[2020] FWC 2781

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.236—Majority support determination

Construction, Forestry, Maritime, Mining and Energy Union
v
Orica Australia Pty Ltd
(B2020/67)

DEPUTY PRESIDENT SAUNDERS

NEWCASTLE, 28 MAY 2020

Application for a majority support determination – proper construction of CFMMEU’s eligibility rules – application granted.

Introduction

[1] The Construction, Forestry, Mining and Energy Union (CFMMEU) has made an application to the Fair Work Commission (Commission) pursuant to s 236 of the Fair Work Act 2009 (Cth) (Act) for a majority support determination in relation to shotfirers, explosive handlers/operators and laborers (bench hands/assistants) (collectively, the Employees) employed by Orica Australia Pty Ltd (Orica), and who work at the Boggabri open cut coal mine, in New South Wales (Mine).

[2] The CFMMEU must be a bargaining representative of an employee who will be covered by a proposed enterprise agreement in order to be eligible to apply for a majority support determination. 1 An employee organisation such as the CFMMEU cannot be a bargaining representative of an employee unless the organisation is entitled to represent the industrial interests of the employee in relation to work that will be performed under a proposed enterprise agreement.2 The CFMMEU and Orica are in dispute about whether the CFMMEU is entitled to represent the industrial interests of the Employees. Save for this issue, the CFMMEU and Orica agree that all the requirements of ss 236 and 237 of the Act have been met in this case.

[3] A hearing was conducted, by video conference, on 5 May 2020. The CFFMEU adduced evidence from Mr Grant McIlveen, shotfirer employed by Orica at the Mine, and Mr Jeff Drayton, Vice President of the CFMMEU, neither of whom were required for cross examination. Orica adduced evidence from Mr Matthew McKenzie, Orica’s Group Financial Controller, Mr Brad Jenkinson, Operations Lead and prior Site Manager at the Mine, Ms Belinda Hartnett, HR Business Partner for Minova, Mr Tony Hayes, Orica Territory Manager, and Mr Adrian Muculj, Orica’s Vice President Tax. Mr Jenkinson, Mr Hayes, and Ms Hartnett were the only Orica witnesses required for cross examination.

CFMMEU’s eligibility rules

[4] Whether or not the CFMMEU is entitled to represent the industrial interests of the Employees turns on the proper construction of rule 2(D) of the CFMMEU’s rules [emphasis added]:

“Without limiting the generality of the foregoing and without being limited thereby an unlimited number of employees engaged in or in connection with the coal and shale industries together with such other persons whether employees in the industries or not as have been appointed officers and admitted as members are eligible to be members of the Union.”

Relevant facts

Orica’s businesses

[5] Orica is a subsidiary of Orica Ltd, which is the parent company for the Orica group of companies’ global operations. Orica is the primary Australian entity in the Orica group of companies.

[6] For the year ended 30 September 2019, Orica’s revenue by commodity was as follows:

Commodity	Revenue
Thermal coal	37%
Coking coal	14%
Gold	15%
Iron ore	16%
Copper	4%
Quarry and construction	4%
Other	9%

[7] Orica’s business is comprised of its explosives business and its Minova business.

Orica’s explosives business

[8] Orica’s primary business is the manufacture and supply of explosives (typically, ammonium nitrate, ammonium nitrate emulsion, initiating systems (such as detonators and charges) and packaged explosives). Orica also supplies the following associated services:

(a) Down the hole services (DTH)- this service incorporates the manufacture and loading of bulk explosives down the blasthole. The personnel typically provided for DTHare Mobile Manufacturing Unit (MMU) operators and plant supervisors (depending on the size of the operation). This form of service is most common in the Hunter Valley region

(b) Total load services (TLS)- in addition to the bulk explosives loading, this service typically incorporates marking out of the shot, measurement of blasthole depth, priming of the blasthole, layout and tie-in of the shot initiation sequence, blast guard duties and may include firing of the shot. For TLS, Orica typically provides a shotfirer and bench assistants, as well as MMU operators. This form of service is most common in Queensland. Currently, Orica only provides a shotfirer and bench assistants at two sites in the Hunter Valley.

(c) Rock on Ground services (ROG)- Orica undertakes a totally integrated blasting service to deliver blasted ground to a specification and schedule which has been agreed with the customer. This service includes management of the total drilling and blasting process, including conducting the design of the blast, and is not typically provided to Orica’s coal mining customers.

[9] Orica supplies explosives and explosives services to many industries, including the mining industry (including coal and metalliferous mining), quarrying and construction industries.

Orica’s Minova business

[10] Orica Ltd acquired the international Minova business in 2006.

[11] Orica's Minova business principally provides ground control and support for the mining, civil/tunnelling, and geotechnical industries, including resins and mechanical stabilising products, chemical and cementitious grouts and adhesives, and ventilation control. Minova also provides emergency response services, such as recovery of buried longwalls and continuous miners. Minova is an underground mining services specialist.

[12] Orica's Minova business is the only part of Orica's business which carries out work on operating coal mines except for the work of Orica’s shot firers in its explosives business. There is no crossover between the work done within the Minova business and any other Orica business, including Orica’s explosives business. The Minova business operates as a standalone business unit of Orica.

[13] Minova has approximately 207 people employed in the Australia and Pacific region. In Australia, Minova’s employees are employed by Orica. Approximately 90 of 207 employees in the Australia and Pacific region are underground mine workers working at black coal mines throughout New South Wales and Queensland. Those black coal mines are operated by customers of the Minova business. The balance of Minova’s employees are engaged in supply chain, manufacturing, commercial sales, finance, human resources and safety. Minova does not employ shotfirers.

[14] Orica’s Minova business is reported separately within Orica Ltd’s financials.

[15] The revenue Orica earns from its Minova business is much smaller than its revenue from its explosives business. In the 2018/19 financial year, about 92% of Orica’s sales revenue came from its explosives business and about 8% came from its Minova business.

Overview of Orica’s services and equipment at the Mine

[16] Prior to 2017, Downer EDI provided shotfiring services at the Mine. In 2017, Orica was appointed to a new contract to supply explosives and explosives services to the Mine, replacing Downer EDI. The operator of the mine is Boggabri Coal Operations Pty Ltd (BCO).

[17] The Mine is a TLS site for Orica. As a TLS service, Orica is responsible for preparing, loading and detonating the blast at the Mine. Further detail of these activities is set out below.

[18] At all other New South Wales coal sites where Orica provides services, it provides DTHservices, meaning Orica only has MMU operators who load the shots (i.e. deploy bulk explosive product into the already prepped holes). These sites include Mount Thorley Warkworth, Hunter Valley, Ravensworth, and Mount Arthur. At DTH sites Orica deploys explosives into the hole and otherwise has no other input to the blasting process - that is, Orica does not manage preparation of the holes or decide which chemicals are poured, and the shots are fired typically by the mine operator.

[19] Orica manufactures and supplies the products which form the explosives at the Mine. There are three main products which form the explosives - ammonium nitrate (which is like a 'pearl' or bean bag balls), ammonium nitrate emulsion (which is a liquid), and initiating systems both electric and non-electric. Orica has three manufacturing plants, staffed by Orica employees, in the Hunter Region that produce these products, which are transported from the manufacturing plants to the Mine by a subcontractor to Orica.

