Mr Dion Campbell v BHP Billiton Iron Ore Pty Ltd
[2015] FWC 3318
•3 JUNE 2015
| [2015] FWC 3318 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Dion Campbell
v
BHP Billiton Iron Ore Pty Ltd
(U2014/11032)
COMMISSIONER CLOGHAN | PERTH, 3 JUNE 2015 |
Unfair dismissal - jurisdictional objections - high income threshold - enterprise agreement - modern award.
[1] Mr Dion Campbell (Mr Campbell or Applicant) has made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from his former employer, BHP Billiton Iron Ore Pty Ltd (BHPBIO or Employer).
[2] The application was made pursuant to s.394 of the Fair Work Act 2009 (FW Act).
[3] In response to the application, the Employer asserts that the Applicant is not protected from unfair dismissal of the FW Act, because at the time of his dismissal:
- his annual rate of earnings is more than the high income threshold;
- an enterprise agreement does not apply to Mr Campbell’s employment; and
- a modern award does not cover the Applicant’s employment.
[4] The Applicant has agreed that, at the time of his dismissal, his annual rate of earnings was greater than the high income threshold and an enterprise agreement did not apply to his employment.
[5] Accordingly, the question for determination by the Commission is whether a modern award covered Mr Campbell’s employment.
[6] This is my decision and reasons for decision as to whether a modern award covered Mr Campbell’s employment.
RELEVANT LEGISLATIVE FRAMEWORK
[7] The question of whether Mr Campbell is protected from unfair dismissal in dependent on whether his application is in accordance with s.382 of the FW Act as follows:
“382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”
RELEVANT BACKGROUND
[8] Mr Campbell was employed by BHPBIO in its Non Process Infrastructure Division (NPI Division) since 9 March 2009. At the time of his dismissal, the Applicant was employed as Superintendent Electrical.
[9] At the time of Mr Campbell’s dismissal, his base salary plus Work Component Payment was $217 360.
[10] In his application, Mr Campbell asserts that his:
“....employment was covered by a contract of employment and the [Electrical Power Industry Award 20120] (EPI Award).”
[11] Mr Campbell was dismissed on 27 June 2014.
[12] The jurisdictional objections by the Employer to this application are similar to that in application U2014/11029 which was filed on the same day. For this reason my decision and reasons for decision are similar.
CONSIDERATION
[13] I consider that my determination in this matter can be reduced to the simple question of whether the EPI Modern Award covered Mr Campbell’s employment.
[14] Clause 4 of the EPI Modern Award relevantly reads:
“4.1 This industry award covers employers throughout Australia in the electrical power industry and their employees in the classifications listed in Clause 16-Classifications and Schedule B-Classification Descriptions to the exclusion of any other modern award.
4.2 In this award, electrical power industry means:
(a) the generation (by whatever means), transmission, distribution and retail supply of electrical power; and
...
but does not include:
(e) the generation and/or transmission of power and/or steam that is ancillary or incidental to the employer’s activities in another industry (notwithstanding that excess power may sold into the grid).”
[15] Accordingly, for Mr Campbell to be protected from unfair dismissal, it is necessary for the Employer to be an employer “in the electrical power industry”.
Transport Workers’ Union of Australia v Coles Supermarkets Pty Ltd [2014] FCAFC 148 (TWU v Coles)
[16] In TWU v Coles, the Full Court of the Federal Court stated that the test for determining whether a modern award applied, “is to discern the objective meaning of the words bearing in mind the context in which they appear and the purpose they are intended to serve” 1.
[17] In TWU v Coles, the Full Court was dealing with both the Road Transport and Distribution Award 2010 (RT&D Modern Award) and the General Retail Industry Award 2010 (Retail Modern Award).
