Mining and Energy Union v Glencore Coal Assets Australia Pty Ltd - Operator Awareness Monitoring Centre

[2025] FWC 471

[2025] FWC 471

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.236—Majority support determination

Mining and Energy Union
v

Glencore Coal Assets Australia Pty Ltd – Operator Awareness Monitoring Centre

(B2024/911)

DEPUTY PRESIDENT BOYCE SYDNEY, 18 FEBRUARY 2025

Application for a majority support determination – opposition by employer – whether union a “bargaining representative” – ss.176(3) and 236(1) of the Fair Work Act 2009 considered – whether union is entitled to represent the industrial interests of employees in relation to work that will be performed under the proposed enterprise agreement – union eligibility rules only part of the test - union in this case cannot be a bargaining representative under s.176(3) of the Fair Work Act 2009 – majority support determination application dismissed.

Overview

1. The Mining and Energy Union (MEU) has filed an application for a majority support determination (MSD) in respect of employees of Glencore Coal Assets Australia Pty Ltd (Respondent) who are employed to work at its Operator Awareness Monitoring Centre (OAMC), but excluding supervisors and managers.

1. The MSD has been filed by the MEU so as to initiate bargaining with the Respondent for a proposed single enterprise agreement that would apply to:

a)   the Respondent; and

b)   Operator Awareness Monitoring Centre Officers who work at the OAMC, located in Killingsworth, New South Wales (OAMC Officers).

1. The OAMC is situated in the above ground offices on the site of the former West Wallsend Underground Colliery (being an underground coal mine that no longer operates on that site).[1] The OAMC has been in operation since 2018.

1. OAMC Officers working at the OAMC undertake remote (mostly real time) monitoring and analysis of ‘events’ (relating to eye closures, distraction systems and on-board system component failures) in relation to mine personnel working on-site at:

a)   the Respondent’s coal mining operations (in Australia) at Ravensworth Open Cut, Mangoola Open Cut, Bulga Open Cut, Mt Owen Open Cut, United Wambo Open Cut, and Hunter Valley Operations Open Cut (NSW) and Claremont Open Cut, Ralston Open Cut, Newlands Open Cut, Collinsville Open Cut, Hail Creek Open Cut (Queensland);

b)   three coal mining operations in South Africa: iMpunzi, Tweefontein and Geodevonden; and

c)   the nickel-cobalt mining operation in Murrin Murrin, Western Australia.

1. There is no enterprise agreement that currently covers or applies to OAMC Officers, and the Respondent has not yet agreed to bargain, or initiated bargaining, for a proposed enterprise agreement with OAMC Officers.

1. There is no dispute that the Respondent is an employer in the Coal Mining Industry (CMI). Nor is there any dispute that OAMC Officers are employed by the Respondent to work in the CMI (i.e. OAMC Officers perform work for the Respondent (monitoring from a remote office) that is is directly connected with the day to day operation of coal mines and the production of coal).[2]

Objection to MSD

1. The Respondent opposes the MSD sought by the MEU on the grounds that the MEU is not a “bargaining representative” for OAMC Officers (within the meaning of ss.176 and 236(1) of the Act). More specifically, the Respondent’s objections (or contentions in opposition) to the MSD being made are:

MEU Rule Eligibility Objection

a)   As a registered organisation of employees, the MEU’s ability to represent employees engaged in connection with the CMI is qualified under its eligibility rules. These rules exclude persons working in the CMI that are employed in a supervisory, professional, administrative, clerical or technical capacity at a mine office (i.e. being employees who fall within the coverage or eligibility rules of the Association of Professional Engineers, Scientists and Managers, Australia (APESMA)). OAMC Officers are employees who work in an office in the CMI, and are employed in an administrative, clerical or technical capacity,[3] meaning that they are not eligible to be members of the MEU because they are employed in a capacity that is excluded by the MEU’s Rules.

Section 176(3) Objection

b)   The MEU cannot be the bargaining representative for OAMC Officers because, irrespective of any eligibility under the MEU’s Rules, the MEU is not entitled to represent the industrial interests of OAMC Officers “in relation to work that will be performed under the agreement” (s.176(3) of the Fair Work Act 2009 (Act)), being a requirement that transcends (or extends beyond) an analysis of the MEU’s Rules on the issue of MEU membership eligibility.

1. As explained later in this decision, the Respondent’s opposition to the MSD being made essentially rises and falls on the basis of whether or not the work undertaken or role performed by OAMC Officers falls within the eligibility rules of APESMA.

1. Directions were issued to program this matter for hearing. Both parties complied with the filing of materials in accordance with those Directions. I conducted a hearing to determine whether or not to make the MSD sought by the MEU. At this hearing, the MEU was represented by Mr Keenan Endacott, MEU Legal Officer, and the Respondent was represented (with permission) by Mr Tom Sanders, Senior Associate, Corrs Chambers Westgarth lawyers.

Factual findings

1. On the basis of the evidence before me, I make factual findings consistent with paragraphs [11] to [28] below.

What is the OAS?

1. The Respondent’s OAMC utilises its own proprietary Operator Awareness System (OAS) at the OMAC.[4]

1. The OAS is an advanced in-vehicle mine operator monitoring and fatigue detection system that runs 24/7.[5] It operates primarily through a small camera mounted on the dashboard of a vehicle cabin which faces the operator (driver). The camera has infrared lights imbedded in it, so that it can see during the night and through any dark (sun) glasses worn by the operator. It is also made up of a forward-facing camera, a GPS antenna, and computer, speaker, and vibrator modules.

1. The OAS is a monitoring, as opposed to a surveillance, system. In other words, the OAS monitors raw video footage for “events” as opposed to, for example, taking video footage to identify employee misconduct or gauge performance.

1. Whilst undertaking various forms of monitoring,[6] the OAS is primarily programmed to detect eye closures. For example, if the OAS detects that a mine operator (driver) is having an eye closure of more than 50% for a duration of 1.5 seconds or longer, it will trigger an audible alarm inside the vehicle’s cabin and a haptic alarm which vibrates the operator’s seat. The OAS also retrieves approximately 8-15 seconds of video footage that shows the eye closure (or other) “event” and sends that to an application (referred to as “OpWeb”) that can then be viewed (reviewed) by an OAMC Officer at the OAMC office.[7]

1. What occurs after an event is reviewed by an OAMC Officer is set out in the evidence of Ms Milly Walker, OAMC Supervisor since November 2022, and Mr Benjamin Murphy, OAMC Officer.[8]

The duties and responsibilities of OAMC Officers

1. Before taking up the role of OAMC Supervisor, Ms Walker previously worked as an OAMC Officer from August 2020 to November 2022. Prior to working for the Respondent, Ms Walker was employed for four and a half years as a heavy vehicle operator at the Mt Thorley Warkworth coal mine in New South Wales.[9] In short, the evidence given by Ms Walker in these proceedings is firmly grounded in her experience at the OAMC (as both an Officer and a Supervisor), and as an operator on a coal mine site.

1. As OAMC Supervisor, Ms Walker oversees the 13 to 14 OAMC Officers who monitor the 812 OAS in-vehicle units that are deployed across 15 mine sites.

1. All OAMC Officers report directly to Ms Walker.[10] Her position (as Supervisor) includes the following responsibilities and duties:

(a)managing coverage at the OAMC to ensure effective and continuous monitoring is achieved;

(b)managing OAMC Officer’s performance and provide feedback and coaching when required;

(c)completing performance reviews for OAMC Officers;

(d)maintaining leave roster and arranging coverage to ensure continuity of coverage;

(e)recruitment and training of OAMC Officers;

(f)providing feedback to sites on monitoring system and component failures;

(g)analysing reports to identify trends and performance;

(h)developing and maintaining operational procedures and templates;

(i)investigating OAS-related issues and concerns raised by sites, and applying corrective actions where applicable to address areas of improvement;

(j)accessing system databases and preparing reports to assist with the operation of the OAMC;

(k)preparing regular reports for internal stakeholders based on the data from the OAS;

(l)analysing OAS data (including trends) to identify and recommend business improvement opportunities; and

(m)collaborating with suppliers to identify improvement opportunities, including OAS software platform upgrades and troubleshooting as required.

1. Ms Walker gives the following evidence as to the manner in which OAMC Officers deal with OAS events:

“26. The OAS produces a number of different event types which are monitored by OAMC Officers, these categories are as follow[s]:

a) Searching Face;

b) Locked; and

c) Eyes Closed.

27. There are additional OAS event categories that are not actively monitored by the OAMC Officers.

28. The OAMC Officers then classify the event as per the relevant Trigger Action Response Plan (TARP). The OAMC Officers also have responsibilities relating to monitoring the overall functionality of the OAS, including identifying connectivity issues and component failures.