[20] After the product is delivered to the Mine, it is stored in what is known as the ‘reload area’ (or ‘compound’), which is a fenced-off area of about 100m x 150m on the mining lease. The reload area is located about 100m to 200m away from active mining on the mining lease.

[21] Ammonium nitrate emulsion is stored in tanks. Ammonium nitrate is stored in large trailers attached to vehicles. The initiating systems are stored in approved magazines, which are also owned by Orica.

[22] The reload area is under the control of Orica and Orica holds a licence to store explosives there. The reload area is fenced-off and individuals require permission from Orica to enter it.

[23] The following facilities, plant and equipment is located in the reload area:

• a crib room/pre-start room, which is a demountable building about 4m wide x 20m long;

• three toilet blocks;

• a main office building, where the Orica site supervisor, on-bench supervisor and administration employee are based;

• fixed plant, such as tanks and trailers, used to hold raw material;

• a workshop, where fitters employed by Orica undertake maintenance work on vehicles and equipment;

• about 10 light vehicles, which are used to transport the Employees around the Mine;

• 2 loaders, which are used to fill stemming trucks and conduct general clean-ups;

• 3 or 4 MMUs, each containing three separate segments: the first contains ammonium nitrate; the second contains emulsion; and the third contains diesel. The MMUs deliver these three products to each blast site and they are mixed together as they are delivered into the blast hole. This mixture of products is part of the process of manufacturing the explosives required for use at the Mine. The ammonium nitrate and emulsion are supplied by Orica. The diesel is supplied by BCO. Each MMU is about the size of a garbage truck. The MMUs are stored in the reload area overnight. Minor maintenance of the MMUs is undertaken at the Mine site. Major maintenance of the MMUs is undertaken off-site;

• 2 trucks with tipper trailers attached to them. They are used to store ammonium nitrate at the Mine and remain in the reload area;

• 2 stemming trucks. They are a similar size to a MMU. They have a large bin at the rear of the truck and a conveyor belt which is used to discharge stemming material (mainly gravel) into the blast holes. The stemming material seals the drill holes and ensures the holes explode outwards rather than upwards when the blast is detonated. The stemming material is supplied by BCO. The stemming trucks remain in the reload area when they are not being used to deliver stemming material to a blast hole; and

• a telehandler, which is used to transport ammonium nitrate. The telehandler is kept in the reload area overnight.

[24] All of the equipment and vehicles located in the reload area is owned or leased by Orica.

[25] Orica uses magazines to store other chemicals at the Mine. The magazines are located about 100m away from the reload area.

[26] Orica’s vehicles and equipment used at the Mine do not leave the Mine other than for major maintenance.

The Employees

[27] Approximately two thirds of the employees of Downer EDI were recruited by Orica from Downer EDI to work at the Mine.

[28] Orica currently has about 30 direct Employees who work at the Mine. Orica also has about 3 or 4 labour hire employees who work at the Mine. The Employees who work at the Mine include about six shotfirers, 10 to 14 operators, and 12 bench assistants. 3 In addition to the Employees, Orica also has a site manager/supervisor, an on-bench supervisor, two fitters, and an administration employee based at the Mine.

[29] Shotfirers at the Mine must hold the following qualifications: NSW Government issued Explosives Licence (SafeWork NSW) category, Open Cut Coal Mining Work; and NSW Government issued security clearance, issued under the NSW Explosives Act and Explosives Regulation (SafeWork NSW). In addition to these qualifications, all shotfirers on site must be appointed by the BCO Mine Manager. This appointment process is a confirmation by the BCO Mine Manager that the shotfirer has the necessary qualifications to undertake the work required at the Mine.

[30] Operators and bench assistants at the Mine require a qualification, namely a NSW Government issued security clearance, issued under the NSW Explosives Act and Explosives Regulation (SafeWork NSW).

[31] All Employees on site are required to complete a Coal Board medical, Mine site induction, and Orica Licence to Operate. The Licence to Operate is a multi-day course, specific to Orica, that all employees must complete. The Licence to Operate covers what an employee would be expected to encounter during a typical working day with Orica.

[32] All Employees on the Mine site have a BCO light vehicle authorised competency, BCO heavy rigid vehicle competency, and/or BCO front end loader competency, if they are required to operate those pieces of equipment.

[33] All Employees are provided with training by Orica for their SafeWork procedures. In addition, all Employees are required to complete BCO training and assessment in the policies and procedures of BCO.

[34] Shotfirers are the most senior statutory position at the Mine with regards to possession, handling and use of explosives.

[35] MMU Operators operate the Orica trucks on the Mine site. Bench hands are similar to trainees/trades assistants.

Safety and training

[36] The safety and health management systems of Orica and BCO at the Mine are integrated. An overarching BCO system is in place, however there are underlying procedures implemented by Orica.

[37] Orica has its own separate safety and health management plan in place at the Mine which reflects the specialist nature of its functions. It integrates aspects of BCO's management plan having regard to its overall control of the site and some common aspects of operations. For example, BCO maintains the requirements in relation to driving on site and BCO implements major hazard management plans. There are also some statutory requirements that BCO must control such as Mine inspections. Orica completes its own traffic management plans and job hazard analysis for each discreet blast area. All persons on the Mine site need to comply with these common requirements, some of which include reporting hazards, personal protective equipment, and drug and alcohol procedures, and visitors to site who have not been fully inducted to the Mine must be accompanied by someone who has.

[38] For occupational health and safety purposes, both BCO and Orica are persons conducting a business or undertaking (PCBU) on the Mine. A PCBU has the primary duty of care to ensure, so far as is reasonably practicable: 4

• the health and safety of its workers while they are at work; and

• that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the PCBU.

[39] Orica uses BCO’s ‘Take 5’ system at the Mine, which is a personal safety risk assessment completed by workers before undertaking a task.

[40] There are generally two separate site inductions for Employees at the Mine. Orica has its own induction, which is the Orica Licence to Operate. BCO also has its own site induction which the Employees must complete in order to gain access to the Mine, which takes between half a day and a day.

[41] Orica has its own training systems in place which focus on the handling of explosives by the Employees.

[42] The Employees at the Mine are contractually obliged to “submit to the Site induction requirements, policies and instructions” of BCO. 5 However, subject to this requirement, I am satisfied that Orica has practical control over the work undertaken by the Employees at the Mine and the way such work is performed.

Coal extraction at the Mine

[43] The first step of coal mining is for the flora and overburden on the surface of the Mine to be removed. This is undertaken by using heavy earth moving equipment to rip and dig the soft dirt. This process is referred to as "free digging". At the Mine, this process is undertaken by BCO employees, except for contractors who are used to remove the flora.

[44] Once the area has been removed of overburden and flora, the surface is prepared for the drilling stage which is the drilling of the surface to develop a blast pattern. At the Mine, the drilling is performed by a contracting company, Action Drill and Blast.

[45] Orica is contracted to perform the blasting services at the Mine. Once a drill pattern has been developed, the Employees ‘dip’ the holes, which essentially involves measuring the length of each hole. Once the lengths have been recorded, the Employees provide that information to BCO engineers, who review that information to ensure the drill holes are not in or too close to the coal seam and are a sufficient distance apart. The BCO engineers either confirm the information as suitable or make amendments to the drill pattern and communicate that to the Employees.

