Construction, Forestry, Maritime, Mining and Energy Union v The Griffin Coal Mining Company Pty Ltd t/a Griffin Coal
[2021] FWCFB 1798
•1 APRIL 2021
| [2021] FWCFB 1798 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Construction, Forestry, Maritime, Mining and Energy Union
v
The Griffin Coal Mining Company Pty Ltd t/a Griffin Coal
(C2021/50)
VICE PRESIDENT HATCHER | SYDNEY, 1 APRIL 2021 |
Appeal against decision [2020] FWC 5128 of Deputy President Beaumont at Perth on 17 December 2020 in matter number C2020/2107.
Introduction and background
[1] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has lodged an appeal against a decision made by Deputy President Beaumont on 17 December 2020 1 (decision) pursuant to the dispute resolution procedure in clause 22 of the Griffin Coal (Production) Enterprise Agreement 2017 (Agreement). The dispute, which was notified to the Commission by the CFMMEU, concerned what classification and pay rate properly applied under the Agreement upon engagement to nine new production operators employed by The Griffin Coal Mining Company Pty Ltd (Griffin) commencing 2 February 2020. The Deputy President determined, contrary to the position of the CFMMEU, that Griffin had correctly classified and paid the employees at Level 3.2 The CFMMEU contends in its appeal that the Deputy President erred in her interpretation and application of the relevant provisions of the Agreement. There is no dispute that the CFMMEU is entitled to appeal the decision, subject to the prior grant of permission to appeal.
[2] Clause 12.1 of the Agreement provides that employees covered by the Agreement are to be classified into one of three levels in the following way:
Levels
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.
[3] In terms of pay rates, Level 3 is the lowest classification and Level 1 is the highest. Level 2 has two pay rates: Level 2B (the lower) and Level 2A (the higher). Clause 12.2 of the Agreement sets out further detail as to how existing and new employees are to be classified and how they are to progress from one classification to the next:
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.
[4] Griffin operates an open-cut black coal mine at Collie in Western Australia. The nine employees in question, before being directly engaged by Griffin, were employed at the mine pursuant to training arrangements by other entities. From about 20 October 2018 until 10 January 2019, the employees were employed by the WorkPac Group. WorkPac then withdrew from supplying labour hire services to Griffin, and the employees were then engaged by Carpenter Mine Management Pty Ltd, a related entity to Griffin, and were thereby able to continue their traineeships. The traineeships involved a combination of classroom training and production work at the mine, subject to supervision. Training records show that the employees were trained and assessed as fully authorised to operate various types of heavy equipment (the types varied from employee to employee) during their traineeships, and they operated such heavy equipment at the mine as part of their training. The employees were supernumeraries for the entirety of their traineeships.
[5] Upon completing their traineeships, the nine employees obtained a Certificate III in Surface Extraction Operations and were offered direct employment with Griffin. They commenced this employment on 2 February 2020, and were classified by Griffin at Level 3. From about 10 May 2020, they were moved up to the Level 2B pay rate. Presumably, by virtue of clause 12.2(d), they are by now at the Level 2A rate.
[6] A dispute arose about whether the nine employees had been correctly classified in their initial period of employment. The CFMMEU’s position was that the employees should have been classified at Level 2 immediately upon engagement. After the dispute was notified to the Commission and was not resolved at conciliation, the Deputy President was requested to arbitrate the matter by answering the question (omitting the preamble): “…does the Production Agreement allow Griffin Coal to classify the Employees at Level 3 on the commencement of the Employees’ employment with Griffin Coal?” There was no contest between the parties that the Deputy President was authorised to arbitrate the dispute by clause 22 of the Agreement.
