Construction, Forestry, Maritime, Mining and Energy Union v BHP Coal Pty Ltd
[2020] FWC 4322
•20 AUGUST 2020
| [2020] FWC 4322 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Construction, Forestry, Maritime, Mining and Energy Union
v
BHP Coal Pty Ltd
(C2019/7536)
DEPUTY PRESIDENT ASBURY | BRISBANE, 20 AUGUST 2020 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] – Model Consultation Term obligations – Whether enterprise agreement covers new roles undertaking work in connection with the operation of autonomous systems.
BACKGROUND
[1] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) applies under s.739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a dispute in accordance with the dispute settlement procedure in clause 37 of the BMA Enterprise Agreement 2018 (the 2018 Agreement). The Respondent in this matter is BHP Coal Pty Ltd (BHP/the Company).
[2] The dispute concerns three distinct issues arising from a decision of BHP to introduce Autonomous Haulage Trucks (AHTs) (driverless haul trucks) at the Goonyella Riverside Mine (GRM). The background, as set out in the Form F10 application filed by the CFMMEU, can be briefly stated. On 12 November 2019, BHP notified employees engaged at GRM that the company would commence implementing the introduction of AHTs at the mine. The stated intention of BHP is to deploy 86 AHTs on the GRM site, in stages, over a period of approximately two years. The introduction of AHTs will lead to the displacement of an estimated 300 to 340 roles at GRM that are currently filled by permanent employees and labour hire employees and is a major change to the operation of GRM.
[3] BHP commenced a consultation process that, at the time of the CFMMEU filing the dispute, included: presentations to employees commencing on 12 November 2019; four formal face to face meetings with employee representatives and Union representatives held on 14, 20 and 27 November and 9 December 2019; and the provision of a number of documents to employees and the CFMMEU. BHP contends that the consultation process meets its obligations under the 2018 Agreement. The CFMMEU contends that the Company has not complied with its obligations under the Agreement, has failed to provide information that it was required to provide and that new roles associated with the operation of the AHTs are covered by the Agreement.
[4] The CFMMEU and BHP have exchanged correspondence that sets out their fundamental disagreements. The dispute was not resolved in conciliation and the CFMMEU sought that it be determined under the Dispute Settlement Procedure set out in clause 37 of the 2018 Agreement. It is common ground that the Dispute Settlement Procedure has been complied with and that the Commission is empowered to determine the dispute by answering questions for arbitration agreed to by the parties.
[5] The matters in dispute can be summarised as follows. All matters involve the proper construction of the 2018 Agreement. The first matter concerns the interaction, if any, between a provision dealing with Continuous Improvement (clause 14) and the Model Consultation Term (clause 15) of the 2018 Agreement. The CFMMEU contends that in addition to the consultation requirements contained in the Model Consultation Term, BHP is required to first follow the process in clause 14 of the 2018 Agreement which deals with Continuous Improvement, to trial the introduction of AHTs.
[6] BHP contends that the processes set out in clauses 14 and the Model Consultation Term are mutually exclusive and maintains that clause 14 does not apply to the introduction of AHTs, on the basis that this involves a major change, and is covered by clause 15 and the Model Consultation Term. The second issue concerns whether BHP is required by clause 15 to provide information about trials of AHT at other sites, and information about safety issues and training that will be conducted as a result of the introduction of AHTs at GRM. The third and fourth issues concern whether the Agreement covers certain roles associated with the operation of AHTs designated as Controller AH Systems (Controller) and Field Officer AH Systems (Field Officer).
[7] Directions were issued requiring the parties to provide agreed questions for arbitration and to file and serve material upon which they intended to rely to enable the Commission to determine those questions. The following questions for arbitration were agreed by the parties:
1. What additional obligation does the Company have, if any, under clause 14 “Continuous improvement” in respect to the use of autonomous haul trucks at Goonyella Riverside coal mine?
2. Under clause 15, must the Company provide the additional information sought on the following to satisfy its consultation obligations under that clause:
a. The prior trials of autonomous haul truck operations conducted by the Company (or related corporate entities) on other mine sites?
b. The safety benefits of autonomous haul trucks relied upon by the Company in its decision to implement autonomous haul trucks at Goonyella Riverside coal mine?
c. The training program to be conducted as a result of the implementation of autonomous haul trucks at Goonyella Riverside coal mine?
3. Does the role of “Mine Controller (AH Systems)” fall within the scope of the Agreement?
4. Does the role of “Field Officer (AH Systems)” fall within the scope of the Agreement?
[8] The matter was listed for Hearing by video on 27 April and 28 April 2020. The following persons provided witness statements on behalf of the CFMMEU:
• Mr Steven Pierce – Vice President of the Queensland District of the CFMMEU; 1
• Mr Simon West – Vice President of the GRM Lodge of the CFMMEU and employee of BHP 2; and
• Mr Stephen Watts – Industry Safety and Health Representative. 3
[9] The following persons provided witness statements on behalf of BHP:
• Ms Caitlyn Ryan – Principal Employee Relations; 4
• Mr Shaun Hansen – Manager Autonomous Haulage East; 5
• Mr Shaun McKenzie – formerly Manager Employee Relations, BHP. 6
[10] Mr McKenzie was not required for cross examination. All other witnesses were required for cross examination and attended the hearing by video to give their evidence. The parties also jointly tendered an agreed bundle of material which was marked as Exhibit A.
[11] The Dispute Settlement Procedure in the Agreement provides for both parties to be represented in proceedings before the Commission. At the hearing, the CFMMEU was represented by Mr A Bukarica, Legal Officer of the CFMMEU, with Ms E Sarlos and Ms H Thomas. BHP was represented by Mr M Coonan, of Herbert Smith Freehills, with Ms N Jones, and Ms E McRae.
RELEVANT AGREEMENT PROVISIONS
[12] The Agreement was approved by a decision of the Commission on 21 May 2018. It commenced operation on 28 May 2018 and has a nominal expiry date of 21 May 2021. The CFMMEU, the Australian Manufacturing Workers’ Union (AMWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) (collectively the Unions) are covered by the Agreement. In relation to ‘parties bound’ by the Agreement clause 1.1 provides:
“1.1 This enterprise agreement (“Agreement”) will cover and apply to:
(a) BHP Coal Pty Ltd (“the Company”) with respect to the Employees employed at the following mines currently managed by BHP Billiton Mitsubishi Alliance (“BMA”):
(1) Goonyella Riverside Mine;
(2) Peak Downs Mine;
(3) Saraji Mine;
(4) Norwich Park Mine;
(5) Gregory Mine;
(6) Crinum Mine; and
(7) Blackwater Mine
(each, a “Mine” and collectively, the “Mines”);
(b) The Employees employed by the Company who perform work covered by Schedule A of the Black Coal Mining Industry Award 2010 (“BCMI Award”) and who are members or eligible to be members of any of the Unions and who are engaged at the Mines in the classifications prescribed by this Agreement (“the Employees”); and
(c) The Unions, provided each one becomes covered by this Agreement pursuant to section 183 of the Fair Work Act 2009 (Cth).
hereinafter described as “the Parties”.”
[13] By virtue of Clause 1.5, the Agreement overrides and replaces in its entirety the Award, all other award or industrial instruments that may have otherwise applied, including the BMA Enterprise Agreement 2012 (the 2012 Agreement), and any existing customs and practices which may have prevailed at the Mines.
[14] Annexed to the Agreement are schedules for each mine site coved by the Agreement including “Schedule 4 – Goonyella Riverside Mine”. Included within the GRM Schedule are specific terms and conditions that apply to employees at GRM. The GRM Schedule specifies rates of pay for Production Employees and Maintenance Employees depending on the rosters worked by those employees.
[15] Clause 14 of the Agreement provides:
“14. Continuous improvement
Where the Company proposes a change to work practices and/or arrangements, the following will occur:
(a) The affected Employees and, if they request, their Employee Representatives will be notified of the proposal, in writing, by the Company, which will include the business reasons supporting the proposals, as well as the necessary duration for gaining the required evidence for evaluating the success of the trial. A genuine attempt will be made by all parties to reach an agreement
(b) If the majority of affected Employees agree, the proposal will be implemented.
(c) If there is no agreement, the Company may elect not to proceed with the proposal.
(d) If the Company elects to proceed, a trial may be implemented for a maximum period of up to six months depending on the nature of the proposal.
(e) At the end of the trial period either of the following may occur: either
(1) the Company decides not to proceed with the proposal;
(2) there will be full implementation.
(f) If once the Company has decided to implement a trial, the affected Employees are of the view that the trial is having/may have an effect on them, that is harsh, unreasonable or unjust, the affected Employees or if requested, their Employee Representatives, may progress the dispute to FWA in accordance with the final step of the Dispute Settlement Procedure in clause 37.16 to seek to have the trial cease or amended or not proceed because of the existence of such an effect. Each party to the Agreement agrees to accept the outcome of the Dispute Settlement Procedure.
This provision is not to be used to preclude a trial from proceeding or continuing merely because the trial represents a change to previous circumstances, may involve a reduction in Employee earnings, or may be deemed to constitute a perceived inconvenience to Employees. This provision is only to be used to argue that the effect of any trial is so unreasonable as to be contrary to the spirit of continuous improvement.
(g) Notwithstanding (f) above, during the last four weeks of any trial, an affected Employee or if requested, their Employee Representative, may refer any disputed issue connected to the trial to FWA through the final step of the Dispute Settlement Procedure. Each party to the Agreement agrees to accept the outcome of the Dispute Settlement Procedure.
(h) This provision will not be used to permit a proposal to be trialled which would involve a breach of occupational health and safety regulations.
(i) It is not the intention of this provision to reduce award standards or the terms and conditions of employment specified in this Agreement.
(j) The term “business reasons” as referred to in (a) above means an overview of the key financial and/or efficiency benefits that will accrue to the mine from the proposal. It does not mean a detailed business case.”
[16] In relation to consultation, clause 15 provides:
“15.1 For the purposes of section 205 of the Act, the model consultation clause, as defined in the Fair Work Regulations 2009 (Cth), as amended from time to time, applies to any “major workplace changes that are likely to have a significant effect on Employees”.
15.2 The model consultation clause does not apply to any major workplace changes implemented under this Agreement for which other consultation obligations are prescribed in this Agreement. In all circumstances, only a single consultation process will apply.”
[17] The Model Consultation Term set out in clause 15 of the Agreement does not apply by virtue of the fact that it was superseded by a later version, which was taken to be a term of the Agreement at the time it was approved, by virtue of s. 54 of the Act. The more recent version of the Model Term is also incorporated by virtue of clause 15.1 of the 2018 Agreement. The difference between the two versions of the Model Consultation Term concern changes to rosters and hours of work, which are not relevant in the present dispute. The Model Consultation Term incorporated in the Agreement (sometimes referred to as clause 15) is as follows:
Model consultation term
(1) This term applies if the employer:
(a) has made a definite decision to introduce a major change to production, program, organisation, structure or technology in relation to its enterprise that is likely to have a significant effect on the employees; or
(b) proposes to introduce a change to the regular roster or ordinary hours of work of employees.
