group;
3.1.e.comply with all reasonable directions given by a Group Company;
3.1.f.comply with all law applicable to your position and the duties assigned to you; and
3.1.g.report to the person or persons nominated by Bis Industries from time to time.
3.2.Without limiting your duties to Bis Industries, you must (during or outside working hours):
3.2.a.not act in conflict with the Group's best interests;
3.2.b.disclose to Bis Industries immediately any actual or potential conflict of interest with any Group Company;
3.2.c. not engage in any external work (whether as an employee, contractor or otherwise without Bis Industries' prior written approval;
3.2.d.not perform work for any person other than a Group Company without Bis Industries' prior written consent;
3.2.e. not compete, prepare to compete, or divert any business away from any Group Company, without Bis Industries' prior written consent; and
3.2.f.not disparage any Group Company.
3.3You acknowledge that you have no authority to bind Bis Industries in contract except to the extent Bis Industries expressly authorises you to do so.
3.4You acknowledge that the restrictions specified in this clause 3 are reasonable and necessary to protect Bis Industries' legitimate interests.
As is apparent, this specification of duties did not include any description of the tasks or work responsibilities of Mr Davis as an “Underground Diesel Fitter”. Those tasks and responsibilities are those implied in the position to which Mr Davis’ letter of offer referred (“Underground Diesel Fitter”) and the statement of “Position Purpose” in the Bis Position Description to which I will refer shortly.
The accompanying letter (signed by Mr Doyle) indicated that Mr Davis could, at his option, be paid pursuant to an Individual Award Flexibility Agreement (IAFA) instead of the rates “prescribed by the Manufacturing and Associated Industries Occupations Award 2010”.
Mr Davis commenced work on 21 March 2018, initially working in the Tomago workshop. In the first two days, he underwent inductions and forms of training and, in the following week, underwent an induction course at the Mines Rescue Station at Singleton and a site induction at the Ashton Underground Coal Mine. He then commenced working 12 hour shifts at Ashton. With the exception of some short periods in the Tomago workshop, the remainder of Mr Davis’ employment was undertaken at one or other of seven underground coal mines.
Because Mr Davis was keen to work overtime, there were several occasions when he worked at more than one coal mine in the same week.
Mr Buttigieg denied that he had said to Mr Davis in the employment interview words to the effect that he would like to utilise him as “a longwall fitter” as well as in diesel servicing. He accepted in cross‑examination that he did not have a very good memory of the interview but pointed out that Bis did not employ anyone as a “longwall fitter”.
The CFMMEU’s submissions did not indicate the use it sought to have the Court make of the statement which Mr Davis attributed to Mr Buttigieg to the effect that he would be used as a “longwall fitter”. It was not suggested, for example, that this had become a term of the contract of employment or constituted some form of admission against interest by Mr Buttigieg which bound Bis. If such a suggestion had been made, account would have had to be taken of the “entire agreement” provision in Mr Davis’ contract of employment (cl 30). However, in the view I take, this does not matter as, for the reasons which follow, I do not accept that Mr Buttigieg did make a statement to this effect.
My reasons for not accepting Mr Davis’ evidence on this topic are these. First, it seems an unlikely detail for Mr Davis to have remembered. Secondly, it does seem odd that Mr Buttigieg would have used the expression “longwall fitter” in a context in which Bis did not employ persons as longwall fitters, i.e, the persons who formed part of the production crews operating Longwalls. I note in this respect that (with one exception) neither Mr West nor Mr O’Neile referred in their evidence to a position of “longwall fitter”. Thirdly, and more particularly, there is no evidence that Bis employed anyone as a “longwall fitter” at Narrabri (at which Mr Buttigieg first offered Mr Davis work). Fourthly, when Bis did offer work to Mr Davis, Mr Buttigieg referred to the position offered as “Underground Diesel Fitter”, not as “longwall fitter”. As will become apparent, work on Longwalls assumed a significance in this litigation and I think it likely that Mr Davis’ evidence on this particular topic was affected by that circumstance.