The decision
[7] The Deputy President gave the answer “yes” to the question posed for determination. In her consideration of the question, the Deputy President first endeavoured to interpret the meaning of the classification definition for Levels 3 and 2, taken in the context of clause 12 as a whole. 3 The Deputy President stated the following conclusions:
• the words in clause 12.1(a) “Level 3 refers to an Employee starting work with Griffin” indicated that Level 3 is only applicable to new starters; 4
• the next part of clause 12.1(a), “inexperienced in mining or related work”, does not refer to the skill level of the employee but the extent of their experience in mining or related work; 5
• the third part of clause 12.1(a) after the conjunction “and” refers to the employee’s position and skills; 6
• “entry-level” references an entry-level position, which may connote a position that requires some skill, since it is contrasted to an “unskilled position”; 7
• an “unskilled position” is one where the employee does not have “heavy equipment operational skills”, or one occupied by a trainee; 8 and
• the conjunction “and” renders the requirements of Level 3 cumulative, so that an employee must hold an entry-level or unskilled position and also must be inexperienced in mining and related work. 9
[8] In respect of Level 2, the Deputy President accepted that clause 12.1(b)(i) was not relevant to the facts of the dispute. 10 The Deputy President recognised that clause 12.1(b)(ii) was, like clause 12.1(a), concerned with persons who are “new” to Griffin, but with the critical distinction that clause 12.1(b)(ii) was concerned with new employees who are “skilled and experienced”, inferentially in mining work.11 The Deputy President said that clause 12.1(b)(iii) clarifies that progression from Level 3 to Level 2 requires the employee to gain sufficient experience and skills,12 and then said:
“[85] It is therefore the case that the correct classification of the Employees pursuant to clause 12.1 hinges [on] 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.”
[9] The Deputy President considered that the decision as to whether an employee falls under clause 12.1(a) or any of the subparagraphs of clause 12.1(b) sits with Griffin, since Griffin “assesses” the employee to determine which level to appoint the employee to and thereafter “appoints” the employee to that particular level. 13 The Deputy President referred in this respect to the principle stated in the XPT Case14that an employer is free to manage its business in the most effective manner possible and that industrial tribunals will not interfere unless the employer’s actions are unjust and unreasonable, and went on to say that “The discretion therefore sits with Griffin Coal to assess the Employees and thereafter appoint them to the relevant level”.15 In relation to Griffin’s assessment of the nine employees, the Deputy President said:
“[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’.”
[10] The Deputy President found that whilst the employees gained operational experience during the traineeship program, she was not convinced that this rendered the employees “skilled” production operators or that the employees were sufficiently experienced to the extent that Level 2 was the correct classification in which to place them. 16 The timeframe of approximately three months for progression to Level 2 specified in clause 12.2(b) was merely indicative and, further, the nine employees had been placed by Griffin into an “entry-level” position which, the Deputy President considered, was not unfair or unreasonable.17
Appeal grounds and submissions
[11] The CFMMEU advanced five appeal grounds. The first was that the Deputy President interpreted clause 12.1(a) of the Agreement in a manner that was inconsistent with the ordinary meaning of the words in question and the context in which they appear and, in particular, the Deputy President erred in finding that Griffin was entitled to regard employees who already held heavy equipment operational skills as “entry-level” employees. It was submitted that the words “that applies to an Employee without heavy equipment operational skills (including trainees)” in clause 12.1(a) apply to the noun “position”, so that persons with heavy equipment operational skills such as the nine employees could not be said to be holding an entry-level position.
[12] Second, the CFMMEU contended that the Deputy President failed to take into account or give sufficient consideration to clause 12.2(c) which, on the ordinary meaning of the words used, indicates that an employee with even a low level of skills and experience starting work with Griffin will be required to be appointed to Level 2. The words “skilled and experienced”, particularly as used in clause 12.2(c), juxtaposed with the use of the words “inexperienced” and “unskilled” in clause 12.1(a), indicate that an employee with any experience in mining or related work and/or heavy equipment operational skills must be classified at least at Level 2. Alternatively, even if the Deputy President was correct that an employee may have heavy equipment operational skills and still be not sufficiently skilled, the Deputy President set the bar too high in light of the indicative timeframe in clause 12.2(b).
[13] Third, it was contended that the Deputy President’s finding that the nine employees were not “skilled” or “sufficiently experienced” such as to make the terms “inexperienced in mining or related work” or “unskilled” in clause 12.1(a) applicable to them was unreasonable and/or plainly unjust, having regard to their 12-15 months operational experience working at the mine under Griffin’s supervision.
