LCR Mining Group Pty Ltd
[2017] FWC 1581
•17 MARCH 2017
| [2017] FWC 1581 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
LCR Mining Group Pty Ltd
(AG2016/4285)
| COMMISSIONER SPENCER | BRISBANE, 17 MARCH 2017 |
Application for approval of the LCR Jellinbah / Yarrabee Haulage Projects Enterprise Agreement 2016.
Introduction
[1] This Decision relates to an application made pursuant to section 185 of the Fair Work Act 2009 (the Act) by LCR Mining Group Pty Ltd (the Applicant/LCR) for the approval of the LCR Jellinbah/Yarrabee Haulage Projects Enterprise Agreement 2016 (the proposed Agreement/the LCR Agreement). The Applicant argued the work of the LCR employees was covered by the Road Transport Distribution Award 2010 (the Award) and this was the relevant Award for undertaking the better off overall test (the BOOT test.)
[2] The Applicant submitted that the Agreement met all of the statutory tests for approval.
[3] The Construction, Forestry, Mining and Energy Union (the CFMEU/the Union), sought to intervene in the proceedings and opposed the application on the basis that the Agreement did not meet the statutory approval tests under the Act. The Applicant submitted that it hauls coal from the two mines at Jellinbah and Yarrabee to the Boonal train load out by utilising triple sided tipping road trains. The Applicant further submitted that the sole focus of the Applicant’s operations at Jellinbah and Yarrabee is on transport operations.
[4] Directions were issued on 22 September 2016 for the parties to file submissions on the specific issues of whether the CFMEU is eligible to be covered by the Agreement and whether the Road and Transport Distribution Award 2010 or the Black Coal Mining Award 2010 covers employees and is the appropriate reference instrument for the Better Off Overall Test (BOOT).
[5] The Applicant was represented by Mr Christopher Murdoch of Counsel, instructed by Ms Teresa Moltoni of IRIQ. The CFMEU was represented by Mr Rowan Anderson, Union Legal Officer.
Permission to intervene
[6] In summary terms, the Union sought permission to intervene pursuant to section 590 of the Act and relied on the Full Bench decision in Harnischfeger v CFMEU 1 as well as CFMEU’s national rules, clause 2D.2 The Union submitted that that Decision favoured a more expansive view of clause 2D of the CFMEU’s national rules, in light of the employees in question and whether or not they are employed to work “in connection” with the coal industry. Clause 2D is extracted below:
“(D) 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 persons whether employees in the industries or not as having been appointed officers and admitted as members are eligible to be members of the Union.
(E) Without limiting the generality of the foregoing and without being limited thereby the following are eligible to be members of the Union:-
(a) An unlimited number of all classes of engine drivers…excavator drivers…motor drivers and attendants…trimmers and any other workers assisting in and about the work incidental to any engine…”
[7] The CFMEU referred to this rule as an “industry rule.”
Relevant statutory provisions
[8] The Act sets out the relevant statutory provisions as follows:
590 Powers of the FWC to inform itself
(1) The FWC may, except as provided by this Act, inform itself in relation to any matter before it in such manner as it considers appropriate.
(2) Without limiting subsection (1), the FWC may inform itself in the following ways:
(a) by requiring a person to attend before the FWC;
(b) by inviting, subject to any terms and conditions determined by the FWC, oral or written submissions;
(c) by requiring a person to provide copies of documents or records, or to provide any other information to the FWC;
(d) by taking evidence under oath or affirmation in accordance with the regulations (if any);
(e) by requiring an FWC Member, a Full Bench or the Minimum Wage Panel to prepare a report;
(f) by conducting inquiries;
(g) by undertaking or commissioning research;
(h) by conducting a conference (see section 592);
(i) by holding a hearing (see section 593).
[9] Section 176 of the Act sets out the bargaining representatives for proposed agreements that are not greenfields agreements:
176 Bargaining representatives for proposed enterprise agreements that are not greenfields agreements
Bargaining representatives
(1) The following paragraphs set out the persons who are bargaining representatives for a proposed enterprise agreement that is not a greenfields agreement:
(a) an employer that will be covered by the agreement is a bargaining representative for the agreement;
(b) an employee organisation is a bargaining representative of an employee who will be covered by the agreement if:
(i) the employee is a member of the organisation; and
(ii) in the case where the agreement is a multi-enterprise agreement in relation to which a low-paid authorisation is in operation--the organisation applied for the authorisation;
unless the employee has appointed another person under paragraph (c) as his or her bargaining representative for the agreement, or has revoked the status of the organisation as his or her bargaining representative for the agreement under subsection 178A(2); or
(c) a person is a bargaining representative of an employee who will be covered by the agreement if the employee appoints, in writing, the person as his or her bargaining representative for the agreement;
(d) a person is a bargaining representative of an employer that will be covered by the agreement if the employer appoints, in writing, the person as his or her bargaining representative for the agreement.
Bargaining representatives for a proposed multi-enterprise agreement if a low-paid authorisation is in operation
(2) If:
(a) the proposed enterprise agreement is a multi-enterprise agreement in relation to which a low-paid authorisation is in operation; and
(b) an employee organisation applied for the authorisation; and
(c) but for this subsection, the organisation would not be a bargaining representative of an employee who will be covered by the agreement;
the organisation is taken to be a bargaining representative of such an employee unless:
(d) the employee is a member of another employee organisation that also applied for the authorisation; or
(e) the employee has appointed another person under paragraph (1)(c) as his or her bargaining representative for the agreement; or
(f) the employee has revoked the status of the organisation as his or her bargaining representative for the agreement under subsection 178A(2).
(3) Despite subsections (1) and (2):
(a) an employee organisation; or
(b) an official of an employee organisation (whether acting in that capacity or otherwise);
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 the agreement.
Employee may appoint himself or herself
(4) To avoid doubt and despite subsection (3), an employee who will be covered by the agreement may appoint, under paragraph (1)(c), himself or herself as his or her bargaining representative for the agreement.
Note: Section 228 sets out the good faith bargaining requirements. Applications may be made for bargaining orders that require bargaining representatives to meet the good faith bargaining requirements (see section 229).
[10] Section 183 of the Act provides as follows:
183 Entitlement of an employee organisation to have an enterprise agreement cover it
(1) After an enterprise agreement that is not a greenfields agreement is made, an employee organisation that was a bargaining representative for the proposed enterprise agreement concerned may give the FWC a written notice stating that the organisation wants the enterprise agreement to cover it.
(2) The notice must be given to the FWC, and a copy given to each employer covered by the enterprise agreement, before the FWC approves the agreement.
Note: The FWC must note in its decision to approve the enterprise agreement that the agreement covers the employee organisation (see subsection 201(2)).
[11] Section 186 of the Act sets out the general requirements for when the Commission must approve an Enterprise Agreement.
186 When the FWC must approve an enterprise agreement--general requirements
Basic rule
(1) If an application for the approval of an enterprise agreement is made under subsection 182(4) or section 185, the FWC must approve the agreement under this section if the requirements set out in this section and section 187 are met.
Note: The FWC may approve an enterprise agreement under this section with undertakings (see section 190).