[18] In the originating judgement, the primary Judge determined that the RT&D Modern Award did not apply to Customer Service Agents (CSAs) employed by Coles. The Full Court found against the primary Judge on this matter. The Full Court did so, on the basis that RT&D Modern Award expressly included in its definition of road transport and distribution industry, “where the work performed is ancillary to the principal business, undertaking or industry of the employer”.
[19] Simply put, the Full Court found, in accordance with the definition of the road transport and distribution industry, that the RT&D Modern Award included work involving the transport of goods, even though it was ancillary to Coles’ principal business.
[20] Before turning to the words in Clause 4 of the EPI Modern Award, it is useful to consider the context and purpose of the coverage of modern awards as they were created.
“Request”
[21] On 28 March 2008, the then Minister for Employment and Workplace Relations made a request pursuant to s.576C(1) of the Workplace Relations Act 1966 that the AIRC undertake award modernisation (Request)
[22] The Request, amongst other matters, required modern awards:
- to be simple to understand, easy to apply and reduce the regulatory burden on business;
- must result in a certain, stable and sustainable modern award system.
[23] Modern awards are not intended to:
- extend award coverage to those classes of employees, such as managerial employees who, because of the nature or seniority of their role, have traditionally been award free;
- result in high-income employees being covered by modern awards.
[24] When creating modern awards, the Commission is to:
- create them primarily along industry lines;
- have regard to the desirability of reducing the number of awards operating in the workplace;
- have regard to the desirability of avoiding the overlap of awards and minimising the number of awards that may apply to a particular employee or employer.
Creation of the EPI Modern Award
[25] On 30 January 2009, the Full Bench of the Australian Industrial Relations Commission ([2009] AIRCFB 100) set out a list of industries and occupations in the modern award process. In addition, the Full Bench provided a list of awards existing at the time and potentially relevant to each of the industries or occupations to that industry.
[26] The electrical power industry (AM2008/34) relevant awards (which also included Notional Agreements Preserving State Awards (NAPSAs)) are set out in an attachment to the Full Bench Decision referred to above. I note that none of the awards refer to the mining sector and distinctly relate to the “power and energy” industry. I note that the only Western Australian award, relates to what was then known as the “State Energy Commission”.
[27] Transcript of proceedings before Vice President Lawler in March 2009 in relation to the electrical power industry, immediately demonstrated the issue of the intended coverage of the EPI Modern Award.
[28] Representatives from BHP Billiton Pty Ltd (BHPB), the Australian Sugar Milling Council and the Aluminium industry made submissions to the Vice President that there was no nexus between their industries and the electrical power industry, and consequently, should be kept separate in the award modernisation process. 2
[29] In response, the Australian Workers’ Union gave unequivocal support to the position expressed by representatives from BHPB, the sugar millers and the aluminium industry. Ms Gray, who appeared for the Construction, Forestry, Mining and Energy Union, Mining and Energy Division (CFMEU M&E Division) had an exchange with VP Lawler which relevantly reads:
“...And it's equally important we would say that the exemptions and exclusions don't contain ambiguous or not clearly defined words such as ancillary to, such as the employers do in their draft, that to exclude other industries is one thing, but to exclude work or to exclude processes which are ancillary to that industry also delves in the same sort of ambiguity as the in or in connection does with the scope or the definition of an industry.” 3
“THE VICE PRESIDENT: Sorry, I must say I perhaps thought the intent of what the employers were trying to achieve was clear. If an employer's primary enterprise, if what it's about is generating power then it's going to be caught by this award. If what it's about though is not generating power and the generation of power is simply a part of or integral to or incidental to, ancillary to, these are all labels to describe something which is not the main part of their activity, then it's not to be caught by this award but rather caught by the award that applies to the primary activity.” 4
“MS GRAY: If an employer only has one activity, your Honour.
THE VICE PRESIDENT: Precisely.
MS GRAY: And there we have the difficulty.
THE VICE PRESIDENT: But if you could take the aluminium - or rather to take a sugar mill that has a generator as part of the plant, as part of the mill, or the steam that's used to operate the mill also drives a generator and the electricity produced by the generator provides the electricity for the plant, I mean, you wouldn't be saying that that's part of the electrical power industry would you?
