[2020] FWC 5506

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Patrick Alan Rogers
v
TMM Group (Operations) Pty Ltd
(U2020/2473)

DEPUTY PRESIDENT ASBURY

BRISBANE, 16 OCTOBER 2020

Application for an unfair dismissal remedy.

OVERVIEW

[1] By Order¹ issued on 28 September 2020, I dismissed an application made by Mr Patrick Alan Rogers (the Applicant) under s.394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy with respect to his dismissal from his employment with TMM Group (Operations) Pty Ltd (TMM). The application was dismissed on the basis that I found that the Applicant was not a person protected from unfair dismissal. These are the reasons for my Decision.

[2] In his Form F2 Application for an unfair dismissal remedy, Mr Rogers asserted:

“The Applicant was employed by the Respondent as a Group 1 Foreperson under the Black Coal Mining Industry Award 2010 (the Black Coal Award), which is a modern award that is in operation. But for the fact that he was employed pursuant to that modern award, this application would fail (ie. the unfair dismissal provisions of the FW Act duly apply to the Applicant because of the operation of the aforementioned modern award.”

[3] In its Form F3 Response, TMM objected to the application, asserting that the Applicant was not protected from unfair dismissal on the basis that he earned more than the high income threshold and was not covered by a modern award.

[4] It is not in dispute between the parties that the TMM employed more than 15 employees at the time of Mr Rogers’ dismissal. It is also not in dispute that Mr Rogers was employed for a period of time that satisfies the minimum employment period under s.382(a) and s.383. It is common ground between the parties that the Applicant’s annual income was greater than the high income threshold provided by s.382(b)(iii) and Regulation 3.05 of the Fair Work Regulations 2009 and that Mr Rogers was not covered by an enterprise agreement.

[5] Both parties sought to be represented in proceedings before the Commission. Permission was granted pursuant to s. 596 of the Act, on the basis that the matter involved issues of complexity and I was satisfied that it would enable the matter to be dealt with more efficiently. The Applicant was represented by Mr Zaccaria Casagrande of Industrial Relations Claims. Evidence was provided by Mr Rogers on his own behalf. Evidence on behalf of Mr Rogers was also provided by:

• Mr Matt Morris²;

• Mr Jarvis Evans³; and

• Mr Anthony Ryan⁴.

[6] TMM was represented by Mr Andrew Pollock, of Counsel instructed by Mr Simon Rogers from Mills Oakley. Evidence in support of TMM’s objection was given by:

• Mr John Harper, Operations Manager⁵;

• Justin Webb, Area Manager - Plant⁶; and

• James Bracken, Specialist Training, Macmahon Holdings⁷.

THE ISSUES IN DISPUTE

[7] The resolution of the issues in dispute was made unnecessarily complex by the entirely unsatisfactory manner in which the Applicant’s representative conducted the Applicant’s case. Essentially the Applicant’s representative proceeded on the basis that it was only necessary for the Applicant to nominate an award which possibly covered the Applicant and that if the Respondent maintained that the award did not apply then the onus was on the Respondent to also establish that no other award applied.

[8] It was necessary for me to conduct a number of Mention/Directions hearings in which I made clear to the Applicant’s representative that the Applicant was required to establish that he was a person protected from unfair dismissal and to establish that an award covered him and to nominate that award, or any alternative awards that were said to cover the Applicant. To this end, I issued Directions on 5 May 2020 which required that the Applicant ensure that his submissions and witness statements addressed:

“the nature of his employment, the duties he performed and why he asserts his employment is covered by the Black Coal Mining Industry Award 2010 or some other award.”

[9] The Respondent was also directed to file material addressing the basis of its assertion that no award applied to the Applicant having regard to matters including the role and duties performed by the Applicant. The material filed by the Applicant in response to these Directions addressed only the issue of whether the Applicant was covered by the Black Coal Award and did not assert that any other modern award applied to the Applicant. The material filed by the Respondent addressed the issue of whether the Black Coal Award applied to the Applicant but did not address why the Respondent said that no other award applied.