Requirements relating to the safety net etc.
(2) The FWC must be satisfied that:
(a) if the agreement is not a greenfields agreement—the agreement has been genuinely agreed to by the employees covered by the agreement; and
(b) if the agreement is a multi-enterprise agreement:
(i) the agreement has been genuinely agreed to by each employer covered by the agreement; and
(ii) no person coerced, or threatened to coerce, any of the employers to make the agreement; and
(c) the terms of the agreement do not contravene section 55 (which deals with the interaction between the National Employment Standards and enterprise agreements etc.); and
(d) the agreement passes the better off overall test.
Note 1: For when an enterprise agreement has been genuinely agreed to by employees, see section 188.
Note 2: FWC may approve an enterprise agreement that does not pass the better off overall test if approval would not be contrary to the public interest (see section 189).
…”
[12] Section 187 contains additional requirements for the approval of enterprise agreements:
187 When FWC must approve an enterprise agreement--additional requirements
Additional requirements
(1) This section sets out additional requirements that must be met before the FWC approves an enterprise agreement under section 186.
Requirement that approval not be inconsistent with good faith bargaining etc.
(2) The FWC must be satisfied that approving the agreement would not be inconsistent with or undermine good faith bargaining by one or more bargaining representatives for a proposed enterprise agreement, or an enterprise agreement, in relation to which a scope order is in operation.
Requirement relating to notice of variation of agreement
(3) If a bargaining representative is required to vary the agreement as referred to in subsection 184(2), the FWC must be satisfied that the bargaining representative has complied with that subsection and subsection 184(3) (which deals with giving notice of the variation).
Requirements relating to particular kinds of employees
(4) The FWC must be satisfied as referred to in any provisions of Subdivision E of this Division that apply in relation to the agreement.
Note: Subdivision E of this Division deals with approval requirements relating to particular kinds of employees.
…
[13] Section 188 lists the factors that the Commission must be satisfied of in relation to an enterprise agreement having been genuinely agreed to:
188 When employees have genuinely agreed to an enterprise agreement
An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that:
(a) the employer, or each of the employers, covered by the agreement complied with the following provisions in relation to the agreement:
(i) subsections 180(2), (3) and (5) (which deal with pre-approval steps);
(ii) subsection 181(2) (which requires that employees not be requested to approve an enterprise agreement until 21 days after the last notice of employee representational rights is given); and
(b) the agreement was made in accordance with whichever of subsection 182(1) or (2) applies (those subsections deal with the making of different kinds of enterprise agreements by employee vote); and
(c) there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees.
[14] Section 166 of the Fair Work (Registered Organisations) Act 2009 provides for the entitlement to become or to remain a member:
166 Entitlement to become and to remain a member
Employee organisations
(1) Subject to any modern award or order of the FWC, a person who is eligible to become a member of an organisation of employees under the eligibility rules of the organisation that relate to the occupations in which, or the industry or enterprise in relation to which, members are to be employed is, unless of general bad character, entitled, subject to payment of any amount properly payable in relation to membership:
(a) to be admitted as a member of the organisation; and
(b) to remain a member so long as the person complies with the rules of the organisation.
Note 1: Rules of an organisation must provide for the circumstances in which a person ceases to be a member of an organisation (see subparagraph 141(1)(b)(vii)).
Note 2: If a member fails to pay his or her membership dues for 24 months, this may result in the person ceasing to be a member, regardless of the rules of the organisation (see section 172).
Note 3: See also section 168, which deals with a special case of entitlement to membership (person treated as having been a member).
(2) Subsection (1) does not entitle a person to remain a member of an organisation if the person ceases to be eligible to become a member and the rules of the organisation do not permit the person to remain a member.
(3) A person who is qualified to be employed in a particular occupation, and seeks to be employed in the occupation:
(a) is taken to be an employee for the purposes of this section; and
(b) in spite of anything in the rules of the organisation, is not to be treated as not being eligible for membership of an organisation merely because the person has never been employed in the occupation.
Employer organisations
(4) Subject to subsection (5) and to any modern award or order of the FWC, an employer who is eligible to become a member of an organisation of employers is entitled, subject to payment of any amount properly payable in relation to membership:
(a) to be admitted as a member of the organisation; and
(b) to remain a member so long as the employer complies with the rules of the organisation.
(5) Subsection (4) does not entitle an employer:
(a) to become a member of an organisation if the employer is:
(i) a natural person who is of general bad character; or
(ii) a body corporate whose constituent documents make provisions inconsistent with the purposes for which the organisation was formed; or
(b) to remain a member of an organisation if the employer ceases to be eligible to become a member and the rules of the organisation do not permit the employer to remain a member.
This section overrides inconsistent rules
(6) Subsections (1) and (4) have effect in spite of anything in the rules of the organisation concerned, except to the extent that they expressly require compliance with those rules.
[15] Section 193 of the Act contains the Better off Overall Test:
193 Passing the better off overall test
When a non-greenfields agreement passes the better off overall test
(1) An enterprise agreement that is not a greenfields agreement passes the better off overall test under this section if the FWC is satisfied, as at the test time, that each award covered employee, and each prospective award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee.
…
Award covered employee
(4) An award covered employee for an enterprise agreement is an employee who:
(a) is covered by the agreement; and
(b) at the test time, is covered by a modern award (the relevant modern award ) that:
(i) is in operation; and
(ii) covers the employee in relation to the work that he or she is to perform under the agreement; and
(iii) covers his or her employer.
Test time
(6) The test time is the time the application for approval of the agreement by the FWC was made under subsection 182(4) or section 185.
….
FWC may assume employee better off overall in certain circumstances
(7) For the purposes of determining whether an enterprise agreement passes the better off overall test, if a class of employees to which a particular employee belongs would be better off if the agreement applied to that class than if the relevant modern award applied to that class, the FWC is entitled to assume, in the absence of evidence to the contrary, that the employee would be better off overall if the agreement applied to the employee.
…
(underline added)
[16] The following sections of the Coal Mining Safety and Health Act 1999 (Qld) (“CMSHA”) are referred to by the parties:
9 Meaning of coal mine
(1) A coal mine is any of the following places—
(a) a place where on-site activities are carried on, continuously or from time to time, within the boundaries of land the subject of a mining tenure;
(b) a place where on-site activities are carried on, continuously or from time to time, on land adjoining, adjacent to, or contiguous with, the boundaries of land the subject of a mining tenure and within which is a place mentioned in paragraph (a);
(c) a place where on-site activities are carried on, continuously or from time to time, unlawfully because land at the place is not the subject of a mining tenure;
(d) a place that was a coal mine while works are done to secure it after its abandonment;
(e) a place where tourism, education or research related to coal mining happens that is declared under a regulation to be a coal mine.
(2) A coal mine includes buildings for administration, accommodation and associated facilities within the boundaries of land the subject of the mining tenure for the mine or on land adjoining, adjacent to, or contiguous with the boundaries of the land the subject of the mining tenure.