[14] Fourth, the CFMMEU contended that the Deputy President erred in placing reliance on the XPT Case and approaching the matter on the basis that it involved a consideration of whether a managerial assessment was unjust or unreasonable. Fifth, the CFMMEU contended that, having found that clause 12.1 was ambiguous, the Deputy President erred in failing to take into account relevant extrinsic material to guide the proper interpretation of the provision. This included that, in the Form F17 declaration which accompanied Griffin’s application for approval of the Agreement, the Level 3 classification was aligned with the Mineworker – Induction Level 1 classification in the Black Coal Mining Industry Award 2010 (Award), which is an entry-level classification for employees undertaking induction. The nine employees were well past the stage of undertaking induction training, meaning that under the Award they could not have been classified at Level 1. The Deputy President also failed to take into account the evidence of the CFMMEU’s witness Mr Gregory Busson, its District Secretary, concerning the use of the word “experienced” in the mining industry.
[15] The CFMMEU submitted that permission to appeal should be granted because it had identified errors of law in the decision that warrant correction on appeal, the decision manifests an injustice, and the decision was attended by sufficient doubt to warrant its reconsideration.
[16] Griffin submitted that permission to appeal should be refused because no error of law had been demonstrated, the CFMMEU sought to have the Full Bench reconsider the same evidence and legal arguments heard and determined by the Deputy President, and permission would not be granted even if the Full Bench were to find differently than did the Deputy President. In relation to the first appeal ground, Griffin submitted that the Deputy President’s interpretation of clause 12.1(a) was consistent with the plain meaning of the text. Griffin submitted that the second appeal ground was misconceived, in that the question before the Deputy President was whether Griffin was allowed to classify the nine employees at Level 3. That question could only logically be determined by an analysis of the circumstances in which the employees could be categorised at Level 3, and the other classifications were only relevant to the extent that they shed light on the proper construction of clause 12.1(a).
[17] As to the third appeal ground, it was submitted by Griffin that the CFMMEU had misunderstood the Deputy President’s reasoning in that she had not found that the nine employees were not skilled or experienced for the purposes of clause 12, but rather that they were not sufficiently experienced so as to require them to be classified as other than Level 3. In relation to the fourth appeal ground, Griffin submitted that the Deputy President did not approach the arbitration as requiring the evaluation of a managerial decision but rather determined that the managerial discretion extends to the power to assess and determine an employee’s classification under the Agreement. Finally, as to the fifth appeal ground, Griffin submitted that the Deputy President did not make a finding that clause 12.1 was ambiguous, meaning that the logical thrust of the appeal ground fell away. In any event, the Deputy President referred to the extrinsic evidence and rejected it as not establishing the existence of any common understanding.
Consideration
[18] We have decided not to grant permission to appeal in this matter for two reasons. First, although it cannot be said that the appeal is entirely lacking in utility, its practical relevance is limited. The nine employees the subject of the dispute were only classified at Level 3 for a period of approximately 14 weeks, and have been paid at Level 2B since early May 2020. Although it was asserted that the Deputy President’s decision might have implications beyond the nine employees the subject of the dispute, there was no evidence to support this and, in any event, we read the outcome of the decision as confined to the specific circumstances pertaining to the nine employees.
[19] Second, although we disagree with some aspects of the Deputy President’s reasoning, we are not persuaded that the outcome determined by her was wrong. We do not agree with the Deputy President’s construction of clause 12.1(a), which we have summarised above, whereby the Level 3 classification descriptor consists of two cumulative criteria, namely that to be covered by the classification an employee must be “inexperienced in mining or related work” as well as being employed in “an entry-level or unskilled position”. The conjunction “and” would have to be read as “in” to sustain this interpretation. Further, we do not agree that the words “that applies to an Employee without heavy equipment operational skills (including trainees)” condition only an “unskilled position” and not “an entry-level … position”. The conditioning words attach to the noun “position”, which serves the function of encompassing both types of positions connoted by the alternative adjectival expressions “entry-level or unskilled”.