[10] I relisted the matter for a further Mention/Directions hearing on 4 June 2020. At that hearing the Applicant’s representative indicated that he would argue at the hearing that there were awards other than the Black Coal Award which may have covered the Applicant. As a result, I issued further Directions including that:

“[9] By no later than 4.00 pm on Wednesday 17 June 2020, the Respondent is required to file in the Commission and serve on the Applicant a further outline of submissions and statements of evidence from any witness to be relied on at hearing in support of the jurisdictional objection. The further outline of submissions and statements of evidence are required to address the basis upon which the Respondent asserts that the Applicant was not covered by a modern award having regard to the Employer’s operations and the role and duties the Applicant was employed to perform.

[10] By no later than 4.00 pm on Friday 26 June 2020, the Applicant is required to file in the Commission and serve on the Respondent a further outline of submissions and statements of evidence from any witness to be relied on at hearing in opposition to the jurisdictional objection including a statement of the Applicant. The further outline of submissions and statements of evidence are required to identify the modern award which the Applicant asserts covered him if the Black Coal Mining Industry Award 2010 did not cover him and the basis upon which he asserts that he was covered by that modern award, having regard to the Employer’s operations and the role and duties the Applicant was employed to perform.”

[11] I also indicated that the possibility that the Manufacturing and Associated Industries and Occupations Award 2010 (the Manufacturing Award) may have covered the Applicant. Notwithstanding the Directions, the Applicant’s representative continued at the hearing to press an argument that the Applicant did not have to prove that he was covered by an award or assert that a particular award or awards applied and that it was a matter for the Respondent to prove that no award applied. The Applicant’s representative also raised the possibility that a third award – The Building and Construction General On-site Award 2010 (the Building Award) may have covered the Applicant. However, the Applicant’s representative raised this question in cross-examination rather than in accordance with the Directions I had twice issued.

[12] As I indicated to the parties at the hearing, I adopt the following view in relation to onus, as expressed by a Full Bench of the Commission in Piyush Jain v Infosys Limited T/A Infosys Technologies Limited (Jain):

“In most cases the question of where an evidentiary onus (or something analogous to it) resides will be answered by asking; in relation to each matter about which the Commission must be satisfied, which party will fail if no evidence or no further evidence about that matter were given? The evidentiary onus will generally be the party that will fail in that event.”8

[13] I also agree with the observations of Deputy President Anderson in Robert Caruana v Shace Toop Trading Trust T/A Toop &Toop Real Estate⁹ who cited Jain and went on to make the following observations:

“[57] Applying this approach, it is apparent that both parties before me bear an evidentiary onus.

[58] The primary onus rests on Mr Caruana. As applicant, he is required to satisfy the Commission that he is entitled to make a claim of this nature; that is, that he is a person “protected from unfair dismissal”. It is his obligation to present sufficient evidence to establish a factual matrix on which both sections 382(a) (minimum employment period) and 382(b) (one of either award coverage, enterprise agreement application or lesser earnings than high income threshold) can be found by the Commission to have applied at the date of dismissal.

[59] I note that section 382(b)(i) is couched as an affirmative proposition, that is that “a modern award covers the person”. This supports a conclusion that the proponent of the affirmative proposition (the applicant) carries this onus.

[60] However, where a respondent employer contends that there is an alternative evidentiary basis on which that affirmative finding cannot be safely made, the respondent employer carries an evidentiary onus to establish the facts on which it relies.

[61] Accordingly, Mr Caruana has an onus to establish a body of facts on which the Commission can conclude, on the balance of probabilities, that he had served at least six months of employment (in this instance, an agreed matter) and that he was covered by the Real Estate Award 2010 at the date of dismissal. If he does not do so, his application will fail.

[62] Equally, to the extent that Toop rely on other facts, it carries an obligation to present a sufficient body of evidence on which it relies and on which it says the Commission should conclude, on the balance of probabilities, the proposition it advances (that the award did not cover the relevant employment at the relevant time). If Toop does not do so, it bears the risk that the Commission may be satisfied (based on the applicant’s evidence) that the award covered the relevant employment at the relevant time.”