Major change
(2) For a major change referred to in paragraph (1)(a):
(a) the employer must notify the relevant employees of the decision to introduce the major change; and
(b) subclauses (3) to (9) apply.
(3) The relevant employees may appoint a representative for the purposes of the procedures in this term.
(4) If:
(a) a relevant employee appoints, or relevant employees appoint, a representative for the purposes of consultation; and
(b) the employee or employees advise the employer of the identity of the representative;
the employer must recognise the representative.
(5) As soon as practicable after making its decision, the employer must:
(a) discuss with the relevant employees:
(i) the introduction of the change; and
(ii) the effect the change is likely to have on the employees; and
(iii) measures the employer is taking to avert or mitigate the adverse effect of the change on the employees; and
(b) for the purposes of the discussion—provide, in writing, to the relevant employees:
(i) all relevant information about the change including the nature of the change proposed; and
(ii) information about the expected effects of the change on the employees; and
(iii) any other matters likely to affect the employees.
(6) However, the employer is not required to disclose confidential or commercially sensitive information to the relevant employees.
(7) The employer must give prompt and genuine consideration to matters raised about the major change by the relevant employees.
(8) If a term in this agreement provides for a major change to production, program, organisation, structure or technology in relation to the enterprise of the employer, the requirements set out in paragraph (2)(a) and subclauses (3) and (5) are taken not to apply.
(9) In this term, a major change is likely to have a significant effect on employees if it results in:
(a) the termination of the employment of employees; or
(b) major change to the composition, operation or size of the employer’s workforce or to the skills required of employees; or
(c) the elimination or diminution of job opportunities (including opportunities for promotion or tenure); or
(d) the alteration of hours of work; or
(e) the need to retrain employees; or
(f) the need to relocate employees to another workplace; or
(g) the restructuring of jobs.
Change to regular roster or ordinary hours of work
(10) For a change referred to in paragraph (1)(b):
(a) the employer must notify the relevant employees of the proposed change; and
(b) subclauses (11) to (15) apply.
(11) The relevant employees may appoint a representative for the purposes of the procedures in this term.
(12) If:
(a) a relevant employee appoints, or relevant employees appoint, a representative for the purposes of consultation; and
(b) the employee or employees advise the employer of the identity of the representative;
the employer must recognise the representative.
(13) As soon as practicable after proposing to introduce the change, the employer must:
(a) discuss with the relevant employees the introduction of the change; and
(b) for the purposes of the discussion—provide to the relevant employees:
(i) all relevant information about the change, including the nature of the change; and
(ii) information about what the employer reasonably believes will be the effects of the change on the employees; and
(iii) information about any other matters that the employer reasonably believes are likely to affect the employees; and
(c) invite the relevant employees to give their views about the impact of the change (including any impact in relation to their family or caring responsibilities).
(14) However, the employer is not required to disclose confidential or commercially sensitive information to the relevant employees.
(15) The employer must give prompt and genuine consideration to matters raised about the change by the relevant employees.
(16) In this term:
relevant employees means the employees who may be affected by a change referred to in subclause (1).
[18] The term “consultation” is defined by the Agreement in clause 47.1 as follows:
““Consult” or “Consultation” means providing Employees with a genuine opportunity to influence and inform the decision making process over a significant or important issue. Consultation does not mean or imply that agreement must be sought or reached.”
APPROACH TO CONSTRUCTION OF AGREEMENTS
[19] As previously noted, the issues in dispute all concern, to some degree, the proper construction of various provisions of the 2018 Agreement. The approach to the task of construing the terms of an enterprise agreement was most recently summarised in a Decision of a Full Bench of the Commission in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Berri Pty Ltd 7 as follows:
“1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:
(i) the text of the agreement viewed as a whole;
(ii) the disputed provision’s place and arrangement in the agreement;
(iii) the legislative context under which the agreement was made and in which it operates.
2. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.
3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.
4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.
5. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.
6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.
7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.
8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.
11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.
12. Evidence of objective background facts will include:
(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;
(ii) notorious facts of which knowledge is to be presumed; and
(iii) evidence of matters in common contemplation and constituting a common assumption.
13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.
14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.
15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.”
[20] I have applied these principles in determining the matters in dispute.
EVIDENCE
CFMMEU
[21] Mr Pierce gave evidence about discussions in relation to the proposal to introduce AHTs at GRM. Mr Pierce referred to a number of documents which had been provided to employees on 12 November 2019 as part of an initial Company presentation concerning the introduction of AHTs which were included in the agreed bundle of documents. Mr Pierce attended a consultation meeting on 14 November involving Union officials, delegates and management of the Company, at which the AHT proposal was outlined. A PowerPoint presentation was provided 8 and the following points were emphasised:
• There would be no forced or voluntary redundancies as a result of the introduction of AHT;
• The scope of the consultation would be confined to what was required under clause 15 of the Agreement and in particular safety and health issues would not be discussed but would be subject of a separate consultation;
• There would be 24 new roles under the Agreement as a result of AHT but there would be two other roles filled by approximately 52 employees which would be staff roles and outside the Agreement; and
• Expressions of interest (EOI) for the new roles would be rolled out quickly with a closing date of 26 November 2019.
[22] Mr Pierce said that the Union raised questions and concerns which can be grouped as follows:
• Questions concerning health and safety implications which were generally not answered by the Company and were “noted” for a separate consultation process to occur in relation to safety and health, except for questions about prior safety incidents involving AHT at the Jimbelbar Mine operated by BHP in the Pilbara which the Company committed to providing details about at the next meeting;
• Questions concerning employee and contractor numbers in relation to which some clarification was provided to the effect that there would be a reduction in haul truck operator roles of 300 with labour hire employees being directly impacted;
• Questions concerning the new roles of Field Officer, Controller and Service Technician and the rationale behind the Company designating the first two roles as “staff” roles that would not be covered by the Agreement with the Company stating that the roles do not perform work covered by the Award;
• Questions in relation to the impact on career progression for Agreement employees arising from the designation of Field Officer and Controller as staff on the basis that this would broaden the recruitment pool beyond Agreement employees;
• Questions concerning the impact of the introduction of AHTs on local communities in the Bowen Basin and in particular the impact on apprentices and trainees and the impact on local economies of a net reduction in mineworkers at GRM.
[23] In relation to the documents provided by the Company containing information about the roles of Field Officer and Controller Mr Pierce said that after reviewing them he noted similarities to existing roles at GRM and other coal mines. In particular the Field Officer seemed to have similarities to the role of an Open Cut Examiner (OCE). More generally, the use by workers in production and engineering roles of computers, GPS devices and electronic diagnostic equipment is becoming increasingly common. Mr Pierce referred to shot firing as an example and said it is now conducted by employees using a computerised sequence of blasts whereas previously the role was performed manually. Mr Pierce said that the Controller role has distinct similarities to the role of Despatch Operator which was a common role on BHP mine sites before the role was located offsite in Brisbane.
[24] There are also similarities between a Controller and the Coal Room Operator in Coal Handling and Preparation Plants (CHPP) in that these employees control the operations of the CHPP remotely via a bank of computer screens. Some of the duties of the Controller also cross over into traditional OCE duties with a smaller proportion of their work normally performed by either Servicepersons or Tradespersons. Mr Pierce said that he also could not see any reference to supervisory or typically “staff” duties attached to the Controller and Field Officer positions, and his view is that the proposed new roles were to be embedded within the production process at Goonyella Riverside mine and are not “management” roles as he had traditionally understood that term.
[25] At the second consultation meeting on 20 November 2019, Mr Pierce sought to press the Company about the exclusion of Controllers and Field Officers from the Agreement. Ms Ryan advised that BHP disagreed with the position Mr Pierce was putting, and that the Union should specify the basis of its claims by 22 November 2019. Mr Pierce advised that a written response would be provided, but that if the Company proceeded to advertise and fill the roles, the Union would be forced to notify a dispute under the Dispute Settlement Procedure in the Agreement.
[26] Mr Pierce also raised concerns about the Company’s approach of excluding safety and health issues from the consultation process and argued that as the Company was required to undertake a full examination of safety and health systems as a result of the introduction of AHT, the consultation process could not finish until that was completed. Ms Ryan replied that the Company did not agree with that position and that the review of Safety and Health Management System (SHMS) would occur separately to the clause 15 process and in parallel.
[27] A further issue raised by Mr Pierce was in relation to the operation of clause 14 “Continuous improvement” of the 2018 Agreement, in the context of the introduction of AHT. Mr Pierce stated during meetings that it was the view of the CFMMEU that clause 14 of the Agreement applied and that as a result, the Company was obliged to conduct a trial before undertaking full implementation. Mr Pierce said that the Company representatives appeared surprised by this proposition and Ms Ryan put the position that the Company only had to comply with the Model Consultation Term in relation to the introduction of AHT. Mr Pierce said that by the conclusion of the second consultation meeting it was clear to him that the Company had a fixed view about its obligations under the Agreement in respect of the introduction of AHT and their approach in dealing with the Union would be within strict parameters.
[28] On 26 November 2019, Mr Smyth, District President of the CFMMEU, wrote to Ms Ryan expressing the concerns of the Union in respect to the consultation process undertaken, and the disputed issues relating to the operation of clause 14; the Agreement coverage of the roles of Field Officer and Controller and the exclusion of safety and health information from the scope of consultations. The letter also requested the provision of further specific information in relation to the introduction of AHT including:
• Information concerning prior trials of autonomous haul truck operations at other BHP mines.
• Studies concerning the safety benefits that AHT could bring to Goonyella Riverside mine.
• Details of the training program that the Company intended to introduce as a result of the introduction of AHT.
• Full job descriptions of the new roles to be introduced as a result of the implementation of AHT.
• The rationale for the designation of the roles of Field Officer and Controller as “staff” roles. 9
[29] A third formal consultation meeting was held on 27 November 2019 at which the previous positions were maintained. Mr Pierce accepted the accuracy of the Record of Meeting in Exhibit A other than the assertion that the Union promised to provide written reasons as to why the Field Officer and Controller roles were covered by the Agreement, by 29 November 2019. On 28 November 2019, Mr Smyth sent a further letter to the Company stating that it was not possible to provide that information until the Company had provided the Union with additional information concerning the work undertaken by employees in these roles. 10 On 29 November Ms Ryan provided an initial response to the issues raised by the Union in its correspondence and previous meetings acknowledging the dispute in relation to clause 14 and consenting to the matter being referred to arbitration. The letter reiterated that the Company would not be dealing with the SHMS in the consultation process.
