Mining and Energy Union v Illawarra Coal Holdings Pty Ltd T/A South32
[2024] FWC 3491
•13 DECEMBER 2024
[2024] FWC 3491
The attached document replaces the document previously issued with the above code on 13 December 2024.
Annexure A has been added.
Associate to Deputy President Easton.
Dated 16 December 2024.
| [2024] FWC 3491 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Mining and Energy Union
v
Illawarra Coal Holdings Pty Ltd T/A South32
(C2023/4721)
| DEPUTY PRESIDENT EASTON | SYDNEY, 13 DECEMBER 2024 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] – stand down – stoppage of work because of industrial action – whether a partial stoppage is a stoppage of work – selection for stand down – some employees of contractors not stood down –conduct by a reasonable employer to avoid the stand down – selection for stand down - whether employees could have usefully performed work.
There is an ongoing dispute between the Mining and Energy Union (MEU) and the Illawarra Coal Holdings Pty Ltd T/A South32 (South32) regarding South32’s decision to stand down employees in August and September 2023 because of industrial action undertaken by Deputies at the Appin Coal Mine.
Clause 5.6.1 of the Appin Colliery & West Cliff CPP Enterprise Agreement 2022 allows South32 to stand down employees “if the employee cannot be usefully employed in the employee’s usual classification because of industrial action impacting the operation.”
The MEU claimed that all of the employees who were stood down during the PIA could have been usefully employed to perform work in their usual classification underground in the mine or on the surface.
The parties helpfully prepared a comprehensive Agreed Statement of Facts that is reproduced in full as an annexure to this decision. The key agreed points are:
“1. [South32] operates the Appin Coal Mine also known as the Appin Colliery (Appin)
…
4. There were approximately 85 South32 employees in the role of Deputy who performed work at Appin … at the time relevant to this dispute.
5. Deputies have specific statutory functions under the Work Health and Safety (Mines and Petroleum Sites) Regulation 2022 (NSW) relating to supervision and inspection of work areas underground.
6. The Appin Colliery and West Cliff CPP Enterprise Agreement 2022 (2022 Agreement) covers production and engineering (trades) employees employed by South32 who perform work at Appin and West Cliff CPP in the roles of Surface Operator, Surface Trade, Underground Operator, Underground Trades, and Specialist (Trades and Operator Employees)
…
8. There are approximately 450 employees employed by South32 covered by the 2022
Agreement.9. South32 engages contract companies to perform work at Appin of the kind which is performed by employees engaged under the 2022 Agreement. There were approximately 500 contract employees usually engaged at Appin at the time of this dispute.
…
11. Clause 5.6.1 of the 2022 Agreement states:
The Company may stand down an Employee for part or all of a day for: refusal or neglect of duty; misconduct; or if the Employee cannot be usefully employed in the Employee’s usual classification because of industrial action impacting the operation.
…[In May 2023 the Fair Work Commission made protected industrial action (PIA) ballot orders at the request of the applicant and also Association of Professional Engineers, Scientists and Managers Australia (APESMA). Both the MEU and APESMA represent Deputies at Appin]
12. On 26 June 2023, South32 conducted a risk assessment to identify any hazards and associated risks in the event Deputies engaged in PIA. This risk assessment specifically considered the risks associated with reduced supervision and inspections underground, given the reduced number of available statutory ticket holders within the staff employees
…
17. On 4 August 2023, the Trades and Operator Employees at Appin received a notice from South32 [advising of the possibility that some employees may be stood down if protected industrial action is taken by Deputies]
…
21. On 8 August 2023, the MEU sent a letter to South32 notifying a dispute pursuant to clause 28 of the 2022 Agreement.
22. On 9 August 2023, South32 sent a letter to the MEU responding to the MEU letter dated 8 August 2023.
23. On 9 August 2023, the MEU filed a dispute in the Fair Work Commission pursuant to s 739 of the Fair Work Act 2009.
24. Prior to the filing of the dispute, a number of MEU members raised individual disputes in relation to their stand down under step 1 of the dispute resolution process set out in clause 28 of the 2022 Agreement.
…
26. The parties agree that the steps under clause 28 of the 2022 Agreement (the dispute procedure) have been followed.
…
[Between 10 August and 29 September 2023 members of the MEU and APESMA employed as Deputies at Appin took protected industrial action]
…
28. In the period from 10 August to 17 August 2023 inclusive, South32 stood down 91 Trades and Operator Employees at Appin. This number included employees who were already absent from the workplace on pre-approved leave prior to the PIA commencing or who were otherwise ill or injured.
29. In the period from 10 August to 17 August 2023 inclusive, contract employees performed trades and operator work at Appin. A number of contractor employees were also stood down in this period.
…
33. In the period from 18 August to 6.15am on 24 August 2023 inclusive, South32 stood down 45 Trades and Operator Employees at Appin. This number included employees who were already absent from the workplace on pre-approved leave prior to the PIA commencing or who were otherwise ill or injured.
34. In the period from 18 August to 24 August 2023 inclusive, contract employees performed trades and operator work at Appin. A number of contractor employees were also stood down in this period.
…
38. In the period from 25 August to 31 August 2023 inclusive, South32 stood down 45 Trades and Operator Employees at Appin. This number included employees who were already absent from the workplace on pre-approved leave prior to the PIA commencing or who were otherwise ill or injured.
39. In the period from 25 August to 31 August 2023 inclusive, contract employees performed trades and operator work at Appin. A number of contractor employees were also stood down in this period.
…
45. In the period from 1 September to 29 September 2023, no Trades and Operator Employees employed by South32 were stood down.46. Throughout the period from 10 August 2023 to 29 September 2023, South32 utilised approximately 20 staff employees across various shifts to perform statutory Deputy functions at Appin.”
The Evidence
While much of the evidence was agreed, there was significant divergence in the evidence about whether (1) there was other work that the employees who were stood down could have performed and (2) whether employees who were stood down could have performed work that was allocated to others during the period of stand down.
Mr Andrew Hyslop is South32’s General Manager at Appin Colliery and the West Cliff Coal Preparation Plant and has been the General Manager since June 2021. Mr Hislop has worked in mining since 1999.
Mr Hyslop explained that at the time of the protected industrial action in August and September 2023, South32 engaged the following workers on site at the mine:
(a)approximately 85 employed Deputies, the vast majority of which were members of the MEU or the APESMA;
(b)approximately 450 trades and operator employees, the vast majority of which were engaged in roles carrying out work underground under supervision of a Deputy;
(c)500 employees of contractors performing work including:
(i)specialist functions that are not otherwise normally carried out by employees;
(ii)capital works projects that are not otherwise normally carried out by employees; and
(iii)the same work that would or could be carried out by South32’s employees.