29. A copy of the OAMC Officer position description is annexed marked “A”, and a copy of the Responsible, Accountable, Consulted and Informed (RACI) Matrix for the OAMC is annexed marked “B”.

30. All of the main tasks performed by OAMC Officers on a day-to-day basis are governed by procedures and guidelines that have been developed by GCAA specifically for the OAMC, and which the OAMC Officers are required to comply. These are:

(a) OAMC OAS Component Failure procedure;

(b) OAMC Contesting an Event Rating Procedure;

(c) OAMC Event Comments Procedure;

(d) OAMC Hexagon Support Procedure;

(e) OAMC Historic Event Rating Procedure;

(f) OAMC Internal OAS Event Audit Procedure;

(g) OAMC Outage Procedure;

(h) OAMC OAS Footage Retrieval Requests Procedure;

(i) OAMC Site Communication Guideline; and

(j) OAS Manual Operator Profiling Guideline.

31. The procedures and guidelines contain detailed step-by-step instructions for the OAMC Officer to complete specific tasks. They include screenshots of the relevant sections of the OpWeb system that the OAMC Officers need to click through and insert relevant information to correctly categorise and action the task.

32. The procedures and guidelines have been developed specifically for the OAMC and the OAMC Officers are required to keep them confidential.

33. There are also four TARPs that correspond to each event type that is generated by the OAS. The TARPs specify how an event must be validated and the action that must be taken by the OAMC Officer in response to that validation of event. As part of my role, I am responsible for updating the TARPs, procedures and guidelines to ensure they remain fit for purpose as new procedures, software and hardware is introduced.

34. The OAMC TARPs and relevant reference material e.g. two-way ID list and communication scripting are available in hard copy on the OAMC Officers’ desks and electronic copies can be accessed in a folder on GCAA’s SharePoint.

35. All other OAMC procedures and guidelines are available in a hard copy folder located in the OAMC room and electronic copies can be accessed in a folder on GCAA’s Intranet and SharePoint site.”[11]

1. In her evidence, Ms Walker also:

a)   expands upon the nature of the tasks performed by OAMC Officers, and sets out in more detail the manner in which OAMC Officers engage in such tasks[12] and

b)   explains the additional or other duties performed by OAMC Officers, including shift handovers,[13] email monitoring, dealing with historic events, script communications (for verbal contact directly with operators),[14] footage retrieval, operator monitoring health checks (e.g. component failures, and server performance), and internal system checks (e.g. email processes, site disconnections, and two-way communications systems).[15]

1. None of Ms Walker’s evidence was challenged in any substantive sense, or otherwise undermined, during her cross-examination.[16]

1. Mr Murphy gave the following evidence as to the workings of the OAS:

“17. … There are too many in vehicle cameras that can be monitored by any human and there is in existence an OAS in place that constantly monitors the face of each operator. [T]hat system, through its algorithms, detects a possible fatigue event and unsafe and operational distractions. The system will capture almost anything related to fatigue and distraction, for example:

a. any eye closure,

b. looking away from the road,

c. looking down at the controls,

d. looking out of the side windows or otherwise,

e. when the eyes cannot be clearly seen because of issues with glare or dark glasses,

f. a searching face event (an example of a searching facing event is when someone is wearing a cap which could cover their eyes, sitting backwards looking up etc),

g. coughing and sneezing.

18. There is also the ability for the OAS to detect mobile phone signals. The technology is called Personal Electronic Device (PED) recognition. OAMC Officers are alerted through a series of infrared light signals to make us aware that there is a mobile phone signature in the cab in the proximity of the OAS.

19. …

20. There are two in-vehicle cameras. The principle camera that observes the face of the operator and there is what I refer to as a secondary camera, which is a forward-facing camera that shows the road ahead of the operator. One camera is looking at the operator and the other is looking, from the operator’s perspective, forward. By default, the image the OAMC Officer sees first is the footage from the facial camera.

21. … When looking at the operator through the screen, additional information is available which includes the operator’s name, the location in the pit, the truck number, the speed of the plant (this is needed in circumstances where the OAMC Officer observes an unsafe event). There is a phone on the desk, and the OAMC Officer presses the operator’s number and is connected through to the operator of the plant in real time.”

“31. Another proportion, which is not as significant as the direct monitoring, is the system checks. OAMC Officers are notified automatically when the system detects that some of the monitoring system is down. OAMC Officers also, on a periodic basis throughout the shift, check to see whether the systems are in fault at that current time.

32. It is important to do periodic checks, as the role is principally monitoring, and OAMC Officers want to ensure that all the monitoring systems are working properly. When the system is not working properly, OAMC Officers need to contact the operator and make them aware the system is not working properly so they know to be more aware of their own operational awareness. For example, if an operator is operating a vehicle believing there is a functional fatigue detection system in operation, that operator may behave differently than in circumstances where it is not. OAMC Officers will also prompt the operator on those calls to log that fault with their maintenance teams.”[17]

1. During cross-examination, Mr Murphy agreed that all OAS events can be (and are) classified under a Trigger Action Response Plan (TARP) set by the Respondent.[18]

1. In reply to Mr Murphy’s evidence, Ms Walker clarifies or corrects some of the statements made by Mr Murphy from a characterisation and/or factual perspective.[19] I do not consider it necessary to delve into the minutia of such matters for the purposes of making relevant findings in these proceedings. The nature of the work performed by OAMC Officers does not change based upon the number or frequency of events.

1. The duties and responsibilities for the role of OAMC Officer set out in the OAMC Officer ‘Position Description’, “include”:

a)   Conduct shift handover, ensuring all critical information is communicated;

b)   Check and monitor both personal and GRP inbox emails;

c)   Check and monitor connectivity to all sites;

d)   Respond promptly to all events as produced by the Operator Awareness System;

e)   Consistently rate OAS events through the utilisation of GCAA TARPs;

f)   Provide accurate and timely notification to site stakeholders on the status of operator awareness as necessary;

g)   Address queries from authorised site personnel regarding the status of on shift performance/data;

h)   Provide feedback to the Operator Awareness Monitoring Centre Supervisor on system and site performance;

i)   Complete action log/comments in OpWeb;

j)   Provide assistance to all operations for the retrieval of video based incident event footage or other event information as required;

k)   Conduct internal system health check (email process, site disconnections, two-way analysis);

l)   Conduct monitoring system health check (component failures, server performance);

m)   Maintain and troubleshoot (if required) all utilised OAMC equipment/hardware; and

n)   Complete and participate in any documentation/tasks that are requirements of the role (rounding reports, monthly event audits etc.).[20]

OAMC Officers relevant experience and qualifications

1. In terms of the requisite qualifications and experience of OAMC Officers (required by the Respondent), Ms Walker, gives the following uncontested evidence:

“79. OAMC Officers are not required to have any prior experience or qualifications. The only pre-requisite for the role is that they have basic computer skills.

80. GCAA does not require OAMC Officers to have a background in the mining industry. The skills and abilities that are prioritised by me when recruiting for the role of OAMC Officer is attention to detail, good written and verbal communication skills, and a high level of empathy.

81. All training for new OAMC Officers is conducted entirely on the job. The training program for an OAMC Officer is completed over a full 28-day roster, so that new OAMC Officers gain exposure to each type of shift. Over those 28 days, the trainee will shadow an experienced OAMC Officer and learn by:

(a) observing the OAMC Officer perform the role;

(b) receiving guidance and instruction from the OAMC Officer about the various policies and procedures; and

(c) taking control of the desk under the supervision of the more experienced OAMC Officer.

82. Over the 28 days, the trainer will progressively allow the trainee to progressively perform tasks on the desk until they become confident and competent in the role.

83. Once the training is complete, the trainee will be allowed perform the role of OAMC Officer independently. The trainer (experienced OAMC Officer) of the trainee (new OAMC Officer) conducts a review after two months to ensure the new OAMC Officer is still performing the role competently. Assuming no issues are identified during the two- month review, no further training is required.”[21]

1. The “Qualifications & Experience” set by the Respondent for the role of OAMC Officer are contained in the OAMC Officer ‘Position Description’, which relevantly reads:

a)   Basic computer skills;

b)   Ability to remain engaged with repetitious tasks that consist of limited variation with minimal supervision;

c)   Ability to work in high pressure and competing priority environments;

d)   Demonstrate and apply positive leadership qualities including good written and verbal communication skills;

e)   Good interpersonal, cooperative and facilitation skills as part of interfacing with various levels of management and external bodies and agencies

f)   Demonstrate a good level of compassionate empathy ;

g)   Act decisively;

h)   Intellect coupled with motivation and drive;

i)   Act honestly and with integrity and respect at all times;

j)   Respect the values and diversity of others;

k)   Drive performance within the Business; and

l)   Develop others. [22]

1. Ms Walker’s evidence as to the remuneration and other benefits received by OAMC Officers was unchallenged by the MEU in these proceedings.[23]

Legislative provisions

1. The relevant provisions of the Act in respect of MSDs are contained under ss.236 and 237. They read:

“236 Majority support determinations

(1)        A bargaining representative of an employee who will be covered by a proposed     single - enterprise agreement may apply to the FWC for a determination (a      majority support determination) that a majority of the employees who will be    covered by the agreement want to bargain with the employer, or employers, that     will be covered by the agreement.