[30] On 3 December 2019 Ms Ryan responded to Mr Smyth’s letter refusing to provide information in relation to how the decision to implement autonomous haulage was reached and maintaining that full data from which talking points about the safety benefits of AHT had been drawn would not be provided, on the basis that the information requested did not fall within the subject matter that the Company was required to consult about under the Model Consultation Term. Ms Ryan’s letter also reiterated the Company’s position that the Controller and Field Officer roles were staff roles because they did not fall within Schedule A of the Award. Some additional information was provided relating to the Field Officer and Controller roles including core accountabilities and training program associated with the introduction of AHTs. Mr Pierce maintained that the Company had refused to provide most of the material requested by the Union and at the final consultation meeting on 9 December 2019, it was agreed that further meetings would not be productive in light of the positions maintained by the Company and the Union.
[31] Under cross-examination, Mr Pierce agreed that at the first consultation meeting, Mr Milfull spoke to safety matters “generally” and that there were two overhead slides in the presentation in relation to safety. Mr Pierce also agreed that safety issues were discussed at the second consultation meeting but maintained that the discussion was about general rather than specific matters. Mr Pierce agreed that the Company representatives had maintained that safety matters would be discussed as part of the review of the Mine’s Safety and Health Management System (SHMS) required under the Coal Mining Safety and Health Act.
[32] In relation to his evidence about other classifications said to be comparable with Controllers and Field Officers, Mr Pierce was not aware of whether OCEs undertake mine mapping. In relation to Despatch Officers, Mr Pierce agreed that they run data analysis to a degree including recording where vehicles were going, what loads they were carrying, where they were dumping the product and where that sat within the production requirements of the mine on that shift.
[33] Mr West said in his evidence that he has some concerns about the introduction of AHTs but is generally in favour and open to it. Mr West also said that for the Union, implementing the change as a trial and giving workers an opportunity to navigate issues that might emerge as part of the trial, is an important entitlement as the Company is required to engage throughout implementation rather than coming to the workers with a decision that they just have to live with. Mr West agreed that Mr Hansen answered some questions about what had occurred at the Jimblebar Mine but was brief and when pressed for detail was not able to provide it. The Union sees that one of the major effects of the change is an impact on safety and seeks to have safety included in the consultation process. According to Mr West, the Company told employees how much safer AHTs would be but would not provide any more information, such as the results of implementation at Jimblebar, and stated that this would be dealt with by a separate safety committee. Mr West also said that Mr Hansen did not provide any written material in relation to Jimblebar.
[34] Mr West tendered a letter he wrote to the General Manager of GRM seeking on behalf of the SBU that a member from each Union be included in the health and safety review in relation to the implementation of AHTs. The General Manager responded advising that there were 130 EOIs received in relation to the process and a cross-section of the Mine had been selected, including two Site Safety and Health Representatives and that in his view the cross-section was appropriate and the composition would not be changed. Mr West is also aware that the Company has formed focus groups of employees to discuss the implementation of AHTs and the group has gone to the Jimblebar Mine in Western Australia where AHTs have been trialled. The Union has not been involved in the focus groups.
[35] In relation to Mr McKenzie’s evidence about the limited use of clause 14 during his time with the Company, Mr West agreed that this was correct but said that this is because there had not been any big changes to work practices or arrangements when it has been relevant to use the clause and it has only been used for roster changes. Mr West also said that the implementation of AHTs at GRM is the biggest change to work arrangements since he has been at the Company. The next biggest was termed “Project Zinc” and involved redundancies which meant that it was more relevant to commence a dispute in relation to clause 32 of the Agreement.
[36] In relation to Mr Hansen’s statement, Mr West said that autonomous haulage was first raised with him in 2016 by the then Site Senior Executive (SSE) and in late 2018 or early 2019, 7 new trucks which had the ability to be automated arrived on the site. In around July 2019 employees were told that the Company was again looking at automation and more new trucks arrived at the site. Mr West tendered a letter he sent to the Manager Coal Mining on 2 September 2019 expressing excitement at the prospect of automation but concern about the lack of information. The letter also expressed the desire of the Lodge to understand and engage with the Company to find mutually beneficial outcomes for all involved. Mr West also said that he has expressed on multiple occasions the preparedness of the CFMMEU to work together to promote trust in the workplace and that as President of the Lodge he has indicated his support for the introduction of automation.
[37] Mr West detailed the preparation the Company has been engaged in for the implementation of AHTs including extensive road works in the test zone which have resulted in those roads being up to a standard higher than other roads on the site. Mr West said it is unusual that none of the preparation is happening as part of a trial, unlike other new processes introduced on the site such as the introduction of electronic detonators for shot firing, a blasting product called Soft Load and a trial of an explosive by Orica. Mr West said that the benefit of trials was that the Company could assess whether the changes would work and try different approaches if something did not work. Mr West can see no reason why the introduction of AHTs cannot be conducted as a trial process as provided in clause 14 of the 2018 Agreement.
[38] In relation to the Controller and Field Officer positions, Mr West said that the complexity is over-stated by Mr Hansen in his evidence. In relation to the Field Officer position, Mr West understands that its role is to keep the virtual mine current. Mr West also said that each of the components set out in Mr Hansen’s statement in relation to the Field Officer role are versions of duties currently performed by Agreement covered workers on the physical site. Monitoring the Mine site, performing surveys, managing dumps and managing obstacles on the site are all jobs that are directly connected to production and are already being performed in relation to different activities on site. This does not change because mining is facilitated by an AHT. Mr West said that his understanding is that the Field Officer will be in a vehicle with a survey unit which conducts real time surveying and will then troubleshoot problems that might come up in the same way that any worker on site would.
[39] Mr West gave examples and said that if there was a spillage of rocks, a truck operator would address it by getting a grader to come and sort the problem. A shot firer who spotted a hazard would notify the supervisor and an Open Cut Examiner (OCE) who would deal with the issue. The focus of an OCE’s job is to ensure that safety is being complied with in every area of the Mine and that roads are graded properly and vehicles are compliant. Mr West also said that some elements of the Field Officer position reminds him of a blast Controller’s role which involves taking GPS points of the shot that is going to be fired and converting them to a blast clearance map and driving the area to make sure that it is evacuated including selecting roads to be shut. Blast controller can shut down circuits and production in areas in order to clear personnel from a zone. They then coordinate the blast, put guards in position and sweep the zone to make sure that no-one is in it. The shot firer also assesses the success of the blast and ensures it went off the right way. As a shot firer, Mr West has a tablet that is loaded with the blast pattern of the holes provided by engineers. Mr West and a team measure the depth of the holes and the presence of water, wet sides or water dribbling in at a certain level. These factors need to be measured and reported and determine the explosive product that will be used and the loading method.
[40] The Shot Firer has ultimate responsibility for the result of the shot and has a large say in the explosive product used. Decisions are required to be made on the go and the Shot Firer also manages and supervises a measuring team. The Shot Firer’s role, like that of the OCE, is a statutory one and has a different level of responsibility to that of the Field Officer. The Shot Firer and OCE roles are covered by the Agreement. Mr West said that the Controllers that he knows of who have been hired by BHP are former truck drivers, some of whom have less than two years’ experience in mining. Mr West said that the Controller role requires no qualification or competency beyond on the job training, compared to a Shot Firer or OCE which are roles that require statutory licensing and recognised training. Mr West has difficulty with the idea that the Controller position is more technical than either of the Shot Firer or OCE roles. Mr West also said that the unplanned events referred to by Mr Hansen are events that happen on site now, and a Controller would deal with them in the same way as current employees, as and when the events arise.
[41] Under cross-examination, Mr West accepted that Mr Hansen was present at the consultation meeting on 20 November and that he responded to questions about Jimblebar. Mr West maintained that the discussion was brief and Mr Hansen spoke for one or two minutes. Mr West also accepted that Jimblebar was on the agenda for discussion and that Mr Hansen gave a presentation in response to questions from the Union representatives about that site. Later Mr West said that he had no reason to say that Mr Hansen’s presentation did not go for half an hour. 11 Mr West maintained that Mr Hansen was asked a number of questions which he responded to by stating that he did not have the details. Mr West could not recall Mr Hansen stating that he could get more information from Mine reports.
[42] Mr Watts has a number of mining related competencies including a Deputy’s Certificate, a Certificate IV in Workplace Training and has completed the last module of an Advanced Diploma of Underground Coal Mine Management. Mr Watts has also performed the role of Trainer Assessor at various underground coal mines between 2005 to 2019 and is an Employee Organisation Representative on the Coal Industry Reference Committee, an advisory group responsible for the development of national training packages relevant to the coal mining industry. Mr Watts gave evidence about qualifications and training packages in the coal mining industry.
[43] Over the course of Mr Watts’ career in the coal mining industry he has witnessed the development and deployment of a number of new technologies in the production and maintenance areas of coal mines, including remote control and computerised systems. Some examples are:
• The emergence of pit-top Control Room Operators in underground coal mines who work with computers to control various aspects of the mining process happening underground;
• The increasing computerisation of shot-firing in open cut coal mines including the emergence of electronically programmable detonators allowing shotfirers to program each individual detonator in-situ via laptop computer.
• The employment of “Despatch Operators” located on mine sites and also remotely, who use a computer interface to undertake various tasks such as conveying messages about road conditions and speed limits to haul trucks and other machinery.
• The development of Control Room Operators in Coal Handling and Preparation Plants (CHPP) who use a computer interface to control all aspects of the CHPP process.
• The increasing use of diagnostic electronic and computerised systems by certain trades, particularly Electricians and Diesel Mechanics in their day-to-day work reflecting the increasing technological sophistication of Haul Trucks and other equipment used in coal mining; and
• The increased automation of equipment in underground coal mines to provide for safer and more efficient operation including technologies for the effective operation, control and monitoring and the making of required adjustments during the operation of the equipment.
[44] Mr Watts is also generally aware of the increasing use of autonomous haul trucks and ore trains, primarily in the iron ore mining industry in the Pilbara District of Western Australia. In addition, via his role on the Coal Industry Reference Council (Coal IRC), Mr Watts is aware that there has been a specific unit of competency developed for workers involved in remotely operating autonomous mining machinery in the metalliferous mining industry in Western Australia. Mr Watts tendered details of a unit of competency known as “RIIMPG301D - Control and monitor automated plant/machinery”. 12 Mr Watts is also aware of a unit of competency that applies to both coal and metalliferous mining in the context of a Certificate III in Surface Extraction Operations, relating to Control Centre Operations and tendered details of a unit of competency referred to as RIIMCO301D – “Conduct control centre operations”.13 Through his role on the Coal IRC Mr Watts is also aware of efforts to develop more specific training and competency units relating to remote operations and autonomous machinery.