MS GRAY: No, we wouldn't, your Honour, any more than we would say that a vent that, you know, mine methane which is vented from an operational black coal mine to the surface to go through a turbine and produce enough electricity to run 20,000 households such as exists by BHP at Westcliffe Colliery, is not in the black coal mining industry yet...So it isn't clear cut, there are lots of examples, exceptions and exclusions even from some of the companies that have jumped up today to say, you know, we've got concerns about the combined unions scope clause, that we just want our industries to be clear.” 5
“...this process of modernisation to coalesce all of those historically made awards and industries into a number of modern awards we say will give primacy to the interpretation of the words in the scope clause, and the parts of the electrical power industry be excluded by the scope clause of the aluminium industry, the oil and gas industry and so on. And that's the concern we have.” 6
[30] On 3 July 2009, the CFMEU M&E Division submitted to the Full Bench of the AIRC that it recognised the aluminium and sugar milling industries generated power and steam, and in those circumstances would be captured within their respective modern awards, as distinct from the proposed EPI Modern Award. 7
[31] Consistent with the Request, the parties worked towards the achievement of an EPI Modern Award which recognised that employers in other industries could be involved in an activity which fell within the broad definition of the electrical power industry, but were not in the electrical power industry.
[32] The Full Bench in making the Aluminium Industry Award [2009] AIRCFB 826 made the following observation:
“[22] One of the most contentious issues was where the line should be drawn between the aluminium industry and the electrical power industry and the proper form of words to effect that demarcation. In particular, there was considerable debate over the extent to which the generation of power for use in aluminium smelters and other aluminium industry establishments should be regarded as being within the aluminium industry.
[23] We have varied the wording of cl.4.2(c)(i) of the exposure draft but have not adopted the form of words suggested by either the employer group or the combined unions. We note the extensive submissions of the Construction, Forestry, Mining and Energy Union, Mining and Energy Division (CFMEU(M&E)) in relation to co-generation within Australia and within the aluminium industry in particular. Although we accept the general thrust of the CFMEU(M&E) submissions that would see large stand-alone power stations as properly being within the electrical power industry, we are concerned that the form of words proposed by the combined unions may have unintended consequences of the sort identified by counsel for Australian Federation of Employers and Industries (AFEI) during the oral consultations. We have modified the form of words used in the exposure draft and included that same modified form of words in the Sugar Industry Award 2010 where identical issues arise. When cl.4.2(c)(i) comes to be construed, proper emphasis needs to be placed on what is “ancillary” or “incidental” to the “employer’s activities in cll.4.2(a) or (b)”. It is unlikely that the generation of power in a stand-alone power station that ordinarily supplies a significant portion of its output into the grid would come within the inclusion in cl.4.2(c)(i). If such a power station was operated by an employer who also operated an aluminium smelter the employer would prima facie be in the electrical power industry so far as the power station was concerned. Of course, each case will turn on its own facts.”
[33] In the Sugar Industry Award 2010, the Full Bench specifically identified that the coverage clause had been clarified to include steam production and power generation.
[34] With respect to the EPI Modern Award, the Full Bench gave it creation historical context and acknowledge the contentious dividing line as follows:
“[63] The fact that electrical power generation was once exclusively a public sector activity in each of the States and the Northern Territory, together with the trend to privatisation of power generation in recent decades, has led to a somewhat unusual situation in relation to state and federal awards. In particular, many if not most of the major employers in the industry are covered by enterprise awards or NAPSAs. There is no federal award that has application outside a single state or territory. There are only two federal awards, both in Victoria, that apply to more than one employer (albeit that all such employers are successors of the state electricity generator). There are industry NAPSAs in South Australia and Queensland. New South Wales is characterised by state enterprise NAPSAs (or, more accurately given the effect of state legislation passed in response to the WorkChoices legislation, preserved state agreements) although the number is small and, again, each of the main generators in New South Wales are successors of the state-owned generator. The particular history to which we have adverted has resulted in awards and NAPSAs with disparate terms and conditions. Although we have relied upon the non-enterprise Victorian awards, particularly the Power and Energy Industry Electrical, Electronic & Engineering Employees Award 199814(QuadE Award), this is an industry where the particular circumstances make it appropriate to also have regard to the terms of enterprise awards and NAPSAs.