Mr Hyslop said the following about the safety and supervision systems at the mine:
“The Work Health and Safety (Mines and Petroleum Sites) Regulation 2022 (NSW) (WHSMP Regulations) and the Work Health and Safety Regulation 2017 (NSW) (WHS Regulations) place obligations on South32 and particular individuals regarding supervision arrangements at the Mine.
Supervision arrangements apply to all parts of the mining operation, both underground and on the surface. The supervision arrangements are summarised in the Appin Colliery ‘Supervision Arrangements’ document (Supervision Plan) which forms part of the safety management system at the Mine …
A key aspect of the supervision arrangements involves Deputies. Deputies have specific statutory functions under the WHSMP Regulations relating to supervision and inspection of work areas underground at mine sites in New South Wales. In addition to the specific statutory inspections carried out by Deputies, they have a general supervisory role in their assigned districts.
…
Additionally, the Mine’s safety management system includes specific training, assessment and appointment processes for Deputies.
The Mine’s Principal Hazard Management Plan includes an ‘Inspection Plan’ which outlines the protocols for the inspection program at the Mine, specifically the underground areas of the Mine…
The Inspection Plan outlines the inspection frequency required of Deputies. The inspection frequency varies between areas of the Mine. For example, each face where coal is being mined must be inspected at least once every 2 hours. For outbye areas where people are working, these areas must be inspected at least once every 8 hours.”
The Appin Colliery has different work areas. The production areas included the longwall and four development panels: Simpson, 710 Tailgate, 710A and 710B.
In the first three weeks of the protected industrial action only the longwall and the 710B Panel continued operating. Some employees and contractors were transferred from the other panels to work on the 710B Panel. Otherwise South32 decided to keep together the work units that ordinarily worked on that panel to make it easier for the relieving Deputies.
Mr Hyslop explained South32’s rationale for only working the 710B development panel:
“In the lead up to the stoppage of work by the Deputies, there was consideration about what level of operations could safely be performed by the underground workforce under the supervision of relief Deputies. That took place through discussions between various management personnel at the Mine, including myself. Decisions about what work was to continue were made by us as a management group, although I retained overall responsibility for decisions about which areas would remain operational and which would not.
Through those discussions, we determined that work could occur in the Longwall and that it would typically be resourced by the same personnel who ordinarily carried out work in that area. This was to ensure as much as possible the continuity of operations in the Longwall with workers who normally worked in that area and were familiar with the work which was being carried out. It was through maintaining this continuity would assist to ensure the safety of operations in that area under the supervision of relief Deputies who may not have had the same level of familiarity with the area as the Deputies who were engaged in the stoppage of work, and who normally supervised that area.
We determined that work could not proceed in the Simpson, 710 Tailgate and 710A Development panels at that time because of the insufficient level of supervision which could be provided to cover those areas with the relief Deputy cohort.
However, we determined that work could occur in the 710B Development panel and that two continuous miners would be operating in that panel (which had been occurring prior to the protected industrial action, with a mixture of South32 and contractor employees operating the units), meaning that a larger number of personnel could be retained to perform work in that panel than would have typically been deployed if only one continuous miner was operational.
As with the Longwall, we determined that the 710B Development panel would typically be resourced by the same personnel who ordinarily carried out work in that area. This was to ensure as much as possible the continuity of operations in that panel with workers who normally worked in that area and were familiar with the work which was being carried out. Again, this continuity was done to ensure safety in the panel.
As we would be operating two continuous miners in the panel, we also sought to ensure the workers deployed to the work on those mines had appropriate experience, skills, competencies and tickets to operate the equipment to be utilised in the panel. In some cases this meant that particular underground workers who would normally have worked in different development panels were utilised in the 710B Development panel because those workers were more likely to have worked with a particular piece of equipment being used in the 710B Development panel than other workers. Maintaining this continuity would assist to ensure the safety of operations in that area under the supervision of relief Deputies who may not have had the same level of familiarity with the area as the Deputies who were engaged in the stoppage of work.”
Mr Hyslop also explained how it came to be that the stood down employees returned to work within three weeks:
“During that first week of the stoppage of work by the Deputies, we continued to assess whether it was feasible to safely increase the operational areas underground and bring more workers back. This was only done after ensuring that the relief Deputies could carry out all statutory inspections and ensure that the work which was scheduled could be appropriately supervised without placing too significant a burden on those employees. This also took into account that the relief Deputies had by then had a period of time carrying out that role on a full-time basis and were confident in their ability to appropriately carry out that role with additional work occurring underground utilising certain efficiencies in the inspection regime that were identified by the relief Deputies working in those roles in real-time.
We also had to take into account the reduced capacity within the staff at the Mine who were having to step into other roles, including the planning of work in other areas of the Mine.
We continued to look for opportunities to safely increase the operational areas underground and bring more workers back. In turn we were able to gradually reduce the total number of Trades and Operator Employees stood down in the period from 10 August 2023 to 31 August 2023 as opportunities were identified.
Ultimately by 1 September 2023 (which was the commencement of the ‘weekend shift’) no South32 Trades and Operator Employee was stood down as a result of the Deputies engaging in protected industrial action.
A number of contractor employees were also able to be brought back during this period, however there was a preference wherever possible to deploy Trades and Operator Employees instead of a contractor employee.”
Several of the MEU’s members gave evidence about their work at the Appin Colliery, how they came to be stood down in August 2023, and alternative work they say they could have been deployed to do.
Mr Matthew Craig has worked for South32 since 2011. At the time of the stand down Mr Craig was rostered to work on the 710A Panel. Mr Craig worked in a crew of nine operators, four of whom were transferred to 710B panel during the protected industrial action and were not stood down. Mr Craig said he was qualified to operate the equipment used in the 710B Panel.
Mr Paul Entwhistle said he was a very experienced operator and he believed he was more experienced than most of the contractor workers that worked during the stand down period. Mr Entwistle suggested that did not need to be closely as supervised to do his work as was claimed by South32. Mr Entwistle worked on the 710A Panel prior to the stand down.
Mr Mark Thompson was stood down for four days and then had scheduled shoulder surgery on 25 August 2023. Mr Thompson said that when he was told of the protected industrial action and the stand down he took the opportunity to get some things done at home before he was incapacitated by the surgery. He also said that during an earlier stoppage underground Mr Thompson performed duties on the surface that required very limited supervision by a Deputy.