[45] In response to Mr Hansen’s evidence, Mr Watts said that he disagrees that there is a difference between people being trained to use computer interface technology and the responsibility that has been assigned to the AH system positions for ascertaining and analysing data, defining solutions and tolerances and delivering production through technology. In particular Mr Watts disagreed with the distinction that is sought to be drawn between what are described as the “AHS positions” and a number of other existing positions in the coal mining industry. Mr Watts said that Mr Hansen had significantly downplayed the level of competency, responsibility and authority required in certain roles he had referred to in his evidence, in particular, automated longwall operators. Mr Watts said that the Broadmeadow underground coal mine operated by BHP Coal Pty Ltd has in place a fully autonomous longwall operation. To operate the longwall autonomous system at Broadmeadow Mine, competent longwall operators are deployed at all times both underground on the longwall “face”, and in the operating centre located on the surface (Surface Remote Operating Cab).
[46] The operators of fully autonomous longwall operations are involved in operating a complex computerised system which largely controls itself. Mr Watts used the analogy of an autopilot system on a modern aircraft. The role of the operator is to monitor the operation of the longwall operating system, input real life variations in mining conditions into the system, survey plot horizon target lines, change the operating parameters of the longwall as required and to analyse the production output of the machine. Also, crucially, the human operator can intervene to shut down or temporarily override the autonomous longwall operation in the event of an unplanned event. Longwall operators are accountable to optimise the outcome. Under normal operation, environmental variations, or stoppages, they are required to ascertain and analyse data, define the solution and tolerances, delivering production and directing outcomes using the automated technology including by adjusting parameters of the system. Longwall operators are also required on regular occasion to physically survey plot the travel profile of the longwall shearer cutting drums by plotting and entering horizon target lines into the autonomous system. This maps out the cut profile of the autonomous operation. They also have the responsibility to ensure optimal performance of the longwall in accordance with mine plans.
[47] In relation to Mr Hansen’s evidence that data management and business skills are the competencies that matter most for the Field Officer and Controller position, Mr Watts said that he disagrees and that it is unclear what the term “business skills” means. Mr Watt considers that the fundamental role of mine production operators, and that of Field Officer and Controller, is to optimise the safety and production performance of mining equipment utilising the tools available to achieve the plan. The competencies that matter most are those that enable them to achieve this.
[48] Mr Watts also said that the information provided by BHP about the AHS Controller and Field Officer positions included in the documents “job description”, “day in the life” and “success profile” for the respective positions mention in various ways that mining equipment experience is a desired and mining experience is highly regarded. These documents also mention in various ways that digital fluency and ability to use technology is a desired experience, skill and attribute for these positions, and in Mr Watts’ view these skills are not rare in times where almost everyone has a smart phone and/or a computer.
[49] Further, Mr Watts said that there are already comprehensive competency packages in place that deal with the necessary skills required for autonomous mining operations. These training and competency packages deal with a range of skills required to successfully operate autonomous mining equipment, including operator skills and use of computer interface. For example, the role of Field Officer will necessarily require the person to have operator skills as they would be required from time to time to manually override the AHT system and physically operate the AHT which in Mr Watts’ view means that it is not accurate to describe this role as being principally concerned with data management.
[50] On 1 April 2020, Mr Watts attended a meeting of the Coal Mining Project Working Group dealing with the introduction of autonomous and semi-autonomous vehicle operations in the Coal mining industry. The meeting was convened by PWC Consultants who act as secretariat for the Coal IRC. Also at the meeting were an OCE employed at GRM and an Operator/Maintainer employed at the Daunia Mine who are on automation committees established at those mines. The meeting was the first step in developing specific competencies and training packages for autonomous operations in the coal mining industry and it is proposed to use as far as possible, work that has been done in the metalliferous mining industry in relation to autonomous operations. Mr Watts tendered a summary of the meeting outcomes prepared by PWC which refer to the need to create new AQFL level 3 units relating to working in an autonomous environment including “Operate Autonomous Vehicle Manually” which addresses skills required to take over and operate an autonomous vehicle in manual mode. The outcomes also included reference to training gaps for new job roles directly involved in autonomous operations including field builders responsible for working with crews to build the travel path for an autonomous vehicle and pit controllers responsible for overseeing and maintaining autonomous vehicle operations. 14
[51] Under cross-examination, Mr Watts conceded that he was not aware of all of the detail contained in the appendices to his witness statement and that he could not explain some terminology used in those documents. Mr Watts said that the documents were indicative of the Industry Reference Council’s response to developing more specific training and competency relating to remote operations and autonomous machinery.
BHP
[52] Ms Ryan said that the definite decision to introduce autonomous haulage (AH) at GRM was notified to employees during rolling crew briefings between 12 and 15 November 2019. At the end of the presentations, employees received the presentation, 15 a letter from the General Manager,16 a Q&A document17 and an EOI form for Agreement covered employees to apply for the new Service Technician role. On 12 November 2019, Ms Ryan also emailed representatives of the three Unions bound by the Agreement notifying of the decision to implement AH and forwarding copies of the documents provided to employees. Ms Ryan attended consultation meetings with employee representatives and State level Union officials on 14 November, 20 November, 27 November and 9 December 2019. Ms Ryan referred to a range of documents provided in the consultation meetings which were included in the agreed bundle that was Exhibit A in the proceedings. Ms Ryan also tendered documents for employees to express interest in AH system training and for a Service Technician role.
[53] The Q&A document indicates that there would be up to 24 Service Technician Roles which would be Enterprise Agreement (EA) roles, 20 Field Officer roles and 32 IROC Controller roles which would be staff positions. The Q&A document also indicates that due to the unique nature of the Komatsu system, the Company will not require any builder positions and that instead, Controllers would perform a blend of dispatch, control and road and network design tasks. The Q&A makes clear that EA employees will be able to express interest in the new Service Technician roles in accordance with the recruitment process in the Agreement. It is also stated that information will be provided in relation to applications for the Field Officer and Controller roles. Further, it is stated that everyone required to work in and around autonomous zones will receive training in autonomy awareness and that EOIs will be sought from employees in this regard. The Q&A document also indicates that employees may be required to operate autonomous trucks in manual mode.
[54] In response to Mr Pierce’s evidence, Ms Ryan said that she informed Mr Pierce of the Company’s view that clause 14 did not apply to the implementation of AHTs and sought further explanation in relation to the basis upon which Mr Pierce believed that clause 14 had been triggered, so that the Company could consider its position. Mr Pierce responded by saying that clause 14 had previously been used for roster changes and gave an example of a new practice relating to the dig technique for draglines. Ms Ryan said that the discussion concluded when she asked for further information on how clauses 14 and the Model Consultation Term worked together.
[55] Ms Ryan did not agree with Mr Pierce’s assertion that BHP was interested only in complying with the minimum legal obligations and did not want or appreciate the CFMMEU’s input. Ms Ryan said that Mr Hansen attended three of the four consultation meetings and provided safety information and answered the questions the CFMMEU had asked about safety incidents including incidents which had occurred at Jimblebar. Ms Ryan also noted that during the meeting on 27 November 2019, she again sought clarification from Mr Pierce to understand:
• his position on clause 14 of the Agreement and how this clause interacted with the Company’s obligations under clause 15 of the Agreement; and
• the CFMMEU’s position in respect of why it considered that the new positions of Field Officers and Controllers were covered by Schedule A of the Black Coal Mining Industry Award 2010.
[56] Ms Ryan said that Mr Pierce did not respond to these questions. In oral evidence at the hearing, Ms Ryan was referred to the record of a consultation meeting conducted with Unions on 14 November 2019. 18 The meeting record contains a box for the purpose of listing questions taken on notice in relation to which a response was not provided at the meeting. The 14 November 2019 meeting record indicates that one of the matters taken on notice was the sharing of information about safety incidents at the Jimblebar Mine following the introduction of AH at that Mine. Ms Ryan said that this information was shared at the next meeting on 20 November 2019. Ms Ryan’s evidence was that at that meeting Mr Hansen spoke to a number of PowerPoint slides he had prepared which talked about different types of incidents at Jimblebar and comparing safety incidents that occurred prior to the introduction of AH with safety incidents post AH, including reference to significant events and discussion about the different types of reportable incidents experienced at Jimblebar as a result of the changes to technology. Ms Ryan maintained that the discussion on this matter went for 25 – 30 minutes. The 20 November 2019 meeting record tendered in the agreed bundle of documents does not record this discussion and the slides used by Mr Hansen were not in evidence. The record of meeting also indicates that there was a discussion about the SHMS process and that the Unions sought information about the selection of a cross-section of coal mine workers for this process.
[57] Ms Ryan was referred to the PowerPoint presentation for the first consultation meeting with Unions and employee representatives on 14 November 2019 and agreed that Slide 2 entitled “Scope of Consultation” sets out the Company’s view in relation to what it is obligated to consult about. The slide states:
“Matters concerning changes to the safety and health management system will be the subject of separate consultation in accordance with the Coal Mining Health and Safety Legislation.” 19
[58] Ms Ryan did not agree with the proposition that the import of this statement was that safety and health matters would not be discussed under the clause 15 consultation process and maintained that the Company talked about the effects of the decision on employees, including in respect of safety. What the Company also said was that it would not discuss, as part of the consultative process, changes to the safety and health management system at the Mine, as that was a separate process. Ms Ryan was referred to a letter from Mr Smyth dated 26 November 2019, in which a request for the following information was made:
• The full data from which the safety and benefits of automation have been drawn;
• Research already conducted in relation to potential changes in relation to the site health and safety management system (SHMS) including outcomes from the focus group. 20
[59] The letter also included the following statement:
“SHMS Consultation
Throughout consultation to date, the Company has elected to excise matters concerning safety and the changes in technology to a separate consultation in respect of the SHMS. We remind you of the obligations which arise under the consultation clause and that they are not confined in any way. We therefore request that matters of safety be addressed directly through this consultation process”. 21
[60] Ms Ryan was also referred to a letter sent by her to Mr Smyth on 29 November 2019, referring to Mr Smythe’s correspondence of 26 and 28 November 2019, in which the following statement is made:
“SHMS Consultation
We note the comments you raise in relation to the SHMS process and consultation.