(1A)     Despite subsection (1), a bargaining representative may not apply to the FWC      for a determination if a supported bargaining authorisation that specifies the      employee is in operation.

Note:    While a supported bargaining authorisation that specifies an employee is in operation,     an employer cannot bargain with that employee for any kind of agreement other than a          supported bargaining agreement (see subsection 172(7)).

(1B)     Despite subsection (1), a bargaining representative of an employee may not          apply to the FWC for a determination if:

(a)       a single interest employer agreement or a supported bargaining      agreement applies to the employee; and

(b)      the agreement has not passed its nominal expiry date.

(2)      The application must specify:

(a)       the employer, or employers, that will be covered by the agreement; and

(b)      the employees who will be covered by the agreement.

237 When FWC must make a majority support determination

Majority support determination

(1)        FWC must make a majority support determination in relation to a proposed          single-enterprise agreement if:

(a)       an application for the determination has been made; and

(b)       FWC is satisfied of the matters set out in subsection (2) in relation to the         agreement.

Matters of which FWC must be satisfied before making a majority support determination

(2)       The FWC must be satisfied that:

(a)       a majority of the employees:

(i)who are employed by the employer or employers at a time determined by the FWC; and

(ii)who will be covered by the agreement;

want to bargain; and

(b)      the employer, or employers, that will be covered by the agreement have     not yet agreed to bargain, or initiated bargaining, for the agreement; and

(c)       the group of employees who will be covered by the agreement was fairly   chosen; and

(d)      it is reasonable in all the circumstances to make the determination.

(3)      For the purposes of paragraph (2)(a), FWC may work out whether a majority of    employees want to bargain using any method FWC considers appropriate.

(3A)     If the agreement will not cover all of the employees of the employer or                  employers covered by the agreement, FWC must, in deciding for the purposes                  of paragraph (2)(c) whether the group of employees who will be covered was   fairly chosen, take into account whether the group is geographically,   operationally or organisationally distinct.

Operation of determination

(4)       The determination comes into operation on the day on which it is made.”

1. Section 176 of the Act is relevant to the definition of “bargaining representative”, including for the purposes of s.236(1) of the Act. Section 176 (relevantly) reads:

“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; …

(ii)…;

…; or

(c)   …;

(d)   ... .”

Bargaining representatives for a proposed multi‑enterprise agreement if a supported bargaining authorisation is in operation

(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)        …”

1. It can be seen that the words of s.176(3) of the Act are broader than, for example, the words set out in s.540(6)(b)(ii) of the Act, the latter being limited to the words “entitled to represent the industrial interests of the person” (which is merely an eligibility issue).[24] In other words, the proper resolution of these proceedings does not solely turn upon the eligibility of OAMC Officers for MEU membership (under the MEU’s Rules). The MEU (as a “bargaining representative”) also needs to satisfy the Commission (in addition to eligibility) that the MEU is entitled to represent the industrial interests of OAMC Officers “in relation to work that will be performed [by OAMC Officers] under the agreement”. In this regard, I find, consistent with the Respondent’s submissions on this point, that:

a)   Section 176(3) of the Act limits the extent to which a union can represent the industrial interests of relevant employees (members) as a “bargaining representative” (irrespective of the scope of that union’s rules). In other words, a union “cannot be a bargaining representative” for a relevant employee/s unless that union is entitled to represent the industrial interests of those employee/s “in relation to work that will be performed under the agreement”. Union eligibility is not the ultimate test; and

b)   in resolving a dispute (as to whether or not a union is entitled to represent the industrial interests of relevant employees in relation to the work that will be performed under the proposed enterprise agreement), the Commission can have regard to (or take into account) the established custom and practice adopted by the relevant union (in this case the MEU and its predecessors) under the previous (i.e. pre-modern award) award system for the purpose of resolving whether such a union is indeed a “bargaining representative” for the purposes of s.176 of the Act.[25] The history of coverage and eligibility of a relevant union is relevant to the determination of any such established custom and practise.

MEU’s Rules

1. The MEU’s Rules provide that relevant persons are eligible to members of the MEU if they are “engaged in or in connection with the coal and shale industries”.[26]

1. However, Rule 2(E)(b) of the MEU’s Rules reads:

“Without limiting the generality of the foregoing and without being limited thereby, the union shall also consist of an unlimited number of persons engaged in any capacity in connection with coal and shale mining; in connection with the coke industry, but excepting persons employed in the iron, steel and metal industries; and excepting also persons who are now members, or in the future may be eligible for membership of the United Collieries Staff Association of New South Wales; but as regards the last mentioned union, so as not to exclude lampmen and grooms.”[27]

1. The Respondent submits that MEU Rule 2(E)(b), both historically and today, has the effect of excluding OAMC Officers (or the work performed by OAMC Officers) from MEU membership eligibility. The MEU therefore cannot be a bargaining representative for OAMC Officers within the meaning of s.176 of the Act, or otherwise advance its MSD before the Commission.

1. MEU Rule 2(E)(b) provides for an exclusionary rule, by reference to a person who “may” be “eligible for membership” of the United Collieries Staff Association of New South Wales (UCSA). In other words, the focus of the test (for exclusion) is upon eligibility for membership of the UCSA, not the eligibility for membership of the MEU itself. It creates an express exception to the MEU’s broad coverage in the CMI.

1. The reference to UCSA in MEU Rule 2(E)(b) is both straightforward and problematic:

a)   straightforward in that sense that it reflects the fact that staff positions in the coal mining industry in New South Wales have historically been exclusively represented by APESMA and its predecessors.[28] Indeed, MEU Rule 2(E)(b) arises from the registration (in New South Wales) of the Australian Coal and Shale Employees’ Federation, Southern District in 1938[29] (that subsequently amalgamated with the MEU).[30] The relevant UCSA rule (founding the exclusion contained in MEU Rule 2(E)(b)) reads:

“The [USCA] shall consist of members who are employed in and about coal mines, as under managers, overmen, engineers-in-charge, assistant engineers in-charge, electricians in-charge, assistant electricians in-charge, chief clerks, senior clerks, junior clerks, store clerks, weigh clerks, who are engaged in office work, traffic officers, mine surveyors, surveyors’ assistants other than labourers, timekeepers solely employed as such, surface foremen, screen overseers, overseers of railway operations and other than leading fettlers or gangers, and any recognised colliery official approved by the Council and not provided by any other Industrial Award and any other person although not coming within the aforesaid classifications who shall hold an official position in the [USCA].”;[31] and

b)   problematic in the sense that the UCSA no longer exists, and despite being previously registered,[32] ceased to exist at an unknown point in time.[33] As Mr Matthew Howard, District Vice President of the Northern Mining and NSW Energy District Branch (Northern District) of the MEU states:

“26. I have, in the performance of my role, attended the OAMC and have represented the interests of the OAMC Officers. The Respondent has denied the request to commence bargaining and I understand now raises that the OAMC Officers are not eligible for membership of the MEU.

27. I understand the Respondent does so on the basis that the OAMC Officers are eligible for membership of the United Collieries Staff Association of NSW.

28. The United Collieries Staff Association of NSW was a trade union registered in NSW. That organisation existed as a legal identity. That organisation, at a point of time that cannot be determined, ceased to exist.

29. A review of decisions of the Coal Industry Tribunal and those available with respect to the NSW Industrial Relations Commission or Federal Commissions and Courts cannot find any occasion at which the reference to the United Collieries Staff Association of NSW has been used, either in a demarcation dispute or to deny to anyone working in or in connection in the coal industry membership of the Mining and Energy Division of the CFMEU of NSW Union or the MEU.