Mr Davis also deposed that the length of time he spent at each underground coal mine was usually determined by the length of the work involved in the relocation of the Longwall, a task which commonly took between 4‑6 weeks. He said that he may have been engaged at an underground coal mine for longer than that period because it was customary for him to be assigned in advance of the relocation in order to undertake preparation work.
Mr Buttigieg disputed Mr Davis’ description of his employment as involving successive assignments to particular coal mines for the period of the Longwall relocation.
It is understandable that there may have been occasions when Mr Davis’ assignment was linked to a Longwall relocation because a significant amount of equipment, often supplied by Bis, is used in the relocations and therefore requires servicing and maintenance. Mr Davis acknowledged this in relation to an assignment at the Mandalong Mine, saying “I was only there to assist with the longwall machines that were there for the longwall move”.
I consider that the true position to be that there were some instances when Mr Davis’ assignments were associated with the relocation of Longwalls and other assignments when there was no such association. I note, for example, that, while Mr Davis gave evidence of the work on Longwalls recorded in his daily log books, all but two of the entries related to the period between 7 September and 2 November 2018. Moreover, Mr Davis himself acknowledged that he had not been involved in Longwall relocation work in assignments at the Ulan No 3 Underground Coal Mine and at the Ulan West Underground Coal Mine.
Mr Russell West
Mr West has experience working on coal mines extending over 26 years, with most of his employment having been with coal mining contractors. He was employed by Bis as a diesel fitter between 10 September 2018 and 20 August 2020.
Mr West signed his contract of employment on or shortly after 13 August 2018. It indicated that he was being employed in the position of “Field Service Representative or such other position as determined by [Bis] from time to time”; that his employment would commence on 10 September 2018; that he would report to the “Operations Manager – Services or such other position as determined by [Bis] from time to time”; and that he would be based initially at Tomago. The contract contained the same clause with respect to duties as did that of Mr Davis. Mr Doyle’s accompanying letter also informed Mr West that he could, if he chose, be paid in accordance with an IAFA instead of receiving the rates prescribed by the Manufacturing Award.
In addition, the Specific Employees undertake the scheduled maintenance of a range of equipment used underground. On my understanding, the times at which scheduled maintenance is required are fixed by the manufacturers of the equipment involved. One may surmise therefore that there may be some flexibility as to the time at which the servicing may be carried out but, nevertheless, it is reasonable to infer that the ensuring of the continued availability of the equipment is directly connected to the day to day operations of the mine. As indicated, that link is even more apparent in relation to the repair of equipment which has broken down so that it can be restored to service.
Bis submitted that it was not a “principal purpose” of the equipment on which the FSRs are employed to work to mine, extract, process or transport coal. The submission did not indicate the particular element in cl 4.1(b)(ii) to which it was directed but I have taken it to be a submission that the duties of the FSRs were not directly connected with the day to day operation of a coal mine.
I observe in passing that this submission of Bis involved looking beyond the four walls of the contracts of employment as none of them indicated that the duties of FSRs were confined to repairs and preventative maintenance on mobile and fixed plant at coal mines not used in the actual extraction, processing or transporting of coal. However, that consideration can be put to one side.
In my view, acceptance of the minor premise in the submission does not lead to the conclusion for which Bis contends. That is so because the submission equates “the day to day operation of a black coal mine” with the actual extraction, processing and transport of the coal. This is an unduly narrow conception of that expression. Those activities of extraction, processing and transportation may be the ultimate purposes to which the operation of the mine is directed, but it would be fallacious to understand the day to day operation of a coal mine as involving only those activities. A range of other activities are required to allow the extraction, processing and transportation to proceed and it is evident that several are part of the day to day operation of a mine.