[46] Once confirmation is received from the BCO engineers that the drill pattern is satisfactory, the loading process commences. The first step to load the holes with bulk explosives is to prime the holes. This is performed by the Employees. Priming the holes involves connecting the detonators and boosters, and lowering them into each hole. At the end of priming the holes, each drill hole has a cord leading out of the hole which is referred to as either an ‘IKON’ (an electronic lead), or a ‘non-L’ (a hollow tube filled with explosive powder).

[47] The loading process also involves filling the drill holes with bulk explosives on top of the detonators and boosters, so that the IKON or non-L are still visible out of each blast hole. The loading process requires ongoing communication between the Employees and BCO engineers to ensure the appropriate blasting product is used and the quantity of the product is sufficient for the blast.

[48] Once the Employees load the holes with bulk explosives in accordance with the instructions of the BCO engineers, the holes are stemmed. The stemming process involves an Employee operating a stemming truck, which is leased by Orica from a third party. The stemming truck is driven alongside each blast hole and chutes from the front and rear of the truck are used to convey stemming material into each of the loaded blast holes. The stemming material is mainly gravel and is supplied by BCO. The amount of stemming material is determined by BCO engineers and communicated to the Orica shotfirers.

[49] After the stemming process, the Orica shotfirers are provided with a plan from the BCO engineers setting out the pattern to be tied in. The Employees tie the IKON or non-L (whichever is used) in accordance with the pattern so the surface leads are connected. The surface leads run from the pattern up to the designated firing point, which can be up to 2.5 kilometres away from the blast pattern. The blast itself is detonated by an Orica shotfirer.

[50] Blasting can only occur at the Mine on pre-determined days, at certain times, and in particular weather conditions. The day and time of each blast is determined by BCO and communicated to the Employees. If the weather conditions are not appropriate for blasting, BCO notifies the Employees that the blast is not to occur at that point in time. The Employees can raise any concerns regarding weather conditions with BCO employees, who ultimately make the call as to when a blast can occur.

[51] Prior to a blast being detonated, a blasting co-ordinator, who is a BCO Open Cut Examiner, takes control of the blast and establishes an exclusion zone which has to be a minimum of 800 metres away from the blast to personnel, and a minimum of 300 metres away from the blast to equipment. The blasting co-ordinator blockades the blasting area by the use of sentries, which are BCO employees located at each entry point of the exclusion zone, to stop entry to the zone during and after the blast work is completed. Thereafter, the blasting co-ordinator conducts a sweep of the exclusion zone, which involves driving around the zone to check the exclusion zone is in place and no one is in the exclusion zone. At the end of the sweep, the blasting co-ordinator communicates with Orica shotfirers to advise of the establishment of the exclusion zone. At this point in time, the blasting co-ordinator hands the control of the pit over to Orica shotfirers so the blast can occur.

[52] An Orica shotfirer makes an announcement on the two-way radio to all personnel at the Mine advising the blast will take place in two minutes and directing radio silence up until further notice. Radio silence is required as it frees up the radio in the event a sentry needs to report that the exclusion zone has been breached, in that a person has entered the exclusion zone.

[53] The Orica shotfirer also turns on the blasting siren over the two-way radio. The blasting siren can be interrupted by anyone at the Mine so communication regarding a breach of the exclusion zone can take place without delay or interruption.

[54] At one minute prior to the blast, an Orica shotfirer makes a further announcement over the two-way radio, advising the blast will take place in one minute. At 30 seconds prior to the blast, an Orica shotfirer makes a further announcement over the two-way radio, advising the blast will take place in thirty seconds. The blasting siren continues consistently for the two minutes prior to the blast. The Orica shotfirer counts down over the two-way radio to all personnel at the Mine from ten seconds down to the blast.

[55] When it is time to blast, an Orica shotfirer uses the remote box to activate the blast within a few seconds. Once the blast has occurred, the Orica shotfirer makes an announcement to advise that the shot has been fired.

[56] The Orica shotfirers thereafter inspect the shot by driving to the shot area and walking whilst viewing the blast area to ensure there has been no misfires. A misfire is a blast hole that has not detonated. When a misfire is identified, the Orica shotfirers advise BCO of the misfire and BCO provide one of its operator employees to dig out the misfire, under supervision of the Orica shotfirers.

[57] The sentries remain in place while the shot is being inspected. Usually there are no misfires. When there are no misfires, the Orica shotfirer makes contact with the blast co-ordinator by way of two-way radio to advise the blast is clear. The blast coordinator thereafter makes contact with the sentries to release the exclusion zone, at which time the Orica shotfirer hands back the control of the pit to the BCO Open Cut Examiner.

[58] The Orica shotfirers obtain the blast box and remote(s), and then return to the reload area or what is known as ‘magazines’, which is the storage facility for blast explosives, boosters and detonators on site.

[59] The Orica shotfirers return the remaining unused gear to magazines and attend to completing reconciliation of the magazine books. A reconciliation of the magazine books is a stock take so that all of the material is accounted for. The Orica shotfirers thereafter go to the reload office to complete further paperwork. The shot is complete at that point in time.

[60] The area that has been blasted is then cleared down to the coal seam by BCO operators, using diggers and rear dump trucks. This work is performed by BCO employees. The Employees do not use explosives to extract coal from the seam. BCO’s employees use diggers to extract the coal from the seam and rear dump trucks are used to transport the coal to the coal handling preparation plant, where it is washed and crushed. The coal is either stockpiled or loaded onto trains, to be transported to the Newcastle port for export.

Practical work arrangements for Employees at the Mine

[61] All Employees at the Mine work on a seven day on, seven day off roster. The Employees are based at the Mine and do not work at any other location.

[62] BCO production employees work a 5/4 ‘lifestyle’ rotating shift roster, working 12 hours per shift. BCO pump crew work a seven day on, seven day off day shift roster, commencing at 6:00am and finishing at 6:00pm. The BCO drill and blast engineers at the Mine work on an 8/6 day shift roster. The maintenance employees at the Mine are predominately contractors.

[63] On arrival to the Mine, the Employees park their motor vehicles in the BCO car park, which is used by all BCO employees, contractors and visitors. The Employees log on before entering the Mine on the BCO Pegasus log-on system. All employees and contractors working at the Mine are required to log on using the Pegasus system and undertake a breath alcohol test. The Pegasus log-on system is a safety system; it is not a time and wages system, and is not used for the purpose of paying the Employees their wages.

[64] After logging on and completing a breath alcohol test, the Employees make their way to the BCO locker room which all employees and contractors working at the Mine use to store their personal belongings in an allocated locker. Thereafter, the Employees make their way to the light vehicles provided by Orica, which are parked in the bottom car park. The light vehicles are fitted with a two-way radio which uses the same frequencies as BCO.

[65] The Employees drive the light vehicles to the Orica reload area, place their food in fridges in the reload area and attend a pre-start meeting which is conducted by an Orica supervisor. The Orica supervisors on the Mine determine the content of the daily pre-start meetings, although they regularly include information provided by BCO to Orica, such as relevant safety information. The Employees on shift then discuss the work plan for the day and what is required to be done.