[64] We have already discussed, in the context of the aluminium industry, the contentious issue of the dividing line between the electrical power industry and other industries, including the aluminium and sugar industries, where employers often generate electrical power for the purposes of their activities that other industry and the form of words adopted to identify that dividing line. An equivalent form of words has been adopted to describe the generation and transmission of power and steam that is excluded from the electrical power industry.”
[35] While I am unable to discern further specific discussion regarding the submission of BHPB in the making of the EPI Modern Award, I suspect it was because, as the AIRC acknowledged in its Decision of 21 December 2009 at paragraph [5], the BHP companies are the largest employer of employees in the mining industry. 8
[36] I now turn to the particular wording of the coverage clause of the EPI Modern Award.
EPI Modern Award
[37] Subclause 4.2(a) of the EPI Modern Award defines what is meant by electrical power industry; it is “the generation (by whatever means), transmission, distribution and retail supply of electrical power.
[38] The Applicant submitted that the word “and” should be read in the constitutive, that is, in the same sense as “or”. Accordingly, the employer can be involved in either the “generation”, “transmission”, “distribution” or “retail supply” of electrical power 9.
[39] In support of this submission, the Applicant relied upon: the ordinary meaning of the words, the industrial context, consequences for the fragmented Western Australian energy industry and comments by the Full Bench of the Commission in the EPI Modern Award process.
[40] While I find that the Applicant’s contention as to the definition of electrical power industry is correct, it is not entirely for the reasons set out in his submission. It is notable that Mr Fiske, General Manager, NPI Division gave evidence that the “supply of electricity involved the processes of generation, transmission, distribution and retail. Each of these is a discrete and well understood process” 10.
[41] Adopting the test in TWU v Coles, what is the objective meaning of the words in Clause 4 Coverage, in the EPI Modern Award.
[42] I have adopted the ordinary meaning of “objective”, as having an existence in the real world, and not some sort of sense experience.
[43] As the Full Court noted in TWU v Coles, awards are no longer dependent on specific employer respondency, but on the existence of an industry, in this case, the electrical power industry.
[44] Having found that the “electrical power industry” includes either the “generation”, “transmission”, “distribution” or “retail supply” of “electrical power”, it is still necessary to determine whether the Employer is “in the” electrical power industry, pursuant to subclause 4.1 of the EPI Modern Award.
[45] Paragraph 4.2(e) of the EPI Modern Award specifically excludes, in the definition of electrical power industry, “the generation and/or transmission of power that is ancillary to the employer’s activities in another industry” (my emphasis). If the generation and/or transmission of power aids an employer’s activities in another industry, that employer is not in the electrical power industry.
[46] In the making of the EPI Modern Award, it was envisaged that some employers, as part of their enterprise, may wish to create and transmit energy as part of their principal business activities. However, those employers are excluded from the EPI Modern Award. Simply put, there are “exceptions to the rule” of what is the electrical power industry.
[47] The Applicant states that the BHPBIO is engaged in the generation, transmission, distribution and retail supply of electrical power within an “islanded” network, servicing the Newman region including the town of Newman. On that basis, BHPBIO is in the electrical power industry for the purposes of the EPI Modern Award.
[48] In support of this assertion, the Applicant’s witness statement relevantly reads:
“As a result of my employment, I had significant involvement in, and have details (sic) knowledge of, BHPBIO’s electricity operations on the Newman network.