In particular, there is no reason to suppose that “the day to day operation of a black coal mine” does not include matters which are necessary incidents of the daily activities in the coal mine. By way of example, it would be unrealistic to hold that the provision of the transport by which the production crews are transported from the mine entrance to the coal face being worked, and their return at the end of the shift, is not a normal and necessary incident of the day to day operation of a coal mine. That is especially so given the evidence that, in some instances, the coal face is several kilometres from the mine entrance so that it is necessary for the mine operator to provide vehicles to transport the personnel, supplies and equipment which is needed. The undertaking of the mandatory daily inspections of the vehicles used and their maintenance should, in my opinion, be regarded as “directly connected” with this aspect of the day to day operations of a black coal mine.
The repair of breakdowns at or close to the location of the breakdown is another example of work directly connected with the day to day operation of a coal mine.
In short, while I accept that the equipment on which the Specific Employees worked (in Mr O’Neile’s case, do work) is in a sense ancillary to the actual extraction, processing and transport of the coal, this does not mean that it cannot be “directly connected with the day to day operation of a black coal mine”.
Bis submitted that the status of an FSR as a coal mining employee could not turn upon “the vagaries of the specific, particular arrangements of (or at) a particular owner/operator, whether generally or on a particular daily or weekly basis, especially in so far as Bis does not have any oversight of, or control over, those matters”. It raised the spectre, if it were otherwise, of the FSRs “jumping in and out of coverage under the Black Coal Award on a weekly, daily or even hourly basis, beyond the control of Bis”.
In my view, this was something of a straw man argument. No one suggests, reasonably, that the question of whether employees are “employed in the black coal mining industry” is so finely nuanced that its resolution may vary on an hourly, daily, or even weekly basis. In this respect, it is noteworthy that Bis did not take the Court to its contracts with its clients with a view to demonstrating how that could be so.
I conclude that the duties of the Specific Employees did have (in Mr O’Neile’s case, do have) the requisite direct connection with the day to day operation of the black coal mines in which they have performed their work.
Employment in a classification or class of work in Schedule A to the Black Coal Award
Although cl 4.1(b)(ii) refers to classifications in both Schedule A and Schedule B, it is only the classifications or class of work in Schedule A which need be considered in relation to this element.
Earlier, when discussing the issue of competencies, I noted that Schedule A to the Black coal Award provides for five classifications of mine worker. It is convenient to repeat those classifications presently:
·Mineworker – Induction Level 1;
·Mineworker – Induction Level 2/Mineworker – Training;
·Mineworker;
·Mineworker – Advanced; and
·Mineworker – Specialised.
Bis submitted that none of the FSRs are “employed in a classification or class or work in Schedule A”. It contended that to be employed in such a classification or class of work, the “position” or “job” must have, as its principal purpose (or its principal or major or substantial aspect), the functions of that classification or class of work.
Although the submission did not say so expressly, this seemed to be a reference to the line of authority which suggests that the application of a particular award classification to a position turns on an identification of the primary purpose of the position in question – see the authorities listed by the Full Bench of the AIRC in Carpenter v Corona Manufacturing Pty Ltd (2002) 122 IR 387 at [9].
The only classification for which Schedule A provides is that of “Mineworker” (putting to one side apprentices and juniors). The Black Coal Award does not contain any definition of the term “Mineworker”. It is evident, however, that it is intended as a generic description intended to cover all workers in a mine other than those who are “Staff Employees” for whom Schedule B makes provision.
For present purposes, it is not necessary to stay with the first two classifications in Schedule A but the following three are to be noted. They provide:
A.2.3 Mineworker
A Mineworker is an employee who is assessed by the employer as competent to perform the required tasks in a variety of operating circumstances and under limited supervision. An employee continues in this classification until assessed for advancement to Mineworker – Advanced.
A.2.4 Mineworker – Advanced
A Mineworker – Advanced is an employee who is assessed by the employer against the employer’s available criteria as competent to perform the required tasks in all relevant operating circumstances at a level above that of a Mineworker.
A Mineworker – Advanced may be required to supervise the work of other employees.
A.2.5 Mineworker – Specialised
A Mineworker – Specialised is an employee assessed by the employer as competent to perform specialised functions beyond the level of a Mineworker – Advanced. An employee appointed to this classification with undertake a specialised role, which requires them to exercise independent discretion in undertaking functions within the bounds set by the employer. The performance of this role may require the employee to supervise the work of other employees.
