Construction, Forestry, Maritime, Mining and Energy Union v Griffin Coal Mining Company Pty Ltd

[2020] FWC 5128

[2020] FWC 5128

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Construction, Forestry, Maritime, Mining and Energy Union
v
Griffin Coal Mining Company Pty Ltd
(C2020/2107)

DEPUTY PRESIDENT BEAUMONT PERTH, 17 DECEMBER 2020

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] – interpretation of classification clause – impact of syntax on interpretation – operation of conjunctive and disjunctive words within the clause – consideration of ‘experienced’ and ‘skilled.

[1] In February 2020, the Griffin Coal Mining Company Pty Limited (Griffin or Griffin Coal) recruited nine Production Trainee Operators who had recently completed a 14-month traineeship program (the Employees). They had done so with a company called Carpenter Mine Management Pty Ltd (Carpenter). Carpenter and Griffin Coal are related bodies corporate, and, at all material times during their training, the Employees worked on the Griffin Coal mine site.

[2] On commencement with Griffin Coal, the Employees were classified and paid at ‘Level 3’ under the Griffin Coal (Production) Enterprise Agreement 2017 (Agreement). The Construction, Forestry and Maritime, Mining and Energy Union (the Union) said the Employees should have been classified as Level 2 (in effect Level 2A). However, Griffin Coal was not open to that proposition and so the Union applied under s 739 of the Fair Work Act 2009 (Cth) (the Act) for the Commission to deal with the dispute, in accordance with the dispute resolution procedure contained in the Agreement.

[3] The application was listed for conference, pursuant to the steps in the dispute settlement procedure. The matter remained unresolved, and the Union sought to have its application proceed to arbitration. There was a delay with the matter proceeding to arbitration because of unrelated circumstances concerning Griffin Coal. The parties were agreeable to the arbitration being postponed. It was common ground, and I agree, that the Commission was authorised to arbitrate the dispute under clause 22 of the Agreement.

[4] In truth, there are not that many levels in the Agreement to choose from. Level 3 encompasses those employees who are inexperienced, in addition, one might think, to entry-level types and positions that are unskilled. The clause, which sets out the classification levels, is curiously worded. Therefore, at this point it is best to fulsomely reproduce the relevant provision (clause 12.1 of the Agreement):

12.1 Griffin will employ Employees in one of 3 levels:

Level 3

(a) Level 3 refers to an Employee starting work with Griffin who is inexperienced in mining or related work and an entry-level or unskilled position that applies to an Employee without heavy equipment operational skills (including trainees).

Level 2

(b) Level 2 refers to an Employee who:

(i) is mainly engaged in delineation or pumping; or

(ii) is a skilled and experienced Employee who has recently commenced employment with Griffin; or

(iii) is an Employee previously at Level 3 who has gained sufficient experience and/or skills with Griffin to be appointed by Griffin to level 2.

Level 1

(c) Level 1 refers to an experienced Employee assessed and authorised as competent by Griffin to perform the required tasks in a variety of operating circumstances under limited supervision. Indicative positions include haul truck driver, excavator operator, dozer operator, digger operator and etcetera.

[5] The framers of the Agreement appear to have included clause 12.2 of the Agreement to illuminate how an employee progresses through the levels. Clause 12.2 states:

Progression through the Levels

12.2 Employees will be appointed to one of 3 Levels based on the following:

Existing Employees

(a) Existing Employees (other than those mainly engaged in delineation or pumping) will be appointed to Level 1 on the Commencement Date. Existing Employees who are mainly engaged in delineation or pumping will be offered and may accept a role mainly engaged as a production operator at Level 1 from the Commencement Date or will continue as an Employee mainly engaged in delineation and pumping and will be at Level 2 from the Commencement Date.

Moving from Level 3 to Level 2

(b) Employees starting work with Griffin at Level 3 will move to Level 2 once they have gained sufficient experience and skills to be appointed by Griffin to Level 2. Griffin will provide appropriate training and the opportunity for an Employee to be assessed. This can generally be expected to take about 3 months.

Moving from Level 2 to Level 1 / Rates of Pay for Level 2

(c) Employees starting work with Griffin who are skilled and experienced will be appointed to Level 2 or Level 1 depending on their level of skill and experience.

(d) An Employee who is at Level 2 will be paid at the Level 2A rate unless:

(i) the Employee was previously at Level 3 and has been appointed as Level 2 for no longer than 6 months; or

(ii) the Employee is mainly engaged in delineation or pumping,

in which case the Level 2B rate applies.

(e) Appointment to Level 1 will be determined by Griffin once an Employee has sufficient experience to be assessed and authorised as competent by Griffin to perform the required tasks in a variety of operating circumstances under limited supervision. Griffin will provide appropriate training and the opportunity for an Employee to be assessed. Employees who commenced their employment at Level 3 can generally be expected to move from Level 2 to Level 1 after 9 months. Employees who commenced from employment at Level 2 can generally be expected to move from Level 2 to Level 1 after about 3 months.

(f) Nothing in this clause prevents Griffin from appointing an Employee to a higher level.

[6] Having now had the benefit or reading the clauses in the full, it should be noted that the parties agreed that the Commission could assist the resolution of the dispute, by answering the primary question set out below:

In circumstances where:

a) The Griffin Coal Mining Company Pty Limited employed nine trainees on 2 February 2020 to carry out production work upon completion of a traineeship on 1 February 2020 (“Employees”); and

b) the Griffin Coal (Production) Enterprise Agreement 2017 (Production Agreement) applied to the employment of the Employees,

does the Production Agreement allow Griffin Coal to classify the Employees at Level 3 on the commencement of the Employees’ employment with Griffin Coal?

Background

[7] Griffin Coal operates a coal mine in Collie in Western Australia. The mine produces thermal coal which it sells to Western Australian customers. It directly employs 145 production employees, whose terms and conditions are governed by the Agreement. 1 A further 24 production operators are currently engaged on a labour hire arrangement and 10 production trainees are engaged by Carpenter.2

[8] A production employee is said to be responsible for the operation of mining equipment to ensure production outcomes are achieved and work is completed in a safe manner. The type of machinery which may be operated by production employees includes haul trucks, graders, dozers, loaders, shovels and fuel carts. 3 Mr João Paulo Da Silva Fernandes, General Manager of Griffin Coal, said that haul trucks were the easiest piece of equipment to operate and formed the majority of the fleet of equipment at Griffin Coal. As such, most of Griffin Coal’s production workers operated haul trucks.