[66] The Orica shotfirers make their way to the safe in the reload area to obtain the keys to the magazines, where they obtain the necessary boosters and detonators required for the day's loading.

[67] The Employees drive an Orica light vehicle to the area where the shot is to be loaded. The shotfirers can perform all duties on a shot. MMU operators and bench assistants cannot perform any duties unless a shotfirer is supervising. MMU operators and bench assistants cannot detonate a shot.

[68] All of the Employees are able to use the BCO two-way radio system and have access to all of the channels. However, during the loading stage, the Employees communicate on the drill and blast channel (channel 5). BCO supervisors and engineers regularly communicate with the Employees about the work being performed, details of the blast, emergencies in the Mine and operations on channel 5 of the two-way radio.

[69] The Employees are entitled to two 30 minute crib breaks on each shift. On most shifts, the Employees take their crib breaks in the reload area. On occasion, some of the Employees take their crib break in the muster area, which is BCO’s main administration building at the Mine.

[70] Every day at 9:00am, the Orica Site Manager and/or On-Bench Supervisor attend a daily planning meeting with BCO Production Supervisors and Managers.

[71] When the Employees complete their duties for the day, they make their way back to the muster area by light vehicle, obtain their personal belongings from their locker, and log off the Pegasus system.

[72] The personal protective equipment used by the Employees at the Mine is provided by Orica. 6 At least some Employees have been provided by BCO with a BCO branded crib bag.

[73] Once every six months, BCO randomly selects two Employees to wear a dust monitor for the duration of approximately six hours. The dust monitors record the levels of dust, which is required to ensure compliance with environment conditions imposed on BCO' s mining lease.

[74] If an Employee sustains a work related injury at the Mine, they are treated in the BCO first aid room by a BCO employee. When an incident occurs at the Mine, an investigation may be conducted by BCO and/or Orica, depending on the incident. If BCO conducts an investigation, it may involve the participation of Employees.

[75] Generally, the Employees have no contact with other Orica employees working at other worksites. All communications about day to day work and employment matters for the Employees occur at the Mine site with the Orica supervisors.

[76] A number of the Employees have successfully applied to the Coal Long Service Leave Board for recognition of their service with Orica for the purposes of accruing coal industry standard long service leave entitlements.

[77] The Employees’ workers’ compensation arrangements are with Coal Mines Insurance.

Submissions

CFMMEU’s submissions

[78] In summary, the CFMMEU submits that:

(a) The proper construction of rule 2(D) of the CFMMEU’s rules is well settled. It was considered by a Full Bench of the Australian Industrial Relations Commission in Harnischfeger of Australia Pty Ltd v CFMEU 7 (Harnischfeger).

(b) The Commission’s attention should be on what is the substantial character of the relevant activities in which Orica is engaged, in determining whether, on the facts, Orica’s trade or business is “in or in connection with the coal and shale industries”.

(c) The coal industry involves the production of coal from mining operations. The industry is governed by industry specific regulation in areas of health and safety, workers compensation and long service leave. Mining operations in open cut coal mines involve a process of blasting earth, removing overburden to access coal, removing the coal, washing the coal and transporting it to customers.

(d) The relevant activities of Orica at the Mine have the following characteristics:

• Orica engages the Employees to work exclusively at the Mine.

• The service supplied by Orica, and the work performed by the Employees at the Mine is an integral part of the coal mining operations.

• Orica requires the Employees to have coal mining industry specific qualifications.

• Orica requires the Employees be trained in mine specific policies and procedures.

• The Employees are authorised by Boggabri to operate mining equipment.

• The Employees are integrated into the workforce of the Mine.

• The arrangements with the Mine are such that the Employees are subject to the direction of Boggabri supervisors and managers.

• The Employees’ work is regulated by coal mining industry specific health and safety regulation. The Employees’ workers’ compensation is regulated by coal industry workers’ compensation arrangements. Some of the Employees have been recognised by the Coal Long Service Leave Corporation as being eligible employees and therefore accrue coal industry long service leave arrangements.

(e) Away from the Mine, Orica also has activities at other coal mining operations which are covered by enterprise agreements negotiated with the CFMMEU.

(f) At least one related entity of Orica, Minova, also engages in activities in the coal mining industry and have enterprise agreements specific to coal mining operations which were negotiated with the CFMMEU as a bargaining representative.

(g) Orica’s activities fit comfortably within rule 2(D) as they are in or on connection with the coal mining industry. Those activities meet the ‘substantial character test’ as the services provided are not merely the supply of goods and services to the Mine. The activities involve Orica carrying out an important part of the mining process.

(h) In short, the CFMMEU contends:

• Orica’s activities are carried out in or in connection with the coal industry;

• the Employees are engaged in or in connection with the coal industry;

• the Employees are therefore covered by rule 2(D);

• the CFMMEU is entitled to represent the industrial interests of the Employees; and

• consequently, the exclusion in s 176(3) of the Act does not apply and the CFMMEU is a bargaining representative for the purpose of the Act.

(i) The majority support determination sought by the CFMMEU should be made.

Orica’s submissions

[79] In summary, Orica submits that:

(a) The starting point – and in Orica's submission the point of conclusion – is the Full Bench decision in Construction, Forestry, Mining and Energy Union v Dyno Nobel Asia Pacific Limited 8(Dyno Nobel). In Dyno Nobel, a senior Full Bench of the Australian

Industrial Relations Commission examined the similar operation of another explosives company, Dyno Nobel, against the same eligibility rule as is under consideration here, and concluded unanimously that employees engaged in the shot firing and associated explosive work carried out by Dyno Nobel on coal mines were not engaged in or in connection with the coal industry, and therefore were not eligible to join the CFMEU.

(b) There are points of difference which can be identified between the facts in Dyno Nobel and the facts of this case. For example the scale of Orica's explosives business in the coal industry is greater both in absolute terms, and, it appears, in relative terms taking into account other industry involvement. There also some organisational differences. Orica has a business unit which is more overtly focussed on coal in New South Wales than appears to have been the case for Dyno Nobel, at least on the evidence recorded in the Full Bench decision and at first instance. However the differences are incremental rather than of substance to the issue at hand. To grant the application, the Commission would have to depart from the clear ratio of Dyno Nobel and not only make an alternative finding of fact but also depart from the Full Bench's application of legal principle. A single member of the Fair Work Commission would only fail to follow a Full Bench decision if it was plainly wrong.

(c) The Full Bench in Dyno Nobel made its finding after exhaustive examination of relevant authority, including High Court authority, and is not plainly wrong. To the contrary it reached a conclusion consistent with authority and which reflects common sense. Both Orica and Dyno Nobel (on the facts recorded in the decision) are plainly employers in the explosives industry, and it is not open to find (and in relation to Dyno Nobel it was not found) that they are also in the coal industry.

(d) The finding contended for by Orica, apart from being consistent with Dyno Nobel, is also consistent with the 'statutory and industrial milieu’. 9 In this case the 'statutory and industrial milieu' includes that employees engaged in the delivery of explosive services are not within the scope of the Black Coal Mining Industry Award (Black Coal Award) unless they are employed by the coal operator.10

(e) Orica employees are therefore not within the scope of the principal Modern Award which covers the coal industry. This does not determine the issue, but is centrally relevant to it, noting that:

• The Black Coal Award was made after the decision in Dyno Noble.