Clause A.3 in Schedule A provides for the means of advancement through the classification structure. It contains a specific indication that Mineworkers may include those with trades (it distinguishes between Non-Trade and Trade Employees and refers to “a trade certificated employee”). The Mineworker classification is accordingly capable of applying to the Specific Employees.
The submission of Bis that the Specific Employees were not within Schedule A was based on the fact that it does not require the FSRs to have any of the advancement competencies listed in the Black Coal Award, and on it being immaterial that they had acquired some such competencies in other employments prior to commencing employment with Bis.
In my opinion, this consideration is not determinative, given two matters. First, Bis does inform its clients of its belief that the FSRs being assigned are competent to perform particular kinds of trades work. Secondly, the classification for “Mineworker – Advanced” refers to an assessment against “the employer’s available criteria”, rather than an assessment against the competencies listed in the Award itself.
For these reasons, I do not accept the submission of Bis that the Specific Employees could not have been employed in a classification or class of work in Schedule A to the Black Coal Award.
Conclusion on cl 4.1(b)(ii)
For the reasons set out above, I am positively satisfied that each of the Specific Employees is within the definition of “coal mining employee” contained in cl 4.1(b)(ii) of the Black Coal Award. At the very least, it can be said that Bis, which has the onus, has not established that the Specific Employees are not within the cl 4.1(b)(ii) definition.
Are the Specific Employees within the cl 4.1(b)(i) definition?
Strictly speaking, my conclusion with respect to cl 4.1(b)(ii) makes it unnecessary to consider this part of the case. However, in case the matter goes further, I will state briefly my view.
As previously noted, the question of whether the Specific Employees are within cl 4.1(b)(i) turns on whether Bis itself is “engaged in the black coal mining industry”.
Bis presented its case by reference to the activities of the Field Services business unit in the maintenance services section of its Underground Services Division. Although it provided the Court with an overview of the way in which its businesses are structured, it did not provide detailed evidence of the various divisions, or their inter‑relationship. Furthermore, although the respondents tendered copies of the contracts which Bis presently has for the provision of FSRs to clients, Bis itself made no reference to these documents in the course of its submissions. I note, by way of example only, that the Bis contract with Centennial Coal provides the terms by which Bis may procure “the Services” from Bis, with the term “Services” defined to be “all of the services and hire equipment described in Annexure B”. Annexure B contains a list of equipment and provides for the provision by Bis of “qualified and competent mechanical trades people” for the following services upon request by the principal:
(a)24/7 supply of field services labour during the Principal’s longwall location;
(b)breakdown service for equipment hire; and
(c)on‑site servicing of hired equipment.
This suggests that Bis could be characterised as being in the industry of providing mining equipment and the trades people to repair, maintain and inspect such equipment. I have expressed that in this qualified way because Bis did not itself assert such a position.
There are other matters which suggests that Bis could not be characterised as engaged in the black coal mining industry in the sense discussed in Thiess Repairs and Central West. These include the fact that Bis does not itself have a place of work at a coal mine; it is not contracted to operate the maintenance workshop at any coal mine; it does not engage supervisory staff at a coal mine; it does not engage in the extraction, processing or transport of coal at a coal mine; it is not subject to the control of the mine operator in the performance of work pursuant to a contract; and it does not require or assess the competencies of its employees. Instead, Bis stands in the position of a contractor providing personnel who will carry out forms of work at a coal mine but without itself being engaged in the coal mining industry.
Had it been necessary to do so, I would have found that Bis is not an employer “engaged in the black coal mining industry” and, accordingly, that the Specific Employees do not come within cl 4.1(b)(i) of the definition of “coal mining employee”.
The Bis alternative case: the Manufacturing Award is more appropriate
As noted at the commencement of these reasons, Bis advances in the alternative the propositions that it is bound by both the Black Coal Award and the Manufacturing Award in relation to the employment of the FSRs; that Classification C10 in the Manufacturing Award is “most appropriate” to the work of the FSRs; and, accordingly, that cl 4.8 in the Black Coal Award has the effect that the FSRs are not covered by that Award.