Ms Olivia McAlary worked on the Simpson Panel at the time of the stand down. She was stood down for one week/weekend although she was paid one of the shifts she missed because of an error and she took annual leave for two shifts. Ms McAlary said “There was plenty of work I could have been doing underground or on the surface when I was stood down. Underground I could have been doing Outbye work operating the coal tram such moving as supplies into the mine, taking empty pods, bins, and equipment out of the mine. I could have done belt cleaning, and shovelling under the belt heads making sure under the belt structure was clean. The Outbye work does not need supervision of the Deputy.”
Mr Ben Patten was stood down for four days and took annual leave for each of those days. Mr Patten thought he could have done training instead of being stood down, specifically his certification on transport rules and coal trains. He said he also could have worked on other equipment in the 710B Panel.
Stand down provisions – History and General Principles
Stand down provisions were introduced into awards in the 1920s to temper the effects of changing from daily to weekly hiring (see Food Preservers Union of Australia v J Ambrose Ltd & Ors (1976) 182 CAR 391). Ordinarily employees on weekly hire are entitled to a full week’s pay. Exceptions might apply, for example if an employee takes authorised unpaid leave. But otherwise employers are ordinarily required to provide either a full week’s paid work or a full week’s pay.
Statutory stand down provisions first appeared in 2006. In The Peninsula School v Independent Education Union of Australia [2021] FWCFB 844 at [30], (2021) 305 IR 139 at 148-9 the Full Bench described the historical industrial context of the statutory provisions:
“The form in which s 524(1) of the FW Act is drafted has a long industrial history. Award clauses in similar form have appeared in federal awards since the earliest days of industrial arbitration. In 1924, the High Court in Pickard v John Heine & Sons Pty Ltd considered the meaning of an award clause which provided that the requirement for employment to be terminated only by a week’s notice did not affect, relevantly, “...the right of management... to deduct payment for any day the employee cannot usefully be employed because of any strike by the Union or any other union or through any breakdown of machinery or any stoppage of work by any such cause which the employer cannot reasonably prevent.” There was further evolution of the wording of provisions of this nature in federal awards and, by 1952, the most common form of the clause, as expressed in clause 19(b) of the Metal Trades Award, was that the employer had the right “...to deduct payment for any day the employee cannot usefully be employed because of any strike or through any breakdown of machinery or any stoppage of work by any cause which the employer cannot reasonably be held responsible”. This later became a stand-alone clause under the heading “Standing Down Employees” (see clause 4.6 of the Metal, Engineering and Associated Industries Award 1998). In 2006, the Workplace Relations Act 1996 was amended (by the Workplace Relations Legislation Amendment (Independent Contractors) Act 2006) to provide for a statutory right for employers to stand down employees. Paragraphs 691A(1)(a) and (b) of the Workplace Relations Act, which were introduced by the amendment, were to the same effect as the current s 524(1). The context provided by this industrial history, including decisions concerning the proper interpretation and application of the previous award and statutory provisions, informs the proper construction of s 524(1).”
[Footnotes omitted]
In Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association (No 3) [2020] FCA 1428 at [18], (2020) 299 IR 100 at 113 (Qantas No 3) Justice Flick recited some of the history of the content of stand down provisions in awards:
“Stand down provisions, as with other provisions (for example) providing for the termination of employment, have a long history. Initially some provisions were drafted which confined the ability of an employer to stand down employees to specified circumstances. But one instance is provided by the early decision in Pickard v John Heine & Son Limited [1924] HCA 38; (1924) 35 CLR 1 (“Pickard”). The stand down provision in that case was drafted in terms which entitled “management ... to deduct payment for any day the employee cannot be usefully employed because of any strike by the union or any other Union or through any breakdown of machinery or any stoppage of work by any such cause which the employer cannot reasonably prevent...”. The employer had there decided that there was no work for an employee on Anzac Day because employees working under State awards on that day would be entitled to double pay and “that would have been unprofitable”: (1924) 35 CLR at 5 per Isaacs ACJ. The phrase there employed in the stand down provision, “any such cause”, was construed by the Acting Chief Justice as referring to “causes” of the kind previously mentioned such that it referred to “any cause similar to or of the same nature as the breakdown of machinery”: (1924) 35 CLR at 9 per Isaacs ACJ. Starke J construed the clause differently to Isaacs ACJ. But nothing for present purposes turns upon the differences in construction. Of importance is the notion of construing a clause according to its terms. Although not a transition in drafting style which assumes any immediate relevance to the present proceeding, it may be noted that by the mid‑1940s awards were shifting from authority to deduct wages for “assigned causes” and extending to “any stoppage of work by any cause for which the employer cannot reasonably be held responsible”: The Millers and Mill Employees Award 1937 [1946] CthArbRp 209; (1946) 56 CAR 622.”
[Footnotes omitted]
The policy reasons for stand down provisions have been variously described and include providing a degree of protection to employees from possible redundancy by providing a temporary and less severe alternative, and to provide “financial relief” to an employer from paying wages in circumstances where, through no fault of its own, the employer has no work that the employees can usefully perform (see Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Qantas Airways Ltd [2020] FCA 656 at [18], (2020) 295 IR 225 at 229).
It is helpful to identify and list the key principles so that one can see the context within which each element is ordinarily considered:
(a)as a matter of general principle, a permanent or weekly employee who presents for work is entitled to be paid irrespective of whether the employer has work for the employee to do[1];
(b)the term ‘stand down’ presupposes that the employee would have an obligation to present as ready for work but for the stand down[2];
(c)the ability to stand down a weekly employee without pay is a qualification to the principle that an employee who is ready and willing to work is entitled to be paid even though there is no work to do[3];
(d)the expression ‘stand down’ is ordinarily understood as placing an employee in a position in which their rights and duties as an employee, and the rights and duties of the employer in relation to them, are suspended for the time being.[4] Stand down provisions do not suspend or purport to end the employment relationship[5];
(e)there is no implied common law right to stand down an employee without pay in circumstances where there is no work the employee can usefully perform. In some instances express terms in a contract can allow for an employee to be unilaterally stood down[6]. Stand down provisions in statutes or industrial instruments only relieve the employer of the obligation to provide a full week’s pay if the necessary conditions in the stand down provision are met;
(f)whether an employee “cannot be usefully employed” is a matter to be assessed from the perspective of the employer[7];
(g)a cessation of work rather than a mere reduction in the amount of available work will constitute a “stoppage of work”[8];
(h)whether an employee cannot be usefully employed is a question of fact. The economic consequences to the employer may be relevant. Questions of fact and degree will always be involved in determining whether an employee cannot be usefully employed or whether they can be usefully employed but it is not convenient to the employer to employ them[9];
it may be that some employees cannot be usefully employed even though other employees are engaged in useful work[10];
(j)although an employer may have regard to its own economic interests, an employer cannot invoke stand down provisions because it is “uneconomic” to employ its workers in a particular way or invoke the provisions to promote financial gain[11];
(k)there must be a direct causal connection between the breakdown of the machinery or equipment and/or the stoppage of work, and the absence of useful work for the employee who is stood down[12];
(l)questions of reasonableness are to be determined by reference to the conduct of a reasonable employer/person in the same circumstances[13]; and
(m)the Commission’s inquiries are not directed solely towards whether an employer caused or contributed to the stoppage of work, but are more directed to whether the employer could “reasonably” have prevented the stoppage[14];
I will explore some of these principles in greater detail below as required.