Training program

[9] On or around 20 October 2018, 10 Production Trainee Operators (Trainees) were employed by the WorkPac Group (WorkPac) to undertake a traineeship at the mine site. However, that arrangement came to an end when, on or around 10 January 2019, WorkPac withdrew its labour hire services to Griffin. Mr Fernandes said he understood the withdrawal had arisen from a change in WorkPac’s national industrial strategy. 4

[10] Griffin Coal wanted to retain the traineeship program and a decision was made that the Trainees would be employed on contracts with Carpenter. Carpenter, according to Mr Fernandes, was a related body corporate of Griffin Coal. It primarily owned Griffin Coal’s mining equipment but did not hold Griffin Coal’s capital assets or mining leases. 5

[11] Mr Fernandes said the factors that gave rise to the decision to offer employment with Carpenter, included financial and technical considerations. Financially, the recruitment of the Trainees would impact the budget and balance sheet (Griffin Coal had an agreed and approved budget with investors and management for production manning). 6 Technically, there was a question as to whether the Trainees could be paid under the levels in the Agreement.7 While the Agreement mentioned trainees in Level 3, Mr Fernandes said that, in his view, this classification was unsuitable for the Trainees as they would be completing a 12-24 month traineeship program and Level 3 had an indicative timeframe of three months.8

[12] Evidence was given that there was a particular reason for the the length of the traineeship program. Mr Fernandes expressed that one of the objectives was to expose the ‘young kids’, who were participating in the program, to different areas of the mine site, operational areas, and equipment.

[13] On or around 11 January 2019, 9 of the 10 trainees were employed by Carpenter in order that they could continue their traineeship. One appeared to have not taken up the offer.

[14] It was uncontentious that during the traineeship, the nine Trainees:

a) were located at the Griffin Coal mine;

b) had average rostered hours of 36.75 hours each week over the roster cycle;

c) were paid $57,330.02 annualised earnings in the first year (exclusive of superannuation) and $61,152.00 annualised earnings in the second year (exclusive of superannuation);

d) were required as a condition of their employment to comply with Griffin Coal’s Mine Special Rules;

e) while at the mine, were responsible to the relevant Griffin Coal production supervisor and/or their delegate; and

f) were enrolled in an approved course of formal training with a registered training organisation called Gold Training Pty Ltd (Gold Training).

[15] Mr Fernandes stated that the Mine Special Rules was an overarching policy document which incorporated aspects of various site policies, procedures and safe work instructions. The Rules were slowly being re-written into individual or specific policies or procedures. However, at this stage, they had not been formally removed from the policy system or from Griffin Coal’s contracts of employment.

[16] Throughout the Trainees’ employment with WorkPac and then with Carpenter, they were enrolled in a course with Gold Training, to obtain a Certificate III in Surface Extraction Operations. 9 They were required to complete 14 different units of competency as part of the traineeship, made up of three core units and the remainder were electives.10 All the Trainees completed the same units to ensure consistency in their traineeship. The modules covered a range of skills including assessing ground conditions, responding to site-based spills, conducting rigid haul truck operations and applying risk management processes.11

[17] Mr Fernandes stated that the Trainees entered a Traineeship Training Plan with Gold Training which described what training was to be done, who would provide the training and conduct the assessments, and how, when and where this would occur. 12 The Training Plan stated that both the employer and Gold Training had responsibility for the training, although it did not specify how the responsibilities would be split.13 Mr Fernandes indicated that Griffin Coal was responsible for providing the environment, equipment and time for the training. In his witness statement, Mr Fernandes next said that both practical and theoretical aspects, pertaining to the traineeship, were conducted and delivered entirely by an employee of Gold Training, and any paperwork and course materials were provided directly to the Trainees by the same company.14

[18] In order for the Trainees to complete the practical components of the traineeship, Mr Fernandes said the Trainees underwent training and supervision with Griffin Coal directly, so that they could be deemed competent to operate the relevant machinery or to undertake work in particular areas of the Griffin Coal mine. 15 This was necessary for Griffin Coal’s records and compliance with its internal procedures.16 Mr Fernandes outlined that this process was followed for any new worker coming onto site and was not directly connected to the traineeship program.17 Further, on a day to day basis, unless the Trainees had an assessment due or time scheduled with the Gold Training trainer, they were supervised by Griffin Coal’s production supervisors or senior operators.18

[19] During the hearing, Mr Fernandes’ attention was directed to Exhibit JPF-13, a ‘Training Matrix Report’ (the Report). The Report appeared to show Trainees who had been ‘passed out’ on different areas of the mine and on different equipment. Headings on the Report included, but were not limited to, ‘Full-Authorisation Cat 777F Haul Truck’, ‘Full Authorisation – Komatsu 830E AC Haul Truck’, and ‘Full Authorisation – Light Vehicle’. 19 The evidence suggested that Griffin Coal undertook the assessment of these competencies (through the Griffin Coal Training Department) and, in part, conducted the training. The Trainees had completed several competencies before the cessation of their employment with Carpenter (coded in the Report as Completed Desirable).

[20] Mr Fernandes recalled having seen a trainer from Gold Training at the mine site, every few weeks or months, to teach the theory component of the units as well as assess the Trainees on the practical components of the units. 20 It was Mr Fernandes’ evidence that Gold Training did not rely on any information, feedback or training documentation from Griffin Coal in order to mark a Trainee as competent for each of the modules for the Certificate III in Surface Extraction Operations.21

[21] Concerning manning numbers, Mr Fernandes explained that he understood from discussions with management in the Production Department that the Trainees were supernumerary for the entirety of their traineeship. They were not experienced workers and required supervision when completing tasks. It was also necessary, said Mr Fernandes, to roster additional workers in order to supervise and safely oversee the Trainees’ work during the traineeship. 22

[22] The nine Trainees completed their traineeship and ceased employment with Carpenter on 1 February 2020. By completing the traineeship, the nine Trainees qualified for a Certificate III in Surface Extraction Operations. The qualification was issued by Gold Training. The same nine accepted and commenced employment with Griffin Coal on 2 February 2020 to carry out production work.

Employment with Griffin Coal

[23] As observed, on commencement with Griffin Coal, the Employees were covered by the Agreement and were employed and paid at Level 3. The annualised salary for the Level 3 position was $67,674.05. On or around 10 May 2020, the Employees were appointed to and were being paid at Level 2B, under the Agreement. The current rate of pay or the Level 2B is an annualised salary of $84,363.02.