(3) Despite subsection (1)(d), a place that was a coal mine is not a coal mine after its abandonment merely because work is being done at the place by or for the State—
(a) to ensure public safety; or
(b) to rehabilitate it; or
(c) to secure it.
10 Meaning of on-site activities
(1) On-site activities are activities carried on principally for, or in connection with, exploring for or winning coal and include the following—
(a) constructing—
(i) things required or permitted to be constructed under an exploration permit, mineral development licence or mining lease; or
(ii) for a place mentioned in section 9(1)(c)—things that are required or permitted to be constructed under an exploration permit, mineral development licence or mining lease;
(b) treating coal and disposing of waste substances;
(c) rehabilitating of a place after coal mining operations;
(d) maintaining and testing plant, equipment or machinery.
(2) On-site activities do not include the following—
(a) airborne geophysical surveys;
(b) transporting product from a coal mine on public roads or public railways or on any other railway;
(c) constructing and installing surface railways;
(d) air transport to and from a coal mine;
(e) pastoral activities;
(f) underground gasification activities on land the subject of—
(i) a mineral development licence or a mining lease for activities relating to mineral (f); or
(ii) an exploration permit if the chief inspector has made a declaration under section 52A;
(g) an activity declared not to be an on-site activity under a regulation.
[17] The following schedule 9 “mining activities” of the Coal Mining Safety and Health Regulations (“CMSHR”) are relied upon by the parties:
Mining activities
mining activities, for a surface mine, means activities that relate to the winning of coal and include the following—
(a) preparing for the extraction of overburden or coal;
(b) preparing and firing shots;
(c) loading and transporting overburden or coal;
(d) dumping overburden on spoil heaps.
Relevant award provisions
[18] The relevant provisions of the Black Coal Mining Industry Award 2010 (the ‘Black Coal Award’) are as follows:
4.2 For the purposes of this award, black coal mining industry has the meaning applied by the courts and industrial tribunals, including the Coal Industry Tribunal. Subject to the foregoing, the black coal mining industry includes:
(a) the extraction or mining of black coal on a coal mining lease by means of underground or surface mining methods;
(b) the processing of black coal at a coal handling or coal processing plant on or adjacent to a coal mining lease;
(c) the transportation of black coal on a coal mining lease; and
(d) other work on a coal mining lease directly connected with the extraction, mining and processing of black coal.
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;
(c) the operation of a coal export terminal;
(d) construction work on or adjacent to a coal mine site;
(e) catering and other domestic services;
(f) haulage of coal off a coal mining lease (unless such haulage is to a wash plant or char plant in the vicinity of the mine); or
(g) the supply of shotfiring or other explosive services by an employer not otherwise engaged in the black coal mining industry.
[emphasis added]
[19] The relevant provisions of the Road Transport and Distribution Award 2010 (the ‘Transport Award’) are as follows:
4.1 This industry award covers employers throughout Australia in the road transport and distribution industry and their employees in the classifications listed in clause 15—Classifications and minimum wage rates to the exclusion of any other modern award.
4.2 For the purposes of this award, black coal mining industry has the meaning applied by the courts and industrial tribunals, including the Coal Industry Tribunal. Subject to the foregoing, the black coal mining industry includes:
(a) the extraction or mining of black coal on a coal mining lease by means of underground or surface mining methods;
(b) the processing of black coal at a coal handling or coal processing plant on or adjacent to a coal mining lease;
(c) the transportation of black coal on a coal mining lease; and
(d) other work on a coal mining lease directly connected with the extraction, mining and processing of black coal.
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;
(c) the operation of a coal export terminal;
(d) construction work on or adjacent to a coal mine site;
(e) catering and other domestic services;
(f) haulage of coal off a coal mining lease (unless such haulage is to a wash plant or char plant in the vicinity of the mine); or
(g) the supply of shotfiring or other explosive services by an employer not otherwise engaged in the black coal mining industry.
Clause 3 (Definitions):
Road transport and distribution industry means:
the transport by road of goods, wares, merchandise, material or anything whatsoever whether in its raw state or natural state, wholly or partly manufactured state or of a solid or liquid or gaseous nature or otherwise, and/or livestock, including where the work performed is ancillary to the principal business, undertaking or industry of the employer;
the receiving, handling or storing of goods, wares, merchandise, material or anything whatsoever whether in its raw state or natural state, wholly or partly manufactured state or of a solid or liquid or gaseous nature or otherwise in a distribution facility;
the storage and distribution of goods, wares, merchandise, materials or anything whatsoever whether in its raw state or natural state, wholly or partly manufactured state or of a solid or liquid or gaseous nature or otherwise, and/or livestock where the storage and distribution activities are carried out in connection with air freight forwarding and customs clearance;
…..
(i) the cartage by road of quarried materials.
quarried materials means any material and/or by-product of any material, excluding coal and coal-related products, which has been removed from a quarry, sand pit, or a mine, provided that such material is for use in manufacturing or construction purposes. Quarried materials also means slag and slag by-products, excluding coal-slag products.
dirty material means bituminous products, black lead, briquettes, charcoal, coal, coke, plumbago, …. when carted as a full load
Schedule C
| Transport worker grade | |
| 1 | General hand: greaser and cleaner, yardperson, vehicle washer and detailer, motor driver’s assistant/furniture removers’ assistant Loader—other than freight forwarder Courier—foot or bicycle |
| 4 |
|
[20] The following provision is in both the Black Coal Award and the Transport Award:
4.8 Where an employer is covered by more than one award, an employee of that employer is covered by the award classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work.
Summary of the Applicant’s Submissions and Considerations
Background facts
[21] The Applicant submitted that the CFMEU does not have standing to be heard in relation to the Application for approval of this Agreement and it is not entitled to be covered by the Agreement.
[22] The Applicant submitted the work of the Applicant involves the haulage of coal off a mine lease by road load out. As such, the work is a transport operation that is being utilised to transport coal; therefore it should properly be considered, in context, as being part of the transport industry. 3 Further, the Applicant submitted the following facts support this conclusion which can be found in the affidavit of Mr Phillip Borg, General Manager Central Queensland of LCR Group Pty Ltd: the time drivers spend on the mine/road, how far drivers travel from the mine, where the supervisory staff are located, other work that the Applicant does or can do, where, and who owns/operates the location drivers cart the coal to, who owns the roads they utilise, the qualifications of the driver (road going licences versus tickets for a coal mine), the driver Position Description (‘PDs’), the type of backgrounds drivers are recruited from, what modifications, if any, the vehicles have for use on the mine and other relevant factors.
[23] In relation to the work undertaken by the Applicant, the Applicant submitted the driver’s use a 3-axle road train for haulage of the material and the final destination of the coal is not a wash plant or char plant and is not in the vicinity of the mine.
Enterprise Agreement
[24] The Applicant submitted the following provisions of the Agreement confirm that the CFMEU does not cover the relevant employees:
“1.3 Application of Agreement
This Agreement applies to all Employees mentioned in clause 9.3.2 (sic) that are employed at the Jellinbah and Yarrabee sites hauling coal from the mine stockpiles to the (off lease) rail loadout. For the avoidance of doubt, this is a site-specific enterprise agreement where employees are geographically and operationally distinct from the employer’s other operations.