Clause 4.8 in the Black Coal Award has been set out earlier in these reasons. However, for convenience I will repeat it:
4.8Subject to clauses 4.1 and 4.2, where an employer is covered by more than one award, an employee of that employer is covered by the award classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work.
(Emphasis added)
The work intended to be performed by the words “subject to clauses 4.1 and 4.2” with which cl 4.8 commences is unclear. They may serve to indicate that effect is to be given to cl 4.8 only when cll 4.1 and 4.2 have been applied properly, that is to say, when it has been determined that an employee is covered by a classification in the Black Coal Award.
Although cl 4.8 refers only to the employee being covered by the classification which is most appropriate, the submissions proceeded on the basis that cl 4.8 had the effect that it is the award containing that classification which prevails. That is consistent with the authorities.
The Manufacturing Award
The Manufacturing Award is a modern Award of the FWC which also commenced on 1 January 2010. Clause 4, which is the coverage clause, provides (relevantly):
4. Coverage
4.1This award covers employers throughout Australia of employees in the Manufacturing and Associated Industries and Occupations who are covered by the classifications in this award and those employees.
4.2 The award does not cover:
(a)an employer who is outside the scope of clause 4.8(a) or (b) unless such an employer employs an employee covered by clause 4.8(c) and the employer is not covered by another modern award containing a classification which is more appropriate to the work performed by the employee; or
(b)exempt employers and employees, as set out in clause 4.10.
…
The term “Manufacturing and Associated Industries and Occupations” used in cl 4.1 is defined in cl 4.8:
4.8 Manufacturing and Associated Industries and Occupations means:
(a) the following industries and parts of industries:
(i)the manufacture, making, assembly, processing, treatment, fabrication and preparation of:
·the products, structures, articles, parts or components set out in clause 4.9; or
·the materials or substances set out in clause 4.9; or
·any products, structures, articles, parts or components made from, or containing, the materials or substances set out in clause 4.9.
...
(iii)the repair, refurbishment, reconditioning, maintenance, installation, testing and fault finding of:
·any of the items referred to in clause 4.8(a)(i); or
·…
·plant, equipment and buildings (including power supply) in the industries and parts of industries referred to in clauses 4.8(a)(i) and (ii); or
·plant, equipment and buildings (including power supply) in any other industry.
(iv) mechanical and electrical engineering.
...
(ix)every operation, process, duty and function carried on or performed in or in connection with or incidental to any of the foregoing industries, parts of industries or occupations;
…
…
(c) the following occupations:
(i) maintenance employees in the engineering streams.
…
(Emphasis added)
Clause 4.9 contains a definition of the products, structures etc for the purposes of cl 4.8(a)(i):
4.9For the purposes of clause 4.8(a)(i), the products, structures, articles, parts, components, materials and substances include:
(a)all products made from, or containing, steel, iron, metal, sheet metal, tin, brass, copper and non-ferrous metal.
...
(h)motor engines, motor cars, motor cycles and other motor driven vehicles and components.
(i)industrial machinery.
…
(Emphasis added)
The Manufacturing Award does not define the term “maintenance employees in the engineering streams” used in cl 4.8(c). However, the term “engineering streams” is defined in cl 2 as follows:
engineering streams are the 3 broad engineering streams recognised within the classification definitions set out in Schedule A – Classification Structure and Definitions, namely, electrical/electronic, mechanical and fabrication. The streams are defined as the:
(a)electrical/electronic stream …
(b)mechanical stream which includes the … testing, fault finding, commissioning, maintenance and service of all mechanical equipment, machinery …
(c)fabrication stream …
(Emphasis added)
Schedule A to the Manufacturing Award contains the Classification Structures and Definitions. Classification C10 provides:
Classification levels Classification title Minimum training requirement Wage relativity to C10 (see clause A.3.2) .. … … … C10 Engineering/Manufacturing Tradesperson – Level 1 Recognised Trade Certificate, or Certificate III in Engineering – Mechanical Trade, or Certificate III in Engineering – Fabrication Trade, or Certificate III in Engineering – Electrical/Electronic Trade, or equivalent 100%
Clause A.4.7 in Schedule A contains a description of the qualifications and competencies of persons in Classification C10. It provides for two classification titles: Engineering/Manufacturing Tradesperson - Level 1 and Engineering/Manufacturing System Employee - Level V. With respect to the former, cl A.4.7(a)(i) provides that the employee holds a trade certificate or tradesperson’s rights certificate or equivalent as (relevantly) an “Engineering Tradesperson (Mechanical) - Level 1 and is able to exercise the skills and knowledge of the engineering trade so as to enable the employee to perform work within the scope of this level”.