• The coverage of the Black Coal Award is expressly intended to reflect the 'status quo'. 11

• The Black Coal Award is expressed to cover employees whose duties are 'connected with' the day to operation of a black coal mine – which terminology is reflective of rule 2(D) including in its extended coverage to workers engaged 'in connection with' the industry.

(f) As the majority in Dyno Nobel lucidly explains based on authority, when considering eligibility pursuant to an 'industry' (as opposed to a 'vocational') eligibility rule, it is a question of fact whether or not the trade or business of an employer is in a particular industry, and that issue is determined by the 'substantial character' of the trade or business of the employer and all of its employees, requiring consideration of the business of the employer as a whole. Further, as the Full Bench observed at [60] and following, including in the separate reasons of Commissioner Lewin, a narrow focus on the workbeing done by the employees in question is apt to lead to error. The nature of the work is relevant, but must be considered in context, applying the correct legal test.

(g) Orica is an explosives company, and is a dominant member of the Australian explosives industry. As such, it is involved in the manufacture and supply of chemicals to customers in a number of different industries including, as one of a number, the coal industry. That does not preclude it from being found to operate in other industries, however as the Full Bench in Dyno Nobel observed at [51(e)] , the delivery of services to an industry is not sufficient to found a conclusion that the employer's business is 'in connection with' the industry of the customer, even where the services are essential to the customer's industry.

(h) As the Full Bench in Dyno Nobel also observed at [52], it is not easy to draw a clear line through the authorities, including High Court authorities which have dealt with the issue of what is required for a business to be 'in or in connection with' a particular industry. The 'line of best fit' appears to be that a service provider to an industry will generally fall outside the industry 12 whereas a contractor engaged to build the means of production itself is more likely to be found to be operating in the industry.13 If this approach is a correct navigation of the authorities, Dyno Nobel is correctly decided. The approach also substantially explains the result in Harnischfeger in a way which does no violence to the reasoning or outcome of Dyno Nobel, and there should be no different result in this application.

(i) The mining and Australian businesses of the Orica group of companies perform multiple functions, but they are split into the Orica business, which provides commercial explosives and blasting systems and the supply of general chemicals, and Minova, which provides ground control and support for the mining, civil/tunnelling, and geotechnical industries, including resins and mechanical stabilising products, chemical and cementitious grouts and adhesives, and ventilation control.

(j) Orica’s Australian business falls into the category described in Dyno Nobel at [51(d)(ii)]: “The overall business of the single employer is properly seen as being constituted by two or more distinct businesses or enterprises each of which has a different ‘substantial character’.” Orica accepts that its Minova business is a separate and distinct business within the black coal mining industry, and employees of the Minova mining business are eligible to join the CFMMEU. However, Orica’s business which is involved in the manufacture and supply of commercial explosives and blasting systems, is a separate and distinct business and is not within (or in connection with) the black coal mining industry.

(k) The CFMMEU does not have coverage of the Employees and the application for a majority support determination should therefore be dismissed.

Applicable principles

[80] The words of an eligibility rule must be given a “wide meaning and interpreted according to their ordinary or popular denotation rather than by reference to some narrow or formal construction”. 14

[81] The proper construction of rule 2(D) of the CFMMEU’s rules has been considered in numerous decisions of courts and Full Benches of the Commission, including Dyno Nobel and the later Full Bench decision in Harnischfeger.

[82] As is the case with Orica, Dyno Nobel manufactures and supplies explosives and provides various explosive related services to its customers, including customers in the coal mining industry. 15 At first instance, Senior Deputy President Drake found that employees of Dyno Nobel who worked out of depots on or near coal mining leases were eligible to become members of the CFMEU. On appeal, a majority of the Full Bench gave detailed consideration to a range of relevant authorities and summarised the principles as follows [references omitted]:

“Summary of Principle

[51] Drawing the High Court authorities together, we think the position is as follows:

• An eligibility rule, or part of an eligibility rule, that simply refers to persons employed or engaged “in or in connection with” a specified industry or industries is properly characterised a conventional industry rule and the discremen of eligibility under such a rule is the industry of the employer, that is, whether the trade or business of the employer is in or in connection with the specified industry or industries.

• Whether or not the trade or business of an employer is in or in connection with a particular industry is a question of fact.

• The answer to that question of fact is determined by the “substantial character” of the trade or business of the employer and all of its employees and requires a consideration of the business of the employer as a whole.

• The business of an employer can be “in or in connection with” more than one industry. This outcome can arise in different ways:

(i) The business of the single employer is a single integrated enterprise but nevertheless operates substantially in or in connection with two or more industries simultaneously. This may be because:

• There is an overlap between industries and the business operates in the area of overlap (in such a case the same business can be described in different ways placing the business in either industry so that it has a “substantial character” that places it in each industry); and/or

• The nature of the single integrated business is such that the business itself overlaps two or more distinct industries in such a way that it has a “substantial character” within each of those industries.

(ii) The overall business of the single employer is properly seen as being constituted by two or more distinct businesses or enterprises each of which has a different “substantial character”.

• The mere supply of goods or services to a business in a particular industry is not, of itself, sufficient to render the business of the supplier one that is “in connection with” the industry of the business supplied, even if those goods are essential to the operation of that business.

• Where a conventional industry rule applies in relation to a distinct business or enterprise of an employer, all of the employees in that business or enterprise are eligible for membership of the union.

[52] We acknowledge that, on one view, there is a certain tension between the way in which the question of characterisation in relation to an industry rule was addressed in some judgments in the later cases (particularly in some parts of the joint judgment in the Worsley Alumina case and in the judgment of Wilson J in the Argyle Diamond case) and the approach in the earlier cases (Hibble, Thiess Repairs and Poon Bros). In particular, some of the language used in the later cases, including in passages set out by her Honour, is suggestive of a characterisation process in relation to industry rules that can turn entirely on the nature of the work performed by employees engaged on a particular project rather than on an explicit characterisation of the business of their employer. However, there is no suggestion in the later cases that that the High Court was intending to overturn the earlier cases. On the contrary, the first of the later cases, the Uranium Mining case, was expressly determined by an application of Poon Bros. The subsequent cases, the Worsley Alumina case and the Argyle Diamond case, adopted and applied the Uranium Mining case and, as we have endeavoured to show, in fact continued to preserve the emphasis on the characterisation of the business of the employer laid down in the earlier cases. In those circumstances, until the High Court or the Full Federal Court holds otherwise, we think it necessary to construe the later cases in a way that is consistent with the earlier cases. In particular, each of the later cases was concerned with a project that was so enormous that the sheer size of the project meant that the substantial character of the business of relevant employers was altered by their involvement in the project such that those businesses took on, if they did not already have it, a substantial character that placed them in or in connection with the industry of the project.”

[83] The majority of the Full Bench determined that the Senior Deputy President had erred in the following way [references omitted]: 16

“[62] … focussing only on the work performed a small number of Dyno Nobel’s employees and failing to have regard to the totality of the business of Dyno Nobel led her Honour to ask herself the wrong question in determining the “substantial character” of the business of Dyno Nobel. This amounts to a jurisdictional error.