1.4 Parties to the Agreement
The Parties to this Agreement are:
LCR Mining Group Pty Ltd (ABN) 42 135 447 506 (the employer) of 494 Nudgee Road, Hendra Queensland; and
All Employees of the Employer who are employed on the Jellinbah and Yarrabee Haulage Projects and for whom there is a classification in this agreement.
15. Clause 9.2.2 of the Enterprise Agreement has the following classifications:
| Classification |
Operator |
Yardperson or Apprentice |
[25] The Applicant submitted the CFMEU is not eligible to represent the industrial interests of such workers covered by the Agreement in accordance with section 176 of the Act and is therefore not eligible to be covered by the Agreement under section 183 of the Act.
CFMEU’s entitlement to represent workers
[26] The Applicant submitted that it relied on the majority decision in Dyno Nobel 4 which is as follows:
[16] Rule 2D of the CFMEU eligibility rules refers to “employees engaged in or in connection with the coal and shale industries”. It is an industry rule and the decrement of eligibility is the trade or business of Dyno Nobel. Indeed, counsel for the CFMEU acknowledged that Rule 2D is the current manifestation of the very rule considered by the High Court in Hibble. Accordingly, we are bound, as was her Honour, to apply the decision in Hibble to Rule 2D. Thus, the issue in this appeal turns on the proper characterisation of the business of Dyno Nobel, that is, whether the business of Dyno Nobel is “in or in connection with” the coal industry.
[27] Accordingly, the Applicant submitted the question in the present case is whether the business of the Applicant, in which the employees are engaged, is “in or in connection with” the coal industry. As referred to in Dyno Nobel, the key considerations must be “the separateness of establishments in point of control, organization, place, interest, personnel and equipment…” 5
[28] In relation to the above considerations, the Applicant submitted the following information in support: (1) the Applicant hauls coal from two mines at Jellinbah and Yarrabee, (2) at Yarrabee, the coal is loaded at the wash plant into the road and the road trains haul the coal to Boonal train load out, tip the coal into a stockpile and then return empty to Yarrabee for another load, (3) at Jellinbah the coal is loaded at two places, either at Plains or the wash plant known as Central, (4) the operators at the sites need the same experience required by transport companies operating on highways, (5) the average time spent on the Yarrabee lease is 23.47% of each shift and 76.53% off site – this is determined by GPS data (6) the average time spent on site at Jellinbah lease is 20.33% and 79.67% of time off-site, (7) the supervisory staff spend the majority of their time off-site driving the haul road, checking the Boonal pad, checking the haul circuit and ensuring the pad at Boonal is maintained to allow for the road trains to be tipped off, (8) outside the Jellinbah and Yarrabee projects, the Applicant performs many other transport related activities, (8) Boonal is located 27km from Jellinbah Mine and 38 km from Yarraabee Mine – the train load is not located on a mine lease and is covered under Qld workplace health and safety legislation.
[29] In relation to the majority of work performed by the Applicant’s employees, the Applicant submitted this work is performed off the mine lease and all work is in respect of transport operations.
[30] The Applicant referred to Schedule 9 of the Coal Mining and Safety Health Regulations 2001, extracted below, which references the activities that relate to the “winning of coal:”
Schedule 9
mining activities, for a surface mine, means activities that relate to the winning of coal and include the following—
(a) preparing for the extraction of overburden or coal;
(b) preparing and firing shots;
(c) loading and transporting overburden or coal;
(d) dumping overburden on spoil heaps
[31] Concerning the above, the Applicant submitted at Jellinbah Mine the coal is loaded and transported to the Run of Mine (ROM) stockpile or ROM bin by coal mine workers. At this point the coal is “won” and further activities such as crushing, processing and transportation off site are not involved with “the winning of coal.” Accordingly, the Applicant submitted it has never been involved with the winning of the coal at Jellinbah mine and therefore the above Schedule 9 does not apply.
[32] The Applicant also referenced section 9(1)(a) of the Coal Mining and Safety Health Act (CMSHA), which is extracted as follows:
9 Meaning of coal mine
(1) A coal mine is any of the following places—
(a) a place where on-site activities are carried on, continuously or from time to time, within the boundaries of land the subject of a mining tenure;
[33] In relation to section 9(1)(a) above, the Applicant submitted that its road train operators are not considered to be coal mine workers pursuant to Schedule 3 of the CMSHA because they do not carry out work included in the meaning of on-site activities above.
Award Coverage
[34] The Applicant submitted the relevant underpinning Award is the Road Transport Award Distribution Award 2010.
[35] The Applicant noted the Full Court of the Federal Court in Transport Workers' Union of Australia v Coles Supermarkets Australia Pty Ltd 6;
“[21] The “substantial character” test is one which was developed and expressed by the High Court in relation to union eligibility rules (see R v Central Reference Board; Ex parte Thiess (Repairs) Pty Ltd [1948] HCA 9; (1948) 77 CLR 123 at 135; Re Federated Liquor and Allied Industries Employees’ Union of Australia; Ex parte Australian Workers’ Union (1976) 51 ALJR 266 at 268-9; R v Moore; Ex parte Federated Miscellaneous Workers’ Union of Australia [1978] HCA 51; (1978) 140 CLR 470 at 484-5). In our view, the “substantial character” test was not the appropriate test for deciding whether the Transport Award applied.
[22] The test that should be applied is to discern the objective meaning of the words used bearing in mind the context in which they appear and the purpose they are intended to serve.”
[36] Applying the above case law to the present case, the Applicant submitted that: (1) clauses 4.2(a) –(d) of the Black Coal Mining Industry Award 2010 have no application in this instance, (2) clause 4.2(d) transportation of coal pursuant to the Enterprise Agreement is not on the coal mining lease but on public roads leading to the final destination at the rail link, (3) clause 4.2(d) while the destination of the coal is still directly relevant (for the reasons referred to above) for clause 4.2(c), no processing of coal is undertaken by the relevant employees under the Enterprise Agreement, (4) the Black Coal Mining Industry Award 2010 specifically contemplates the exclusion of haulage of coal off the mining lease by operation of clause 4.3(f) of the Award.
[37] By applying the Transport Award, the Applicant submitted that the Award contemplates the inclusion of transportation of coal by the definition given at clause 3 of the Award of what ‘road transport and distribution industry means…’, especially subsection (a). Secondly, the Applicant stated an allowance is prescribed by clause 16.2(b)(xi) for dirty material, which includes the carting of coal.
[38] The Applicant mentioned its previous Enterprise Agreement and submitted the underpinning Award was the Transport Award.
[39] By drawing upon the case law of Dyno 7, the Applicant submitted it is engaged in haulage work, the transportation of coal from one point to another. It is not involved in the extraction of coal from the ground of the development of the mine. It is the transportation of material that is the relevant industry in which the Applicant as employer of these employees is engaged. The secondary question to be determined, the Applicant stated, is whether there is a “connection with the coal and shale industries.” The Applicant believed the words do not have the effect in this case that employees are covered by the CFMEU.