Presently, the electricity in the Newman network is generated by Newman Power Station, which is owned and operated by Alinta Energy, though I understand that BHPBIO has also built its own power station, the Yarnima Power Station, which also feeds electricity into the Newman network.
The Newman network supplies the electricity requirements for BHPBIO’s operations in the Newman region, including at its Mt Whaleback mine site.
The Newman network also supplies the total commercial and residential electricity requirements of Newman’s township.
I also understand that, as the retail supplier, BHPBIO engages a contractor, MBC Global, to handle billing arrangements, but otherwise bills residents and businesses in Newman for the cost of the transmission, distribution and retail supply of electricity.
I estimate that during peak output 17 to 20 per cent of the power in the Newman network is used by the commercial and residential requirements of Newman’s township.”
Generation of electricity
[49] The Applicant does not assert that BHPBIO generates its own energy. The Employer puts the same position. Power is generated by Alinta Energy’s Power Station in Newman. BHPBIO purchases 100% of the power generated by Alinta’s Power Station under a Power Purchase Agreement 11.
[50] Mr Campbell’s reference to Yarnima Power Station is not materially relevant to his application. The Yarnima Power Station generated, at the time of Mr Campbell’s dismissal, electricity for test purposes only.
[51] Accordingly, with respect to the definition of electrical power industry, the evidence demonstrates that BHPBIO does not carry out the activity of “generating electrical power”; it is a purchaser of electrical power, and I find accordingly.
Transmission of electricity
[52] Having purchased electrical power, it is necessary to transmit that energy to the end user. Transmission of energy is along transmission lines generally consisting of “towers and wires” and other equipment 12. The Employer does not own this infrastructure - it is owned by another entity, the Mt Newman Joint Venture (MNJV). However, the Employer, as part of its agreement with the MNJV, is responsible for operating and maintaining the Newman Network.
[53] I am unable to find conclusively, that because the Employer is responsible for operating and maintaining equipment owned by another entity which transmits electricity, it is in the electrical power industry. However, even if I did find that the BHPBIO, by virtue of operating and maintaining the Newman Network, is in the electrical power industry as defined in paragraph 4.2(a) of the EPI Modern Award, the activities are ancillary and incidental to the Employer’s iron ore mining operations, and excluded pursuant to paragraph 4.2(e) of the EPI Modern Award.
Distribution of electricity
[54] The exclusions or exceptions in subclause 4.2(e) of the EPI Modern Award only extend so far as “generation and/or transmission” of electrical energy. What then are the circumstances of an employer who is involved in the distribution and/or retail supply of energy - is that employer in the electrical power industry?
[55] MNJV also owns all of the infrastructure involved in the distribution of electrical power. Distribution refers to the equipment, such as substations which facilitate the transmission of electricity from high voltage to a level suitable for end users. I have evidence from Mr Fiske that, “maintenance of the distribution infrastructure components becomes the responsibility of the mine manager of each mine from the point of the network where transmission processes become distribution processes (due to the stepping down of voltage). Practically, transmission becomes distribution and the responsibility of the mine manager at a point in the main switch yard or substation near the mine”. 13
[56] Similar to the issue of whether the Employer’s activities relating to the transmission of energy, I am not conclusively satisfied that the activities of the BHPBIO in operating and maintaining another entity’s infrastructure are sufficient to be within the definition of distribution within the electrical power industry pursuant to Clause 4(2)(a) of the EPI Modern Award.
[57] The Applicant acknowledges that the activities of BHPBIO relating to transmission and distribution overlap with respect to its mining operations. However, he submits there is greater clarity where it relates to distribution of electricity for retail supply to the town of Newman. 14
[58] I now turn to BHPBIO’s activities as they relate to the retail supply of electrical power.
Retail supply of electricity
[59] I consider it fair to say that “retail” is the sale of goods to consumers.