[63] The approach adopted by her Honour substantially undermines the distinction between conventional industry rules and vocational rules. This distinction has a long history and has, for many years, informed the drawing of union rules and the resolution of demarcation disputes. If, as her Honour appears to have accepted, the fact that work performed by a small number of employees is work in a particular industry necessarily brings the business or enterprise of the employer within that industry, no matter how small the number and no matter what the character of the overall business of the employer, then the discrimen referred to in Hibble and Poon Bros is substantially shorn of its content as a means of distinguishing conventional industry rules from vocational rules.”

[84] The Full Bench went on to quash the dispute finding made by the Senior Deputy President and determined that the employees of Dyno Nobel were not engaged in or in connection with the coal industry within the meaning of rule 2(D) of the CFMEU’s rules and were therefore not eligible for membership of the CFMEU. 17 In so finding, the majority reasoned as follows:

“[59] The predominant purpose of the single integrated business operated by Dyno Nobel is the manufacture and supply of explosives. This confers a “substantial character” that places the business of Dyno Nobel in the explosives industry or, more generically, the chemical industry. The issue comes down to whether, because a small number of Dyno Nobel employees perform some work that can be regarded as work in the coal industry (the back-filling of shot holes and shot firing work performed by between 8 and 14 employees and the devising of blast patterns by one technical adviser), the single integrated business of Dyno Nobel also has a “substantial character” that places it in or in connection with the coal industry within the meaning of Rule 2D of the CFMEU rules. In our view, the fact 8 out of some 160 operational employees perform shot firing as a relatively small part of their overall work for Dyno Nobel, that a further 6 employees occasionally perform shot firing on an ad hoc or relief basis and that one technical adviser sometimes devises blast patterns for coal mining companies (which together accounts for about one quarter of one percent of Dyno Nobel’s revenue) does not give the single integrated business of Dyno Nobel an additional “substantial character” as a business in or in connection with the coal industry. When considered in the context of the business of Dyno Nobel as a whole, these activities are too minor and incidental to confer an additional character on the business of Dyno Nobel that could properly be described as “substantial”. Rather, these activities are properly to be seen as the supply of a service to employers in one industry by an employer whose business is in another industry not unlike the laundry and hotel example given by Latham CJ: the laundering of towels and bed linen is as integral to the operation of an hotel as shot firing is to the operation of an open cut coal mine.”

[85] Harnischfeger concerned Harnischfeger’s employees who worked at the Bulga coal mine. Those employees undertook maintenance and repair work on a dragline and shovel supplied by Harnischfeger to the mine, together with work performed on bulldozers and other non-Harnischfeger supplied equipment. At first instance, Senior Deputy President Drake found that the work in question was work in the coal industry or in connection with the coal industry, with the result that the CFMEU was eligible to represent the employees in question. On appeal, the Full Bench gave detailed consideration to the decision of the majority in Dyno Nobel, together with other relevant authorities on the proper construction of union eligibility rules. The Full Bench concluded that recent decisions dealing with the scope and meaning of rule 2(D) of the CFMEU’s rules, including Dyno Nobel, had not afforded sufficient weight to the expansionary words “in connection with” in rule 2(D). 18

[86] The Full Bench in Harnischfeger went on to conclude as follows [references omitted]:

“Conclusion

[85] Rule 2D is an industry rule and the discrimen of eligibility under such a rule is the industry of the employer. Hence the question here is whether the trade or business of Harnischfeger is “in or in connection with the coal and shale industries”. This is a question of fact and the answer is determined by the substantial character of the activities in which the employer is engaged.

[86] The substantial character of a business may be in or in connection with more than one industry. In such circumstances it is not necessary to decide which is predominant. Nor is it necessary for each group of activities that have a “substantial character” to operate as distinct businesses or enterprises within the employer’s overall operation. To the extent that Dyno Nobel may be said to stand for such a proposition, and we do not think it does, we respectfully disagree. In our view a proper reading of the authorities does not support such a proposition.

[87] The final general observation we wish to make relates to the words “or in connection with” in Rule 2D. As we have already noted, these are words of expansion and allow a finding of eligibility even if the employees in question are not “in” the relevant industry. As Wilson J (with whom Deane and Dawson JJ agreed) said in the Argyle Diamond case:

“The cases establish that one may be employed in connexion with the mining industry notwithstanding that one is merely developing the infrastructure which will be necessary to support the actual mining when it commences and notwithstanding that one is engaged, not in the process of extracting the ore from the mine, but in its subsequent treatment. A sufficient connexion may therefore be found in an occupation which takes place either before or after the actual work which itself identifies the industry in question.”

[88] We now turn to apply the approach we have outlined to the facts of this case. Harnischfeger contends that it carries on the business of the manufacture, supply, installation, servicing and maintenance of surface mining equipment throughout Australia. We accept that this is so. But the application of the “substantial character” test allows that a business may operate substantially in or in connection with two or more industries simultaneously. That is the case here. We are satisfied that the evidence in these proceedings, and her Honour’s findings in respect of that evidence (see particularly paragraph 37 above and paragraphs 59 to 106, 214 to 247 and 288 to 289 of the transcript of the appeal proceedings), clearly establish that the business of Harnischfeger is “in connection with the coal and shale industries” within the meaning of Rule 2D of the CFMEU’s rules.

[89] The work performed by the Appellant’s employers at coal mines is an integral part of the coal mining operations. It is clearly distinguishable from the provision of a service such as catering or laundry.

[90] Her Honour’s findings in this regard are amply supported by the evidence and we adopt them.

[91] In his evidence Mr Shea, the general Manager North East Region for Harnischfeger, characterised the Appellant’s business as:

“… the manufacture, supply, installation, servicing and maintenance of surface mining equipment in Australia and nearby South East Asian countries, marketed under the trademark of P&H. This equipment includes:

(a) electric rope running shovels;

(b) walking and crawler drag lines;

(c) rotary blasthole drills; and

(d) component/parts manufacturing.

Harnischfeger also provides manufacturing, repair and maintenance services to a range of other industries, including ports and general engineering.”

[92] A table of Harnischfeger’s operations showing the number of employees involved in each aspect of its business and the revenue earned is attached to Mr Shea’s statement and marked as RS2 (also see transcript at paragraphs 1271 to 1339). In our view the application of the “substantial character” test to this material supports a finding that Harnischfeger operates “in connection with” the coal industry within the meaning of Rule 2D. The business activities that relate to the installation, servicing and maintenance of surface mining equipment support such a finding. As we have already observed it is not necessary to establish that those activities are the predominant activities performed by Harnischfeger or that a majority of Harnischfeger employees are engaged in such activities. Nor does it need to be established that these activities are performed as a discrete business within Harnischfeger’s overall operations. It is only necessary that the activities be substantial, and we are satisfied that such is the case.

[93] In the circumstances it is unnecessary to decide whether the application of the “substantial character” test would lead us to conclude that Harnischfeger operates “in … the coal and shale industries”.”