30. Attached and marked MH-5 is a document downloaded from the NSW Industrial Commission website that identifies organisations registered under the Industrial Relations Act. The United Collieries Staff Association or any predecessor known organisation is not listed as existing (sourced 30/8/2024 – Index of Registered Industrial Organisations and State Peak Councils. (n.d.). Retrieved from

31. I am aware there was a federally registered Australian Collieries Staff Association that existed as a separate legal identity registered under the Fair Work RO Act. I am aware that the identity deregistered on 1 December 2001, see The Association of Professional Engineers, Scientists and Managers, Australia v Australian Collieries’ Staff Association - PR911732 [2001] AIRC 1283; (1 December 2001) PR911732.[34]

32. I understand the Respondent has raised that the United Collieries Staff Association of NSW should be read as the Colliery Staff Division of the federally registered union known as the Association of Professional Engineers, Scientists and Managers Australia (APESMA). There exists a state registered industrial organisation of employees under Chapter 5 of the Industrial Relations Act, known as the NSW registered trade union The Association of Professional Engineers, Scientists and Managers, Australia (NSW Branch) (APESMA NSW). Attached and marked MH-6 is a copy of the Eligibility Rules of that NSW union, APESMA NSW (sourced 30/8/2024 - Organisation Membership Rules. (n.d.). Retrieved from That union’s Eligibility Rules do not contain a Collieries Staff division, as I understand. There was no United Collieries Staff Union of NSW or a later named Australian Collieries Staff Association of NSW in existence when there was the deregistration of the Australian Collieries Staff Association and the expansion of the rules of APESMA to include a Collieries Staff division.”[35]

1. It is apparent from the MEU’s submissions that it seeks to have the Commission read certain words in MEU Rule 2(E)(b) as surplusage, thereby opening the way for the MEU to enrol persons previously excluded from MEU membership eligibility (i.e. because they were members, or eligible for membership, of the UCSA). In other words, the MEU submits that MEU Rule 2(E)(b) should be read (today) as follows:

“Without limiting the generality of the foregoing and without being limited thereby, the union shall also consist of an unlimited number of persons engaged in any capacity in connection with coal and shale mining; in connection with the coke industry, but excepting persons employed in the iron, steel and metal industries; and excepting also persons who are now members, or in the future may be eligible for membership of the United Collieries Staff Association of New South Wales; but as regards the last mentioned union, so as not to exclude lampmen and grooms.”

1. In short, the MEU says that the exemption in MEU Rule (2)(E)(b) for USCA members (or persons eligible to be USCA members) not be read as having any application or effect to the extent that it might be read to limit OAMC Officer eligibility for MEU membership in New South Wales, and/or disqualify the MEU to be a bargaining representative for OAMC Officers under ss.176 and 236(1) of the Act.

1. The Respondent’s position (in summary) is that, to give proper effect to MEU Rule 2(E)(b), both historically and today, the Commission should interpret it to apply to persons who are now, or in the future may be, eligible for membership of the Collieries Staff Association of APESMA. It points to the following historical outline of MEU Rule 2(E)(b):

“45. The origin of the exclusion [in MEU Rule 2(E)(b)] dates back to the registration of the New South Wales branch of a predecessor to the MEU, the Australian Coal and Shale Employees’ Federation.[36]

46. On 20 May 1938, the Industrial Registrar of New South Wales granted an application by the Australian Coal and Shale Employees’ Federation, Southern District for registration as an industrial union.[37] The District sought registration to cover an unlimited number of persons engaged in any capacity in connection with the coal and shale mining industry and other industries.

47. The Industrial Registrar held that the United Collieries Staff Association of New South Wales was capable of protecting the industrial interests of their members and therefore granted the application on the proviso that the District’s constitution be amended to read:

“This District shall consist of an unlimited number of persons engaged in any capacity in connection with coal and shale mining; in connection with the coke industry, and excepting also persons who are now members , or in the future may be eligible for membership, of The United Collieries’ Staff Association of New South Wales.”

48. On 3 August 2017, the federally registered CFMEU amended its rules to extend eligibility to persons how were eligible to be members of the state registered CFMEU NSW branch.[38] In doing so, it introduced a new rule 2(P), which replicated the text of the existing eligibility rules of the [MEU’s] NSW branch. Relevantly, the exclusion of persons who were eligible to become members of the United Collieries Staff Association of NSW was inserted at rule 2(P)(E)(b) of the CFMEU’s rules. The rules were subsequently amended when the MEU de-amalgamated with the CFMEU, such that the exclusion is now found at rule [2(E)(b)] of the MEU rules.

49. Staff in New South Wales were historically represented by the United Collieries Staff Association of New South Wales. Its constitution provided that:[39]

“The Association shall consist of members who are employed in and about coal mines, as under managers, overmen, engineers-in-charge, assistant engineers - in charge, electricians in charge, assistant electricians in charge, chief clerks, senior clerks, junior clerks, store clerks, weigh clerks who are engaged in office work, traffic officers, mine surveyors, surveyors’ assistants other than labourers, timekeepers solely employed as such, surface foremen, screen overseers, overseers of railway operations other than leading fettlers or gangers, and any recognised colliery official approved of by the Council and not provided by any other Industrial Award and any other person although not coming within the aforesaid classifications who shall hold an official position in the Association.”

50. The evolution of United Collieries Staff Association of New South Wales into what is now the Collieries’ Staff and Officials Association of APESMA is as follows:

a. on 29 June 1923, the United Collieries Staff Association of New South Wales was registered as an industrial union in the state of New South Wales (having been registered as a trade union since 1921);[40]

b. on 1 May 1944, the Australian Collieries Staff Association (ASCA) was established as a federally registered union under the Commonwealth Conciliation and Arbitration Act 1904;[41]

c. in 1943, the United Collieries Staff Association of New South Wales changed its name to the ‘Australian Collieries’ Staff Association’,[42] before changing it again in 1944 to the ‘Australian Collieries’ Staff Association, New South Wales Branch’, reflecting its status as a state-registered branch of the federally registered Australian Collieries Staff Association;[43] and

d. on 1 December 2001, the ASCA amalgamated with APESMA and became the Collieries’ Staff and Officials Association (also known as the Collieries’ Staff Division of APESMA).[44]

51. At the time ASCA applied to the Australian Industrial Relations Commission for order authorising a ballot of its members regarding the proposed amalgamation with APESMA, ASCA had some 2,054 members employed in the coal mining industry in Queensland, New South Wales, Tasmania and Western Australia.[45]

52. A transcript of the proceedings confirms that, as part of the amalgamation, a new colliery staff division would be established to accommodate the membership of ACSA. Further, within the new colliery staff division, there will be districts in each of what were formerly branches of ACSA in New South Wales, Queensland and Western Australia.[46]

53. A review of the rules of APESMA published on 23 January 2002 (shortly after the amalgamation) confirms that on amalgamation, the funds of the New South Wales Branch of the ACSA became part of the Collieries Staff Division Fund known as the New South Wales Districts Legal Defence Fund.[47]

54. Therefore, while the Australian Collieries’ Staff Association NSW Branch did not itself amalgamate with APESMA, it is apparent from the forgoing that the NSW Branch (and the other ACSA branches) became districts of what is now the Collieries’ Staff Division of APESMA.”[48]

1. The Respondent also highlights the position taken by the MEU before the Commission, and the (former) Coal Industry Tribunal, as follows:

“15. The demarcation of APESMA and the MEU’s coverage in NSW corresponds with the broad categories of employees in the Black Coal Mining Industry Award; the MEU covers production and engineering employees (referred to as Schedule A employees in the Award), and APESMA covers staff employees (referred to as Schedule B employees in the Award).

16. This is evident from various cases that have involved the two unions and their predecessors. As was not contested and referred to in Australian Collieries’ Staff Association re Coal Mining Industry (Supervision and Administration) Consent Award 1999 [2004] AIRC 449 at [93]:

“APESMA is entitled to represent certain classes of persons in specified classifications in the coal mining industry. The relevant rule of the APESMA is Rule 3.12 Collieries Industry. Within the coal industry those persons are referred to as staff. They are persons who are employed in supervisory, professional, administrative, clerical or technical capacities. They have been represented by the APESMA or its predecessor the Australasian Colliery Staff Association (ACSA) since 1921. The Association is the only federally registered trade union representing staff in the coal mining industry in New South Wales, Queensland, Western Australia and Tasmania.”

17. See also in Award Modernisation [2008] AIRCFB 1000 at [155]:

“The Construction, Forestry, Mining and Energy Union (CFMEU) is the key union that represents production employees in the industry. The Association of Professional Engineers, Scientists and Managers, Australia (APESMA) is the key union representing staff employees in the industry.

18. See also the succinct statement in Construction, Forestry, Maritime, Mining and Energy Union v Anglo American Australia Limited [2019] FCAFC 109 at [55]:

“The CFMMEU represents miners in the black coal mining industry. The APESMA represents staff workers in that industry.”

19. Therefore, although [MEU] rule [2(E)(b)] refers to the former United Collieries Staff Association of New South Wales, to give proper effect to the rule, it must follow that a person is not eligible to become a member of the MEU if they are a member, or eligible to become a member, of what is now the Collieries’ Staff Division of APESMA.