Clause A.4.7(a)(ii) goes on to identify the skills, competence and training of an employee in Classification C10 compared with an employee in classification C11.
The respondents accepted that the Manufacturing Award covered the employment of Mr Davis and Mr West and continues to cover the employment of Mr O’Neile. I took this to be an acceptance that Bis and the Specific Employees are, or were as the case may be, in the Manufacturing and Associated Industries and Occupations as defined in the Manufacturing Award and that the Specific Employees are, or were as the case may be, within Classification C10 in that Award.
The parties’ submissions
Bis submitted that the determination of the award classification which is most appropriate when an employer is covered by more than one award involves considerations akin to the “major and substantial” or “principal purpose’ tests, referring to Choppair Helicopters Pty Ltd v Bobridge [2018] FCA 325 at [64]‑[65] and the authorities cited therein.
Counsel for Bis submitted that:
The C10 classification is certainly narrower, more specific and more aligned to the role of an FSR than any classification in the Black Coal Award, which requires one to search for vague references to “tradespersons” in the various “mineworker” classification and scour through a long list of vague and indiscriminate skills or competencies listed therein (many of which could apply to many employees in any industry or job).
Bis is correct in contending that the Mineworker classification in the Black Coal Award is expressed in general terms. That is necessarily so given that its evident intention is to encompass a range of persons who work in mines (other than those for whom Schedule B, with the heading “Staff Employees”, provides). In effect, a Mineworker is any employee working in a mine who is assessed by the employer as competent to perform the required tasks in a variety of circumstances and under limited supervision.
Counsel for the CFMMEU sought to negate the significance of this feature by contending that the C10 classification in the Manufacturing Award is similarly general. That particular submission of the CFMMEU cannot be accepted. The C10 classification is plainly a more specific classification than the Mineworker classification in the Black Coal Award. That is so because the minimum training requirement for the C10 classification is the possession of one or other of the identified trade certificates or equivalent. That is to say, the classification is specific to tradespersons. The Mineworker classifications in the Black Coal Award are not so confined as they encompass non‑trades employees.
Counsel for the CFMMEU also emphasised the reference in cl 4.8 of the Black Coal Award to “the environment in which the employee normally performs the work”. He submitted that the Mineworker classification in the Black Coal Award is most appropriate to the environment in which the Specific Employees perform their work given that it relates to work performed in and at black coal mines and reflects the conditions in which work of that kind is performed. That is the environment in which the Specific Employees work.
Counsel for Bis sought to negate the significance of the “environment” consideration by three submissions. The first was that, on the evidence, much of the work of the FSRs is done in maintenance workshops so that that is the environment to be considered. The implication was that this is the kind of environment in which repair and maintenance work is generally undertaken, whether at a coal mine or otherwise. Secondly, counsel submitted that little reliance could be placed on the “environment” consideration because the mere location at which work is performed could never be the determinative of the “most appropriate” award coverage. Thirdly, counsel submitted that the CFMMEU’s submission overlooks the circumstance that all FSRs are “employed to be capable of deployment to any and all different client sites, and different client environments”.
As is apparent, Bis placed emphasis on the first factor to which cl 4.8 refers (the specificity of the classification in the Manufacturing Award) whereas the CFMMEU emphasised the second factor (the environmental consideration).