Was there a stoppage of work?
Clause 5.6.1 contemplates circumstances where there is a stoppage of work caused by industrial action. Although clause 5.6.1 does not contain the phrase “stoppage of work” it is necessary to determine whether there was a relevant stoppage of work (separate to the consideration of the cause of that stoppage and consideration of whether there was other work that the employees could have done).
The MEU argued that because some employees continued to work that there was no stoppage of work at all. The case law is against the MEU on this point. In general terms a “stoppage of work” entails a cessation of work rather than a mere reduction in the amount of available work: Bristow Helicopters Australia Pty Ltd v Australian Federation of Air Pilots [2017] FWCFB 487 at [45]-[48]. Employers cannot use standdown provisions a temporary fix for a reduction in its labour requirements.
That said, where useful employment is not available for all employees normally engaged because of industrial action or for reasons that the employer cannot reasonably be held responsible, but some employees are engaged in useful work – then it can be said that the stood down employees cannot be usefully employed. In Marson v Coral Princess Cruises (NQ) Pty Ltd [2020] FWC 2721 at [21], (2020) 295 IR 273 at 281 Deputy President Lake summarised the test:
“The approach above in Re Carpenters stipulates as a general rule that where there is a category of work available to be performed, no single employee cannot be usefully employed. However, the ambit of useful employment is then limited to the amount of useful work available to be performed. Where the available useful work does not extend to all employees, those remaining employees cannot be deemed to be capable of useful employment.”
I am satisfied that there was a relevant stoppage of work.
Was the stoppage caused by the industrial action?
The MEU suggested that the stand downs were not caused by the protected industrial action but were caused by South32’s inadequate preparation and inadequate steps to mitigate the damage caused by striking MEU and APESMA members.
Protected industrial action under the Act cannot occur overnight. Bargaining representatives must apply for a ballot order, arrange a ballot and give notice of specific action before it is taken. The precursor steps place the employer on notice of the possibility of industrial action however it is by no means certain that industrial action will occur.
The spectre of industrial action first arose in May 2023 when the MEU and APESMA sought protected action ballot orders from the Commission. From May onwards South32 was on notice of the possibility of protected industrial action.
Quite obviously the protected industrial action by the Deputies was a significant matter that had significant consequences for mine operations. If some or all of the Deputies employed by South32 were to withdraw their labour, significant problems were likely to arise for South32 because the supervision responsibilities of the deputies are so crucial to operations in the mines.
In June 2023 South32 quite properly began processes to mitigate the potentially damaging effects of possible future industrial action. However the MEU raised a number of concerns about South32’s conduct in anticipation of protected industrial action and also conduct after the protected industrial action commenced.
Despite South32’s preparations, some employees were stood down in the first three weeks of the eight weeks of protected industrial action. South32 allowed time for the relieving Deputies to familiarise themselves with the work they supervised before engaging additional operators and trades.
The MEU’s argument was that South32 could have taken more steps prior to the commencement of the industrial action to bring the relieving Deputies up to speed so that the mine could run as effectively on the first day of the stoppage - as proved, the MEU said, by the full operation in the third week of the stoppage.
The crucial question in this case is whether South32 can reasonably be held responsible for the stoppage of work or, to describe the test slightly differently, whether it could reasonably have prevented the stoppage/stand downs. The answer to this question depends on an assessment of the conduct of a hypothetical reasonable employer and/or the steps a reasonable employer might be expected to take in the circumstances. As the Full Court said in Australian Licensed Aircraft Engineers Association v Qantas Airways Limited [2022] FCAFC 50, at [61], [119] and [137], (2022) 314 IR 231 at 253:
“Counsel for Qantas and Jetstar accepted that it is difficult to argue that the airlines were not “at some level ... within the chain of causation”. It seems to me, as it did to the primary judge, that the decisions of the respective airlines may be seen as the immediate cause of the stoppage of work. However, the question then is one of reasonable responsibility or reasonable preventability. As the primary judge said … questions of reasonableness are to be determined “by reference to the steps which a ‘reasonable man might be expected to employ in the circumstances”“.
The MEU’s criticism is somewhat unrealistic. The MEU suggested that relieving Deputies could have shadowed or been mentored or supervised by regular Deputies prior to the commencement of the industrial action. In the context of bargaining for a new agreement under a cloud of looming protected industrial action the idea of sending senior employees underground to be mentored by the Deputies who are about to take protected industrial action is more likely to be provocative than helpful. As it was, by the time the stoppage commenced there were 32 relief Deputies immediately available to step in and supervise some of the underground work.
The MEU did not actively pursue the argument that South32 was too conservative in the first three weeks of the protected industrial action and that South32 could have safely deployed operators to work under the relieving deputies.
Taking into account all of the circumstances I am satisfied that South32 took the steps that a reasonable employer might be expected to take in the same circumstances to or minimise the stand down.
I am therefore satisfied that the industrial action caused the stoppage of work for those employees who were stood down.
Could any of the employees be usefully employed?
Whether an employee “cannot be usefully employed” is a matter assessed from the perspective of the employer (see Construction, Forestry, Maritime, Mining and Energy Union v Ta Ann Tasmania Pty Ltd [2019] FWCFB 5300 at [18] citing Townsend v General Motors-Holden’s Ltd [1983] FCA 204, 4 IR 358 at 367 - 370 (Townsend)).