Consideration

[87] The sole question for determination in the present case is whether the Employees are “engaged in or in connection with the coal and shale industries” within the ordinary meaning of those words. Because rule 2(D) of the CFMMEU’s rules is an industry rule, the answer to this question is determined by asking whether the trade or business of Orica is in or in connection with the coal industry. This is a question of fact. The answer is determined by the substantial character of the activities in which the employer is engaged. Before considering the substantial character of the activities in which Orica is engaged, I will address the meaning of the coal industry.

[88] An industry does not have a precise or technical term. 19 One industry may overlap with another.20 An employer may conduct a business in more than one industry.21 Further, the substantial character of a business may be in or in connection with more than one industry.22

[89] The coal mining industry is a subset of the coal industry. The phrase “coal mining industry” has been used in federal industrial legislation and awards for about 80 years. The phrase first appeared in legislation enacted under the defence power during World War II and was also used when the Coal Industry Act was passed by Parliament in 1946. 23 Although the meaning of the coal mining industry has been described as “indefinite and flexible”,24 Latham CJ explained it in the following way in R v Drake-Brockman and Others; Ex parte National Oil Pty Ltd:25

“When the term “mining” is associated with the name of a particular product, according to the ordinary use of the word it relates to the production of that product (e.g. coal) beginning with the actual removal of either the product itself, or that which contains it (e.g. gold-bearing quartz), from the soil, and ending with the production of the product itself. Thus “gold mining” includes the extraction of gold-bearing material from the soil, and the treatment of that material so as to produce gold…

In my opinion the coal-mining industry is the industry which produces coal as the consequence of mining operations. Coal-mining operations include, not only the actual excavation of the coal from the seam, but also the removal of it from the pit to the surface and placing it upon the surface in a disposable form. All those operations would, according to the ordinary use of language, properly be included within coal-mining operations and would be conducted as part of the coal-mining industry.”

[90] The black coal mining industry is a subset of the coal mining industry. The Black Coal Award governs, in part, terms and conditions of employees who are employed in the black coal mining industry. However, the question of whether a particular employee is covered by the Black Coal Award is different to the question for determination in this case, principally because the coverage clause in the Black Coal Award does not use the expression “engaged in or in connection with” and an employee can be covered by the Black Coal Award even though their employer is not engaged in the black coal mining industry. 26 Similarly, the question of whether a particular employee is entitled to long service leave entitlements in accordance with the Coal Mining Industry (Long Service Leave) Administration Act 1992 or associated legislation is different to the question for determination in this case. Under that legislation an “eligible employee” is an “an employee who is employed in the black coal mining industry …” and the expression “black coal mining industry” has the same meaning as in the Black Coal Award.27

[91] Notwithstanding the difference in coverage between the Black Coal Award and an employee’s entitlement to join the CFMMEU, the Black Coal Award does provide some guidance as to the nature and breadth of the black coal mining industry. In particular, clauses 4.2 and 4.3 of the Black Coal Award describe, in a non-exhaustive way, what is included in the black coal mining industry and what is not included in that industry:

“4.2 For the purpose 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;

(d) other work on a coal mining lease directly connected with the extraction, mining and processing of black coal.

4.3 The black coal mining industry does not include:

(a) the mining of brown coal in conjunction with the operation of a power station;

(b) the work of employees employed in head offices or corporate administration offices (but excluding work in town offices associated with the day-to-day operation of a local mine or mines) of employers engaged in the black coal mining industry;

(d) construction work on or adjacent to a coal mine site;

(e) catering and other domestic services;

(f) haulage of coal off a coal mining lease (unless such haulage is to a wash plant or char plant in the vicinity of the mine); or

(g) the supply of shotfiring or other explosive services by an employer not otherwise engaged in the black coal mining industry.

NOTE: The coverage clause is intended to reflect the status quo which existed under key pre-modern awards in relation to the kinds of employers and employees to whom those awards applied and the extent to which the awards applied to such employers and employees.

An example of the types of issues and some of the case law to be considered when addressing coverage matters can be found in Australian Collieries Staff Association and Queensland Coal Owners Association – No. 20 of 1980, 22 February 1982 {Print CR2297} and in the Court decisions cited in this decision.”

[92] Orica contends that clause 4.3(g) of the Black Coal Award assists in the present case because it suggests that the delivery of explosive services is not within the black coal industry unless the relevant employees performing the services are employed by the coal operator. The CFMMEU contends that clause 4.3(g) does not assist Orica’s case because (a) Orica’s activities extend beyond “the supply of shotfiring or other explosive services”, (b) Orica is, by reason of its Minova business, an employer “otherwise engaged in the black coal mining industry”, and (c) Orica was a respondent to one of the key pre-modern awards, with the result that the “status quo” note beneath clause 4.3(g) applies and Orica is covered by the Black Coal Award. I do not need to resolve these issues in the present case because I am not determining the question of coverage of the Black Coal Award.

[93] I do not place any weight on the fact that Orica has activities away from the Mine at other coal mining operations which are covered by enterprise agreements negotiated with the CFMMEU and which, in a number of cases, cover the CFMMEU on the basis that it was a bargaining representative in relation to the enterprise agreement. As was the case in Dyno Nobel, I am satisfied that “those facts no doubt reflect a certain practical industrial relations reality on the ground but have little relevance to the proper construction of Rule 2D” 28 or the application of that rule to the particular facts and circumstances of this case.

[94] As to the substantial character of the activities in which Orica is engaged, it is clear, as both parties agree, that the Minova part of Orica’s business is conducted in the coal mining industry. However, that does not have any bearing on the present case, for the Employees are not engaged in that part of Orica’s business. The Employees are engaged in the explosives part of Orica’s business, particularly the provision of explosives and explosives services to a black coal mine. Orica provides explosives and explosives services to a range of industries, including the coal mining industry. The business activities of Orica which relate to the supply of explosives and explosives services to BCO and the coal mining industry generally are plainly substantial. So much is clear from the revenue earned by Orica from these activities.

[95] The provision of Orica’s explosives services to the Mine and other coal mines takes place on the mining site, where Orica’s employees are permanently based. The provision of explosives services to the Mine and other coal mines is undertaken for the purpose, and has the effect, of breaking up overburden, so that the coal seam can be exposed and the coal extracted from the ground. The breaking up of overburden on an open cut coal mine is an integral part of the mining process. These factors suggest that Orica’s activities in supplying explosives and explosives services to coal mines such as the Mine may be part of the coal industry. However, other factors must also be considered. They include the fact that the explosives services provided by Orica to the Mine do not include blasting the coal and do not have the effect of extracting coal from the ground. The extraction of coal from the ground is undertaken by the operator of the coal mine. Further and more importantly, the provision of explosives and explosives services by Orica to the operator of a mine such as BCO are, subject to the matters I will shortly address, separate and independent from the activities of BCO and are undertaken on ordinary commercial terms. 29

[96] As is the case with any mine site or any other workplace which is heavily regulated for safety, security or other reasons, there is a need for BCO, as operator of the Mine, to have ultimate authority and control over the site and the activities undertaken on it. 30 Given the nature of the work site at the Mine and in order to ensure the explosives services are provided in an efficient and productive manner, there is also the need for regular communications between BCO’s employees and the Employees in relation to a range of matters such as when and where the explosives services are to be provided, safety and other practical arrangements. Subject to these matters, Orica’s activities at the Mine are under the control and management of Orica and the Employees are not integrated into BCO’s workforce. Orica remains responsible for employing, supervising, rostering, training, and managing the performance of the Employees, and does so with its own supervisors who are based at the Mine. Orica has its own systems of work in place at the Mine, has practical control over the way in which it provides its specialised explosives services at the Mine (subject to direction from the mine operator), provides most of the plant, equipment and vehicles used by the Employees at the Mine, and has a fenced-off reload area at the Mine where the Employees are based and most of Orica’s plant and equipment is stored when it is not being used. In all the circumstances and having regard to the relevant facts summarised in paragraphs [5] to [77] above, I make the factual finding that Orica does not conduct a business or undertake substantial activities in the coal industry.