The SHMS process and the EA consultation process (which addresses matters in clause 15) are separate processes. They have different statutory bases, different objectives and different participation requirements. We will not be dealing with SHMS matters in the EA consultation process.” 22
[61] Ms Ryan agreed that the information sought by Mr Smyth in his letter of 26 November 2019 was broader than SHMS matters. Ms Ryan maintained that the letter of 29 November was not the Company’s full response to the matters raised by Mr Smyth and rejected the proposition that the stance of the Company was that it would not provide relevant safety and health information during the course of the consultation process. Ms Ryan maintained that:
• During the consultation the Company provided information about the effects of AH on employees including safety and the safety features of the Komatsu AH systems;
• Safety information was provided in relation to the Jimblebar operation as requested;
• The Company did not accept that the consultation process pursuant to clause 15 of the 2018 Agreement could not be completed until after the SHMS process was completed;
• The request from the Union for full data on the safety and health benefits from which the talking points in presentations were drawn was refused on the basis that it was not relevant to consultation and did not relate to the effects on employees;
• Data relied on by the Company to contend that the AH system was superior in terms of health and safety was refused on the basis of Ms Ryan’s view that it did not fall within the scope of what clause 15 required the Company to do; and
• Mr Smyth’s request for full data from which the safety benefits points were drawn was considered to be related to the reason why the Company had made its decision and not the effects on employees. 23
[62] Ms Ryan maintained under cross examination that the discussion by Mr Hansen in relation to the incidents at Jimblebar, at the second consultation meeting with the Unions and employee representatives, went for 25 – 30 minutes. 24 Ms Ryan agreed that copies of the PowerPoint slides used by Mr Hansen were not provided to the Union representatives and that no documents in relation to the incidents and their causes were provided. Ms Ryan accepted that the Jimblebar incidents discussed at the meeting occurred prior to the decision to implement AH at GRM. Ms Ryan also accepted that she was happy that Mr Hansen offered up information about incidents at Jimblebar but that she had refused to provide full data about the prior operation of AHTs in Western Australia as requested by Mr Smyth. Ms Ryan reiterated that the Company did not provide information regarding its reasons for making the decision to implement AH at GRM but provided information about the effects of AH on employees, one of those being improved safety performance at the Mine, based on Jimblebar.
[63] Mr McKenzie gave evidence about the 2012 Agreement which was approved on 26 October 2012. There were a number of major changes to the 2012 Agreement to allow BMA to implement productivity arrangements and Mr McKenzie’s major remit on commencing his role as Manager Employee Relations in November 2012, was to begin to roll these out. Mr McKenzie said that none of those improvements were progressed through clause 14 of the 2012 Agreement which was in identical terms to clause 14 of the 2018 Agreement. Changes relating to rosters did require use of Clause 14. This is a requirement of clause 11.5 relating to the introduction of new rosters.
[64] It was also expected from previous experience that the union parties to 2012 Agreement would be exploring the extent of the changes. Mr McKenzie’s role required him to respond to union claims seeking to explore, expand or contract the many changes made available through the 2012 Agreement. None of those were raised through clause 14. Mr McKenzie said that over the next 5 years that the Agreement was operational, there were in excess of 650 disputes notified. Almost all were either in response to changes that BHP wished to make or claims by the Unions to limit the scope of the changes. A large number ended up in the Fair Work Commission. In none of them, other than disputes concerning rosters, did the unions ever assert that clause 14 applied.
[65] In relation to bargaining for the 2018 Agreement, Mr McKenzie said that the company’s claims included the removal of clause 14. Outside of the requirements for roster changes, clause 14 had never been utilised by BHP or the unions. The Company’s claims also included changes to clause 11.5 to remove the requirement to utilise clause 14 for roster changes. The CFMEU’s claims were contained in a 105 point log of claims on the main agreement and later additional claims for the various schedules (apprentices and site schedules). Item 38 of its first log of claims was to remove Clause 14. The CFMEU’s rationale for seeking to remove the clause from the Agreement was that it was not utilised. This was an accurate reflection of the parties’ shared experience, and reflected the company’s position. Ultimately, the removal of clause 14 ceased to be on the table, once the parties agreed, after approximately 15 months of bargaining, to progress a “roll over” approach, rather than continuing to pursue their respective claims.
[66] Mr Hansen’s evidence provided an explanation of Autonomous Haulage Systems (AHS) and related positions as well as the consultation process engaged in by BHP. AHS is an integrated system of hardware, software and technology infrastructure that operates the truck fleet as follows:
• Additional hardware components are fitted to existing haul trucks by the original equipment manufacturer (OEM) including a Position System (GPS), Obstacle Detection System (Radar & Laser), mode lights, and other control hardware.
• The hardware components then interface with the AHS software program.
• The AHS software program then creates and communicates instructions to the truck with details about the virtual mine model and the predicted path of each truck and other vehicles in the autonomous zone.
• The truck will then follow the instructions communicated by the program.
[67] Trucks are operated by the AHS and are not operated by a driver. The Controllers manage the system. The AHS uses technologies such lasers, radar and GPS to enable applications such as interactive mine mapping and the viewing and operation of the AHT fleets and equipped manned vehicles (EMVs). In order to set up the autonomous mining area, whether for one truck or many, there is significant advance work required involving purchasing of the program and hardware, version of the fleet and building, fitting out and setting up infrastructure.
[68] The AHS being used at GRM is the Komatsu FrontRunner system that operates a fleet of Komatsu AHTs. It offers a mature product with the technology having been tested for more than 10 years. Controllers use the FrontRunner system as a complete technology solution for the AHT fleet from work stations in a designated control room. The FrontRunner system does not require the Controllers to remotely control the trucks. Instead, the system is programmed to and operates the trucks. The integrated system of hardware components, software and technology infrastructure allows each AHT to follow a predictable path (as designated for the particular AHT by the Controllers, and planned by AHS Field Officers) and to independently drive, accelerate, brake, steer, and indicate to follow that predicted path or a new assigned path.
[69] The AHTs operate in a clearly defined autonomous zone (AZ) which is segregated from the non-autonomous areas of the mine by physical barriers. Access into the AZ is restricted to those workers who are required to interact with the AHTs and who are trained, competent and authorised to work within the AZ. The movement of AHTs within the AZ is governed by sophisticated rules which are built within the system and are based on AZ protocols and the circumstances in the AZ at any time. In FrontRunner, the system will cause the AHT to:
• Automatically navigate haul roads and intersections along predefined GNSS (Global Navigation Satellite System) courses;
• Maintain a pre-defined speed;
• Automatically arrive at the loading and dumping destinations they are assigned to;
• Automatically move within loading areas (enter, position for loading, and leave) using GNSS spot courses created by load operators;
• Automatically move within paddock and high dumps (enter, dump loads, and leave) using GNSS courses created by the systems central controller; and
• Automatically dump loads at ROM bins and crushers, using predefined GNSS courses.
[70] Mr Hansen said that the AHS significantly reduces unplanned variations in haul cycles as the system operates the AHTs to known destinations and repeatable travel times in a smooth and consistent manner. This results in predictable production through improved planning and operation and decreases component wear and maintenance.
[71] Mr Hansen also gave evidence in relation to engagement with employees regarding AHTs from 8 July 2019 to 12 November 2019. On 8 July 2019, BHP’s Asset President, communicated with the workforce about the study of AH at GRM. That communication, tendered by Mr Hansen, states that the Autonomous Haulage Australia Study will look closely at GRM as potentially the first coal site to introduce AH. 25 On 8 July 2019, the then General Manager of GRM, sent an email to the workforce attaching a document titled “Information Brief Template- Autonomous Haulage Study”, indicating that while a decision had not been made to implement AH, GRM was being considered.26
[72] From 8 July 2018, a program entitled “My Future Program” was rolled out to employees at GRM. That program dealt with preparing for a changing nature of work and providing employees with an understanding of the types of roles that might exist if AH was implemented. Participation in the My Future Program was not compulsory, but all employees were encouraged to participate. Mr Hansen said that BHP also communicated with the unions regarding the “My Future Program”, and the program appeared to be well received. In this regard, Mr West, advised that the overall feedback about automation was one of excitement, however he wanted more details on the questionnaires employees were asked to complete. In response, BHP provided Mr West with the My Future Handbook which had been provided to employees. On or around 24 September 2019, BHP set up focus groups (comprised of 26 workers) which were intended to provide the workforce with a more detailed understanding of AH.
[73] As at the date Mr Hansen made his statement, the first AHT has still not been “turned on” at GRM. Mr Hansen said that just to get the project to this stage, more than $50M has been invested since 12 November 2019, based on the significant lead time to get hardware and technology infrastructure in place. In addition, a cross section of site based employees at all levels had invested more than three months under section 10 of the Coal Mine Safety and Health Regulations to review, modify and update the Mine’s Safety and Health Management System (SHMS) to ensure that site procedures and systems are ready for the first AHT to be turned on.
[74] Mr Hansen also said that a significant number of employees have been recruited into new roles to enable training and readiness for the first Autonomous Zone. Eight AHS Controller roles have been on-boarded due to the long lead training requirement and seven AHS Field Officers are in the process of being on-boarded to enable first operations. After on boarding, training can begin. In addition, the GRM AH project team has employed more than 60 other roles to support project implementation, and various local and inter-state vendors have engaged teams to support construction, training and technology deployment activity. Prior to the end of April, the plan is for every GRM worker to have completed initial AH training as a site entry requirement. Following this, there will be a requirement for training for the specific AH related roles.
[75] Mr Hansen also gave evidence in relation to the AHS positions. Mr Hansen said that during the consultation discussions the CFMMEU only raised questions about the positions of AHS Field Officer, AHS Controller and AHS Service Technician and that when BHP confirmed that the Technician role was covered by the 2018 Agreement, the Union showed no further interest. According to Mr Hansen’s evidence, the Field Officer is responsible for ensuring that the virtual mine (that is created, uploaded into and then used by the AHS) correlates with the physical mine and keeps the virtual mine current.
[76] The virtual mine is built by collaboration between the Field Officer and the AHS Controller from mine data and information collected and analysed by them and uploaded into the Komatsu FrontRunner program and processed to create a computer generated virtual mine plan, which can then be programmed in multiple sub files for processing and operating. The Field Officer is ultimately responsible for gathering, analysing and applying data analytics and problem solving to ensure that the AHS is operating efficiently and effectively to align production priorities and deliver the mine plan. The core duties of the Field Officer position include:
• performing surveys (which are then translated to the virtual mine used for the autonomous system);
• monitoring the physical mine model to ensure the virtual mine model is aligned for accuracy;
• managing dump plans (which involves monitoring the dump locations and ensuring the Controller has any information they may require in relation to the dump locations); and
• managing and clearing obstacle detections.
[77] As an example of tasks, a Field Officer is required to monitor performance of the AHT fleet and make changes in collaboration with other roles (Controller, supervisors and operators). This might involve opening up new areas of the mine to optimise the flow of traffic and ultimately the haulage system performance. The Field Officer would take the light vehicle (fitted with an on board field computer and high precision GPS) to conduct a survey. The Field Officer then sends the survey through to the Controller for review and agreement. Based on feedback from the Field Officer and in collaboration with the supervisor, the Controller would then open the newly created road for the AHTs to travel on. The Field Officer would monitor the change in the field and ensure it is working as intended and the trucks are working productively.
[78] If there are any issues with the virtual or real mine which affects the AHT fleet (for example, a work around is required for an obstacle, ground conditions or other vehicles), the Field Officer will examine the site; gather and analyse data and decide on the solution; use the technology (GPS and in-field computer) to survey the AZ to build a virtual model; and input instructions for changes to the virtual model into the FrontRunner system. The system will then use the amended virtual plan to control the new path for the AHTs.