In Townsend at 370 Justice Morling contrasted circumstances where it might be convenient to the employer to stand down employees with circumstances where an employee cannot be usefully employed. The distinction, his Honour said, is a question of fact. If the employer has acted upon proper principles and in good faith then the Court or tribunal is not to go through the evidence with a fine-tooth comb applying a standard of perfection:
“In my opinion the question whether an employee cannot be usefully employed because of a strike is largely a question of fact. No doubt, as a matter of law, some considerations will be irrelevant in determining the question of fact. But I reject the argument that the economic consequences to the employer are to be ignored in deciding whether employees can be usefully employed. I accept that it is a material matter that work has been scheduled to be done by an employee on a day when, in fact, he is stood-down. In many cases that will be a powerful indication that the work which was scheduled to be done was work which would have been useful to the employer. If the employee is stood-down in those circumstances the employer will necessarily have to establish that because of circumstances that arose after the work was first scheduled to be done, the employee could not be usefully employed.
What I have so far said does not mean that c.6(g)(i) of the Award gives G.M.H. the right to unilaterally stand-down its employees whenever there is a strike and it is convenient for it to do so. An employee may be able to be usefully employed although, as a matter of convenience, G.M.H. would prefer him not to be at work. Questions of fact and degree will always be involved in determining whether, on the one hand, an employee cannot be usefully employed or whether, on the other hand, he can be usefully employed but it is not convenient to G.M.H. to employ him. Whether a particular set of facts falls on one side of the line or the other will itself be a question of fact. In deciding that question I think it is proper to take the approach which Sheppard J. thought appropriate in a somewhat similar context - see In re Dispute - Australian Iron & Steel Pty. Limited re Stand-down of Bricklayers (No. 1) (1972) A.R. 285 at 296. That is to say, if it is shown that an employer has acted upon proper principles and in good faith, “the evidence . . . will not . . . be gone through with a tooth-comb in order to apply to its actions a standard of perfection which in cases such as this will always be impossible to achieve.”
In Townsend his Honour found that GMH had taken every reasonable step to source necessary parts during a period of industrial action taken by employees of a parts supplier. When alternative parts were obtained the union criticised GMH’s decision to direct some of those parts to the Acacia Road site to use on the VC Commodore and the Gemini production lines, arguing that all of the parts should have been directed to the Elizabeth site where employees had been stood down. Justice Morling found at 360-361:
“However, Mr Ryan Q.C., senior counsel for the applicants, submitted that even if G.M.H. could not be criticized for its efforts in obtaining an alternative supply of heater boxes, it was at fault in sending some of them to Acacia Ridge. It was argued that the assembling of Commodore vehicles at Acacia Ridge could have temporarily stopped in March 1981 and that the heater boxes should have been sent to the Elizabeth plant, thus avoiding all, or some, of the stand-downs. I do not think this criticism of G.M.H’s actions is justified on the evidence. In the light of the trouble and expense to which the company went to obtain urgent supplies of the heater boxes, it would have been extraordinary if it had not utilized the boxes, when they eventually arrived, in the most efficient way. Mr Vincent McDonald, who was G.M.H’s supervisor of materials control at the time, took a leading part in obtaining supplies of the heater boxes. He was well aware of the number of Commodore vehicles produced on a daily basis in G.M.H’s assembly plants. He gave evidence that he considered whether heater boxes should be sent to Acacia Ridge. He said that at the time G.M.H. was assembling both Commodore and Gemini vehicles at Acacia Ridge. Apparently consideration was given to operating the Acacia Ridge plant so as to assemble only Gemini vehicles. But a decision was taken to continue assembling Commodore vehicles as well. It was not put to Mr McDonald in cross-examination that the decision was unreasonable, and I do not think there is any basis for saying that it was.
A decision to change the mix of vehicles on the Acacia Ridge assembly line would have involved a consideration of a number of commercial and technical factors of some complexity. There is no basis in the evidence for a finding that G.M.H. did not efficiently handle the problems thrown up by the shortage of heater boxes. I am satisfied that it acted reasonably in allocating some of the heater boxes to the Acacia Ridge plant and that it made a proper allocation of boxes to the assembly plant at Elizabeth.”
In part the MEU’s case was that some employees should have been deployed to the 710B Panel over other employees who continued to work on the 710B panel and over other employees who were deployed to supplement staffing in the 710B Panel. This fine-tooth comb approach is not realistic or available. The MEU’s case was no more specific than that some (or perhaps all) of its members should have been given work over the others who were actually given the work. South32’s reasoning was logical, commercial and sound and was reasonable in the circumstances.
In part the MEU’s case was also that employees of South32 should not have been stood down in circumstances where employees of contractors were not stood down. In this regard, the MEU distinguished between employees of contractors engaged to perform specialist tasks such as conveyor belts, and employees of contractors deployed to do the same work as operators and trades employed directly by South32.
In Australian Municipal, Administrative, Clerical and Services Union v Helloworld Travel Limited, Viva Holidays II Limited [2021] FWC 6535 at [52] Deputy President Colman made the following observation in obiter about the use of contractors:
“Depending on the circumstances, the continued use of contractors during a period when employees have been stood down could call into question an employer’s contention that those employees cannot be usefully employed, but I do not consider that to be the case in respect of the companies’ continued engagement of Tourism Technology. This was an existing specialist provider that undertook a small of amount of available enhancing and programming work. Where there is a stoppage of work it may be uneconomical, and of no net benefit to the business, to retain employees to perform small volumes of ad hoc duties. The fact that a contractor absorbed a small amount of work that was previously undertaken by employees does not mean that that work could usefully have been undertaken by those employees.”
The MEU did not submit that directly employed workers had some kind of priority or preference over employees of contractors merely because of the fact that they are directly employed. The MEU relied on the security of employment provisions in the Agreement to suggest that standing down employees over contractors is akin to replacing employees with contractors. The security of employment clause in the Agreement only applies to potential terminations of employment and/or contract arrangements. This clause has no application to decisions about standing down workers during protected industrial action.
At its high point the MEU’s argument was that workers directly employed by South32 are more experienced and therefore should have been deployed ahead of employees of contractors.
I do not accept this argument. All of the relevant workers have the minimum qualifications and competencies to perform their role. In essence the MEU’s argument was that directly employed workers were more experienced than indirectly engaged workers and that South32 therefore acted unreasonably in choosing some contractor workers instead of direct employees. South32 prioritised familiarity with the particular development panel and familiarity with the machinery used in that development panel over other factors. In choosing from a pool of employees that all possess the minimum qualifications and competencies, South32’s approach was reasonable. In effect the MEU’s argument is that a more reasonable approach would have been to prioritise more experienced workers over less experienced workers. What the MEU meant by “experienced” workers was not clear but seemed to incorporate factors beyond length of service. The MEU did not submit that employees should have been allocated work based on their length of service nor did the MEU submit that employees should have been allocated work based on how many years they had worked underground. It was not reasonable in the circumstances of significant protected industrial action by a Deputies to expect South32 to embark upon some kind of multi-factorial recruitment-style selection process to determine which employees could perform the limited work that was available.