[24] Mr Fernandes spoke of signing off on the Employees’ employment contracts on or around 23 December 2020. 23 He decided that they would be paid in accordance with the Level 3 pay rates under the Agreement.24 His reason – the Employees ‘were just finishing a traineeship and were not experienced. This was their first ever production operator role and from my perspective they were coming in at the bottom’.25

[25] Expanding on this point, Mr Fernandes said that on commencement of their employment with Griffin Coal and based on the traineeship program itself, most of the Employees only had prior exposure to unrelated areas ranging from retail, hospitality, carpentry and civil construction. 26 Those of the Employees who were previously engaged in work which could be regarded as related, such as on a mine site or in engineering and automotive, did not have sufficient experience in that area.27 Mr Fernandes explained that this was because they had a very base level of knowledge and had, at most, prior exposure to driving minor equipment such as forklifts and bob cats, rather than heavy equipment or working in environments like Griffin Coal.28

[26] Evidence was given that there was no national or State accreditation system for tracking the competencies of a worker on a piece of equipment. Although the Employees had a Certificate III, Mr Fernandes said it was necessary for them to be assessed against Griffin Coal’s internal training scheme and competency framework - a procedure for which was set out in the ‘Griffin Coal’s Process Flow for New Production Operators’ (see Exhibit JPF-12).

[27] Under this Process Flow, for every new piece of machinery an Employee was required to operate, they must have first been subject to a period of supervision, followed by minimal supervision where they would only be able to operate the equipment under the guidance of approved competent personnel, such as Production Department supervisors. 29 It was only following another assessment process that the Employees could achieve full authorisation.30 Mr Fernandes said that most of the Employees now had full authorisation on at least two vehicles and most were at least under minimal supervision on Griffin Coals’ haul trucks.31 However, they continued to go through the Process Flow for other pieces of equipment and would continue to operate these machines under supervision until they gained full authorisation.32

[28] While Mr Fernandes referred to the Employees being required to be passed out on various machinery and equipment, Mr Busson gave evidence that the core role for production employees at Griffin Coal is that of haul truck operator. 33

[29] While the Employees were employed with Griffin Coal as general production employees and performing, to a large extent, the same duties as other production employees, Mr Fernandes said they were carefully monitored by senior employees who were in close contact with them throughout the shift. 34 The Employees could not work independently or of their own initiative.35 Rather, they were delegated set tasks for the day, allocated to a particular area and closely supervised by senior production employees and superintendents.36

[30] Mr Busson gave evidence that it was his understanding that the Employees had been employed in the position of ‘Production Employees’ and were expected to work as though they were any other production employees on-site. 37 This meant they were operating heavy equipment including haul trucks, front end loaders, feeding the overland conveyor to Bluewaters’ power station, and fuelling.38 According to Mr Busson he said that he was aware that some of the Employees had been training new trainees in the operation of heavy equipment, and that the Employees were working the same day/night continuous roster as other production employees on-site.39

[31] Mr Busson shared the view that, in order for the Employees to be operating heavy machinery on site, they must have passed Griffin Coal’s internal assessment procedures (Process Flow). 40 However, Mr Busson noted his awareness that the Employees had passed the necessary assessments in the first half of their traineeship. In those circumstances, the Employees clearly had relevant skills and experience on the site that would warrant a Level 2 classification.41

Submissions of the Union

[32] The Union summarised the dispute as concerning whether the Employees were properly classified at Level 3 under the Agreement. To answer that necessarily required a consideration of the description of Level 3, contained in subclause 12.1(a) of the Agreement. The Union contended that the application of subclause 12.1(a) must be construed in the context of the text of the agreement viewed as a whole, as explained in AMWU v Berri (‘Berri’). 42 The Union submitted that, in this respect, subclauses 12.2(b)-(f) of the Agreement appeared most relevant to the construction task before the Commission, and that the parties were not apart on the principles to be relied upon in when interpreting the Agreement.

[33] In summary, said the Union, the Employees when employed by Griffin Coal, did not have the attributes that would have allowed Griffin Coal to properly classify them at Level 3. This was because, at the commencement of the Employees’ employment, the Employees:

a) were not inexperienced in mining or related work;

b) were not unskilled or ‘entry level’;

c) were no longer trainees; and

d) had heavy equipment operational skills.

[34] Expanding upon these points, the Union first addressed that the Employees were not inexperienced in mining or related work, so as to fit within the definition of Level 3 of the Agreement.

[35] The reference to ‘inexperienced’ being in relation to ‘mining or related work’ and to Level 3 employees being ‘without heavy equipment operational skills’, in addition to the time frames provided for movement between Level 3 and Level 2, clearly demonstrated, said the Union, that the Agreement was intended to operate in such a manner that employees who had ‘relevant’ skills and experience related to the skills used by production operators would properly be excluded from the Level 3 classification.

[36] Continuing with this line of argument, the Union contended that the context in which ‘inexperienced’ was used in the Agreement, when considered within the other subclauses within clause 12, strengthened the Union’s position. This was because:

a) under the Agreement, an employee is ‘generally expected’ to go from Level 3 to Level 1 within 12 months. Pursuant to subclause 12.2.(b) of the Agreement, an employee with no relevant experience or skills who started at Level 3 would move to Level 2 in a transition that would ‘generally be expected to take about 3 months’. The Union submitted that the level of experience necessary to be classified Level 2, would therefore ‘generally be expected’ to be about 3 months. Following that movement, subclause 12.2(e) provided that ‘[e]mployees who commenced their employment at Level 3 can generally be expected to move from Level 2 to Level 1 after 9 months’. The Union said that the level of experience necessary to move from a Level 3 to a Level 1 was ‘generally expected’ to be about 12 months. Therefore, the provisions dealing with the movement of employees through the classification structure pointed to the fact that employees with 14 months’ experience working at Griffin Coal, who were operating heavy equipment, could not be properly classified as Level 3 on the basis of inexperience.

b) the Agreement at subclause 12(c) clearly envisaged a scale of experience and skills: ‘[e]mployees starting work with Griffin who are skilled and experienced will be appointed to Level 2 or Level 1 depending on their level of skill and experience’. This subclause expressly recognised that employees commencing may have varying levels of skill and experience and provided that such employees will be appointed as either ‘Level 2 or Level 1’. Clearly an employee does not have to be as experienced in the operation of heavy equipment as other employees covered by the Agreement to, nevertheless, be properly characterised as being in a level other than Level 3.