Consideration
In TWU v Coles Supermarkets, the Full Court endorsed the approach of the primary judge in determining the award classification which was “most appropriate” by regard to the primary purpose of the employment in question, the range of tasks for which the employees were trained, and the classification which was the “more comprehensive match” with the work in question: at [31]‑[35].
In Australian Workers’ Union v Coffey Information Pty Ltd [2013] FWCFB 2894; (2013) 232 IR 266 at 281, the Full Bench of the FWC adopted the approach of considering which of the two award classifications was more “specific” to the work in question:
[24]We are unable to conclude that the classifications in the On-site Award are more appropriate to the classifications in the Manufacturing Award. The Manufacturing Award contains classifications which specifically cover laboratory work and the work of technical workers. The Manufacturing Award covers such employees on a very wide occupational basis. Less qualified employees are nevertheless covered by general semi-skilled classifications.
[25]The On-site Award applies very widely to employers in the construction industry. The classifications are of a very general nature. They contain no specific mention of laboratory or testing work although the definition of the civil construction industry does. The technicians work on such projects as the company may be contracted to provide its specialist services from time to time. Long term employees will usually perform their work in a base lab or at multiple locations. Most of the work is performed at base labs. In our view a classification structure designed for workers in the construction industry cannot be considered more appropriate than the technical stream in the Manufacturing Award.
[26]It follows that the Manufacturing Award covers the technicians and by virtue of clause 4.2(a) of the On-site Award, the On-site Award does not cover them.
In Australian Workers’ Union v Cleanevent Australia Pty Ltd [2015] FCA 1477, Flick J referred to these authorities but, given his finding that the Amusement, Events and Recreation Award 2010 (the Amusement Award) did not cover the employment of the particular employees, it was not necessary for him to apply the “most appropriate” test. Nevertheless, his Honour went on to hold that the Cleaning Service Award was more appropriate having regard, amongst other things, to the circumstance that it was addressed specifically to the cleaning industry and the Amusement Award was not.
I commence by noting that cl 4.8 requires a comparison by reference to two considerations: first, the work performed by the employee and, secondly, the environment in which the employee normally performs the work. There is no indication in cl 4.8 that either one of these factors is to be given greater weight than the other. I also note that both factors require regard to be had to the work actually performed by the employee. That is to say, the required comparison is factual.
It is also pertinent that cl 4.8 uses the term “environment” in which the employee normally performs the work and not an expression such as “place” or “location”. In context, the word environment has the meaning of “the aggregate of surrounding things, conditions or influences” – see the Macquarie Dictionary definition. This does not mean that the location or place at which the work is performed is an irrelevant consideration. To the contrary, matters such as place or location may, depending on the circumstances of a given case, form part of the environment to be considered.
I do not accept the submission of Bis insofar as it suggested that the relevant environment of the Specific Employees to be considered comprises only the workshops in which they perform significant parts of their work. Regard should be had to all relevant aspects of the environment in which they normally perform their work. In the circumstances of the present case, this includes the wider circumstances at the black coal mines to which the FSRs were, and are, assigned. That is especially so given the specific employment of Mr Davis and Mr O’Neile as underground diesel fitters and the statement in the Position Description that the FSRs are to carry out repairs and preventative maintenance at coal mines both on the surface and underground. It would be unrealistic to exclude from consideration of the environment in which the Specific Employees normally perform[ed] their work that they did and do so at and in underground coal mines, and in circumstances in which they had/have to comply with the mine’s regulations, policies and routines and are subject to day to day control by the mine’s supervisors.
The second submission advanced by Bis concerning the “environmental” factor appears to be a straw man argument. No one is suggesting that this factor be determined by reference to location alone.
The third submission of Bis is a pertinent matter, at least in the case of Mr Davis and Mr West. However, Bis did not adduce evidence of any relevant difference in the “environments” in which Mr Davis and Mr West normally performed their work at the various black coal mines to which it had assigned them.
In short, I do not accept Bis’ submissions concerning the environment in which the Specific Employees normally perform their work.