There was evidence that South32 compiled a list of workers that could be deployed into the 710B panel as the industrial action unfolded. The rationale applied by South32 was reasonable and applied reasonably. South32 did admit in evidence that it made one “mistake” in allocating work to a particular operator who required direct supervision. There was also evidence that as the stoppage progressed and more workers could be deployed to work, South32 prioritised its directly employed workers.
The MEU also argued that there was useful work to do underground. The MEU argued that work could have been performed on idle machinery and performing other support/maintenance work. South32 argued that any such work underground would require supervision by a Deputy and that it was not practical to divert relieving deputies from other tasks to provide this supervision. The kind of work referred to by the MEU seems to be work that requires less supervision by a Deputy. On the evidence, a Deputy would be required to supervise this work by way of checking on the work being performed at least once per shift. A Deputy might need to correct or adjust the work or give directions but would not need to directly and continuously supervise the work.
The MEU also argued that there was useful work available on the surface. South32 similarly argued that such work on the surface required relief deputies to oversee and coordinate the work (although not directly and continuously supervise the work) and would therefore would require South32 to divert Deputy resources away from other supervision activities.
It does not appear to be controversial that during the protected industrial action South32 attempted to use the relief Deputies in the most effective way. The overarching priority for South32 was safety. During the stoppage South32 deliberately and appropriately allocated work under the supervision of the relief deputies according to its assessment (and revised assessments) of the number of workers that could be safely deployed for each shift. South32 said that under this approach there was no capacity to divert Deputy resources to supervise work on the surface.
The MEU did not provide any evidence that would indicate any capacity for the relief deputies to supervise work on the surface. The MEU did submit that some of the work on the surface could have been coordinated and overseen by managers who were not deputies.
Similarly, the MEU submitted that employees who were stood down could have undertaken training and that deputies were not required to supervise this training because South32 otherwise had a well-resourced training department.
Three of the MEU’s witnesses indicated in their evidence that they could have undertaken some training during the stoppage. This evidence is not strong. The training referred to by each of the witnesses was necessary training to maintain accreditation for certain tasks, but none of the training was pressing at the time. For example one witness said he could have undertaken transport law training and also training in operating coal train loaders. In cross examination that witness said that he did not do the transport law training until five months later in January 2024, that when he did the training his accreditation was not overdue, and that he did the training during downtimes underground or on his crib break. When giving his evidence in March 2024 he indicated that he was yet to do the coal train training. In essence the MEU argued that this employee and other employees could have renewed their accreditations early by undertaking training during the stoppage. Whilst employees obviously need to undertake certain training to maintain their accreditations, and the maintenance of accreditations is useful to South32, I do not accept that time spent on early reaccreditation activities is useful work during a period of protected industrial action.
I am satisfied in this regard that South32 took the steps that a reasonable employer might be expected to take in the same circumstances to avoid or minimise the stand down. As is already clear the role of the Commission is not to pour over the minutiae of each decision made by an employer in the heat of protected industrial action to see if the employer could have done things differently. If an employer acts reasonably and with bona fides, it is not for the Commission to stand in the shoes of the employer, using 20:20 hindsight, to decide whether a different decision or course of action might have delivered a different or better result for employees who had been stood down.
I am satisfied that South32 acted reasonably and with bona fides. South32 communicated clearly with its employees and with the MEU, South32 engaged with the Commission’s dispute resolution process and made necessary concessions when appropriate and provided important information voluntarily and upon request.
I am therefore satisfied that clause 5.6.1 of the Agreement was engaged and South32 was able to stand down employees without pay in the relevant periods.
DEPUTY PRESIDENT
Appearances:
A Jacka for the Applicant
J Darams of Counsel instructed by L Dixon of Minter Ellison for the Respondent
Hearing details:
2024.
Sydney
March 18, 19.
ANNEXURE A
FAIR WORK COMMISSION
Matter No C2023/4271
The Construction, Forestry, Maritime, Mining and Energy Union, Mining & Energy
Division
Applicant v
Illawarra Metallurgical Coal Pty Ltd T/A South32
Respondent
Agreed Statement of Facts
Illawarra Coal Holdings Pty Ltd trading as South32 (South32) operates the Appin Coal Mine also known as the Appin Colliery (Appin).
During the period relevant to this dispute (10 August 2023 to 29 September 2023), the Appin Colliery Mining Supervisors (Deputies) Enterprise Agreement 2016 (2016 Agreement) covered employees employed by South32 who performed work at Appin in the role of Deputy. The 2016 Agreement had a nominal expiry date of 13 March 2023.
The Association of Professional Engineers, Scientists and Managers Australia (APESMA) was covered by the 2016 Agreement. The Construction, Forestry, Maritime, Mining and Energy Union, Mining & Energy Division (MEU) was not covered by the 2016 Agreement. However, some employees covered by the 2016 Agreement are members of the MEU, and during the time relevant to the dispute the MEU was participating in negotiations for a replacement enterprise agreement on behalf of those members.
There were approximately 85 South32 employees in the role of Deputy who performed work at Appin covered by the 2016 Agreement at the time relevant to this dispute.
Deputies have specific statutory functions under the Work Health and Safety (Mines and Petroleum Sites) Regulation 2022 (NSW) relating to supervision and inspection of work areas underground.
The Appin Colliery and West Cliff CPP Enterprise Agreement 2022 (2022 Agreement) covers production and engineering (trades) employees employed by South32 who perform work at Appin and West Cliff CPP in the roles of Surface Operator, Surface Trade, Underground Operator, Underground Trades, and Specialist (Trades and Operator Employees).
The MEU and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia covered by the 2022 Agreement.
There are approximately 450 employees employed by South32 covered by the 2022 Agreement.
South32 engages contract companies to perform work at Appin of the kind which is performed by employees engaged under the 2022 Agreement. There were approximately 500 contract employees usually engaged at Appin at the time of this dispute.
10. South32 operates and maintains a database called Pegasus Online Training Records. The database shows the skill set of any South32 or contractor employee who performs work at Appin and the work the employee is authorised to perform.
11. Clause 5.6.1 of the 2022 Agreement states:
The Company may stand down an Employee for part or all of a day for: refusal or neglect of duty; misconduct; or if the Employee cannot be usefully employed in the Employee’s usual classification because of industrial action impacting the operation.