[37] The Union expanded upon these points submitting that subclause 12.2(b) was suggestive that the progression between Level 3 to Level 2 could generally be expected to take three months. Whilst partly indicative in its nature, its inclusion (subclause 12.2(b)) was to fairly and plainly provide flesh on the bones such that the employees gained sufficient experience and skill. The Union pressed that, in terms of the Agreement as a whole, when an employee started work with no heavy equipment operational skills, the employee would start at Level 3 and would be provided with relevant training, and thereafter assessed.

[38] In contrast, said the Union, the Employees had this experience and skill in spades. They were at the mine site for 14-15 months, well over the three months referred to at subclause 12.2(b). The Union next submitted that the Training Flow Chart, contained in Attachment JPF 12 of the Fernandes Statement, showed what an employee could achieve in three months – namely, an employee could be under quite minimal supervision on a limited number of machines. The Union submitted that it could be seen in Attachment JPF 13 of the Fernandes Statement that the Employees were at least that level, and most had been at that level for quite some time.

[39] The Union referred to the dictionary definition of the word ‘inexperienced’ noting that the Macquarie Dictionary Online defined the word, when used as an adjective, as ‘not experienced; without knowledge or skill gained from experience’. The Union submitted that the employees clearly had experience from which they had gained both skills and knowledge.

[40] The Union advanced that the materials filed, by both parties, showed that the Employees had directly relevant operational experience by virtue of their employment with WorkPac and its successor, Carpenter, at Griffin Coal’s operations. The experience, for a period of 15 months, was, in the Union’s view, significantly higher than an equivalent amount of experience in the mining industry at another mine, let alone in a ‘related’ industry, because the Employees were operating under the exact conditions and on exactly the same equipment that also applied to, and was used by, other production employees at the Griffin Coal mine.

[41] Regarding the skills the Employees had gained, in part from on-the-job training and experience, the Union said that Griffin Coal had assessed the Employees as being able to operate machinery on a ‘minimal supervision’ and/or ‘full authorisation’ basis. Further, evidence presented by Mr Busson, in the form of a Shift Resources Sheet, demonstrated that the Employees were being allocated by Griffin Coal to operate the relevant heavy machinery at Griffin Coal’s mining operations, prior to being employed directly by Griffin Coal. The Union contended that this was sufficient to show that the Employees could not be characterised as ‘inexperienced in mining or related work’ as the term is used in Level 3.

[42] The Union stated that the Employees were not ‘unskilled’. They had received relevant skills through the training provided by Gold Training and Carpenter which had culminated in a Certificate III in Surface Extraction Operations. That qualification was, said the Union, directly relevant to production operators in the mining industry.

[43] The Employees had spent time being trained and assessed in the very jobs they would fill, in order to allow them to operate within Griffin Coal’s mining operations, in accordance with the relevant safety legislation. Furthermore, the Training Plan that had been adduced by Griffin Coal showed, 43 said the Union, that the traineeship with Carpenter could not have been successfully completed without Griffin Coal employees having input into that assessment, through third party reports and through Carpenter supporting the assessment.

[44] According to the Union, Griffin Coal had separately assessed the Employees as competent to operate various pieces of equipment at the mine site. Griffin submitted that those training records showed that those assessments, made whilst the Employees were trainees, were not repeated upon the Employees’ commencement of direct employment with Griffin Coal, but rather had been relied upon by Griffin Coal as sufficient evidence of the Employees’ competency.

[45] An ‘entry level’ classification was misplaced as far as the Union was concerned. The Employees could not properly be classified as this as they had been working at the mine for around 15 months and, as a result, were wholly familiar with and qualified to perform the tasks they were given when starting direct employment with Griffin Coal. The Union said that, if the Employees had first been employed directly with Griffin Coal, rather than engaged through other bodies, it would accept that they would properly have been employed at an entry level. Yet 15 months later, after working on-site, being assessed and supervised by Griffin Coal, and having a Certificate III in Surface Extraction Operations, the Employees could no longer be properly considered ‘entry level’.

[46] The Union submitted that the reference to ‘trainees’ in Level 3 carried with it a necessary implication that employees who had successfully completed a traineeship in a directly relevant qualification to their role as a production employee, particularly in a traineeship facilitated by Griffin Coal at its operations, would not likely be the type of employee who would fit within the Level 3 classification. The Union next submitted that those same employees were supervised and trained by Griffin Coal employees during the period of traineeship

[47] The Union essentially summarised its position that at the time the Employees commenced, they were not inexperienced in the mining industry, and could not be considered as entry level or unskilled. They had heavy equipment operational skills from their traineeships.

Submissions of Griffin Coal

[48] Like the Union, Griffin Coal submitted that the dispute ultimately centred on the construction and application of clause 12 of the Agreement.

[49] Griffin Coal claimed that the effect of subclause 12.1 and subclause 12.2 (b) was that Griffin Coal may classify production employees as Level 3, provided they are inexperienced at mining or related work. Once they gain sufficient experience and skills to meet the definition of ‘skilled and experienced’ they will be progressed to Level 2.

[50] According to Griffin Coal the phrase ‘entry-level or unskilled’ in subclause 12.1(a) referred to positions which Griffin Coal may appoint someone to as a Level 3. Level 3 employees, as a consequence of their experience, would often work in an ‘entry level’ position or an ‘unskilled position that applied to an Employee without heavy equipment operations skills (including trainees)’. 44

[51] Griffin Coal advanced that the language in the phrase is descriptive and permissive. It clarifies, said Griffin, that employees, including trainees without heavy operational skills, may be classified as Level 3 employees and engaged in ‘entry-level’ and ‘unskilled positions’. Griffin Coal submitted that to construe the phrase, as the Union had sought to do, as meaning that workers who were previously trainees may not be classified as Level 3 employees required both an inversion and an exaggeration of the text of the provision. Griffin Coal advanced that the Union’s construction was misconceived.

[52] Griffin Coal next advanced that the correct classification of Employees pursuant to clause 12.1 hinged on certain indicia, which were:

a) ‘inexperienced’ (subclause 12.1(a)) or not ‘skilled and experienced” (subclause 12.1(b));

b) employed in an entry level position (subclause 12.1(a)); or

c) employed in an unskilled position that applies to an Employee without heavy equipment.

[53] The Employees were ‘inexperienced’, not ‘skilled and experienced’ and employed in an ‘entry level position’.