[79] A Field Officer is also expected to work proactively to optimise Mine production and work with the Production Supervisor and AHS Controllers to optimise the Mine plan and survey and identify opportunities to enhance the AHS by identifying opportunities for improvement. These may include refining dump locations; setting up optimised passing lanes: controlling the movement of other workgroups to minimise disruption to the AHS cycle and responding to stoppage or slowdown events and refining the virtual model to allow more productive movement. The Field Officer also supports the Production Supervisor in managing and supervising the AHS. Mr Hansen referred to information provided to the Unions and employees in relation to the Field Officer position:
• Day in the life of a Field Officer; 27
• Success Profile for a Field Officer; 28
• Job advertisement for a Field Officer; 29 and
• Pamphlet for a Field Officer. 30
[80] Mr Hansen said that the attributes of the Field Officer role include reliance on using digital and data skills to inform judgement and preparing solutions, and multi-tasking between systems and fleets. The Success Profile for the Field Officer summarises the “main game” of the position as co-ordination of all operational variables impacting on the use of AHTs. The Success Profile also reinforces the accountabilities and responsibilities in the management of the virtual mine plan through real time surveying, which involves competencies in data management, analytics and diagnostics in the comprehensive use of autonomy aware technology systems. The Job Description also reinforces that the position is a key enabler of the autonomous systems through utilising data in the AHS to manage dynamic mine plans.
[81] Mr Hansen said that the AHS Controller is a member of the Mine Control team with assigned responsibilities to ensure the mine meets its production plan. The Mine Control team is responsible for execution of the weekly mine plan and the 24 hour mine plan. The AHS Controllers are responsible for delivering the 24 hour Plan that is provided to them. The 24 hour Plan needs to be adjusted for things occurring each day and adjustments need to be made to the AHT fleet to meet the daily and overall weekly plan as the week progresses. The Controller is critical to adjusting AHT allocations within this plan to ensure the weekly plan is met.
[82] At the commencement of the shift, the Controller will:
• verify the 24 hour Plan, and make any necessary adjustments;
• verify with the Field Officer the virtual plan against the actual plan;
• verify all locations and road surveys; and
• verify or create dumping courses and circuit routes.
[83] The Controller is then responsible for the optimisation and management of the AHT fleets in order to meet the daily production plan. The Controller must optimise the AHS and make changes as necessary to safely achieve production goals according to the 24 hour Plan (in coordination with Field Officers and Supervisors in the field).
[84] During the course of their shift, Controllers may need to make changes to the production schedule in response to real-time planned and unplanned events. This may necessitate changes being made to the AHT fleet to allocate them to another pit or make changes to the schedule delay events (e.g. bringing forward refuelling stops, or coordinating with Maintenance). Planned events may be a change in production determined by the mine control team, and as described in the daily or weekly plans. These events may include planned maintenance, refuelling, equipment operator changes and other known delay events. Also, throughout the plan there are likely to be changes in priorities due to coal production requirements that necessitate the controller to modify the allocation of trucks to different dig units. Unplanned events may be:
• environmental factors such as weather;
• breakdowns;
• physical changes to haul circuits;
• other vehicle movements; and
• objects detected in its path.
[85] In order to perform their tasks and achieve the 24 hour Plan, the Controller will use the AHS application software running on dual or multiple monitor computers to monitor and adjust:
• performance of the allocated AHS fleet against the mine plan;
• the road network, dump areas position and status of all vehicles on the zone;
• AHT loading and dumping;
• grading and dozer work; and
• exceptions in the zone.
[86] Mr Hansen referred to the following information which was provided to employees and Unions about the Controller position:
• Day in the life of a Controller; 31
• Success Profile for a Controller AH Systems; 32
• Job description for a Controller AH Systems; 33
• Pamphlet for a Controller AH Systems. 34
[87] The Success Profile for the AHS Controller summarises the “main game” of the position as:
• maintain a safe, sustainable and productive autonomous mining operation;
• manage the correct and accurate collection of data;
• optimise interface between the systems and technology on the AHT fleet and manned equipment safely to achieve the shift plan;
• managing AHT recoveries including obstacle detection;
• monitor network stability metrics used to measure against AHS performance impacts; and
• manage technology and server software systems to monitor and control AHTs for weather conditions and drill and blast activities.
[88] The Success Profile reinforces the data collection and data management skills, and establishes a pivotal purpose of using data to inform solutions through the application of skills in technology and software systems. Mr Hansen said that the Job Description reinforces that the characterisation of the position is to use AHS applications and networks at their optimum to maximise AHT usage while collecting data and analytics to improve safety efficiency and productivity through the 24 hour daily mine plan. The Job Description set out the core activities as:
[255] The term “black coal mining industry” is defined in clause 4.2 as follows:
“For 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.”
[256] Clause 4.3 provides the exclusions from the black coal industry in the following terms:
“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 substituted by PR531393 ppc 01Jan10]
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 {Print CR2297} and in the Court decisions cited in this decision.”
[257] The case cited in the note - Australian Collieries Staff Association and Queensland Coal Owners Association – concerned a claim by the Australian Collieries Staff Association against a number of employers who were described as having “interests in coal”. The decision involved consideration of whether the activities in relation to which the companies were served with a log of claims, were “in the coal mining industry”. A central issue was that the employees in respect of whom the claim was made, were not located on coal mine leases. While not directly on point in the present case, the Coal Industry Tribunal made an observation about the use of computers, which remains apposite:
“Subsumed in this broad argument … is the considerable evidence brought forward … on the role of computers. …and I feel it requires specific consideration. I do not think that computers provide a total link for the present purposes between a function previously performed within the coal mining industry and that function when it is performed at another place using a computer. The matter is to be judged in the same way as others-it is the degree of connection in items such as control, organisation, place, interest, personnel and equipment which must be assessed.
Another general conclusion should be stated before turning to the facts. I hold that to be in the coal mining industry for the purposes of Part V of the Coal Industry Act a relationship of employer and employee must have some connection with the activity of coal mining. The connection may be in a variety of ways. It may, for example, be what I would term an industrial connection-i.e. usage, it may be physical-e.g. place, it may be directly concerned with production-e.g. the facts on which I found that the relationship between employer and employee was in the coal mining industry in the determination A.C. & S.E.F. v. W. A. Hughes Pf L & ors (C.R. print No. 2713) and R. W. Miller & Co. Pf L v. A.CS.A. (C.R. print No. 2716), it may be preparatory-e.g. the sinking of a shaft, it may be ancillary-e.g. the keeping of records, stores or effecting pays (C.R. print No. 2752), but it must exist (cf. the Westcliff" decision.)”
[258] There is a distinction between the Award definition of coal mining employees in the two limbs of the definition in clause 4.1(b)(i) and (ii), on the basis of whether or not the duties are carried out at or about a place where black coal is mined. Otherwise, both limbs of the definition provide that: the employer is engaged in the black coal mining industry; and the duties of the employee are directly connected to the operation of a black coal mine.
[259] In the present case, I am satisfied that, as provided in clause 4.1(b)(ii) of the Award, the Controllers and Field Officers are employed in the black coal mining industry and carry out their duties at or about a place where black coal is mined. I am also satisfied that the Controllers and Field Officers are directly connected with the day to day operation of a black coal mine. On BHP’s case, the Controller interfaces with an autonomous haulage system which controls a fleet of AHTs. Those AHTs replace driver operated haul trucks and are intended to operate in the Pre-strip and Coal Mining departments at the Mine.
[260] The work is directly connected with the day to day operation of a black coal mine and is integral to the mining of coal. The Field Officer works in conjunction with the Controller and performs tasks including surveys for the virtual mine, monitoring the physical mine, and spends the majority of a shift in a light vehicle on the Mine site. The Field Officer may also be required to operate AHTs to remove them from the autonomous zone in the event they malfunction. I do not accept that because an automated system is interposed between the Controller and the Field Officer on the one hand and the AHTs on the other hand, that the work ceases to be directly related to the mining of coal.
[261] However, that is not sufficient for the roles to be covered by the Award. It is also necessary that the employees in those roles are “employed in a classification or class of work in Schedule A” of the Award. Schedule A of the Award covers “production and engineering employees”. Preambles and principles are found in A.1 as follows:
“A.1 Preamble and principles
A1.1 The classification structure in this award determines the minimum weekly wages payable to employees whose employment is subject to this award.
A1.2 The structure is a single stream structure, which does not contain any demarcations relating to the performance of work. It allows for a list of minesite competencies to be developed. Each mine’s indicative competencies will use as a guide the competency standards contained in the Coal Industry Training Package.
A1.3 The definitions for each of the classification levels are necessarily general and intended to cover the types of work actually performed under this award. To eliminate doubt, the work performed by the employee, the assessment of the employee against minesite standards and, in relevant cases, the appointment of an employee to a particular classification by the employer, are the only relevant matters that determine an employee’s entitlement to wages pursuant to this clause.
A1.4 The employer will make available to employees at a minesite the following:
(a) the classification that will be occupied by employees whose employment is subject to this award; and
(b) the requirements each employee must meet to occupy those classifications.
A1.5 Whenever an employer alters the requirements that an employee must hold, to occupy a classification, the altered requirements will be published at the minesite.
NOTE: A proposal to alter such requirements will typically be subject to the consultation obligations in clause 8 – Consultation about major workplace change of this award.”
[262] A.2 of Schedule A contains definitions and A.3 deals with Advancement as follows:
“A.2 Definitions
A.2.1 Mineworker - Induction Level I
Mineworker - Induction Level 1 is the entry level for a non-trade person who is undertaking the statutory/generic and/or minesite induction and who remains at this level until assessed by the employer to have successfully completed the induction requirements when they then advance to a Mineworker - Training.
A.2.2 Mineworker - Induction Level 2 / Mineworker – Training
Mineworker - Induction Level 2 is the entry level for a certificated tradesperson who is undertaking the statutory/generic and/or minesite induction. The tradesperson after successful completion of the induction phase then becomes a Mineworker - Training at this level.
A Mineworker - Training is an employee who trains in and performs the required tasks under direct supervision. This classification applies to employees until assessed by the employer as meeting the requirements to be classified as a mineworker.
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 will 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.
A.3 Advancement
A.3.1 An employee’s advancement through the classification structure will be determined in accordance with the definitions above and as outlined in the following table:
Mineworker - Induction Level 1 | Non-trades undertaking generic/minesite induction |
Mineworker - Induction Level 2 Mineworker - Training | Trades Certificate and undertaking generic/minesite induction Non-trade - Training in 4 Advancement Competencies; Trade - Training in 2 Advancement Competencies |
Mineworker | Non-trade - Competent in 4 Advancement Competencies; Trade - Certificate plus 2 Advancement Competencies |
A.3.2 Progression to the classification of Mineworker - Advanced may occur where an employee is assessed as competent against the available criteria or is appointed to a statutory position. Although advancement to this classification is not governed by the acquisition of skills alone, for a trade certificated employee this may be achieved by exercising skills which require six post-trade modules of training or an equivalent level of skills in non-trade or cross-trade work.