[97] I accept that a business or activities may be undertaken in more than one industry at the same time, 31 so that, for example, a business or activities may be undertaken in both the explosives industry and the mining industry at the same time. Notwithstanding the possibility of such a finding in a particular case, I am satisfied for the reasons given that Orica’s activities which are the subject of these proceedings are undertaken in the explosives industry, but they are not also undertaken in the coal industry.

[98] The next question is whether Orica’s business or any of its substantial activities are conducted “in connection” with the coal industry. Again, this is a question of fact and it is necessary to have regard to the substantial character of the activities in which Orica is engaged. In my view, Orica’s activities in supplying explosives and explosives services to BCO and the coal mining industry generally are conducted “in connection” with the coal industry. I make that finding of fact for the following reasons:

• the explosives services provided by Orica to mine operators are delivered at the mine site, by Orica employees permanently based at the mine site. The explosives services are part of the day to day operation of the mine;

• the work undertaken by Orica’s employees to use explosives to break up overburden on an open cut coal mine is an integral part of the mining process. Absent the blasting of overburden, the coal seam is not exposed and coal cannot be extracted;

• this is not simply a case where the products of Orica’s employees are used in the coal industry or the products of the coal industry are used by Orica’s employees; there is a strong relationship between the work of Orica’s employees on the mine site and the coal industry; 32

• although Orica’s employees who are based on the mine site are not integrated into the mine operator’s workforce, it is necessary for there to be regular communication and a close working relationship between Orica’s employees and employees of the mine operator; and

• the explosives services provided by Orica to mine operators are not analogous to laundry, catering, telecommunications or transport services. It is not just after-sales service or a breakdown maintenance service.

Conclusion

[99] The facts of this case are similar but not identical to those considered by the Full Bench in Dyno Nobel. Each case turns on its own particular facts and circumstances and it is often a matter of degree whether particular employees are engaged in or in connection with an industry. Having regard to the facts and circumstances of this case and ensuring appropriate weight is given to the expansionary words “in connection with” in rule 2(D) of the CFMMEU’s rules, I am comfortably satisfied, for the reasons given, that the Employees are not engaged in the coal industry, but they are engaged in connection with the coal industry within the meaning of rule 2(D) of the CFMMEU’s rules. As a result, the CFMMEU is entitled to represent the industrial interests of the Employees who have joined, or in the future join, the CFMMEU. It follows that the CFMMEU is eligible to be a bargaining representative for the Employees. 33

[100] I am satisfied that all the requirements of ss 236 and 237 are met in this case. I therefore make the following majority support determination:

“A majority of employees of Orica Australia Pty Ltd who work in the classifications of shot firers, explosive handlers and laborers (bench hands), and who work at the Boggabri open cut coal mine, in New South Wales, want to bargain with Orica Australia Pty Ltd for a single enterprise agreement.”

[101] Pursuant to s 237(4) of the Act, this majority support determination comes into operation on 28 May 2020.

[102] I note for completeness that I have not made any determination in this decision as to whether any of the Employees or any other employees of Orica are covered by the Black Coal Award or entitled to long service leave benefits under the Coal Mining Industry (Long Service Leave) Administration Act 1992 or associated legislation. Those questions do not arise in these proceedings.

DEPUTY PRESIDENT

Appearances:

Mr Slevin, of counsel, with Ms Short, CFMMEU Legal Officer, on behalf of the CFMMEU

Mr Williams, solicitor, with Mr Nissen, solicitor, on behalf of Orica

Hearing details:

2020.

Newcastle:

5 May.

Printed by authority of the Commonwealth Government Printer

1 Section 236(1) of the Act

2 Section 176(3) of the Act

3 Ex A5 – Attachment 1 to variation of contract (Court Book page 864); evidence given by Mr Jenkinson in cross examination

4 Ex R5 at TH-1 (Court Book page 695)

5 Ex A5 at clause 9.1(a)(ii)

6 Ex A1 at [62] (Court Book page 50)

7 [2005] AIRC 890 per Ross VP, Ives SDP and Foggo C

8 [2005] AIRC 622 (14 July 2005) per Lawler VP, Hamberger SDP and Lewin C

9 See Dyno Nobel at [43], including the reference to this factor at [90] of the Full bench decision in EDS/IBM PR939419, 17 October 2003

10 Black Coal Award at clause 4.3(g)

11 Black Coal Award, the note at clause 4.3

12 R v Central Reference Board ex parte Thiess (Repair) Pty Ltd (1948) 77 CLR 123; Re Federated Liquor and Allied Industries

Employees' Union of Australia; ex parte Australian Workers' Union (1976) 51 ALJR 266 at 268/9

13 R v Moore; ex parte Federated Miscellaneous Workers’ Union of Australia (1978) 140 CLR 470; R v Coldham ex parte Australian Workers’ Union (1983) 153 CLR 415

14 R v Isaac; Ex parte Transport Workers Union (1985) 159 CLR 323 (Argyle Diamond) at 340 per Wilson J; applied in Harnischfeger of Australia Pty Ltd v CFMEU [2005] AIRC 890 at [76]

15 Dyno Nobel at [8]

16 Ibid at [62]-[63]

17 Dyno Nobel at [64]

18 Harnischfeger at [70]-[84]

19 The King v Hickman and Others; ex parte Clinton and Others (1945) 70 CLR 598 at 608

20 Ibid

21 R v Drake-Brockman and Others; Ex parte National Oil Pty Ltd (1943) 68 CLR 51 at 57

22 Harnischfeger at [86]

23 Australian Collieries Staff Association and Queensland Coal Owners Association – No. 20 of 1980, 22 February 1982 {Print CR2297}

24 R v Central Reference Board; ex parte Thiess (Repairs) Pty Ltd (1948) 77 CLR 123 at 140

25 (1943) 68 CLR 51 at 56

26 See clauses 4.1(b)(i) and (ii) of the Black Coal Award

27 Brown & Welsh v Broadspectrum (Australia) Pty Ltd[2016] FWC 3770 at [10]-[26]

28 Dyno Nobel at [58]

29 Ex A5

30 See, for example, Ex A5 at clause 9.1(a)(ii) (Court Book at page 775)

31 Harnischfeger at [88]

32 Harnischfeger at [74], applying the Argyle Diamond case, per Gibbs CJ

33 Section 176(3) of the Act

Construction, Forestry, Maritime, Mining and Energy Union v Orica Australia Pty Ltd

[2020] FWC 2781

28 MAY 2020

DECISION