[60] I also consider it fair to state that retailers generally buy goods to subsequently sell to consumers for a profit.
[61] In the electrical power industry, retailers generally purchase electricity either through generators of electricity directly, or through the market and sell to customers. Recent developments in the electrical power industry have increasingly seen a separation of generation, transmission, distribution and the retailing of electricity. Some purchasers of electrical energy have no assets and essentially retail purchased electrical energy to consumers. The retailer charges the consumer for electrical energy used, with presumably, the intention of making a profit.
[62] Mr Campbell’s evidence is that BHPBIO “bills residents and business in Newman for the cost of transmission, distribution and retail supply of electricity” 15 and estimates that 17% to 20% of electricity generated is used by the purchasers in the township.
[63] In Western Australia, BHPBIO’s iron ore operations are based in the Pilbara and consist of seven (7) mines, two (2) railways and two (2) port facilities located at Port Hedland.
[64] BHPB Minerals has the right to mine Mount Whaleback, six kilometres from Newman. There are smaller iron ore deposits in the vicinity of Mount Whaleback but, for convenience, I will refer to the mine and surrounding deposits, as Mount Whaleback.
[65] Mount Whaleback iron ore deposits are within a mineral lease which was originally granted to the Mt Newman Iron Ore Company Limited pursuant to the Iron Ore (Mount Newman) Agreement Act 1964 (WA) (Mt Newman State Agreement).
[66] The Mt Newman State Agreement essentially ratified a contract entered into by the State of Western Australia and Mt Newman Iron Ore Company Limited. BHPBIO is now the manager of the joint venture to mine iron ore from Mount Whaleback.
[67] Pursuant to the Mt Newman State Agreement, the MNJV partners were required to construct and develop the town of Newman in order to support the iron ore operations at Mount Whaleback. In addition, the MNJV partners had to provide electricity and other essential utility services to the Newman township. 16
[68] The Newman township has approximately 7,000 residents.
[69] Generally, BHPBIO employs non “fly-in fly-out” (FIFO) employees at its Pilbara mines.
[70] Approximately 60% of accommodation, as well as other buildings and infrastructure, are owned by BHPBIO. A number of BHPBIO employees own their own homes in Newman.
[71] Approximately 700 FIFO employees are accommodated in Newman during their roster.
[72] Mr Fiske estimates that approximately 75% of the approximate 7,000 residents (including families of workers) in Newman, are living in Newman for reasons associated with the mining of the Pilbara mines 17. Put simply, Mr Fiske’s evidence is that a significant proportion of residents reside in Newman for the purposes of employment, either directly or indirectly. Furthermore, those persons would not continue to reside in Newman without employment at the mines.18
[73] BHPBIO outsources the retail supply process of electricity to a contractor. The contractor invoices customers. 19
[74] Customers are charged in accordance with the Western Australian Government’s tariff schedule. The tariff has a nexus with that charged by Horizon Power in regional areas of Western Australia.
[75] Horizon Power receives a subsidy through the State Government’s Tariff Equalisation Account to ensure that regional electricity customers pay the same as metropolitan consumers; BHPBIO does not receive any subsidy. As a result, BHPBIO provides power to its consumers “at a loss and is subsidising all Newman customers”. 20
[76] In summary, Mr Fiske states “BHPB Iron ore would not supply power to the town of Newman were it not for its obligation to do so in the State Agreement; an obligation which is tied to the mineral lease from which it mines its iron ore.”
[77] The Applicant submits that all these circumstances are irrelevant. It is irrelevant whether BHPBIO is forced to sell electricity to customers or whether it chooses to make a profit or not - the Employer is engaged in activities that fall within the definition of electrical power industry for the purpose of coverage. I cannot agree.