10. On 26 May 2023 the Fair Work Commission (FWC) approved an application by the MEU for a protected industrial action (PIA) ballot order that covered Deputies who are members of the MEU at Appin.
11. On 26 May 2023, the FWC approved an application by the APESMA for a PIA ballot order that covered Deputies who are members of the APESMA at Appin.
12. On 26 June 2023, South32 conducted a risk assessment to identify any hazards and associated risks in the event Deputies engaged in PIA. This risk assessment specifically considered the risks associated with reduced supervision and inspections underground, given the reduced number of available statutory ticket holders within the staff employees.
13. On 3 July 2023, the Australian Electoral Commission issued a declaration stating that the majority of the voters in the MEU ballot voted in favour of taking of all PIA set out in the questions in the ballot. The PIA included stoppages of work.
14. On 3 July 2023, the Australian Electoral Commission issued a declaration stating that the majority of the voters in the APESMA ballot voted in favour of taking all PIA set out in the questions in the ballot. The PIA included stoppages of work.
15. On 4 August 2023, the MEU notified South32 on behalf of Deputies employed at Appin who are members of the MEU of an intention to engage in PIA in the form of stoppages of work from 10 August to 17 August 2023 inclusive.
16. On 4 August 2023, APESMA notified South32 on behalf of Deputies employed at Appin who are members of the APESMA of an intention to engage in PIA in the form of stoppages of work from 10 August to 17 August 2023 inclusive.
17. On 4 August 2023, the Trades and Operator Employees at Appin received a notice from South32 stating:
“Today we received notification from the Appin Deputies advising they are taking Protected Industrial Action (PIA) in the form of stoppages commencing from 9:15pm on Thursday 10 August 2023. As a result of this notice, we will have to implement business continuity plans.
As you know, Deputies are required under Work Health and Safety laws to provide supervision arrangements and inspections to ensure a safe workplace for the workforce and the mine.
The PIA they have planned creates an unacceptable level of uncertainty for us and, as a result, we have to stand down our workforce in some areas of the mine to ensure the ongoing safe operation of Appin.
We wanted to message you as soon we could so that you had early notice of this stand down. We will be formally notifying those individuals who will be impacted in the coming days.
South32 employees may be able to access annual leave entitlements during this period. Contract employees will need to speak with their employer regarding their entitlements under their relevant enterprise agreement.
This is a difficult decision and one we wish we did not have to make considering the company’s offer included a salary increase of at least 6.3%, which follows a 5% increase last year.
In the meantime, I know this industrial action and uncertainty can be a distraction so please take extra care and look after each other. Remember, our EAP services are also available on 1300 360 364.
If you have any questions, please email [email protected] or speak with your leader.
Andy”
18. On 4 August 2023, Trades and Operator Employees at Appin had discussions with their direct supervisors and raised concerns about the proposed stand down.
19. On 8 August 2023, Trades and Operator Employees at Appin received a second notice from the Company stating:
“Employees covered by the Appin Colliery Mining Supervisors (Deputies) Enterprise Agreement 2023 have notified us that they will be taking protected industrial action from 9.15pm Thursday 10 August – 12.15am on Friday 18 August 2023. We are disappointed they have decided to take this protected industrial action, given the highly competitive offer presented to them.
Over the past nine months we have met regularly with the Deputies and their representatives and revised our proposal in response to those discussions. We have always focused on securing an agreement that sustains our long-term operations and would prefer to work directly with the Deputies to secure that agreement.
The Deputies covered by this agreement play a critical statutory role and help to ensure the safe operation of Appin Mine. In response to their industrial action and the uncertainty it creates, and having considered all options, we have concluded that it is not safe for us to operate certain parts of the Mine without their supervision. Accordingly, we have had to make the unfortunate decision to make areas non- operational and stand down the personnel who work in those areas for the period of the industrial action.
The purpose of this letter is to advise that, as per clause 5.6.1 of the Appin Colliery and West Cliff Coal Preparation Plant Enterprise Agreement 2022, if the protected industrial action proceeds as currently notified, the Company will be required to stand you down as you will not be able to be usefully employed due to industrial action impacting the operation.
If the protected industrial action goes ahead as currently notified, the stand down will commence from Weekday Night shifts commencing at 10:00pm Thursday 10 August and continue until the end of Weekday Afternoon shift at 12.00am on Friday 18 August 2023. During this time, you will not be paid whilst stood down but have access to annual leave entitlements if you wish to take leave in order to continue to be paid during the period of the stand down.
If you would like to take annual leave for the period of any stand down, please advise your Department Superintendent as soon as possible so that we can make arrangements for that leave to be processed, if and when the stand down takes effect.
Please note that we are sending you this letter so you can prepare for the likelihood of a period of standdown, however this letter is not formal notification that a stand down has commenced.
In this regard it may be that the Deputies decide not to take protected industrial action, or to end the period of their protected industrial action early and return to work. If that occurs, you will need to be available to return to work and attend for your normal rostered shifts.
If the industrial action does not proceed, or ends early, we will let you know as soon as we can of the requirement for you to attend work for your normal shift.
We will also advise formally of the commencement of the stand down as soon as the industrial action commences and will also keep you advised of any further developments which might affect the situation.
If you have any questions regarding this correspondence, please reach out to your department Superintendent or email [email protected]
This is a very difficult decision for us, but it is a necessary course of action to keep everyone at Appin safe. Remember, our EAP services are also available on 1300 360 364
Yours sincerely,
Andy Hyslop”
20. On Tuesday 8 August 2023, Andy Hyslop, General Manager, Appin; Rebecca Nasta, Human Resources Lead, Appin; Scott Barry, Appin MEU representative; and John Miller, Appin MEU representative, met to discuss the stand down notices. During the meeting MEU representatives raised concerns of behalf of Trades and Operator Employees at Appin about the proposed stand down.
21. On 8 August 2023, the MEU sent a letter to South32 notifying a dispute pursuant to clause 28 of the 2022 Agreement.
22. On 9 August 2023, South32 sent a letter to the MEU responding to the MEU letter dated 8 August 2023.
23. On 9 August 2023, the MEU filed a dispute in the Fair Work Commission pursuant to s 739 of the Fair Work Act 2009.
24. Prior to the filing of the dispute, a number of MEU members raised individual disputes in relation to their stand down under step 1 of the dispute resolution process set out in clause 28 of the 2022 Agreement.
25. On 14 August 2014, all Trades and Operator Employees received a text message from South32 stating:
We acknowledge receipt of your email earlier today. Representatives from the MEU and ETU have filed disputes related to the potential stand down of employees due to protected industrial action notified by the Appin Deputies.