[54] Turning to the principles of construction, Griffin Coal argued that the phrase ‘inexperienced in mining or related work’ must also be considered in light of the purpose of the Agreement and classification levels. The purpose of the Agreement and the inbuilt mechanisms for classification and progression in clauses 12.1 and 12.2 was to:

a) allow Griffin Coal to classify production employees at a level that was commensurate with their skills and experience;

b) employ locals, particularly young locals, giving them a start in the workforce;

c) provide Griffin Coal with the ability to responsibly progress its production employees through the different classifications as they gained skills and experience, through training and development opportunities provided by Griffin Coal, rather than an employee remaining at one level for the duration of their employment with Griffin Coal; and

d) impose an obligation on Griffin Coal to invest in the continued development and training of its employees with a view to developing highly skilled and well-rounded production employees over time.

[55] Griffin Coal claimed that these purposes would have been undermined if Griffin Coal had not classified the Employees as Level 3.

[56] Before the Employees started with Griffin Coal, an assessment was undertaken to ascertain the Employees’ relevant skill and experience. Griffin Coal submitted that based on their skills and experiences, Mr Fernandes considered the appropriate classification level for the Employees when signing off on the letters of offer of employment on or prior to 23 December 2019, as Level 3. It was Griffin Coal’s view that, at that time, none of the Employees had sufficient skills or experience in mining or other related work, such that they ought to have been classified as Level 2. Griffin Coal said that this was in part because the Employees had entered into the traineeship with relatively low base knowledge about mining or related work. 45

[57] Referring to the traineeship, Griffin Coal submitted that it was both a theoretical and practical based program involving classroom and employment-based learning. 46 The Employees had to learn and be assessed in 14 different modules, including practical exercises, such as workplace observation and role play, in order to attain the Certificate III qualification.47 Griffin Coal observed that the learning experiences and knowledge that resulted, while valuable, was not operational experience and therefore did not render the Employees ‘experienced and skilled’ production operators. To clarify, Griffin Coal added that being qualified or deemed competent did not translate to an individual being experienced.

[58] Reverting to the construction of the Agreement, Griffin Coal argued that the correct construction of the Agreement was not that the Employees were ‘inexperienced’ on one day, notwithstanding that being the final day of their traineeship, and then immediately became ‘skilled and experienced’ on the first day they commenced with Griffin Coal.

[59] Griffin Coal distinguished the assessments the Employees had undertaken with Gold Training, noting that they were not Griffin Coal’s assessment processes and they were not assessed by Griffin Coal personnel. According to Griffin Coal, the training and assessments did not provide a basis on which Griffin Coal could determine that the Employees were ‘experienced and skilled’.

[60] It was submitted that the Employees had never worked as production operators or outside the supervision and guidance of the traineeship program. The Employees were still subject to supervision requirements for a number of Griffin Coal’s equipment. 48

Relevant legal principles

[61] The principles that govern the interpretation of enterprise agreements are well-established. In WorkPac Pty Ltd v Skene, 49 (WorkPac) the Full Federal Court elucidated the following principles:

The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context: City of Wanneroo v Holmes (1989) 30 IR 362 (Holmes) at 378 (French J). The interpretation “turns on the language of the particular agreement, understood in the light of its industrial context and purpose”: Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 (Amcor) at [2] (Gleeson CJ and McHugh J). The words are not to be interpreted in a vacuum divorced from industrial realities (Holmes at 378); rather, industrial agreements are made for various industries in the light of the customs and working conditions of each and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament (Holmes at 378-379, citing George A Bond & Company Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503 (Street J)). To similar effect, it has been said that the framers of such documents were likely of a “practical bent of mind” and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced: see Kucks v CSR Ltd (1996) 66 IR 182 at 184 (Madgwick J); Shop, Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16] (Marshall, Tracey and Flick JJ); Amcor at [96] (Kirby J). 50

[62] In that same decision, the Full Federal Court explained that where a term is undefined, unless there is a contrary indication, it ought to be presumed that the draftsperson intended that the term have its ordinary meaning. 51 And so, despite the broad purposive approach to be adopted when interpreting industrial agreements, that cannon of construction regarding the ‘ordinary meaning’ remains applicable as a starting point.52

[63] The Full Bench of the Commission in Berri, 53 and the earlier decision in The Australasian Meat Industry Employees Union v Golden Cockerel (‘Golden Cockerel’),54embraced such principles. Berri affirmed that the interpretation of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words.

[64] Where there is a dispute over the interpretation of an enterprise agreement, the resolution will turn on the language of the agreement, having regard to its context and purpose. 55 Context might appear from the text of the agreement as a whole, the disputed provision’s place and arrangement in the agreement, and the legislative framework under which the agreement was made.56 However, the task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome.57

[65] In Berri, the Full Bench summarised the principles relevant to the task of construing a single enterprise agreement 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 and 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.

[66] The Full Bench of the Commission, in CFMEU v Endeavour Coal Pty Ltd (Endeavour Coal),  58 considered Golden Cockerel and Berri in the following terms:

[42] In Golden Cockerel, the Full Bench set out authorities which make it clear that while the task of construction begins with consideration of the ordinary meaning of the words of the agreement, regard must be paid to the context and purpose of the provision or expression being construed. Those authorities make clear that context and purpose are relevant to construction and must be considered even where the words of the provision being construed appear, on their face, to have a clear and unambiguous meaning.
[43] In this regard, the Full Bench in Golden Cockerel had set out at [29] the explanation of this point by the NSW Court of Appeal in Mainteck Services Pty Ltd v Stein Heurtey SA.Relevantly, that explanation emphasises the following matters:

• Until a word or phrase is understood in the light of the surrounding circumstances, it is rarely possible to know what it means and there is always some context to any statement;
• Language considered in its context will often have a clear meaning and context will often not displace that meaning – “but not always”;
• To state that a legal text is clear reflects the outcome of an interpretation process and means that there is nothing in the context that detracts from the ordinary literal meaning and cannot mean that context can be put to one side;
• The phrase used by Mason J in Codelfa “if the language is ambiguous or susceptible of more than one meaning” does not mean that the susceptibility of the language to more than one meaning must be assessed without reference to the surrounding circumstances and in order to determine whether more than one meaning is available it may be necessary to turn to context; and
• Context has also been described as surrounding circumstances and the meaning of terms normally requires consideration not only of the text, but of the surrounding circumstances known to the parties and the purpose and object of the transaction.