20. This interpretation ensures that APESMA, which has a longstanding and active history of representing staff employed in the coal industry in NSW, continue to do so and avoids a significant expansion of representational rights of the MEU, which is likely to result in a demarcation dispute between two unions that have historically clearly delineated their coverage within the coal industry.”[49]

1. The history of coverage and eligibility of the MEU, in my view, does not weigh in favour of the MEU having coverage (under its rules or otherwise) of ‘staff’ employees working in the CMI. This is particularly so having regard to the decision of SDP Williams in The Association of Professional Engineers, Scientists and Managers, Australia v Australian Collieries’ Staff Association,[50] and the decision of the Industrial Registrar of New South Wales in respect of the registration of the of the Australian Coal and Shale Employees’ Federation, Southern District in 1938.[51]

1. The MEU’s submissions very much focus upon the issue of separate legal entity (or identity) to assert that MEU Rule 2(E)(b) is not to be read or applied as having any exemptive effect in relation to MEU membership eligibility for OAMC Officers.[52] I do not consider that the mere fact that a registered union (state or federal) was previously a separate legal entity to another registered union (state or federal) to be of any real assistance to the resolution of the meaning of MEU Rule 2(E)(b) in this case. This is especially so in the context of, between 1938 and today, the legislative changes (including reliance upon the corporations power), name changes, registrations, de-registrations, and the various union amalgamations and de-amalgamations that have occurred.

1. The phrase in MEU Rule (2)(E)(b) “persons who are now members, or in the future may be eligible for membership of the United Collieries Staff Association of New South Wales” had a clear and ‘identifiable’ meaning on 20 May 1938 (when the Industrial Registrar of New South Wales granted an application by the Australian Coal and Shale Employees’ Federation, Southern District for its registration as an industrial union).[53] That meaning remains identifiable today (by reference to the UCSA Rules).[54] No MEU rule change application has been made to remove or otherwise alter those words or the coverage exclusion set out therein.

1. The history identified by the Respondent (set out at paragraphs [39]-[40] of this decision) is not simply directed to the replacement of one legal entity for another as a matter of convenience for the purposes of avoiding the making of the MSD (as submitted by the MEU).[55] I find that that the history of MEU Rule 2(E)(b) points to the exclusion contained therein as continuing to have work to do, such that it ought to be read as excluding from MEU membership persons (engaged in or in connection with the coal industry in New South Wales) who are now, or in the future may be, eligible for membership of the Collieries Staff Association of APESMA (under its federal rules). In short, the reference to UCSA under MEU Rule 2(E)(b) is to be read as a reference to APESMA.

Further questions to be answered

1. The foregoing finding, that the exclusion set out in MEU Rule 2(E)(b) still has work to do, is not the end of the matter. In this regard, two further interrelated questions remain to be answered, namely:

a)   For the purposes of the exclusion contained in MEU Rule 2(E)(b), are OAMC Officers eligible for membership of the Collieries Staff Association of APESMA?; and

b)   Is the MEU “entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement”?

1. I refer to these questions as interrelated in the sense that a positive answer to either question will results in the MEU not being able to be a bargaining representative for OAMC Officers (i.e. by virtue of the MEU Rule (2)(E)(b) exclusion, and/or by virtue of the fact that the MEU is not entitled to represent the industrial interests of OAMC Officers “in relation to work that will be performed under the agreement” as required by s.176(3) of the Act).

APESMA’s Rules

1. Rule 3.12 ‘Collieries Industry’ of the registered rules of APESMA, relevantly, reads:

“3.12     Without in any way limiting or being limited by Rule 3.1 to 3.11 or Rule 3.13       and 3.14, the following persons shall be eligible to be members of the      Organisation:

3.12.1 …;

3.12.2 Persons who are employed in the coal or shale mining industry in a supervisory, professional, administrative, clerical or technical capacity up to and including the level of responsibility of under manager in charge in a mine office or mine laboratory where that person’s work is directly connected with the day to day operation of a coal or shale mine and the production of coal or shale whether or not such mine office or mine laboratory is situated on a coal mining lease.

…”[56]

1. I concur with the Respondent’s position that the use of the word “or” in the words “supervisory, professional, administrative, clerical or technical capacity” is conjunctive as opposed to disjunctive.[57] I do not accept that a person falling within APESMA Rule 3.12.2 needs to be employed in a singular capacity or individual stream (e.g. administrative, or clerical, or technical), but may perform work that falls within or across some or all of these specified capacities or streams (e.g. administrative, and/or clerical, and/or technical). Noting that the real focus is the primary purpose or major/substantial aspect of the role needing to fall within one of the specified categories.

1. Neither party submitted (or otherwise identified) any issue of dual coverage (historical or otherwise) between the MEU and APESMA in the CMI. Further, the history of MEU coverage in the CMI (as already set out in this decision), is against any suggestion of dual coverage. As Mr Sanders, on behalf of the Respondent, points out:

“What [the MEU] has not been able to do, sir, is bring forth evidence or previous cases where the MEU, or any of its predecessors, have actually represented the industrial interests of staff employees in the coal industry, whether in New South Wales or elsewhere.

[The MEU] has not put forward [such evidence], because as far as I’m aware from my own research there [are] no cases, where the MEU has represented the industrial interests of staff employees in the black coal mining industry. There is not an award, under the pre-reform system, under the pre-modernisation system, where the MEU has been party, or a respondent, to an award that has covered staff employees in the black coal mining industry. It’s always been APESMA or one of its predecessors.”[58]

1. Both parties accept that OAMC Officers work in the CMI, at a mine office, and perform work that is directly connected to the day to day operation of a coal mine and the production of coal.[59] I make findings consistent with the position of the parties in this regard (the evidence does not say otherwise). It follows that the substantive contest to be resolved in these proceedings concerns whether or not OAMC Officers are employed by the Respondent in an administrative, clerical or technical capacity.

1. The membership of APESMA is primarily comprised of employees engaged in supervisory, professional, administrative, clerical and technical occupations in the CMI. Those positions are often referred to as “Staff” positions in the CMI (in contrast with the “production and engineering” positions, like coal mine operators). Such Staff positions are not exclusively defined, and expressly include the occupations of deputy, undermanager, shift engineer and control room operator.

What is the principal purpose of an OAMC Officer role?

1. Prior to considering whether the work performed by OAMC Officers falls within the ordinary meaning of the words “administrative, clerical or technical capacity”, it is appropriate to make a finding as to the principal purpose of an OAMC Officer role.[60] In doing so, the focus is upon the purpose that OAMC Officers are employed, as opposed to simply the duties that they perform (or the time spent performing any specific duty/s).[61] As was highlighted by Justice Gray in Joyce v Christofferson,[62] the primary function of an employee is to be determined by looking at what the employee actually does [the work performed] in the context of the employer’s organisation of work.[63] The manner in which the parties described a particular role is also relevant in ascertaining its purpose.[64]

1. On the evidence before me, I find that the principal function of an OAMC Officer is to review and validate events that are generated by the OAS (irrespective of the type of vehicle that the OAS is installed in, and irrespective of who is operating that vehicle, e.g. operator, supervisor, manager), and thereafter deal with those events in the manner (or substantially in the manner) prescribed by the Respondent.[65]

MEU’s contention – OAMC Officers do not work in an “administrative, clerical or technical capacity”

1. The MEU contends that OAMC Officers do not fall within the scope of Rule 3.12.1 of APESMA’s Rules because the work performed by them is not reflective of employment in an administrative, or clerical, or technical capacity.[66] In this regard, the MEU submits:

a)   Even if OAMC Officers perform some technical functions, they are not employed in a technical capacity, and do not fall within the descriptors of the definition of “Technical”;[67]

b)   OAMC Officers do not fall within the descriptors of the definition of “Administrative”, in that:

“31. The OAMC Officers are not involved in the management or direction of an office or employment, nor do they fall within any of the other identifiers of the word “administration” from the dictionary definition.

32. The position description for the OAMC Officers, with respect to operational performance and specific responsibilities, are not reflective of an employee whose duties are described as administrative. With the qualifications and experience requirements within the same and associated skills and responsibilities, at no time identifying administrative skills as either a function or requirement of the OAMC Officers job.