A.3.3 Progression to the classification of Mineworker - Specialised is by appointment of the employer where an employee is assessed as a specialist against the available criteria or is appointed to a statutory position. Although advancement to this classification is not governed by the acquisition of skills alone, for a trade certificated employee this may be achieved by exercising skills which require 12 post-trade modules of training or an equivalent level of skills in non-trade or cross-trade work.
A.3.4 Non-trade work referred to in clauses A.3.2 and A.3.3 above, is work by certificated tradespersons, which is not part of their trade and is of a production or operations nature.
A.3.5 Cross-trade work referred to in clauses A.3.2 and A.3.3 above, is work by certificated tradespersons, which is not part of their trade but is part of another certified trade in which they are competent.”
[263] Indicative competencies in relation to open cut mines are dealt with in A.5 as follows:
“A.5 Indicative Competencies
A.5.1 Open cut mines
The following lists are not exhaustive, but rather are indicative of the types of competencies utilised in open cut mines.
INDUCTION
Induction (Generic, Minesite); Interpersonal; First Aid; Fire Fighting; Occupational Health and Safety.
ADVANCEMENT COMPETENCIES
Dragline operation; Auger operation; Truck operation; Shovel operation; Cable handling; Drilling; Blasting; Shotfiring; Scraper operation; Excavator operation; Loader operation; Grader operation; Dozer operation; Pit Dewatering; Equipment servicing and maintenance; Washplant operation; Coal handling; Reclaim operation; Loader operation; Grader operation; Load out operation; Crusher/conveyor operation; Washplant servicing and maintenance; Tyre fitting; Crane operation; Rigging and dogging; Cross-trade skilling.
While an employer may require an employee to become competent in one or more of the following, these competencies will not be required for advancement through the classification structure:
Equipment servicing; Medium vehicles operation; Low loaders operation; Scaffolding; Minor maintenance; Conveyors; Bobcat; etc.”
[264] Clause 12 of the Award provides in relation to Employer and employee duties as follows:
“12. Employer and employee duties
12.1 An employee:
(a) must perform work as reasonably required by the employer; and
(b) must undertake training that the employer reasonably requires (which may include training to maintain their classification or acquire new competencies).
12.2 Where an employee does not perform work or undertake training in accordance with clause 2.1 the employee is not entitled to payment for that period.
12.3 An employer may direct an employee to carry out such duties as are within the limits of the employee’s skills, competence and training consistent with the respective classification structures of this award provided that such duties are not designed to promote deskilling and provided that the duties are within safe working practices and statutory requirements.”
[265] The Award is industry based and has a broad-banded classification structure. The previous classifications which were broad-banded are not set out in the classification definitions. Instead, the tasks performed by employees in classifications prior to the broad banding exercise are listed as “Indicative Competencies’ – that is instead of the classification of Dragline Operator being listed in a broad banded classification level to indicate the level of that previous classification, the Award refers to “Dragline operation” as an indicative competency. Movement between classification levels is based on acquiring competency including those listed as indicative competencies.
[266] The indicative competencies in Schedule A are concerned with advancement between levels rather than limiting the types of employees who are covered by the Schedule. The indicative competencies also reflect the transition from a task and position-based classification structure to one based on skills and competence. Further, progression to Mineworker Advanced may be through advancement competencies or by virtue of A.2.3, assessment against available criteria or by undertaking post trade modules or an equivalent level of skills in non-trade or cross-trade work.
[267] I also note that progression to the classification levels of Mineworker – Advanced and Mineworker – Specialised does not require attainment of indicative competencies. Both of those classification levels provide for advancement on the basis of assessment by the employer against the employer’s available criteria which indicates considerable flexibility in terms of the competencies that an employer may require an employee under the Award to exercise. The Mineworker – Specialised classification refers to an employee exercising competency above a Mineworker Advanced including exercising independent discretion in undertaking functions within the bounds set by the employer. An employee may also be appointed to the classification of Mineworker – Specialised, where assessed by the employer as a specialist.
[268] In short, the Award contemplates that employers can designate competencies relevant to their enterprises as required for advancement to the Mineworker – Advanced or Mineworker – Specialised. The generic references to competencies in the Award does not exclude thoswe related to digital or automated equipment. The quid pro quo of a broad based classification structure which limits demarcation, is that the Award covers employees exercising a wide range of skills and competencies provided that those employees are carrying out duties at, or directly connected with, the day to day operations of a black coal mine.
[269] I therefore do not accept BHP’s submission that it is a common feature of the competencies in Schedule A of the Award that they concern the direct physical use, operation or maintenance of mining equipment and vehicles. There is also reference to competencies equivalent to post trade modules of training or an equivalent level of skills in non-trade or cross-trade work, as a basis for classification under the Award.
[270] I first consider the Field Officer role and the principal purpose for which the employees undertaking that role are employed. In relation to the Field Officer, the document termed “Success Profile” states that the “main game” is coordination of all operational variables impacting use of AHTs in mining operations in the autonomous zone. It is apparent from this and other documents in the agreed bundle that the Field Officer surveys the autonomous zone to ensure that it matches the virtual mine model which governs the operation of the AHTs. The accountabilities with the biggest impact are said to be the prompt co-ordination of the removal of obstacles and recovery of autonomous trucks and escorting non-site aware vehicles. The Field Officer is also the first responder to autonomous stoppage events to conduct a root cause analysis of vehicles and systems and to coordinate relevant maintenance staff for rectification. The role also acts as a “change advocate” working with the operation and evaluation teams to continually improve safety and efficiency performance.
[271] Key competencies are effective communication, data management, problem solving, digital literacy and “influencing” which encompasses team-work skills. The pivotal experience for the position is utilisation of data management, system mine equipment operator experience and understanding of mine production operations. Skills, accreditation and qualifications are listed as: comprehensive understanding of SHMS; comprehensive understanding and use of autonomy aware technology systems; and operating light vehicles on a mine site. The Field Officer may also be required to switch an AHT to manual and operate it like a normal truck to remove it from the autonomous zone.
[272] There is a distinction between a competency and its application. There is nothing apparently unique about the competencies specified for the Field Officer position. A number of those competencies are commonly held by coal mine workers who are increasingly called on to apply a wide range of competencies including working in teams, utilising technology to carry out their roles, and understanding an SHMS system and the plethora of other systems and processes that are used in the day to day operations of a black coal mine. It is difficult to comprehend that any coal mine worker would not have the competency to operate a light vehicle and a range of other mine equipment including automated or computerised equipment.
[273] The majority of the Field Officer’s working day is spent in a vehicle on the mine site identifying ways to make AHTs operate to their optimum efficiency by reporting impediments to Controllers and inputting instructions into the system. The Field Officer operates within the parameters of the system and does not code or program the system. In that sense, the Field Officer is operating within bounds set by the employer via the autonomous haulage system.
[274] The reporting of impediments and arranging for their rectification is part and parcel of the work of an operator of a haul truck. It would be expected that a haul truck operator would report matters such as erosion or damage to a corner on a haul road or to a bund or effects of inclement weather so that adjustments could be made to the operation of trucks and repairs or maintenance can be performed. The fact that this is done by a Field Officer using technology does not alter the fact that the Field Officer is undertaking work at a place where black coal is mined, that is integral to the production of coal and which has always been performed. The only change is the manner of performing the same work.
[275] The fact that a coal mine worker undertaking work covered by the Award, is using technology, where previously the same or similar work was undertaken without the assistance of technology, does not mean that the coal mine worker ceases to be covered by the Award. I have concluded that the principle purpose of the Field Officer role is to ensure the efficient and optimal operation of the autonomous system, including AHTs, and in doing so they are performing production work within the coverage of the Award. The fact that the purpose is achieved using technology and via an automated system, does not remove the Field Officer from the coverage of the Award.
[276] The fact that an automated operating system is interposed between the Field Officer and the AHTs is not determinative. The Field Officer is integral to the operation or the AHTs and the automated system could not operate without that role being performed. The use of trucks to haul overburden and coal is a production activity and the Field Officer is playing an integral role in carrying out that activity.
[277] I do not accept that the novelty of the AH technology or its sophistication, is a basis for finding that Field Officers are not covered by the Award. The persons who are being recruited for the role are not computer or information technology specialists. Data management and autonomy aware technology systems competencies may be held by virtue of non-work related training or interests and the propensity of employees to hold such competencies is increasing as was pointed out by Mr Watts. What is unique in the present case, is not the competencies used by Field Officers, but rather, the application of those competencies in a way that they have not previously been applied at GRM– to autonomous haulage.
[278] The Job Description also tendered in the agreed bundle indicates that BHP does not expect Field Officers to have pre-existing experience in the role and that candidates will be trained. Mr Hansen’s evidence is that the training program is 15 days of theoretical and practical training. The training package for Field Officers is significantly less than the training undertaken by tradespersons and other classifications of employee who are covered by Part A of the Award. This is a further indication that the role sits within the parameters set by the Award in terms of qualifications and training.
[279] The Award provides employers with significant discretion to assign employees to classification levels based on required competencies selected by the employer. It does not specify particular competencies and I see no reason why competencies of the kind discussed in the material tendered by Mr Watts could not be encompassed within the Award classification structure. The fact that Mr Watts did not have a detailed knowledge or understanding of the material appended to his statement does not detract from its relevance as an indication that the coal industry is in the process of developing a range of competencies related to autonomous systems which would fit conformably into the classification structure in the Award on the basis of AQF levels. The material speaks for itself.
[280] I have also had regard to the organisational structure tendered by the parties in the agreed bundle. 73 In that structure the Field Officer is placed between a Mine Employee (Operator) and the Supervisor. Both the Mine Employee (Operator) role and the Field Officer role report to the Supervisor Pre-strip and the Supervisor Coal respectively. The structure does not indicate that Field Officers are at a managerial level or at a level that would generally be considered as not being covered by the Award.
[281] The Award is industry-based with a broad-based classification structure and in my view the role of Field Officer is covered by the classifications in Schedule A either for Advanced or Specialist Mineworker. In reaching this conclusion, I do not accept that the work performed by a Field Officer is closer to the kind of work covered by Schedule B of the Award. The classifications in that Schedule are narrow and occupationally based. The Field Officer role is not a computer or information technology specialist and no formal qualifications in this regard are required. While Field Officers may undertake some surveying work that is not the principal purpose for which they are employed.