[67] Further, the Full Bench of the Commission in United Firefighters Union of Australia v Emergency Services Telecommunications Authority T/A ESTA (United Fire Fighters), 59 stated:

[35] As stipulated in Berri, the starting point for interpreting an enterprise agreement is to have regard to the ordinary meaning of the words used. Further, the text must be interpreted in the context of the agreement as a whole. Principles 7 and 10 elicited in Berri emphasise that ambiguity in a provision within an enterprise agreement must be identified before one is to have regard to evidence of the surrounding circumstances. However, principle 8 makes it clear that, in determining whether ambiguity exists, one may have regard to evidence of the surrounding circumstances. That is, such evidence can be used to identify and resolve any ambiguity.

Consideration

Interpretation of clause 12

[68] The principles outlined above from Berri, and again in United Fire Fighters, make clear that the interpretation process begins with a consideration of the ordinary meaning of the relevant words, and the Full Bench emphasised that the resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. That context may appear from the text of the agreement as a whole, the disputed provision’s place and arrangement in the agreement, and the legislative framework under which the agreement was made.

[69] Clause 12.1 and clause 12.2 have been set out in full and I do not intend to repeat them at length. The starting point is to consider subclause 12.1(a), which in part appears to have generated most, if not all, of the consternation. It is curiously worded, and its syntax is odd. However, it does not necessarily follow that the clause is ambiguous. The parties have pressed differing constructions. Yet, the mere fact that two parties present respectable but conflicting interpretations does not mean that the provisions concerned must be ambiguous. 60

[70] An overly technical approach to the interpretation of industrial instruments is to be avoided. However, if the meaning of an enterprise agreement is to be ascertained using accepted methods of interpretation, which means examining the ordinary meaning of the words and doing so having regard to context, then it is important to start with the first part of subclause 12.1(a).

First part of the clause

[71] The first part of subclause 12.1(a) reads, ‘Level 3 refers to an Employee starting work with Griffin’. It immediately informs the reader that Level 3 is only applicable to new starters.

Second part of the clause

[72] The next part of the clause speaks to the employee as being ‘inexperienced in mining or related work’. The issue then arises as to whether an employee falls under the scope of Level 3 simply because they are a new starter and are inexperienced in mining or related work’ (subclause 12.1(a)). At this point, the clause does not refer to the skills or lack of skills of the employee. The focus sits squarely on the employee’s experience. Therefore, while an employee could, for example, have worked for several years in a health care setting, Griffin Coal may nevertheless consider the employee inexperienced for the purpose of Level 3.

Third part of the clause

[73] The conjunction ‘and’ is then used to connect ‘inexperienced in mining or related work’ to ‘an entry level’ or to ‘an entry level or unskilled position that applies to an Employee without heavy equipment operational skills (including trainees)’. This part of the clause sees a shift with the framers now branching into referencing positions and skills.

[74] As noted, the third part of the clause includes the words ‘entry-level’. Reference to this term, in my view, connotes ‘position’ rather than referring expressly to the employee’s experience or skill. The reference to position is implicit deriving from the term’s proximal relationship to the term ‘unskilled position’ because of the use of the conjunction ‘or’. Therefore, the employee may be considered as ‘entry level’, as far as positions are concerned, or, alternatively, the other choice of position is that of an ‘unskilled position’.

[75] The term ‘entry level’ may connote a position that requires some skill, particularly at its higher levels. This is because the term is placed in contrast to the words ‘unskilled position’. The term must have some work to do. An ‘unskilled position’ is one where the employees do not have ‘heavy equipment operational skills’. The ‘unskilled position’ includes within its scope ‘trainees’. This is unsurprising given ‘trainees’ would not yet have acquired the skill set perhaps required for an ‘entry level’ position. As to whether the phrase ‘that applies to an Employee without heavy equipment operational skills’ is connected to ‘entry level’ as well as ‘unskilled position’, whilst perhaps difficult to discern, in my view it does not for the reasons cited.

[76] While the focus at present rests on clause 12.1, the word ‘Employee’ is a defined term, its definition sitting at clause 2.1 of the Agreement. When one considers the definition provided, it is evident that the Agreement has adopted the definitions falling within Schedule A of the Black Coal Mining Industry Award 2010. Turning to Schedule A, the classifications embrace entry level positions for both a certificated tradesperson and non-trade person. It is perhaps unsurprising that, in a rather ‘inelegant’ fashion, the Agreement appears to have distinguished two position types.

[77] The question then turns to whether the part of the clause ‘inexperienced in mining or related work’ is connected to the terms ‘an entry level’ and an ‘unskilled position that applies…’. That is, is it the case that to be classified as Level 3, all employees, irrespective of whether the employee is suitable for an entry level position or is at ‘entry level’, or is suitable for an ‘unskilled position’, must satisfy the indicia of being ‘inexperienced in mining or related work’. I am of the view that is the case.

[78] Without wanting to delve too deeply into the technical aspects of the written word, I make the following observation. It appears to me that in utilising the word ‘and’, and interposing it in the position that they did, the framers sought not only to connect the ‘propositions’, but also sought to highlight the similarity between the term ‘inexperience’ and the type of positions available at Level 3.

Further consideration of clause 12 as a whole and other clauses in the Agreement

[79] As outlined in Endeavour Coal,the decisions in Golden Cockerel and Berri make it clear that context and purpose are relevant to the construction of an agreement. They are to be considered even where the words of the provision being construed appear, on their face, to have a clear and unambiguous meaning.

[80] When determining whether to place an employee in one classification level or another, reference is had to the other levels available to choose from. When observing clause 12, it is evident that clause 12.2, and subclauses 12.1(b)(ii) and 12.1(b)(iii) will assist the reader in making that determination. This is because the two clauses speak to the skills and experience required before progression can occur from Level 3 to 2, or alternatively the circumstance where a new starter can commence at Level 2.

[81] Subclause 12.1(b) informs the reader that a Level 2 employee need satisfy one of three criteria. The first, subclause 12.1(b)(i) is not relevant for our purpose and therefore the examination swiftly moves to subclause 12.1(b)(ii). That subclause provides that a Level 2 Employee ‘is a skilled and experienced Employee who has recently commenced employment with Griffin’. Similarly, to subclause 12.1(b)(ii), subclause (iii) also refers to ‘experience and/or skills’. In full, it reads ‘is an Employee previously at Level 3 who has gained sufficient experience and/or skills with Griffin to be appointed by Griffin to level 2’.