33. The evidence of the duties the OAMC Officers principally perform, the procedures in operation at the OAMC and the TARPs the OAMC Officers are to comply with are not reflective of an administrative employee. The duties of the OAMC Officers are non-administrative and principally involve non- administrative type duties, for example …

34. The duties of OAMC Officers are non-administrative, focusing on real-time monitoring, decision- making, fault detection, and direct communication with operators and supervisors to ensure the safety and efficiency of mining operations. Their role requires the ability to respond quickly to changing conditions, and active involvement in the operational aspects of the mine.”[68]

Respondent’s contention – OAMC Officers do work in an “administrative, clerical or technical capacity”

1. In responding to the foregoing contentions of the MEU, the Respondent makes the following submissions:

“27. APESMA’s rules at rule 3.12 sets out the eligibility for persons working in the collieries industry to be members. Relevantly, rule 3.12.2 provides that a person is eligible to become a member if they are “employed in the coal or shale mining industry in a supervisory, professional, administrative, clerical or technical capacity.”

28. The Applicant’s position appears to be that unless the role of OAMC Officers fit precisely within one of the five categories in rule 3.12.2, they are ineligible for membership of APESMA. This submission is without merit. Any staff role is very likely to involve the performance of a wide range of duties, which may incorporate one or more aspects of the five categories. The Commission should adopt a flexible and pragmatic interpretation of each of these categories.

29. Paragraph 28 and 29 claim OAMC Officers do not perform any duties that could be described as ‘technical’. GCAA’s position is the OAMC Officers perform two tasks that are technical:

a. conducting internal system health check (email processes, site disconnections, two-way communications systems); and

b. conducting monitoring system health check (component failures, server performance).

30. GCAA submits that these tasks are technical as they involve knowledge and methods of a particular subject or job. Namely, OAMC Officers have specialised knowledge of the various components of the OAS system which they apply in order to understand the nature and implications of system faults.

31. These tasks also require the OAMC Officers to follow a process under a relevant procedure in order to conduct the checks and pass on information about faults to the relevant personnel. Therefore, GCAA submits that tasks are on the lower end of what could be described as ‘technical’. For this reason, it would also be open to the Commission to view these tasks as administrative in nature.

32. In response to paragraph 30 and 31, GCAA submits that the reference to Macquarie Dictionary meaning of the noun “administration” is provided by the MEU is of limited assistance. The ordinary meaning of “administrative” relates to the arrangements and work that is needed to control the operation of a plan or organisation.

33. The principal function of OAMC Officers is administrative in nature because it essentially involves the receiving, processing and recording of information, because:

a. the OAMC Officer review and validate a high volume of events generated by the OAS;

b. the OAMC Officers then classify each validated event in accordance with one of the five TARPs;

c. when an action is required under the TARP classification, OAMC Officers complete the action in accordance with the TARP and relevant policies/procedures; and

d. once an action has been completed, the OAMC Officer logs a comment recording that the action has been completed and files the automatic email generated by the OAS.

34. Where the OAMC Officer is required to contact site personnel, the purpose of the contact is to provide information about the OAS event. OAMC Officers do not provide instructions or direction to any site personnel.

35. The validation of historic events is also an important part of the OAMC Officer role because the validation of the historic events is relevant to the reporting of safety metrics of each mine site.

36. The effectiveness of the OAS depends on timely and accurate review, classification and notification of events by OAMC Officers. Once an OAMC Officer has notified the relevant stakeholders of the event (e.g. the vehicle operator, site office, IT department), the OAMC Officer is not involved in resolving the matter.

37. The fact the only pre-requisite for an OAMC Officer role is that the applicant has basic computer skills is reflective of the administrative nature of the role.

38. OAMC Officers are not required to have a background in mining, nor do they need to have experience operating heavy machinery in order to do the role. All of their training on the job over a 28-day period where they are supervised by an experienced officer.

39. OAMC Officers also receive benefits that are only offered to staff positions by GCAA.

40. It is also open for the Commission to find that the work performed by OAMC Officers is of a clerical nature. “Clerical” is defined as relating to work done in an office, dealing with files, records, etc. A “clerk” is defined as someone employed in an office, shop, etc., to keep records or accounts, attend to correspondence. Due to clerical workers performing work that is often administrative in nature, we submit there is a significant degree of overlap in the meaning of these two terms.

41. Paragraph 33 characterises the OAMC Officers performing non-administrative tasks. We respond using the same subparagraph numbers:

1. OAMC Officers do not conduct constant surveillance of potential fatigue events and unsafe operational distractions among mining production operators. Their principal function is as reviewing and validating the events that are generated by the OAS (irrespective of the type of vehicle that the OAS is installed in and who is operating the vehicle). The OAS is installed in haul trucks, service trucks and light vehicles across 15 mine sites.

2. The categorisation of events generated by the OAS does not require the assessment of operational conditions or GPS location. The precise location of the vehicle is not available to the OAMC Officer. Addition information, such as the vehicle speed, is only relevant to the extent that whether a Distraction Event is categorised as a “Behaviour Distraction” or an “Unsafe Distraction”.

3. OAMC Officers are not in continuous communication with production operators, nor do they make real-time decisions based on observations to ensure safety and compliance. Where required under the TARP, the OAMC Officer will make brief contact the operator or site dispatch (as dictated by the TARP) to provide information in relation to the event. Beyond this, OAMC Officers do not make decisions or provide instructions to operators and site dispatch. On average, OAMC Officers make 1.3 calls per hour and the average call duration is 28.7 seconds.

4. OAMC Officers respond to alerts automatically generated by the OAS and sent to the shared inbox that notify that a mobile phone signal has been detected.

5. OAMC Officers are not required to assess road conditions, nor do many of them have the requisite skills or experience to understand road conditions. Road conditions are not a factor that needs to be taken into account when an OAMC Officer is classifying an event.

6. OAMC Officers do not address issues with faults or weather-related halts. They conduct limited troubleshooting of faults and report these to site. They also seek confirmation from the site about operations stopping due to weather events.

7. OAMC Officers are required to contact supervisors and dispatch teams in order to provide information about a fatigue or distraction event in accordance with the applicable TARP. Once the site office or mine supervisor has been notified of the event, they are responsible for ensuring that the event is addressed in accordance with the site’s safety management plan. OAMC Officers do not coordinate with supervisors or dispatch to ensure operator safety. Only in NSW (and excluding Hunter Valley Operations) can OAMC Officers request an operator stop the vehicle at the nearest safe location. OAMC Officers cannot provide advice about where the safe location is or what to do when the operator arrives at the location. This is governed by the site’s safety management plan and the responsibility of the mine supervisor.

8. OAMC Officers are not engaged in hands on training for approximately one-week per year to understand and improve safety protocols, this appears to be a reference to a plan that was never operationalised. OAMC Officers participate in two training days per year. These training days are often held on site to gain familiarity with the mining operations that are monitored by the OAMC.

9. The role of OAMC Officers provides an important safety function, however their role does not impact upon the ‘effectiveness’ of actual extraction and mining operations.

10. OAMC Officers do not make real-time decisions based on combined data to communicate with operators about necessary precautions. OAMC Officers communicate information to operators, supervisors, or dispatch teams about actionable OAS events in accordance with the relevant TARP and using the Communications Guidelines. In certain circumstances (such as three Dark Glasses events) the OAMC Officer will advise the operator that the OAS is unable to monitor them and suggest either removing the glasses or monitoring their own fatigue levels, as per the System Event TARP.

11. OAMC Officers communications do not need to be adapted based on real-time circumstances. Wherever an OAMC Officer is required under a TARP to contact an operator or site dispatch or site supervisor, the information they are required to communicate is governed by the relevant TARP and guidelines on how to communicate the information is contained in the Communication Guidelines.

12. OAMC Officers do not have a deep involvement in the day-to-day mining operations. They provide a safety function that is incidental to the actual extraction of coal and nickel at the mines monitored by the OAMC. The function performed by OAMC Officers does not impact the efficiency or ensure the smooth running of mining activities. They provide a safety function which is designed to mitigate the risk of fatigue and distraction related health and safety incidents.

13. OAMC Officers do not apply industry knowledge to monitor, assess, and intervene in production activities. Nothing in the Murphy Statement or Walker Statement supports such a broad claim, and mining experience is not a prerequisite for the role. The MEU also note that this “highlights the technical nature of the role”, which contradicts their submissions at paragraph 29.

14. This mischaracterises the principal role of OAMC Officers. Any ‘intervention’ is governed by the terms of the TARP and relevant procedures. The ‘interventions’ are limited to fatigue and distraction related events, they do not relate to operational disruption. Furthermore, this function is performed regardless of the type of vehicle that the OAS is installed in, and is therefore not limited only to production operators.

42. Paragraph 34 mischaracterises the role performed by OAMC Officers. There is no evidentiary basis provided for the claim that OAMC Officers ensure efficiency of mining operations, and they are actively involved in the operational aspects of the mine. OAMC Officers function of OAMC Officers is limited to reviewing, classifying and actioning fatigue and distraction events generated by the OAS system, as well as some ancillary tasks relating to overall connectivity of the OAS system.