[282] Given my finding that Field Officers are covered by the Award it necessary to consider whether they are covered by the 2018 Agreement by virtue of being engaged in a classification in the Agreement. The Agreement does not contain a classification structure of the kind provided for in the Award. The relevant classification structure for employees at the GRM is found in Schedule 4 Goonyella Riverside Mine. There are two classifications provided in the Schedule: Goonyella Production Employees and Goonyella Engineering Employees. There are no definitions for the classifications in the Agreement other than the employees are employed in “production” or “engineering” at the Mine. Salaries for the classifications are determined by reference to the roster being worked. The effect of the classification structure in Schedule 4 of the 2018 Agreement is to amalgamate all the classification levels in the Award into a single level for production employees and a single level for engineering employees.
[283] Given the reference to the Award in clause 1.1 of the 2018 Agreement, it is sufficient for an employee to perform work covered by Schedule A of the Award and to be directly engaged on production work in the capacity of production or engineering employee, for them to be covered by the Agreement. For the reasons set out above, I find that employees who are engaged as Field Officers are covered by the 2018 Agreement.
[284] I turn now to consider the role of Controller. The material in the agreed bundle also includes the success profile for a Controller. That document indicates that “the main game” for a controller is responsibility for the effective operation of the technology and systems that monitor and control AHTs and for the effective management of systems and technology to safely execute the daily mine plan. The Controller does not establish the mine plan. The accountabilities with the biggest impact are said to be:
• Maintain a safe, sustainable and productive autonomous mining system;
• Manage the correct and accurate collection of data;
• Optimise interface between the systems and technology on the AHT fleet and manned equipment safety to achieve the shift plan;
• Managing AHT recoveries including obstacle detection;
• Support mining and process operations;
• Monitor network stability metrics used to measure against AHS performance impacts; and
• Manage technology and server software systems to monitor and control AHTS for weather conditions and drill and blast activities.
[285] Critical skills, accreditation and qualifications are: digital literacy; application of technology and server software systems; comprehensive understanding of safety processes and systems at the mine site; and macro thinking involving balancing of safety, production and maintenance priorities. There are no formal qualifications indicated for the role. The document entitled “A day in the life of a controller in an autonomous operation” states that desired experience includes understanding of / experience in equipment operations in a mining production environment.
[286] The documentation also indicates that Controllers work in a control room and are part of the “Mine Control Team”. The organisational structure in the agreed bundle of documents indicates that the Controller reports to a position entitled “Supervisor Control”. There is no evidence that the Controller is a manager or that persons in the role exercise any managerial or supervisory authority. Mr Hansen’s evidence was that Controllers do not have a supervisory role. It is clear that the role of Controller has a direct connection to the production of coal regardless of being located in a control room. The fact that there is technology interposed between the controller and the AHTs does not change the fact that the controller is an integral part of their operation. At the risk of stating the obvious, if AHTs could be operated entirely by an automated system, there would be no requirement to employ Controllers. The principal purpose for which Controllers are employed is to operate an automated haulage system in connection with the production of coal. The interposing of that system between the Controllers and the AHTs does not alter that fact.
[287] I do not accept BHP’s submission that the role is more akin to the functions covered by Part B of the Award. Part B classifications are not expressed as functions but rather as occupations. The Controller role does not require any formal qualifications of the kind held by employees in the occupations covered by Part B of the Award. The formal qualifications attaching to positions covered by Part B of the Award bear no resemblance to the training that will be undertaken by controllers in order for them to be deemed competent to undertake their role. As previously noted, the classifications in Part B are occupationally based and the role of the Controller is not undertaken by employees in any of the occupations covered by Part B.
[288] For these reasons and for the reasons in relation to Field Officers, the role of Controller is covered by Part A. The fact that the Controller works in a control room does not alter that coverage. The control room is located at the Mine. Even if the control room was located off the Mine lease, it is well established that the coverage of the Award (and by extension the Agreement) can extend to other locations where employees use computers to undertake work that has the requisite connection to the production of coal.
[289] The breadth of coverage of the 2018 Agreement to production and engineering employees of all kinds, is emphasised by clause 4 which provides that employees are required to perform tasks as reasonably required by the Company and that the Company can require the performance of a range of tasks including technical tasks. I also note that clause 6 of the 2018 Agreement provides BHP with Flexibility of Operations and that the Company may direct employees to perform production and engineering tasks where they are skilled, competent and trained and required or authorised to do so. Further, clause 5 of the 2018 Agreement provides that the Company may require employees to undertake training as determined by the Company to meet its business needs.
[290] The classifications in the Award are sufficiently broad to cover Controllers and given the principal purpose of their employment, I have concluded that they are covered by the classifications in Part A – either Mineworker – Advanced or Mineworker – Specialised. It follows, again for the reasons set out above, that Controllers are covered by the Agreement.
[291] I do not accept the submission of BHP to the effect that if the CFMMEU’s argument is accepted, any position on the Mine connected in any way to the production of coal, would be covered by the Agreement. The Agreement applies only employees who perform work covered by Part A of the Award and does not extend to Part B occupations.
CONCLUSION
[292] I answer the questions for arbitration as follows:
1. Question: What additional obligation does the Company have, if any, under clause 14 “Continuous improvement” in respect to the use of autonomous haul trucks at Goonyella Riverside coal mine?
Answer: The Company has no additional obligation under clause 14 “Continuous improvement” in respect to the use of autonomous haul trucks at Goonyella Riverside Mine.
2. Question: Under clause 15, must the Company provide the additional information sought on the following to satisfy its consultation obligations under that clause:
a. The prior trials of autonomous haul truck operations conducted by the Company (or related corporate entities) on other mine sites?
b. The safety benefits of autonomous haul trucks relied upon by the Company in its decision to implement autonomous haul trucks at Goonyella Riverside coal mine?
c. The training program to be conducted as a result of the implementation of autonomous haul trucks at Goonyella Riverside coal mine?
Answer: The Company is not required to provide additional information on these matters to satisfy its consultation obligations under clause 15 of the 2018 Agreement.
3. Question: Does the role of “Mine Controller (AH Systems)” fall within the scope of the Agreement?
Answer: Yes.
4. Does the role of “Field Officer (AH Systems)” fall within the scope of the Agreement?
Answer: Yes.
DEPUTY PRESIDENT
Appearances:
Mr A Bukarica for the CFMMEU.
Mr M Coonan of Herbert Smith Freehills for BHP.
Hearing details:
27 & 28 April.
2020.
By video.
Printed by authority of the Commonwealth Government Printer
<PR721881>
1 Witness Statement of Steven Pierce Exhibit A1.
2 Witness Statement of Simon West – Exhibit A2.
3 Witness Statement of Stephen Watts – Exhibit A3, Witness Statement in Reply of Stephen Watts – Exhibit A4.
4 Witness Statement of Caitlyn Ryan – Exhibit R1.
5 Witness Statement of Shaun Hansen – Exhibit R2.
6 Witness Statement of Shaun McKenzie – Exhibit R3.
7 [2017] FWCFB 3005 at [14].
8 Exhibit A – Tab 10.
9 Exhibit A – Tab 19.
10 Exhibit A – Tab 25.
11 Transcript PN202.
12 Exhibit A3 – Annexure SW-16.
13 Ibid Annexure SW-17.
14 Exhibit A4 – Annexure SW-19.
15 Exhibit A – Tab 7.
16 Exhibit A – Tab 8.
17 Exhibit A – Tab 9.
18 Exhibit A – Tab 13.
19 Exhibit A – Tab 10 page 706.
20 Exbibit A – Tab 19 page 771.
21 Ibid page 772.
22 Ibid Tab 26 page 785.
23 Transcript PN721 – 730, PN786.
24 Transcript PN750.
25 Exhibit R2 Attachment 1.
26 Ibid Attachment 2.
27 Exhibit A Tab 14.
28 Ibid Tab 15.
29 Ibid Tab 30.
30 Exhibit R2 Attachment 3.
31 Exhibit A Tab 14.
32 Ibid Tab 15.
33 Ibid Tab 31.
34 Exhibit R 2 Annexure 4.
35 Transcript PN849
36 Transcript PN897
37 Para 33, referencing dictionary at page 1585.
38 Exhibit 1, Tab 8.
39 Para 40, citing Clause 14(f)
40 Para 41
41 [2020] FWCFB
42 Award, Schedule A, subclause A.12
43 Exhibit A Tab 12.
44 Barker J in Australian Mines and Metals Inc. v the Maritime Union of Australia (2015) FCA 677 at [75]
(referring to the High Court in Project Blue Sky (1998) 194 CLR 335): “a court must strive ….to avoid a result
which deprives any part of the provision of meaning, operation or utility”).
45 [23] to [27] of the Statement of Hansen.
46 Ibid.
47 Kucks v CSR 66 IR 182 at [184].
48 BHP referred the Macquarie Dictionary definition of continuous improvement - “unbroken, uninterrupted, connected through space and time” and “having the parts in immediate connection, unbroken; uninterrupted in time; without cessation; and the word “improvement” as “the act of improving”, “the state of being improved” or “a change or addition whereby a thing is improved”.
49 [2010] FCA 591.
50 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2016] FCA 1009.
51 Ibid.
52 Ibid at [98]
53 Unreported, AIRC (FB), PR938031, 16 September 2003. The principal purpose test has been consistently and extensively applied by the FWC, see for example: Australasian Meat Industry Employees Union v Teys Australia Beenleigh Pty Ltd (2014) 245 IR 170; Maritime Union of Australia v Bechtel Construction (Australia) Pty Ltd (2013) 230 IR 1; McMenemy v Thomas Duryea Consulting Pty Ltd (2012) 223 IR 117.
54 McMenemy v Thomas Duryea Consulting Pty Ltd (2012) 223 IR 117.
55 Exhibit A3 Annexure “SW-18”.
56 [2010] FCAFC 150.
57 [2010] FCA 591.
58 Ibid at 45.
59 Port Louis Corporation v Attorney-General of Mauritius [1965] AC 1111 at 1124
60 TVW Enterprises Ltd v Duffy (No 2) (1985) 7 FCR 172.
61 Sinfield v London Transport Executive [1970] 1 Ch 550 at 558.
62 Ibid.
63 [2016] FCA 1009.
64 Ibid at paragraph 60.
65 Ibid at paragraph 98.
66 Ibid at paragraph 100.
67 [2019] FWCFB 3874.
68 Ibid at [26].
69 The Clothing Trades Award (1950) 68 CAR 597; cited in City of Wanneroo v Holmes [1989] FCA 369 [43].
70 Pickard v John Heine & Son Ltd (1924) 35 CLR 1, 9; cited in City of Wanneroo v Holmes [1989] FCA 369 [43].
71 Halasagi v George Weston Food Limited [2010] FWA 6503.
72 Layton v North Goonyella Coal Mines Pty Ltd (2007) 166 IR 394; [2007] AIRCFB 713 at [25].
73 Exhibit A Tab 10 page 729.
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