[40] Furthermore, in the case of Dyno, it was held by the Full Bench that the work performed by Harnischfeger at coal mines was an integral part of the coal mining operations and therefore the business of Harnischfeger was “in connection with the coal and shale industries.” The Applicant believed the critical facts relied upon were that the business activities related to the installation, servicing and maintenance of surface mining equipment, and could be distinguished from the provision of a [discrete] service such as catering or laundry. Accordingly, the Applicant submitted the transport services are not integral to mining operations. They are a transport service. The relevant employees of the Applicant are engaged in or in connection with the transport industry.
Summary of the CFMEU’s Submissions and Considerations
[41] The CFMEU submitted it is entitled to represent the industrial interests of employees covered by the proposed Agreement and was a ‘bargaining representative’ for the purposes of the proposed Agreement.
[42] In respect of section 183 and 176 of the Act, the CFMEU submitted that an employee organisation must be entitled to represent the industrial interests of a member who is an employee covered by the agreement in order to be able to apply to be covered by that Agreement. 8
[43] The CFMEU submitted that its National rule 9 2D entitles the Union to represent the members which are covered by the Applicant’s agreement and can be described as an “industry rule.” Further, the CFMEU submitted to determine eligibility this rule is dependent on a review of the Industry in which the employee is employed and whether or not that industry is “engaged in or in connections with the coal and shale industries.”10 By reference to the case law, the CFMEU submitted it is undecided whether the rule should be interpreted narrowly and merely in relation to the coal or shale industries or whether or not the words ‘in connection with’ should be interpreted widely. The case of Harnischfeger v CFMEU11 should be taken into consideration, the CFMEU submitted, when interpreting rule 2D by applying a more expansive view of the rule.
Evidence of Mr Power
[44] Mr Glenn Power, District Vice President of the Queensland branch of the CFMEU, submitted they disagree with a number of assertions made about the work of the employees under the current Agreement, which are as follows; (1) there are employees working under the 2012 Agreement performing work exclusively or primarily on the mining leases, 12 (2) the 2012 Agreement and recent roster documents show employees once assigned to operate Trucks, Tyres, Loaders, Water Trucks and maintenance crews,13 (3) a majority of the skills listed in the position description (annexure 2 of Mr Borg’s affidavit) relate to skills in coal mining,14 (4) some employees are required to transport coal between stock piles on the mining lease, otherwise known as ‘side-shifting,’15 (5) the road from the mining leases to the train load out is a private road,16 (6) the trucks and their trailers have been modified for use on a coal mine and cannot be driven on a public road,17 (7) the distances between the mining leases and the train load outlined by Mr. Borg are relatively common for a mining operation.18
[45] Given the evidence provided by Mr. Power, the CFMEU submitted that the scope of work of the employees under the current 2012 Agreement is work directly associated with the Coal Industry and therefore within the scope of Rule 2(D). Accordingly, the CFMEU submitted this makes the employees eligible to join the CFMEU.
[46] The CFMEU submitted that the Applicant’s trucks and trailers used by the employees are not suitable for use on the public road and under the 2012 and proposed Agreement presumably cannot haul any other material than coal.
Coal Mining Safety and Health Act 1999 (Qld) (“CMSHA”)
[47] The CFMEU submitted the Applicant believed the employees are not employed in or in connection with the coal industry due to an allegation that they do not fall within the definitions of the CMSHA and associated regulations. 19 The CFMEU submitted this statement is not correct.
[48] The CFMEU submitted that even on the Applicant’s own evidence the employees are loading and transporting coal which falls within the definition of ‘winning coal’ and ‘mining activities’ in schedule 9 of CMSHA.
[49] By examining the definition of mining activity and winning coal in the regulations, the CFMEU submitted that the employees’ tasks fall within the definition of ‘on-site activity’ under section 10 and critically do not fall within the exception under subsection 2.
[50] Accordingly, the CFMEU submitted the employees are performing on site activities, as defined, on or from land adjoining land, subject to a mining tenure which makes them subject to the regulation of the CMSHA.
BOOT analysis
[51] The CFMEU submitted that the Black Coal Award, should be used as a basis for comparison for the BOOT test and not the Road Transport Award and by relying on the Black Coal Award, the Agreement does not make an employee better off overall than if the Award had applied. The CFMEU provided the following terms and conditions are inferior to what is provided in the Black Coal Award; (1) the Agreement contains additional adverse provisions, including in relation to company policies and procedures, pre-employment requirements, training and development and probationary period costs, (2) the dispute settlement term is less favourable than that contained in the Award, (3) the proposed agreement does not recognise a 35 hour working week and 7 day hour days, (4) the proposed agreement does not provide that agreement be reached where employees are to be required to work shifts of more than ten ordinary hours, (5) the proposed agreement does not provide loadings for shift work equivalent to those contained in the Award, (6) crib breaks are inferior to those contained in the Award, (7) the proposed agreement contains less favourable Annual leave provisions than the Award, (8) the proposed agreement contains less favourable Personal leave provisions than the Award, (9) the proposed agreement contains shutdown provisions less favourable than the award, (10) the proposed agreement contains termination of employment provisions less favourable than the Award, (11) the Award contains more favourable provisions in relation to accrued personal/carer’s leave and (12) the redundancy provisions contained in the proposed agreement are less favourable than those provided in the Award.
[52] Given the aforementioned alleged BOOT concerns the CFMEU has raised with the proposed Agreement, the CFMEU submitted it is inappropriate for these issued to be rectified by the Applicant by providing undertakings, rather the FWC should reject the proposed Agreement.
Reply Submissions of Applicant
CFMEU’s entitlement to represent workers
[53] The Applicant submitted it did not receive notification in writing of any appointment by its employees of the CFMEU or of any officer of the CFMEU as their bargaining representative. 20
[54] In paragraphs 6 to 10 of the Affidavit of Mr Glen Power dated (18 October 2016), the CFMEU submitted that the CFMEU has a single member covered by the Enterprise Agreement; however, the Applicant submitted the union fails to identify this member due to the “fear of reprisal or retribution being taken against him in his employment.” The Respondent submitted any legitimate fear is rejected by the Applicant given the lack of evidence. Accordingly, the Applicant submitted the Commission should find that no such CFMEU member(s) are employed by the Applicant and covered by the Enterprise Agreement given the absence of any evidence.