[14] I accept that whether a person is protected from unfair dismissal is a matter that the Commission must be satisfied about before proceeding to hear and determine an application for an unfair dismissal remedy. I also accept that a respondent may make a jurisdictional objection to an application based on the assertion that the applicant is not a person protected from unfair dismissal and should generally provide evidence in support of such an assertion. However, the question of whether a person is protected from unfair dismissal goes to the capacity of that person to make an unfair dismissal application and an applicant bears the onus of establishing that he or she is a such a person.

[15] The legislative provisions concerning unfair dismissal, provide for objections which go to whether a person can make an application at all (eg. person not protected from unfair dismissal, no dismissal, person not an employee), and other matters where an application that is made by a person entitled to make it, is removed from the unfair dismissal provisions in the Act (eg. dismissal is consistent with the Small Business Fair Dismissal Code or dismissal is a case of genuine redundancy). Where there is an issue as to whether a person can make an application at all, it is the applicant who bears the onus of proof. Where the issue is whether a validly made application is removed from the coverage of the unfair dismissal provisions, the employer who asserts that it is removed bears the onus.

[16] It is also the case that the Commission has an obligation in all matters, to satisfy itself that it has the requisite jurisdiction to perform a particular function.¹⁰ If one or other party is unrepresented in proceedings, or if a representative through inadvertence or incompetence does not raise an issue relevant to whether an applicant was a person protected from unfair dismissal, and that issue is apparent on the face of the application or the response, or becomes apparent during proceedings, the Commission is required to raise it with the parties and invite them to make submissions or call evidence in relation to the issue. If the parties in the present case were not represented, fairness would have required that I drew the attention of the parties to the issue of whether the Applicant was a person protected from unfair dismissal in light of his annual remuneration, and that I provide assistance of the kind identified in the Commission’s Fair Hearing Practice Note.

[17] However, this was unnecessary in circumstances where the Applicant was represented when he made his application and his Form F2 Application pointed out the issue of whether he was a person protected from unfair dismissal, and asserted that he was covered by the Black Coal Award. The Respondent asserted that the Applicant was not covered by any award. Contrary to the submissions of the Applicant’s representative, procedural fairness did not require that the Respondent identify every possible award that could have covered the Applicant and address why each such award did not cover the Applicant, simply on the basis that his contract of employment states that: “Your employment is governed by the terms of this Agreement, the Fair Work Act 2009 (Cth) and any applicable Award”. Nor did the approach I took to this matter “reverse the onus back onto the Applicant” as submitted by his representative.

[18] Despite the unsatisfactory manner in which the Applicant’s representative conducted his case, and the disregard shown to the Directions I issued, I am required to be satisfied that the Commission has jurisdiction to deal with the Applicant’s unfair dismissal application. I am also required to afford procedural fairness to both parties including by ensuring the Applicant has an opportunity to put his case, and the Respondent knows the case it is answering.

[19] For these reasons I took the following steps:

• Issued Directions on 5 May 2020 requiring the Applicant to address the nature of his employment, the duties he performed and why he asserts that his employment was covered by the Black Coal Award.

• At a Mention on 4 June 2020 informed the Applicant’s representative that the Applicant was required to establish that he was covered by a modern award in order to be a person protected from unfair dismissal;

• At a Mention on 4 June 2020 suggested an alternative proposition to be addressed by the parties that the Applicant was covered by the Manufacturing Award;

• Issued further Directions on 4 June 2020 following the Mention on that date, requiring the Respondent to provide evidence and submissions in relation to why it asserted that the Applicant was not covered by an award and the Applicant to provide submissions and evidence in relation to what modern award covered him if the Black Coal Award did not cover him; and

• Permitted the Applicant to raise a further possibility that the Building Award covered him notwithstanding that this matter was not raised in accordance with the Directions I issued and emerged during cross-examination of the Respondent’s witness.

LEGISLATION

[20] Section 382 of the FW Act provides 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.”