[82] The commonality between subclauses 12.1(a) and 12.1(b)(ii) is that both refer to employees that have recently started work or commenced employment (respectively) with Griffin. That is the employees are ‘new’ to Griffin. However, that does not necessarily mean that they are new to mining. The difference between these parts of the two clauses is, in my view, telling. One refers to ‘starting work’ and the other ‘commenced employment’. The latter ‘commenced employment’ in the context of that clause appears to describe a circumstance where the new starter has worked previously in the mining field and is therefore skilled and experienced, but new to Griffin. The former, ‘starting work’, as referred to in subclause 12.1(a), refers to an employee not only new to Griffin, but one who may have not worked previously or if they have, they have done so in a work environment that is not mining or not work related to mining.

[83] When one considers subclause 12.1(b)(ii) and contrasts it to subclause 12.1(a), the significant difference between the two is that for an ‘Employee’ to classified at Level 2, they possess skills and experience – the inference being in mining or related work. A Level 3 worker in contrast is inexperienced.

[84] Subclause 12.1(b)(iii) refers to ‘an existing Employee who has gained sufficient experience and/or skills with Griffin to be appointed by Griffin to level 2’. Subclause 12.2(b) provides an indication of the time required to gain ‘sufficient experience and skills’ to be appointed to Level 3. That timeframe is three months, and, in that period, Griffin Coal is obliged to provide ‘appropriate training’ and the ‘opportunity to be assessed’. Subclause 12.1(b)(iii) clarifies that to progress from Level 3 to Level 2 the Employee is required to gain sufficient experience and skills.

[85] It is therefore the case that the correct classification of the Employees pursuant to clause 12.1 hinges whether the Employee was ‘inexperienced’ (subclause 12.1(a)) or not ‘skilled and experienced’ (Subclause 12.1(b), and if inexperienced whether the position was:

i. an entry level position (subclause 12.1(a)); or

ii. an unskilled position that applies to an Employee without heavy equipment operational skills.

[86] The decision as to whether an employee falls under subclause 12.1(a) or the three subparagraphs in subclause 12.1(b), sits with Griffin Coal. It is Griffin Coal that assesses 61 the employee to determine which level to appoint the employee to, and thereafter ‘appoints’62 the employee to that particular level.

[87] As I have observed, subclause 12.1(a) is curiously worded and its syntax contributes to the difficulty interpreting it. It is difficult to say that the clause is absent ambiguity when its interpretation has required multiple rereads and detailed consideration of the clause. On this basis alone, perhaps, it can be concluded that there is ambiguity, or alternatively that the subclause has simply been couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament – to borrow from the Full Federal Court in WorkPac. 63

[88] If it were the case that the relevant clause was absent ambiguity, it would not preclude my recourse to the surrounding circumstances. However, I do not consider that the evidence of the surrounding circumstances, in this case, has established any common understanding as to the interpretation to assign the clause. What is, however, evident from the ordinary meaning of the words is that the framers sought to describe a Level 3 employee so as to capture that this type of employee was essentially inexperienced, and that the positions found at this level were entry level or unskilled.

Does the Agreement allow Griffin Coal to classify the Employees at Level 3 on the commencement of the Employees employment with Griffin Coal?

[89] The Union’s contentions concerning the attributes of the Employees were not without merit. Arguing that the Employees were not inexperienced in mining or related work, were not unskilled or ‘entry level’, were no longer trainees, and had heavy equipment operational skills, the Union pressed that the Employees did not fit within the definition of Level 3. Much was made of the point that the Employees were operating under the exact conditions and on exactly the same equipment that also applied to, and was used by, other production operators at the Griffin Coal mine.

[90] During the hearing, the Union took the Commission to various documents that evinced the training undertaken and competencies achieved by the Trainees when employed by Carpenter, and for a short period by WorkPac. It was uncontentious that a tripartite arrangement was in place, whereby Griffin Coal provided the site, equipment and supervision to assist with the practical aspect of the traineeship; Carpenter employed the Trainees, and Gold Training ran the formal training, resulting in the Trainees achieving a Certificate III. Therefore, by the time the Trainees had completed their traineeship with Carpenter, they had worked on the Griffin Coal site for some 15 months, held a qualification in Surface Extraction Operations, and had been trained on particular equipment at the mine site. The Union emphasised that the Employees had gained direct experience of 12 months or more at the mine, and the competencies achieved did not come from classroom theory alone.

[91] While the Employees had completed the traineeship and attained a qualification, Griffin claimed that being qualified or deemed competent did not translate to an individual being experienced. Further, reverting to the construction of the Agreement, Griffin Coal argued that the correct construction of the Agreement was not that the Employees were ‘inexperienced’ on one day, notwithstanding that being the final day of their traineeship, and then immediately became ‘skilled and experienced’ on the first day they commenced with Griffin Coal. I agree with this proposition.

[92] It is noted that Griffin Coal had no reservations concerning the successful completion of the Certificate III training.

[93] There is a fundamental difficulty that arises in this case. The Commission has been placed in the somewhat unenviable position of determining whether the Employees were in effect ‘inexperienced’ or otherwise not ‘skilled and experienced’, premised on the materials filed. The Commission is charged with making that assessment absent the experience and skills that the representatives of the employer and the Union hold.

[94] The Union had referred in its submissions to the meaning attributed to the word ‘inexperienced’ noting that it meant ‘not experienced; without knowledge or skill gained from experience’. The assessment evidently requires the adoption of an objective lens and clearly, in this case, the Union considers this has not occurred.

[95] An employer is of course free to manage its business in the most effective manner possible and it is accepted that industrial tribunals will not interfere unless the employer’s actions are unjust or unreasonable. 64 I have already traversed that the Agreement places upon the employer the responsibility for assessing the Employee and placing her or him into the relevant classification level. The discretion therefore sits with Griffin Coal to assess the Employees and thereafter appoint them to the relevant level.

[96] Evidence was given that before the Employees started with Griffin Coal, an assessment was undertaken by Mr Fernandes. It was Griffin’s view that at the time the assessment was undertaken, none of the Employees had sufficient skills or experience in mining or other related work, such that they ought to have been classified at Level 2. The evidence of Mr Fernandes was that the Employees had entered into the traineeship with a relatively low base knowledge about mining or related work. 65 Further, it was contended that during the course of the traineeship the Employees were supernumerary, albeit, Mr Fernandes was open to the contention that value was derived from the work performed by the Employees.

[97] The assessment made and the decision reached concerning the classification of the Employees is not absent reasoned thinking. That is, it did not appear to be an arbitrary decision. On any objective level, it is understandable why Griffin Coal placed the Employees into the classification level that it did when the experience of the Employees is considered in the context of the Agreement, the mining industry and the potential longevity of their working lives, and that of their new colleagues. There is something discomforting about the notion that a newly graduated trainee could be considered ‘experienced’.