[20] Our preferred interpretation of clause 12.1(a), which conforms with the ordinary and grammatical meaning of the text, is that Level 3 refers to two categories: first, an Employee starting work with Griffin who is inexperienced in mining or related work; and, second, an entry-level or unskilled position that applies (in either case) to an Employee without heavy equipment operational skills (including trainees). Thus, for example, an employee who has heavy equipment operational skills acquired in (say) construction, but has no experience in exercising those skills in mining or related work, would fall into the first category. An employee who may or may not have experience in some form of mining work, but does not have heavy equipment operational skills and thus must be placed in an entry-level or unskilled position, would fall into the second category.
[21] In respect of the Level 2 classification descriptor in clause 12.1(b), there is no issue that paragraph (i) is not relevant. Paragraph (ii) operates in juxtaposition to clause 12.1(a) in that the category of employee who has recently commenced employment with Griffin which it describes must be both “skilled” – that is, someone who is not without heavy equipment operational skills and hence does not occupy an entry-level or unskilled position – and “experienced” – that is, somebody who is not inexperienced in mining or related work. Paragraph (iii) of clause 12.1(b) provides for an employee who, because of lack of skills and/or experience, is initially placed in Level 3, to progress to Level 2 once they have gained “sufficient experience and/or skills with Griffin” (underlining added). Clause 12.2 provides for criteria for progression from Level 3 to Level 2 which are expressed consistently with clause 12.1(b)(iii), with an indicative timeframe of three months of employment with Griffin.
[22] Applying the above construction, the relevant question is therefore whether the nine employees had the mining or related industry experience and the heavy equipment operational skills to qualify for Level 2, or lacked one or both of these such as to fall within Level 3. This question is to be determined objectively. There is nothing in clauses 12.1(a) or (b) that makes the application of Level 3 or Level 2 to a particular employee dependent upon the subjective assessment of Griffin, and the XPT Case has no relevance to the interpretation and application of entitlements established by an industrial instrument. 18
[23] The nine employees in question clearly had heavy equipment operational skills, because, as earlier stated, prior to commencing employment with Griffin they had been assessed as fully competent to operate various items of heavy equipment. Accordingly, they cannot fall within the second limb of clause 12.1(a). However, none of the employees had worked in the mining industry prior to commencing their traineeships at the Collie mine, and there is no evidence that they had previously performed “related work”. We agree with the Deputy President that the mere completion of a traineeship would not render an employee “experienced” within the ordinary industrial understanding of that term. A period of work exercising the skills and applying the knowledge learnt during training after the completion of that training would normally be understood to be required in order for an employee to reasonably be described as “experienced”.
[24] For the above reasons, we consider that the conclusion reached by the Deputy President was correct. Consequently, there is no function to be served by granting permission to appeal in order to consider the individual appeal grounds which, even if upheld, would not in our view alter the final result.
Conclusion
[25] Permission to appeal is refused.
VICE PRESIDENT
Appearances:
Mr A Kentish for the appellant.
Ms H Millar of counsel for the respondent.
Hearing details:
2021.
Sydney (via video-link).
22 March.
Printed by authority of the Commonwealth Government Printer
<PR728315>
1 [2020] FWC 5128
2 Ibid at [104]
3 Ibid at [68]-[70]
4 Ibid at [71]
5 Ibid at [72]
6 Ibid at [73]
7 Ibid at [75]
8 Ibid
9 Ibid at [77]-[78]
10 Ibid at [81]
11 Ibid at [82]
12 Ibid at [84]
13 Ibid at [86]
14 Australian Federated Union of Locomotive Enginemen v State Rail Authority of New South Wales [1984] CthArbRp 432, 295 CAR 188 at 191
15 [2020] FWC 5128 at [95]
16 Ibid at [101]
17 Ibid at [102]-[103]
18 See FAAA v Qantas Airways Australia Limited; QF Cabin Crew Australia Pty Ltd [2019] FWCFB 1556 at [50]
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