The Company is currently working through these disputes with the relevant parties. These disputes have been filed on behalf of MEU and ETU members covered by the Appin Colliery and WCCPP Enterprise Agreement 2022.
We will keep you updated on the progress of these processes. If you have any questions, please reach out to HR or email [email protected]
Andy
26. The parties agree that the steps under clause 28 of the 2022 Agreement (the dispute procedure) have been followed.
27. From 10 August to 17 August 2023 inclusive, Deputies who are members of the MEU employed at Appin engaged in PIA in the form stoppages of work on all shifts (except for Deputies rostered on the day shift on Friday 11 August 2023 who did not engage in PIA).
28. In the period from 10 August to 17 August 2023 inclusive, South32 stood down 91 Trades and Operator Employees at Appin. This number included employees who were already absent from the workplace on pre-approved leave prior to the PIA commencing or who were otherwise ill or injured.
29. In the period from 10 August to 17 August 2023 inclusive, contract employees performed trades and operator work at Appin. A number of contractor employees were also stood down in this period.
30. On 14 August 2023, the MEU notified South32 on behalf of Deputies employed at Appin who are members of the MEU of an intention to engage in stoppages of work from 18 August to 24 August 2023 inclusive.
31. APESMA also notified South32 on behalf of Deputies employed at Appin who are members of APESMA of an intention to engage in stoppages of work from 18 August to 24 August 2023 inclusive.
32. From 18 August to 24 August 2023 inclusive, Deputies who are members of the MEU and APESMA employed at Appin engaged in stoppages of work on all shifts.
33. In the period from 18 August to 6.15am on 24 August 2023 inclusive, South32 stood down 45 Trades and Operator Employees at Appin. This number included employees who were already absent from the workplace on pre-approved leave prior to the PIA commencing or who were otherwise ill or injured.
34. In the period from 18 August to 24 August 2023 inclusive, contract employees performed trades and operator work at Appin. A number of contractor employees were also stood down in this period.
35. On 21 August 2023 the MEU notified South32 behalf of Deputies employed at Appin who are members of the MEU of an intention to engage in PIA in the form of stoppages of work from 25 August 2023 to 31 August 2023 inclusive.
36. APESMA also notified South32 behalf of Deputies employed at Appin who are members of APESMA of an intention to engage in PIA in the form of stoppages of work from 25 August 2023 to 31 August 2023 inclusive.
37. From 25 August to 31 August 2023 inclusive, Deputies who are members of the MEU and APESMA employed at Appin engaged in stoppages of work on all shifts.
38. In the period from 25 August to 31 August 2023 inclusive, South32 stood down 45 Trades and Operator Employees at Appin. This number included employees who were already absent from the workplace on pre-approved leave prior to the PIA commencing or who were otherwise ill or injured.
39. In the period from 25 August to 31 August 2023 inclusive, contract employees performed trades and operator work at Appin. A number of contractor employees were also stood down in this period.
40. On 28 August 2023 the MEU notified South32 behalf of Deputies employed at Appin who are members of the MEU of an intention to engage in PIA in the form of stoppages of work from 1 September 2023 to 7 September 2023 inclusive.
41. APESMA also notified South32 behalf of Deputies employed at Appin who are members of APESMA of an intention to engage in PIA in the form of stoppages of work from 1 September 2023 to 7 September 2023 inclusive.
42. From 1 September 2023 to 7 September 2023 inclusive, Deputies who are members of the MEU and APESMA employed at Appin engaged in stoppages of work.
43. In the period from 8 September 2023 to 29 September 2023, the MEU and APESMA continued to notify the intention to take PIA in the form of stoppages.
44. From:
a.8 September 2023 to 20 September 2023, Deputies who are members of APESMA employed at Appin engaged in stoppages of work; and
b.8 September 2023 to 29 September 2023, Deputies who are members of the MEU employed at Appin engaged in stoppages of work.
45. In the period from 1 September to 29 September 2023, no Trades and Operator Employees employed by South32 were stood down.
46. Throughout the period from 10 August 2023 to 29 September 2023, South32 utilised approximately 20 staff employees across various shifts to perform statutory Deputy functions at Appin.
[1] Automatic Fire Sprinklers Pty Ltd v Watson [1946] HCA 25; (1946) 72 CLR 435 at 465.
[2] CEPU v Qantas Airways Limited [2020] FCAFC 205 at [56], (2020) 282 FCR 130.
[3] CEPU v Qantas Airways Limited [2020] FCAFC 205 at [53], (2020) 282 FCR 130 citing Coal & Allied Mining Services Pty Ltd v MacPherson [2010] FCAFC 83; (2010) 185 FCR 383.
[4] Construction, Forestry, Maritime, Mining and Energy Union v Ta Ann Tasmania Pty Ltd[2019] FWCFB 5300 at [12] citing Amalgamated Engineering Union v Metal Trades Employers Association [1945] CthArbRp 426; (1945) 55 CAR 307 at 310
[5] CEPU v Qantas Airways Limited [2020] FCAFC 205 at [40], (2020) 282 FCR 130 at 40.
[6] Coal & Allied Mining Services Pty Ltd v MacPherson [2010] FCAFC 83 at [72], (2010) 197 IR 95 at 109.
[7] Construction, Forestry, Maritime, Mining and Energy Union v Ta Ann Tasmania Pty Ltd[2019] FWCFB 5300 at [18] citing Townsend v General Motors-Holden’s Ltd [1983] FCA 204, 4 IR 358 at 367- 370.
[8] Bristow Helicopters Australia Pty Ltd v Australian Federation of Air Pilots [2017] FWCFB 487 at [45].
[9] Townsend v General Motors-Holden’s Ltd [1983] FCA 204, (1983) 4 IR 358 at 370.
[10] Marson v Coral Princess Cruises (NQ) Pty Ltd[2020] FWC 2721 at [21], (2020) 295 IR 273 at 281.
[11] Qantas No 3 [2020] FCA 1428 at [24], (2020) 299 IR 100 at 117.
[12] Bristow Helicopters Australia v Australian Federation of Air Pilots [2017] FWCFB 487 at [38] and [43].
[13] Australian Licensed Aircraft Engineers Association v Qantas Airways Limited [2022] FCAFC 50 at [61], [119] and [137], (2022) 291 FCR 531; (2022) 314 IR 231.
[14] Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association (No 3) [2020] FCA 1428 at [18]-[25], (2020) 299 IR 100.
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