43. Beyond brief communications with operators, site dispatch and mine supervisor to provide information about an OAS event, the OAMC Officers do not have involvement in the production or operation of the mines that are monitored by the OAMC.”[69]

Consideration – Do OAMC Officers do work in an “administrative, clerical or technical capacity”?

1. Based upon the evidence before me, including the factual findings set out at paragraphs [11] to [28] of this decision, I make the following conclusions as to the work performed by OAMC Officers:

a)   The OAS monitors and detects relevant “events” that it has been programmed to monitor (e.g. an eye closure event). It does so via a computer program and platform that is able to continuously and simultaneously scan and review video footage derived from hundreds of in-vehicle cameras set-up to monitor (in real time) the faces of drivers or operators, so as to detect and capture (mostly fatigue related) “events” identified by the OAS in such video footage.

b)   When the OAS detects a relevant “event”, it retrieves approximately 8-15 seconds of video footage which shows the event that the OAS has detected, and sends that video footage to an application (OpWeb) which alerts the OAMC officer that an event is awaiting review. The video footage is then accessed and viewed by an OAMC Officer (at the OAMC office) who thereafter confirms the classification of the event into a specific event category as per the relevant TARP.

c)   Following TARP classification, the OAMC Officer proceeds to observe and follow the relevant procedures and guidelines to deal with or respond to the event as set by the Respondent.

d)   In dealing with an event, the OAMC Officer follows the Respondent’s relevant procedures and guidelines which include making contact with the relevant person (if applicable), and/or following up with a supervisor (if applicable), and completing relevant electronic records in respect of the event via an office computer.

e)   Additional or other duties performed by OAMC Officers (as part of their overall role) include tasks such as system and fault checks, shift handovers, email monitoring, historic event reviews (or the updating of same), reviewing script communications (for verbal contact directly with operators), footage retrieval, operator monitoring health checks, component failure, server performance checks, and internal system checks (e.g. for email connections/processes, site disconnections, and two-way communications systems).[70] Any issues arising from system and fault checks are again dealt with pursuant to the Respondent’s relevant procedures and guidelines.

1. The MEU submits that there is no real distinction when it comes to terms such as safety, production, and efficiency, at a mining operation. In other words, a mining operation needs to be safe, efficient, and productive, all at the same time, to achieve its objectives. From a safety perspective, the MEU submits that the work performed by OAMC Officers is vital to the safety of each of these mines on a day-to-day basis. None of these submissions are incorrect or untrue.[71] However, the evidence discloses that the OAMC is very much an add-on to safety at on-site mining operations. If there is a shutdown or breakdown in the OAS (due to internal or external factors), mining operations do not stop. Ultimately, however, I do not consider that anything of substance turns upon this issue. There is no suggestion that OAMC Officers are hands-on at any of the mining sites monitored by the OAS. Indeed, OAMC Officers, through the OAS, monitor safety on mine sites; they are not production employees.

1. The MEU further submits that:

a)   OAMC Officers are not involved in the Respondent’s general office administration system. Rather, they are a specialist group, working out of a discrete purpose built facility that is dedicated to the awareness and monitoring of production operators at mine sites;[72]

b)   the work performed (or the overall work performed) by OAMC Officers does not fit (on a major/substantive basis or otherwise) into a “supervisory”, or “professional”, or “administrative”, or “clerical”, or “technical” category; and

c)   the primary purpose of an OAMC Officer does not fit within a “supervisory”, or “professional”, or “administrative”, or “clerical”, or “technical” category. Therefore, OAMC Officers cannot be categorised into a single category of person (or eligible member) under APESMA Rule 3.12.2.

1. Having regard to the evidence before me, including the factual findings I have made at paragraphs [11]-[28] of this decision, and the respective submissions of the parties (written and oral), I consider that the role of OAMC Officer falls within the “technical” category of APESMA Rule 3.12.2. Whilst the work performed by OAMC Officers certainly has clerical and administrative tasks or components, the manner in which they perform their work (or duties) is subject to compliance with the technical details and guidelines that are determined and/or specified by the Respondent.

1. Unless specifically stated otherwise, the ordinary meaning of the term “technical” (as both a noun and an adjective) does not limit itself to the holding of specific qualifications or licences.[73] Nor does the term “technical”, or its categorisation, need to be based upon work that falls within the scope of, or is associated with, a particular qualification or trade. Technical skills can be taught, but they can also be learnt on the job, and they need not be transferrable. Technical skills may arise in respect of a particular subject matter, or work system. Technical work may involve the use of machines (including computers), processes (including software programs), and related knowledge and materials. 

1. The Respondent sets out to train OAMC Officers on the job at the OAMC so as to provide them with the technical knowledge and the methods to undertake their specific role utilising the OAS. In order to perform the specific role of an OAMC Officer, one must have, at the very least:

a)   technical knowledge of the OAS, and the manner in which it operates (specifically) at the OAMC (including so as to be in a position to undertake system and fault checks); and

b)   be able to utilise and implement skills, and undertake tasks, relevant to or associated with OAS events (including reviewing OAS events, and taking further action based upon conclusions arising from same pursuant to the technical details and guidelines specified by the Respondent).

1. In my view, my finding that the role of OAMC Officer falls within the “technical” category of APESMA Rule 3.12.2, is consistent with:

a)   the OAS being a unique purpose built system with its own specific technical operation;

b)   my finding that the principal function of an OAMC Officer is to review and validate events that are generated by the OAS, and thereafter deal with those events in the manner (or substantially in the manner) prescribed by the Respondent; and

c)   the overall circumstances in which OAMC Officers are employed to do their work, and the nature of the work (or duties and tasks) that they are employed to perform via systematic and prescribed methods set by the Respondent.

1. From the ultimate issue perspective, I find that the MEU cannot be a bargaining representative for OAMC Officers as it is not “entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement” (s.176(3) of the Act).

Conclusion

1. For the reasons set out in this decision, I am not satisfied that the MEU is or can be a bargaining representative for OAMC Officers in these MSD proceedings as required by s.236(1) of the Act. Accordingly, the Commission has no jurisdiction to make the MSD sought by the MEU, and I dismiss its application. An order to this effect is issued contemporaneously with this decision [PR784443].

DEPUTY PRESIDENT

Appearances:

Mr Keenan Endacott, MEU Legal Officer, appeared for the Mining and Energy Union (Applicant).

Mr Tom Sanders, Senior Associate, Corrs Chambers Westgarth lawyers, appeared (with permission) for Glencore Coal Assets Australia Pty Ltd (Respondent).

[1] The West Wallsend underground mine ceased production and has been permanently closed since May 2016. The mine was previously operated by Oceanic Coal Australia Limited (“OCAL”) which is a wholly owned subsidiary of the Respondent. All the infrastructure at the mine has been removed or is in the process of being demolished. The OCAL offices were partially re-fitted to accommodate the OAMC. The OAMC presently shares the office with some members of the Respondent’s corporate engineering team who provide corporate engineering support for the Respondent’s operations.

[2] Respondent’s Submissions, at [23], CB, p.211.

[3] CB, p.214, at [5].

[4] From 2018, the Respondent rolled out the installation of an operator fatigue detection and monitoring system across its open cut mining operations (both coal and metalliferous) in Australia and internationally (specifically three mines in South Africa and one mine in New Caledonia).  The installation of the OAS followed a successful trial of the Guardvant OAS conducted at the Ravensworth Operations open cut mine.

[5] Transcript, PN96 – “heavy vehicles, light vehicles; it could be service trucks and fuel carts as well”.  See also Walker Reply Statement, at [9] (CB, p.255) – “the OAS is predominantly installed in haul trucks, however it is also installed in water carts, service vehicles and buses. It is also installed in light vehicles which are predominantly driven by staff employees, which is every role from management (e.g. Supervisors, Superintendents) down to graduate technician within the mining department.”

[6] CB, p.86.

[7] CB, pp.78-79: the OAS operates from Level 7.

[8] Mr Benjamin Murphy is a member of the MEU.

[9] A coal mine which is not part of the Respondent group.

[10] CB, p.239.

[11] Walker Statement, at [26]-[35]. CB, pp.227-229.  See also Walker Reply Statement, at [29] (CB, p.255). There is a different TARP used in NSW to QLD: Murphy Statement, at [38], CB, p.40.

[12] Walker Statement, at [37]-[78]. CB, pp.229-236. 

[13] CB pp.250-253.

[14] Murphy Statement, Annexure BM-1 (Confidential), CB p.115-128 (Redacted).  Transcript, PN663-PN698.

[15] Walker Statement, at [37]-[78] (including annexures referred to therein). CB, pp.226-237. See also, Transcript, PN59-PN73, and Walker Reply Statement, CB, pp.254-261.