[78] As set out in TWU v Coles, the test to discern the objective meaning of the coverage in a modern award, is to “[bear] in mind the context in which they appear and the purpose they were intended to serve”. 21
[79] Clearly there is a considerable distance between the ordinary and objective sense of the word “retail” as it relates to the electrical power industry generally, and the circumstances which BHPBIO finds itself in. It would do no justice to the test in TWU v Coles, to simply say that if an organisation retails electrical energy, then it is in the electrical power industry. To do justice to the test, it is necessary to compare the retailing of electricity by BHPBIO against the text, context and purpose of what industry is intended in the coverage clause of the EPI Modern Award.
[80] Recently, the Full Bench of the Commission in Mitolo Group Pty Ltd v National Union of Workers[2015] FWCFB 2524(Mitolo v NUW) stated that although both parties had submitted that the “substantial character” test should apply, it noted:
“We would derive from the Full Court’s decision [TWU v Coles] the proposition that the “substantial character” test will not be appropriate in determining coverage of a modern industry award at least where the relevant industry is not defined in a way which operates by reference to the characterisation of the employer’s business taken as a whole”. [43]
[81] Until the mid 1990s, the electrical power industry in Australia was very much State monopolies consisting of all the infrastructure (generation, transmission, distribution) and retail. That is, the industry was one of vertical integration. Understandably, at the time of the modern award process, the awards considered as part of the electrical power industry modern award process are predominately, what can be characterised as, industrial instruments in the electrical power industry. Put shortly, the employers in the reference awards, as observed by the Full Bench in Mitolo v NUW, operated in an industry which could be characterised by the employer’s business taken as a whole.
[82] The issue of which employers were “in” or “out” of the electrical power industry immediately became apparent in the award modernisation process in the generation of power occurring in other industries. The two examples repeatedly acknowledged were the sugar industry which generated its own power for sugar milling purposes, and Alcoa Victoria which generated electricity for its aluminium smelters.
[83] The EPI Modern Award is foremost an “industry” award and that industry is the “electrical power industry”. This appears, at first blush to be precise, but to give clarity, subclauses 4.2 (a) and (b) define the constituent parts of that industry with an exclusion at subclause 4.2 (e). However, it is still necessary for the employer to be in that industry.
[84] The Full Court in TWU v Coles states that when determining coverage of a modern award, it is necessary to “bear in mind” both the context and purpose of the words in the coverage clause. I understand the Full Court as saying that the reader should be mindful of, or take into account, the context or purpose of the words used in the coverage clause of a modern award.
[85] The Applicant’s argument is that the Commission should have no regard BHPBIO “substantive character” test of the Employer following TWU v Coles. While that is correct regarding the test, it does extinguish the need to consider the overall context and purpose of the words in the coverage clause including whether the employer is in the electrical power industry.
[86] The EPI Modern Award, along with other awards, was intended to be created “primarily along industry lines” with a desire to avoid the “overlap of awards and minimising the number of awards that may apply to a particular employee or employer”. This is best illustrated by the comments of the Full Bench of the AIRC on 19 December 2008 as follows:
“[32] The Australian Council of Trade Unions (ACTU) and some other interested parties proposed that the award should contain a list of superseded awards. As we indicated in our statement of 12 September 2008, we intend to make arrangements for a list of awards and Notional Agreements Preserving State Awards (NAPSAs) superseded by each modern award to be made available administratively. We have taken this course because in moving from a system in which award respondency is based on named parties to one in which award coverage is defined primarily by industry or occupation there is significant room for interpretation and argument in borderline cases. It is not possible to anticipate all of the circumstances which might arise because all of the modern awards will commence to operate on the same date.” 22 (my emphasis)
[87] The superseded awards, as I have already indicated, were very much in what was understood to be historically in the electrical power industry. The EPI Modern Award was an historical integration of those awards which represented, both operationally and industrially, the electrical power industry. It did not include employers in the mining industry.
[88] The Applicant essentially argues that, because the Employer at some point in its business, is involved in either the distribution or retailing of electricity, it is a self evident truth that it is the electrical power industry by definition. In my view, the Applicant’s approach to the definition of the electrical power industry in Clause 4 of the EPI Modern Award, is being wrongly constrained and not consistent with TWU v Coles.