[55] Furthermore, the Applicant submitted it rejected that the CFMEU is a bargaining representative of the Enterprise Agreement pursuant to section 176 and 183 of the Act given the reason previously stated. 21 Accordingly, it is submitted by the Applicant the CFMEU has no entitlement to represent the industrial interests of a member who is an employee covered by the Enterprise Agreement.22
CFMEU Rules
[56] The CFMEU relied on its rule “engaged in or in connection with the coal and shale industries.” 23 The Applicant submitted the following in respect of this issue; the Applicant is unaware of any alleged CFMEU member engaged in work subject to the Enterprise Agreement; 91% of the Applicant’s employees spent the vast majority of their time working off the mining lease (including 42 road train operators, one tyre fitter and ten fitters.) In terms of the work referred to as “side shifting” by Mr Power, that is the re-handle that occurs at the Boonal pad moving the coal from spare stockpiles to the slots (which is off the mining lease); any large stock piles of coal which require washing are handled by the super hauler. The Boonal haul road is a private road with limited access (it is shown on QLD Transport maps as a public/council road); the Applicant has used similar road trains to haul gravel and road base at other sites; the Applicant is involved in hauling from the mines to the Boonal train load out, not to a wash plant; the Applicant’s supervisors spend the majority of their time off site in areas where the Applicant performs the majority of the work and the mines do not provide direct supervision to the Applicant’s employees; all work performed by the Applicant off the mining leases (such as that on the Boonal haul road and at the Boonal train load out) – which accounts for 80% of the work pursuant to the Enterprise Agreement – is covered by the Work Health and Safety Act 2011 (Qld), and is not subject to the provisions of the Coal Mining Safety and Health Act 1999 (Cth); the majority of maintenance works are performed on 85% of the fleet that works predominately off site for 80% of working time; and the road trains do not perform a considerable period of time operating on coal mining lease (and the Applicant’s GPS records demonstrate that the road trains are off site at Yarrabee for 76.53% of the time and at Jellinbah for 79.67% of the time).
BOOT Considerations
[57] The Applicant submitted the CFMEU’s submissions concerning the BOOT under the Black Coal Mining Industry Award 2010 are irrelevant, as the correct basis for comparison is the Road Transport and Distribution Award 2010. Furthermore, the Applicant submitted that the Commission should not receive any further submissions from the CFMEU in respect of the BOOT, as the CFMEU had that opportunity in their submissions filed 20 October 2016 and have not availed themselves of that opportunity.
Considerations
[58] The outstanding issues in relation to the BOOT turn on the outcome of this decision in relation to the underpinning award. Further the Union was allowed an additional period of time to indicate whether there are other issues that they were pursuing in relation to objections to the approval of the agreement. They confirmed that there were no other outstanding issues at this time, apart from potentially BOOT related issues depending on the outcome of this matter.
In terms of the Union's entitlement to represent the industrial interests of a member who is employed by the employer and covered by the relevant Enterprise Agreement a Consent Direction was issued that required the Union on a confidential basis to provide the name of the member employed by the Respondent and stated to be covered by the Enterprise Agreement. The Respondent was also directed to provide a list of the employees with an affidavit, confirming the time the list was taken. The list of employees was provided to the Commission (the Affidavit was provided separately to the union). The Union acknowledged receipt of the Affidavit. An email was forwarded from my chambers whereby I confirmed to the parties that the name of the CFMEU member appeared on the list of employees. The Parties acknowledged receipt of this.
[60] The key issues in this matter required to be determined as summarised by the Applicant are; does the CFMEU have standing as a bargaining representative or otherwise to be heard in relation to the application for approval of the agreement and is the CFMEU entitled pursuant to s.183 of the Act to be covered by the agreement.
[61] An employee organisation’s entitlement to have an Enterprise Agreement cover it arises under s.183 of the Act. 24 Section 183(1) provides that after an Enterprise Agreement (that is not a Greenfields agreement) is made, an employee organisation “that was a bargaining representative for the proposed enterprise agreement” may give the Commission notice stating that the organisation wants the Agreement to cover it. That notice must be given to the Commission and each employer covered by the Agreement, before the Commission approves the Agreement. The Fair Work Commission Rules 2013 provide that such a notice may be given on the approved form under rule 24(3).
[62] The relevant question then becomes was the CFMEU a bargaining representative for the proposed Enterprise Agreement? Section 176 of the Act set out the persons who are bargaining representatives for a proposed Enterprise Agreement. In relation to employee organisations, s.176(1)(b) provides:
(b) an employee organisation is a bargaining representative of an employee who will be covered by the agreement if:
(i) the employee is a member of the organisation; and
…
unless the employee has appointed another person under paragraph (c) as his or her bargaining representative for the agreement, or has revoked the status of the organisation as his or her bargaining representative for the agreement under subsection 178A(2); or
[63] It has been satisfied, upon the evidence before the Commission, that the CFMEU did have a member who was an employee who will be covered by the Agreement at the relevant time, and there is no evidence that the status of the CFMEU has been revoked by that employee or otherwise displaced.
[64] In relation to the determination of the current matters being firstly the union coverage issues, as to whether the CFMEU is pursuant to s.176(3) of the Act entitled to represent the industrial interests; in relation to the work to be performed under the Agreement to be eligible to be represent the interests of an employee. In accordance with the Union rules, the employee must be engaged in or in connection with the coal and shale industries.
[65] Relevant to these tests the employees will be covered by the Agreement as set out in clauses 1.3 and 9.2.2 of the Agreement. As per these clauses the Agreement will apply to all employees that are employed at Jellinbah and Yarrabee sites, hauling coal from the mine stockpile to the off lease rail load out, as set out in the classification structure in clause 9.2.2. There are only 2 classifications included and covered by the Agreement in clause 9.2.2; the yard person or apprentice and operator C triple road train.
[66] The Union relevant to this matter raised as the notation in the coverage of the Black Coal Mining Industry Award 2010 as follows:
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.
[67] In referring to this notation, Deputy President Asbury has previously held:
[14] The relevant decisions cited in the decision in Australian Collieries Staff Association and Queensland Coal Owners Association establish the following principles:
● Whether an employer is engaged in the black coal mining industry for the purposes of clause 4.1 of the Black Coal Mining Industry Award 2010 depends on the substantial character of the industrial enterprise in which the employer and the employee are concerned.
● The supply of goods or services to companies in a particular industry is not sufficient to identify that the supplier is in the industry to which the goods and services are supplied.
● The fact that an activity is carried out at a coal mine is not the sole determinant of the issue. The difference depends on circumstances, the chief of which must be separateness of establishments in point of control, organisation, place, interest, personnel and equipment, and is a matter of degree.
● The fact that two industries are carried on at the same place does not abolish the distinction between them.
● The relationship of employer and employee must have some connection with the activity of mining of coal. 25
[68] While the Deputy President’s consideration in that matter related to the application of the Manufacturing Award, the principles are nonetheless applicable in these circumstances. On the material before the Commission, adopting the same approach, does not establish that the Applicant is an employer engaged in the Black Coal Mining Industry.
[69] Mr Borg, the General Manager of the LCR Group, Central Queensland provided open and transparent evidence regarding the operations and the work of the employees in question. Mr Power also provided his evidence candidly, however whilst Mr Powers knowledge of the coal industry is not doubted, his evidence in relation to this particular Agreement and these operations was limited, to the instructions that he had received, regarding the operations.