[16] Transcript, PN88-PN538.  In other words, the MEU’s oral closing submissions identify no evidence arising from the cross-examination of Ms Walker that is inconsistent (in any real or substantive sense) with her evidence in chief or in reply as to OAMC Officer’s duties, or their qualifications and experience, see Transcript, PN905-PN937.

[17] Murphy Statement, at [17]-[21] and [31]-[32]., CB pp.37-40.  Evidence in contention is omitted (“…”).

[18] Transcript, PN711-PN712.  See also Transcript, PN751-PN765.

[19] See, for example, Walker Reply Statement, at [10]-[14] (in reply to Murphy Statement, at [17]-[21]), CB pp.255-256.  See also footnote n.16 above and Transcript, PN688-PN697.

[20] CB p.244.  See also “Deliverables” table, CB pp.245-248.

[21] Walker Statement, at [79]-[83]. CB, p.236.  Compare, Murphy Statement, at [39], CB, pp. 40-41: “open cut mining experience” removed from OAMC Officer position description on qualifications and experience (Transcript, PN733-PN737).  See also, “Part C – Person Specification” of OAMC Officer Position Description regarding Qualifications and Experience, and Skills and Abilities, CB, p.244.

[22] CB p.244.

[23] Walker Statement, at [84]-[90]. CB, p.237. 

[24] See Regional Express Holdings Ltd v Australian Federation of Air Pilots (2016) 244 FCR 344; [2016] FCAFC 147; upheld on appeal in Regional Express Holdings Ltd v Australian Federation of Air Pilots (2017) 262 CLR 456, see especially at 468, [26]-[27], 471, [33], 472, [36], and 473-474, [39]-[40].

[25] See Re Railtrain Pty Ltd[2016] FWCA 1385, at [31]. Appeal dismissed in ARTBIU v Railtrain Pty Ltd[2016] FWCFB 3153, see especially at [33]-[34]. Note also: Construction, Forestry, Mining and Energy Union v CSBP Limited [2012] FCAFC 48, at [48]-[49], and Regional Express Holdings Ltd v Australian Federation of Air Pilots (2017) 262 CLR 456.

[26] The scope or identity of the “coal industry” (or engagement in or in connection with same) is not a determinative factor in these proceedings.

[27] CB, Index of Union Rules (commencing at p.262), found at p.397.  Similar words are repeated at Rule 3(N)(b) of the MEU’s Rules (see - CFMEU current rules (word), p.51-52 of 103).

[28] Respondent’s Bundle of Authorities, Tab 17, pp.194-196 (NSW Industrial Gazette, Vol. LIII, 31 May 1938, pp.1740-1742).  See also, Tab 7, p.93.  Respondent’s Bundle of Authorities, Tab 16, pp.192-193 (NSW Industrial Gazette, No.1, 31 July 1923, pp.85-86), and name changes at pp.197-198 (NSW Industrial Gazette, No.3, 31 December 1943, p.521, NSW Industrial Gazette, No.3, 31 December 1944, p.365).

[29] Respondent’s Bundle of Authorities, Tab 17, p.196 (NSW Industrial Gazette, Vol. LIII, 31 May 1938, p.1742).

[30] The MEU Rules today are the product of multiple amalgamations of federal and state unions (registered organisations of employees), and the MEU’s de-amalgamation from the CFMEU.

[31] Respondent’s Bundle of Authorities, Tab 17, p.196 (NSW Industrial Gazette, Vol. LIII, 31 May 1938, p.1742).

[32] Respondent’s Bundle of Authorities, Tab 16, pp.192-193 (NSW Industrial Gazette, No.1, 31 July 1923, pp.85-86), and name changes at pp.197-198 (NSW Industrial Gazette, No.3, 31 December 1943, p.521, NSW Industrial Gazette, No.3, 31 December 1944, p.365).

[33] MEU’s Submissions, at [15]-[26], CB, pp.27-30.

[34] Respondent’s Bundle of Authorities, Tab 14, p.172.  But see also (in context) PR907384 (Respondent’s Bundle of Authorities, Tab 13, pp.167-171) and [2001] AIRCTrans 2042 (23 August 2001, SDP Williams) (Respondent’s Bundle of Authorities, Tab 15, pp.173-191; Transcript, PN39-PN100, PN129-PN134, and PN163).

[35] Howard Statement, at [26]-[31], CB, pp.133-134.

[36] For a detailed summary of the evolution of the Australian Coal and Shale Employees’ Federation to what is (now) the MEU, see Re Application by Grahame Patrick Kelly [2023] FWCFB 64, at [6].

[37] NSW Industrial Gazette, No.5, 31 May 1938.

[38] Re application by Construction, Forestry, Mining and Energy Union [2017] FWCG 116.

[39] See NSW Industrial Gazette, No.5, 31 May 1938, at p.1742.

[40] NSW Industrial Gazette, No. 1, 31 July 1923, at 8.

[41] Federated Clerks Union of Australia and The Australian Collieries Staff Association [1944] CthArbRp 375; (1944) 52 CAR 472.

[42] NSW Industrial Gazette, No. 3, 31 December 1943, at 521.

[43] NSW Industrial Gazette, No. 3, 31 December 1944, at 365.

[44] The Association of Professional Engineers, Scientists and Managers, Australia v Australian Collieries' Staff Association - [2001] AIRC 1283 (1 December 2001).

[45] Association of Professional Engineers, Scientists and Managers, Australia v Australian Collieries' Staff Association [2001] AIRC 789; (6 August 2001).

[46] Transcript of Proceedings [2001] AIRCTrans 2042, at PN98 to PN100.

[47] See Rules of APESMA (Effective 23 January 2002), at p 81.

[48] Respondent’s Reply Submissions, Annexure A, CB, pp.222-223.

[49] Respondent’s Submissions, at [15]-[20], CB, pp.210-211.  See also, Transcript, PN831-PN832, PN962-PN965, and PN980.

[50] PR907384 [2001] AIRC 798 (6 August 2001) Respondent’s Bundle of Authorities, Tab 13, pp.167-171. See also (in context) PR911732, [2001] AIRC 1283 (1 December 2001) (Respondent’s Bundle of Authorities, Tab 14, p.172) and [2001] AIRCTrans 2042 (23 August 2001, SDP Williams) (Respondent’s Bundle of Authorities, Tab 15, pp.173-191; Transcript, PN39-PN100, PN129-PN134, and PN163).

[51] Respondent’s Bundle of Authorities, Tab 17, pp.194-196 (NSW Industrial Gazette, Vol. LIII, 31 May 1938, pp.1740-1742).

[52] MEU Submissions, at [15]-[26], CB, pp.27-30.

[53] NSW Industrial Gazette, No.5, 31 May 1938.

[54] See NSW Industrial Gazette, No.5, 31 May 1938, at p.1742.

[55] Transcript, PN959-PN960.

[56] CB, p.272.

[57] Respondent’s Reply Submissions, 13 September 2024, at [28], CB, p.218.

[58] Transcript, PN964-PN965.

[59] Note the decision of the Full Bench of the Australian Industrial Relations Commission in Appeal by Dyno Nobel Asia Pacific Limited (C2005/1650 & C2003/3762), PR956868, Lawler VP, Hamberger SDP, and Lewin C, 14 July 2005.

[60] Zheng v Poten & Partners Australia Pty Ltd (2021) 307 IR 339, at [53].

[61] CFMEU v Dulux Group Australia Pty Ltd (2022) 293 FCR 1.

[62] (1990) 26 FCR 261.

[63] Ibid, at 279.

[64] CFMEU v Dulux Group (Australia) Pty Ltd [2021] FWC 3786, at [204].

[65] Walker Statement, at [25], CB p.227, and at [43], CB p.229. Walker Reply Statement, at [9], CB, p.255.  Transcript PN654-PN655, PN751-PN765, PN783-PN784, AND PN853.

[66] MEU Submissions, at [35], CB, p.33.

[67] MEU Submissions, at [27]-[29], CB, pp.30-31.

[68] See also Transcript, PN936.

[69] Respondent’s Reply Submissions, at [27]-[43], CB pp. 218-221.  See also Transcript, PN850-PN878.

[70] Walker Statement, at [37]-[78] (including the Annexures referred to therein). CB, pp.226-237. See also, Transcript, PN59-PN73, and Walker Reply Statement, CB, pp.254-261.

[71] Note, Ms Walker Reply Statement, at [33(c)], CB p.259.

[72] Transcript, PN924 in relation to the capacities of “clerical” and “administration”.

[73] Merriam-Webster Online Dictionary: Cambridge Online Dictionary: Collins Online Dictionary: by authority of the Commonwealth Government Printer

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