[89] The Applicant’s argument is not on all fours with the Full Court Decision in TWU v Coles. The test in TWU v Coles requires the Commission to take into account the historical context of the electrical power industry, the context in which the EPI Modern Award was created and the industrial purpose sought to be achieved by modern awards generally.
[90] By way of example, we would say that a man is bald if he does not have a hair on his head. However, we would not say that the same man ceased to be bald if he had one hair on his head. I am unable to come to the conclusion, in these unusual circumstances, that BHPBIO is in the electrical power industry because it provides electrical power to the town of Newman.
[91] Finally, for the Applicant to be covered by the EPI Award, it is necessary that the employer be in the electrical power industry and their employees be employed in the classifications listed in Clause 16 Classifications and Schedule B Classification Descriptions.
[92] Mr Campbell was employed as a Superintendent Electrical. As the title suggests, Mr Campbell’s principal purpose of employment was to manage employees. I am unable to reconcile Mr Campbell’s role and responsibilities with any of the four classification streams in the EPI Award. For this reason, I find that he was not employed in a classification in the EPI Award.
[93] Ironically, the Applicant submits that should I find that he was not employed in the electrical power industry and/or not in a classification in the EPI Award, he was covered by the Mining Industry Award 2010 (Mining Modern Award).
[94] I have no hesitation in finding that BHPBIO falls within the definition of mining industry in subclause 4.2 of the Mining Modern Award, however, it still remains for Mr Campbell to be employed in a classification in that award.
[95] The Applicant asserts that his employment falls within the classification of “Mining Industry Maintenance Trades Employees” which is defined as:
“A mining Industry Maintenance Trades Employee is designated as such by their employer, performs all tasks on the surface or underground as directed by their employer and is trade qualified”.
[96] Firstly, Mr Campbell was never designated as a Maintenance Trades Employee by BHPBIO. He was, and does not dispute that he was, designated as a Superintendent Electrical. Secondly, in a general sense, he was not employed to carry out “tasks” but had a role and responsibility to “manage a team of electrical professionals”.
[97] I find that Mr Campbell was not employed in work in a classification in the Mining Modern Award.
[98] I also add that my finding is consistent with the Request that modern awards are not intended to extend award coverage to employees, “such as managerial employees who, because of the nature or seniority of their role, have traditionally been award free”.
CONCLUSION
[99] Having considered the factual circumstances, TWU v Coles, Mitolo v NUW and for the reasons above, I find that the Applicant was not covered by the EPI Modern Award or the Mining Modern Award. As a consequence, Mr Campbell has not met the conditions in s.382 of the FW Act to be protected from unfair dismissal. Accordingly, his application must be dismissed. An order to this effect is issued jointly with this Decision.
COMMISSIONER
Final written submissions:
Applicant: 18 November 2014.
Employer: 18 November 2014.
1 Paragraph 22
2 AM2008/34 Transcript 25/03/2009 PN20 to PN56
3 Ibid PN300
4 Ibid PN303
5 Ibid PN304 to PN308
6 Ibid PN309
7 AM2008/25-63 Transcript PN5110
8 [2009] AIRCFB 958
9 Applicant’s submission - para 10
10 Mr Fiske’s witness statement - para 56
11 BHPBIO submission - para 38
12 Mr Fiske’s witness statement - para 58
13 Mr Fiske’s witness statement - para 84
14 Applicant’s submission - 17 November 2014
15 Applicant’s affidavit para 13
16 Mr Fiske’s affidavit - para 33
17 Mr Fiske’s affidavit - para 38
18 Mr Fiske’s affidavit - para 39
19 Mr Fiske’s affidavit - para 86
20 Mr Fiske’s affidavit - para 90
21 TWU v Coles para 22
22 [2008] AIRCFB 1000
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