[70] On the evidence and analysis of such, the CFMEU is not entitled to represent the industrial interests of employees in relation to the work that will be performed under the Agreement for the purposes of section 176(3). Based on the evidence in this matter, as considered against the CFMEU's industry rule, employees are not engaged in or in connection with the coal and shale industries. The primary purpose of the Applicant’s business was haulage operations undertaken in the transport industry. Clause 1.3 of the Agreement deals with the application of the Agreement and clause 9.2.2. sets out the classifications as previously referred to. Mr Borg provided evidence of a non-staff person who was working on the water truck and engaged as a road train operator as required on a Sunday and otherwise. In addition, the submission on behalf of the Employer was clear that at no material time with regard to the work under Agreement, have there been people employed working as loader operators, these people have been engaged by a contractor. On the evidence in this matter, those people engaged to perform such work, have not exclusively performed this occupation, but have also driven road trains when required. The work of the loader operator is undertaken with the purpose of supporting the haulage operations. The Respondent’s submissions in relation to these transport operations was as follows 26:
Now working through the evidence, Mr Borg's given comprehensive details in respect of the work performed by the applicant through its employees in his affidavits and from the witness box. The evidence is that the applicant's task at this site is to haul coal from two mines, being Jellinbah and Yarrabee, to the Boonal train loadout and you would have noticed from the evidence and from the pictorial that the Boonal train loadout is both some distance from the mines and is not located on the relevant mine leases, and that it's accessed via a haul road that's also used by other people.
The applicant undertakes this task by utilising triple side tipping road trains, which consist of a prime mover and three trains. Mr Borg's evidence is that these road trains can also be used and indeed have been used to haul other materials at other places, including gravel, road base or quarry rocks. So the equipment being utilised is not specific to the haulage of coal. The sole focus of the work of the applicant in respect of each of these mines in the haulage of coal is on transporting the coal off the mine.
At Yarrabee the coal is loaded at the mine wash plant into the road trains and the road trains then haul the coal from the mine to the loadout, tip the coal into a stockpile where it's then loaded onto a train and then go back to Yarrabee for another load and go round again. At Jellinbah the coal is loaded at two places on-site, either at the plains which is the northern end of the mine or at the wash plant site known as Central. Again, the coal is loaded, the road trains travel from the mine to the train loadout, the coal is stockpiled, loaded onto the trains, the road trains then go back and go around again.
The loadout that the coal is taken to is, as you've seen from the pictorial, on the Capricorn Highway and it's about 12 kilometres from Blackwater. It's operated, the loadout that is, as a joint venture between Yarrabee Coal and some private companies, and Yarrabee's responsible for the operation and management of it. As I said, the loadout's not located on a mine and in fact is a substantial distance away from the respective mines.
Further to that point, the evidence is that the distance that the drivers travel by road from the respective mine lease boundaries is 29.5 kilometres from Yarrabee to the loadout at Boonal, and in respect of Jellinbah it's 22.2 kilometre from the mine lease boundary to the Boonal. So it's a situation where the round trip is some 60 kilometres from mine to Boonal to back, and the round trip is some almost 45 kilometres from Jellinbah to the Boonal and back before the trucks go anywhere near being on a mine.
Evidence has been given by Mr Borg as to the average time that the drivers spend on the mine lease and the access road respectively, and that's been considered by virtue of some GPS data. That evidence indicates that the great majority of the time that is spent driving outside of the mine lease, the average time on the Yarrabee lease is 23.47 per cent of each shift and 76.53 per cent is off site. Average time at Jellinbah is 20.33 per cent on the lease and 79.67 of the time off the lease.
There's been some evidence given about some very rare and exceptional occasions when these trucks are utilised at either Jellinbah or Yarrabee to do what's called side shifting, or relocating I beg your pardon. Side shifting's at Boonal when relocating is done, and that's simply moving coal intra-mine for a couple of shifts on rare occasions. It was interesting as well that not only is it very rare and exceptional, when it does occur it only occurs utilising one or two trucks at a time. The remainder of the fleet is still engaged in the primary haulage activity.
In my submission, whilst it might be interesting that these exceptions arise they're certainly not by any stretch of the imagination the focus of the work that's performed.
There are supervisory staff for the road train operators, they're not covered by the agreement. They're located at the south workshop location and you've been shown where that is, and it's located off the mine lease. Those staff spend only a very small percentage of their time on the mine lease, the remainder of it spent checking at various points on the haul road and at the pad et cetera.
[71] In considering the industry rule taking into account, the Union’s submissions, and the reference of both parties to the Harnischfeger v Construction, Forestry, Mining and Energy Union 27 decision that relevantly stated as follows:
[83] Significantly, the Court rejected an approach to the application of the eligibility rule to the business of the employer that required a whole company (or in this case Board) approach. The approach of the Court, as set out in the judgment of Mason J was as follows (at page 589):
“It was argued for the Board that its functions under the Act should be considered, not in isolation, but in their totality and that, if this was done, it could not be said that the ‘business’ of the Board was that of insurance. The simple answer to this argument is that it is quite possible, as in the present case, for a person or body to be engaged in several activities, one of which can properly be described as ‘the business of insurance’. It is in my opinion, a misconceived approach to attempt to characterize the functions of the Board in their totality, and there is certainly nothing in the present case which warrants such an approach.”
[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.”
[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.
[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.
[72] The Union’s submission was that the fact that “rehandling” occurred was relevant and they submitted that clause 4.3 of the Black Coal Mining Industry Award should not limit the application of ‘the industry’ in all circumstances. The evidence supported that none of clause 4.2(a), (b) or (d) of the Black Coal Mining Industry Award had any application in respect of 4.2(c), (the transportation of black coal on a mining lease.) This occurs only ‘sporadically’ and ‘exceptionally’ and it is agreed this, on the evidence, is not the focus of the operations, being the haulage of the coal off a coal mining lease.
[73] In the Harnischfeger decision the Full Bench found that the activities of that company related to the installation servicing and maintenance of mining equipment, as set out, in the related first instance decision of SDP Drake, she stated (as referred to):
The question I have to determine is whether or not the work performed by the employees of Harnischfeger, the subject of this application, and therefore the industry in which Harnischfeger operates in relation to those employees, is work in or in connection with the coal industry.
This work is not an analogist to laundry, catering, telecommunications or transport. This work is the continuous maintenance and/or repair of essential mine equipment. The work of Harnischfeger Mine's work which is intrinsic to the coal industry 28
[74] Taking into consideration these decisions, in assessing the industry of the Employer, the substantial character of the activities based on the evidence is that the Employer is not involved in or in connection with the Coal and shale industries.
[75] The Applicant is engaged in the discrete service of the provision of transport services, which as per the reasoning in Harnischfeger, is not work intrinsic to the coal industry. As per this case authority whereby catering and laundry were not considered to be work in connection with the mining industry. As submitted, in accordance with these decisions, it is not enough to render those services; in connection with the coal and shale industries, just because they are provided to a mine. I adopt the Applicant’s submissions in this regard as follows 29:
In the present case, similar to the discreet services identified in Harnischfeger, the applicant here is engaged in providing transport service, and those transport services are not themselves integral to mining operators. Similar to the provision of catering service, laundry services et cetera, these transport service are a discreet service. The coal is mined, washed et cetera, at the mine. It is the then ready for transport away from the mine. It's transported away from the mine by my client, and then further away from the mine by rail. The work in which the applicant is engaged is therefore transport. It's a distinct activity, an industry to coal mining. Therefore the relevant employees here are not engaged in connection with the coal and shale industry.