At least at the broad level, the evaluation required in the present case is finely balanced. The more particular classification favours the Manufacturing Award whereas the “environmental” factor favours the Black Coal Award.
Nevertheless, a more detailed examination of the respective classifications indicates that the C10 classification in the Manufacturing Award is the most appropriate classification. The matters indicating that this is so are these:
(a)the structure of classifications in Schedule A to the Black Coal Award is described as a “single stream structure” without “any demarcations relating to the performance of work”. That is to say, while the classifications in Schedule A encompass tradespersons such as the Specific Employees, the classification structure does not differentiate between tradespersons, on the one hand, and all other mineworkers, on the other hand (cl A.1.2);
(b)the definitions for each of the classification levels in the Black Coal Award are described as “necessarily general” as they are intended to cover the various types of work actually performed under the Award (cl A.1.3);
(c)Schedule A provides for advancement through the classification structure by reference to criteria which include the employee’s satisfaction of “mine site competencies”. It contemplates that each mine will develop its own list of “mine site competencies” with the performance by the employee to be assessed against “mine site standards” (cll A.1.2 and A.1.3). The application of this scheme involves some inaptness in the case of Bis as it does itself operate a mine and does not have the occasion to develop “minesite competencies” and “minesite standards”;
(d)moreover, Schedule A indicates that the mine site competencies and standards may vary from mine to mine, a circumstance which does not sit comfortably with the prospect of the Specific Employees being assigned to different mines; and
(e)the list of “Advancement Competencies” in cl A.5.2 of Schedule A of the Black Coal Award, while expressed as non‑exhaustive, is said to be indicative of the types of competencies utilised in underground mines. However, with the possible exception of “Ancillary Equipment”, the list does not seem to include any competencies concerning the work of the Specific Employees, or at least the principal aspects of their work.
In my view, these matters indicate that the work performed by the Specific Employees does not sit comfortably within the Mineworker classifications in the Black Coal Award. While those classifications do encompass tradespersons, they do not seem to have been developed with regard to employment of persons such as the Specific Employees. This shortcoming is not counter‑balanced by the weight which can appropriately be attached to the environment in which the Specific Employees normally perform their work.
The C10 classification in the Manufacturing Award is much more specific to the engineering trades. It covers aptly the work of the Specific Employees. This is unsurprising given that the Manufacturing Award is directed specifically to, amongst others, “maintenance employees”.
Accordingly, I conclude that Bis has established that the C10 classification in the Manufacturing Award is “most appropriate” to the work of the Specific Employees and to the environment in which they normally perform their work.
Conclusion
For the reasons given above, I consider that each of the Specific Employees is, or was, a “coal mining employee” as defined in cl 4.1(b) of the Black Coal Mining Industry Award 2010.
I am satisfied that, subject to the operation of cl 4.8 of the Black Coal Award, Bis was covered by both the Black Coal Mining Industry Award 2010 and the Manufacturing and Associated Industries and Occupations Award 2010 in relation to the employment of Mr Davis and Mr West and is so covered in relation to its continuing employment of Mr O’Neile. I am also satisfied that the C10 classification in the Manufacturing Award, rather than a classification contained in the Black Coal Award, is most appropriate to the work of the Specific Employees, so that cl 4.8 of the Black Coal Award has the effect that it is the Manufacturing Award, and not the Black Coal Award, which covered, and in the case of Mr O’Neile, covers, their employment. I am accordingly satisfied that the Specific Employees are not covered by the Black Coal Award within the meaning of s 48 of the FW Act.
I decline to make findings or to issue declarations with respect to the remainder of the FSRs employed by Bis in its Field Services business unit.
The parties are directed to confer with a view to agreeing upon minutes of the orders to be made to give effect to these reasons.
I certify that the preceding three hundred and nineteen (319) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice White. Associate:
Dated: 8 November 2021
SCHEDULE OF PARTIES
NSD 354 of 2020 Respondents
Fourth Respondent:
LINDSAY PAUL O'NEILE
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