[98] However, as noted that understanding of the word ‘experienced’ derives from adoption of the dictionary meaning of ‘experience’. That is the ordinary meaning of the word. It draws upon the meanings of ‘experience’ such that the Employee has ‘knowledge or practical wisdom gained from what one has observed, encountered or undergone’, 66 or alternatively ‘the observing, encountering, or undergoing of things generally as they occur in the course of time’. The commonality being that experience is gained through the passage of time. And, whilst not particularly illuminating, it follows that ‘inexperience’ describes the state of a ‘lack of experience, or knowledge or skill gained from experience’.67

[99] The context of the Agreement however is important. The relevant authorities inform us of this. The Union quite correctly pointed out that subclause 12.2(b) pointed to the progression of Employees form Level 3 to Level 2 and that the indicative time for such progression was a three month period. Therefore, for any other employee starting work with Griffin Coal who was inexperienced or possessed no skill and experience, the general expectation was (based on the content of the Agreement) that in about three months that employee would advance from Level 3 to Level 2. As Level 2 refers to an Employee who ‘is a skilled and experienced Employee’ 68or alternatively is an ‘Employee previously at Level 3 who has gained sufficient experience and/or skills with Griffin to be appointed by Griffin to level 2’, the inference is that the ‘experience’ referred to within the confines of the Agreement, could potentially be gained within three months. Having already worked 12-15 months on the mine site, even though it was in a supernumerary capacity, the argument was open that the Employees were ‘skilled and experienced’.

[100] Griffin Coal contended that the learning experiences and knowledge that resulted from the traineeship, while valuable, did not constitute operational experience and therefore did not render the Employees ‘experienced and skilled’ production operators.

[101] From the evidence before me, I am unable to find that the traineeship did not constitute operational experience. Based on the evidence presented I am content to find that the Employees gained operational experience, or similarly, their time within the traineeship program constituted operational experience. However, in all of the circumstances, I am not similarly convinced that it rendered the Employees ‘skilled’ production operators, or that the Employees were sufficiently experienced to the extent that Level 2 was the correct classification level in which to place them.

[102] While subclause 12.2(b) provides an indicative timeframe for level progression between Levels 3 and 2, it is simply that – indicative. The clause does not compel Griffin Coal to progress an employee from Level 3 to Level 2 on the three month anniversary of the Employees that have been engaged. While subclause 12.2(b) clearly has bearing, it does not in turn make obsolete the ordinary meaning of the words ‘inexperience’, ‘experienced’ or ‘skilled’.

[103] Further, subclause 12.1(a) is not limited to the consideration of whether the employee is inexperienced in mining or related work, it extends to the inclusion of position types. While provision is made for the position type of ‘unskilled position’ sans heavy equipment operational skills (including trainees), in this case the position type relevant to the Employees was that of ‘an entry-level’. In light of their experience, skill-set and training, Griffin Coal was positioned, in accordance with the Agreement, to place the Employees into an ‘entry level’ position. By way of observation, I consider it was not unfair or unreasonable to do so.

[104] The Employees were new to the mining industry. Yes, they had completed a traineeship at Carpenter, were successful holders of a Certificate III in Surface Extraction Operations and had worked for the last 12-15 months on the Griffin Coal site, under the supervision of Griffin Coal employees. However, having considered all of the evidence before me, I am of the view that the Agreement allowed Griffin Coal to classify the Employees at Level 3 on them starting work with their new employer.

DEPUTY PRESIDENT

Appearances:

Mr A Kentish, national legal officer, of the Construction, Forestry, Maritime, Mining and Energy Union – Mining and Energy Division.
Ms H Millar, counsel, of Francis Burt Chambers, for Griffin Coal Mining Company Pty Ltd.

Hearing details:

2020:
Perth (by video link);
September 24.

Printed by authority of the Commonwealth Government Printer

<PR723038>

 1   Witness Statement of João Paulo Da Silva Fernandes (Fernandes) [5].

 2 Ibid [5].

 3 Ibid [6].

 4 Ibid [28].

 5 Ibid [31].

 6 Ibid [30].

 7 Ibid [30].

 8 Ibid [30].

 9 Ibid [37].

 10 Ibid [38].

 11 Ibid [38].

 12 Ibid [40].

 13 Ibid [41].

 14 Ibid [42].

 15 Ibid [45].

 16 Ibid [45].

 17 Ibid [45].

 18 Ibid [47].

 19   Ibid, Exhibit JPF-13

 20 Ibid [46].

 21 Ibid [46].

 22 Ibid [48].

 23 Ibid [53].

 24 Ibid [53].

 25 Ibid [53].

 26 Ibid [65].

 27 Ibid [65].

 28 Ibid [65].

 29 Ibid [76].

 30 Ibid [76].

 31 Ibid [76].

 32 Ibid [76].

 33 Busson Statement [8].

 34 Fernandes Statement [79].

 35 Ibid [79].

 36 Ibid [79].

 37 Busson Statement [20].

 38 Ibid [20].

 39 Ibid [20].

 40 Ibid [20].

 41 Ibid [20].

 42   Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited[2017] FWCFB 3005, (‘Berri’).

 43   Fernandes Statement, Annexure JPF-4.

 44   Clause 12.1(a) of the Agreement.

 45 Fernandes Statement [65].

 46 Ibid [41].

 47 Ibid [43].

 48 Ibid [65].

 49 [2018] FCAFC 131.

 50 Ibid [197].

 51 Ibid [202].

 52 Ibid [202].

 53   [2017] FWCFB 3005.

 54   [2014] FWCFB 7447.

 55   Ibid.

 56   Berri, point 1 at [114]; Golden Cockerel point 8 at [41].

 57   Berri, point 2 at[114].

 58   Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd T/A Appin Mine[2017] FWCFB 4487.

 59   [2017] FWCFB 4537.

 60   National Union of Workers v CHEP Australia Limited[2018] FWC 3797.

 61   See clauses 12.1(c), 12.2(b) and clause 12.2(e).

 62   See clause 12.1(b)(iii) and clause 12.2(b).

 63   WorkPac Pty Ltd v Skene [2018] FCAFC 131, [197].

 64   Australian Federated Union of Locomotive Enginemen v State Rail Authority of New South Wales (1984) 295 CAR 188 at 191.

 65   Fernandes Statement, [65].

 66   Macquarie Australia’s National Dictionary Concise Dictionary Fifth Ed, p 429.

 67   Ibid p 632.

 68   Clause 12.1(b)(ii) of the Agreement.