Again, by comparison to Harnischfeger were the relevant work of the employees there was installing services and maintaining mine equipment, it can be readily seen such an activity is an integral part of the mining. Because if the coal mining equipment is not installed and service maintained, then the mining activity can't occur. That's sharply distinct from the a transport activity which is rather than be in part of coal mining is as I say the transporting a way of the coal that's been produced the coal mining operations. Such a service, the transport service forms no part of the direct or indirect of coal mining activities.
In this case, not only is the activity itself distinct from coal mining, but the context and location is also distinct from coal mining. There is the limit amount of time that's actually spent on the mine, there's the fact that the majority of the time of the road transport - beg your pardon - the road train drivers have spent performed road transport services, and the fact that in respect of the other employees, that their time is spent support such road transport services.
[76] On the evidence the work is haulage of coal on a coal mining lease and therefore falls within the exception in clause 4.3, therefore the work falls within the Transport Award.
[77] In further support of the work pertaining to the Industry being that of coal haulage covered by the Transport Award the Applicant summarised 30;
But moving to why it is that the Transport Award applies here, as opposed to the
Black Coal Award, if the Commission can go to paragraph 54 of the applicant's written submissions, this is all set out and I just really wish to take you to what's been set out just by way of emphasis. In paragraph 54, there are various extracts of the Black Coal Award that have been set out, and you'll note that clause 4.2 is a provision that includes various activities in the black coal mining industry, but then clause 4.3 excludes certain activities from the black coal mining industry.
Now, in this case, none of 4.2(a), (b) or (d) have any application, and in respect of
4.2(c) which is the transportation of black coal in a mining lease, the evidence is that that occurs sporadically and exceptionally and is not the focus of the work that's undertaken. You will also note that in respect of 4.3, which is the exclusionary provision, that the black coal mining industry does not include, relevantly at subparagraph (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.
So if the Commission is with me in respect of what is the work that's being performed by the employees here and what is the focus of that work, whether the people are exclusively engaged in driving the road train or engaged in the ancillary support activities for that task, clearly the focus of the work is haulage of coal off a coal mining lease, and once one accepts that, the work is squarely within the exception in clause 4.3.
So it's not a situation in which applying the facts to the quite plain provisions of the award that the work can be seen to be within the application of the award. It's very specific work that's being undertaken and it's squarely within the exclusion.
However, as can be seen conversely from paragraph 55 of the applicant's submissions, and paragraphs 56 and 57, the work being performed comfortably is within the Transport Award.
First, and I'm looking now at what's set out in paragraph 55 of the applicant's submissions, clause 4.1 is satisfied in that the applicant is in the road transport and distribution industry and that can be seen from the definitions or in clause 3 as extracted in paragraph 55. Work in the road transport and distribution industry is precisely what's being undertaken here by the applicant. The transport by road of, relevantly, material or anything whatsoever, whether it's raw state or natural state. That's what's happening here.
Secondly, the employees are within classifications listed in schedule C. If one goes to paragraph 56, you'll see that there is the general hand classification which picks up the yard personnel, so the work of the apprentice, and grade 4 there, driver of three-axel rigid vehicle exceeding 13.9 tonnes GVM. You will recall Mr Borg's evidence was the GVM is approximately 88 tonnes.
As you will also recall, regardless of what is being hauled, if you're not working as a yard person or apprentice, you're employed as a road train operator because you're either doing it day-in, day-out, or you're doing it regularly and expected to be able to do it. So the classifications apply. Interestingly, to put the matter almost beyond doubt, the award provides allowances that relate to coal haulage.
You'll see in that respect the definitions in clause 3 in respect of dirty material and the allowance for dirty material in clause 16.2(b)(vii). So this is an award which specifically provides an allowance in respect of hauling coal, and even if there was any doubt, in my submission, there's also then clause 4.8 which provides that where an employer is covered by more than one award, an employee of that employer is covered by the award classification which is most appropriate for the work performed by the employee and the environment in which the employee normally performs the work.
Conclusion
[78] For the aforementioned reasons, the CFMEU does not have industrial coverage of employees of the Applicant, performing the work as set out, who will be covered by the Agreement and therefore the Union cannot give notice under s.183(1) of the Act that the CFMEU seeks to be covered by the Agreement. Accordingly, based on all of the above, the applicable Modern Award for the purposes of the BOOT is the Road Transport Distribution Award 2010.
[79] I Order accordingly.
COMMISSIONER
Appearances:
Mr R Anderson, CFMEU, for the Applicant
Mr C Murdoch, Counsel, for the Respondent
Hearing details:
2017:
Brisbane
Tuesday, 17 January 2017.
Final written submissions:
6 October 2016 for the Applicant
26 October 2016 for the Respondent
1 PR963826 [2005] AIRC 890; (13 October 2005) .
2 CFMEU National Rules, clause 2 ‘Constitution’.
3 Construction, Forestry, Mining and Energy Union v Dyno Nobel Asia Pacific Limited - PR956868 [2005] AIRC 622
4 Construction, Forestry, Mining and Energy Union v Dyno Nobel Asia Pacific Limited - PR956868 [2005] AIRC 622
5 Construction, Forestry, Mining and Energy Union v Dyno Nobel Asia Pacific Limited - PR956868 [2005] AIRC 622 at [23].
6 [2014] FCAFC 148 at [21] – [22]
7 Construction, Forestry, Mining and Energy Union v Dyno Nobel Asia Pacific Limited - PR956868 [2005] AIRC 622
8 Re: DHL Supply Chain (Australia) Pty Ltd T/A DHL Supply Chain [2011] FWA 6863 .
9 CFMEU National Rules, clause 2 ‘Constitution’.
10 R v Hibble; ex parte Broken Hill Proprietary Co Ltd (1921) 29 CLR 290: R v Central Reference Board; ex parte Thiess (Repairs) Pty Ltd [1948] 77 CLR 123: Dyno Nobel v CFMEU PR956868; 14 July 2005 .
11 PR963826 [2005] AIRC 890; (13 October 2005) .
12 Affidavit of Mr Power, Paragraph 19 and 47 .
13 Affidavit of Mr Power Paragraph 22 and “GP08.”
14 Affidavit of Mr Power Paragraph 45.
15 Affidavit of Mr Power Paragraph 42.
16 Affidavit of Mr Power Paragraph 44 and 51.
17 Affidavit of Mr Power Paragraph 53.
18 Affidavit of Mr Power Paragraph 48.
19 See paragraph 51 and 52 of the Applicant’s outline of submissions .
20 Second Affidavit of Mr Borg, paragraph 22.
21 Ibid.
22 Klein v Metropolitan Fire and Emergency Services Board [2012] FCA 1402 at [163].
23 CFMEU rules, 2D.
24 See s.183(2) of the Act.
25 Application by Transfield Services (Australia) Pty Ltd [2014] FWC 5368 at [14].
26 Transcript PN[688] - [696]
27 Harnischfeger v CFMEU PR963826 [2005] AIRC 890; (13 October 2005)
28 Transcript at PN[771] – [772]
29 Transcript at PN[775] – [777]
30 Ibid at PN[816] – [824]
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