DECISION

Fair Work Act 2009
s.156—4 yearly review of modern awards

4 yearly review of modern awards—Black Coal Mining Industry Award 2010
(AM2020/25)

Coal industry
DEPUTY PRESIDENT GOSTENCNIK DEPUTY PRESIDENT CLANCY COMMISSIONER BISSETT	MELBOURNE, 18 NOVEMBER 2020

4 yearly review of modern awards – finalisation of Exposure Drafts and draft variation determinations – Tranche 3 awards – Black Coal Mining Industry Award 2010.

Introduction and Background

[1] This decision deals with two outstanding issues in the Black Coal Mining Industry Award 2010 (Black Coal Award) as part of the 4 yearly review of modern awards (the Review). The first issue (Issue 1) concerns the rates of pay applicable to shiftworkers in Schedules C and D engaged in weekend work. The second issue (Issue 2) relates to the rates of pay for work on a public holiday.

[2] A Statement 1 published on 12 March 2020 in relation to the Black Coal Awardsummarised the issues and submissions in respect of this award and indicated that it would be the subject of a separate conferencing process.

[3] A conference in respect of the issues raised was held on Friday 20 March 2020. The transcript of the conference is available here. A Report published on 23 March 2020 set out the outcomes of the conference. The contents of the Report, including Directions contained therein, was restated in a Full Bench Decision on 27 April 2020. 2

[4] The following submissions were filed in response to Directions contained in the Report published on 23 March 2020:

• Ai Group on 7 April 2020, 15 April 2020 and 13 May 2020

• Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) on 21 April 2020 and 13 May 2020

• Coal Mining Industry Employer Group (CMIEG) on 13 May 2020

• “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) on 14 May 2020

• The Association of Professional Engineers, Scientists and Managers, Australia - Collieries Staff Division (APESMA) on 15 May 2020

• Construction, Forestry, Maritime, Mining and Energy Union (Mining and Energy Division) (CFMMEU) on 20 April 2020 and 13 May 2020.

[5] A Statement 3 issued on 18 May 2020 (May 2020 Statement) noted that all parties had confirmed their agreement to the matters agreed at the conference on 20 March 2020.4

[6] The May 2020 Statement summarised the issues that remained outstanding 5 and stated that, while the Full Bench previously indicated that the outstanding issues would be the subject of a conference after the filing of reply submissions, given the positions of the respective parties, a further conference appeared of little utility. The President constituted this Full Bench to hear and determine the two issues earlier identified.

[7] Directions Hearings were held before Deputy President Gostencnik on 3 June 2020 and 12 June 2020.

[8] Directions were issued on 12 June 2020 and the following submissions were…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2020] FWCFB 5908
Decision Date: 18 NOVEMBER 2020

CaseChat Overview and Summary

The Fair Work Commission determined two issues concerning the Black Coal Mining Industry Award 2010 as part of the 4-yearly review of modern awards. The first issue was the rates of pay applicable to shiftworkers in Schedules C and D engaged in weekend work, and the second issue was the rates of pay for work on a public holiday. The Commission rejected the proposal by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) to vary clauses 23.1 and 23.2 of the Exposure Draft, and instead proposed that the Exposure Draft be amended to maintain the rate for ordinary hours worked consistently with that for which provision is made in clause 21.2 of the Black Coal Award. The Commission also rejected Ai Group's proposal to vary clause 29.4 of the Exposure Draft, and instead proposed that the Exposure Draft be amended by inserting the word “public” before the word “holiday” throughout the public holidays provision. The Commission held that the reference to “double time” in clause 27.4 of the Black Coal Award means twice that “single time” rate or 200%, and the reference to “treble time” means three times the “single time” rate or 300%. The Commission also held that the words “in addition to the payment prescribed” in clause 27.4(a) of the Black Coal Award refer to the payment prescribed in clause 27.3, namely, the payment for the day that is a public holiday on which the employee would otherwise have worked at the employee’s classification rate. The Commission held that any necessary variations to clause 29 the Exposure Draft should be considered in conjunction with variations which will be settled in the conference that will be convened by Commissioner Bissett.

Orders