[21] In relation to when a modern award covers an employer, employee, organisation or outworker entity, s.48 of the Act provides:

“48 When a modern award covers an employer, employee, organisation or outworker entity

When a modern award covers an employee, employer, organisation or outworker entity

(1) A modern award covers an employee, employer, organisation or outworker entity if the award is expressed to cover the employee, employer, organisation or outworker entity.

Note: In a modern award, coverage of an outworker entity must be expressed to relate only to outworker terms: see subsection 143(4).

Effect of other provisions of this Act, FWC orders or court orders on coverage

(2) A modern award also covers an employee, employer, organisation or outworker entity if any of the following provides, or has the effect, that the award covers the employee, employer, organisation or outworker entity:

(a) a provision of this Act or of the Registered Organisations Act;

(b) an FWC order made under a provision of this Act;

(3) Despite subsections (1) and (2), a modern award does not cover an employee, employer, organisation or outworker entity if any of the following provides, or has the effect, that the award does not cover the employee, employer or organisation or outworker entity:

(a) a provision of this Act;

(b) an FWC order made under a provision of this Act;

Modern awards that have ceased to operate

(4) Despite subsections (1) and (2), a modern award that has ceased to operate does not cover an employee, employer, organisation or outworker entity.

Modern awards cover employees in relation to particular employment

(5) A reference to a modern award covering an employee is a reference to the award covering the employee in relation to particular employment.”

[22] Relevantly, s. 143 of the Act provides as follows:

“143 Coverage terms of modern awards other than modern enterprise awards and State reference public sector modern awards

Coverage terms must be included

(1) A modern award must include terms (coverage terms) setting out the employers, employees, organisations and outworker entities that are covered by the award, in accordance with this section.

Employers and employees

(2) A modern award must be expressed to cover:

(a) specified employers; and

(b) specified employees of employers covered by the modern award.

Organisations

(3) A modern award may be expressed to cover one or more specified organisations, in relation to all or specified employees or employers that are covered by the award.

Outworker entities

(4) A modern award may be expressed to cover, but only in relation to outworker terms included in the award, specified outworker entities.

How coverage is expressed

(5) For the purposes of subsections (2) to (4):

(a) employers may be specified by name or by inclusion in a specified class or specified classes; and

(b) employees must be specified by inclusion in a specified class or specified classes; and

(d) outworker entities may be specified by name or by inclusion in a specified class or specified classes.

(6) Without limiting the way in which a class may be described for the purposes of subsection (5), the class may be described by reference to a particular industry or part of an industry, or particular kinds of work.

Employees not traditionally covered by awards etc.

(7) A modern award must not be expressed to cover classes of employees:

(a) who, because of the nature or seniority of their role, have traditionally not been covered by awards (whether made under laws of the Commonwealth or the States); or

(b) who perform work that is not of a similar nature to work that has traditionally been regulated by such awards.

Note: For example, in some industries, managerial employees have traditionally not been covered by awards.

[23] The appropriate test for determining award coverage is the principal purpose test, which requires assessment of the principal purpose or primary function for which the employee was employed.¹¹ In interpreting an award provision, the words of the relevant clause are to be given their ordinary meaning.¹² Award history and subject matter may be considered to resolve any ambiguity.¹³ In considering whether a modern award covers a person the test has been stated as: 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.¹⁴ Modern awards generally fall into three categories:

1. awards that cover an industry or industries;

2. awards that cover an occupation or occupations; and

3. hybrid awards that have both an industry coverage and also an occupational coverage.¹⁵

EVIDENCE

[24] Mr Harper gave evidence about TMM’s operations generally and at the Peak Downs Mine. Mr Harper said that TMM is part of the Macmahon Group and delivers design and construction services to the resource, mining, energy and infrastructure industries across Australia. TMM provides a suite of services to those industries variously involving engineering, procurement, construction and management services and manages a range of project types. TMM does not provide services directly connected with the extraction, mining, transportation or processing of black coal. Insofar as TMM provides services to operators of black coal mines, its services are concerned with preparatory and civil works associated with a black coal mine site. As part of these services, TMM plans, designs and constructs: flood levees, creek diversions, drainage works, tailings dam construction and raises, water storage and dam construction, road construction (including light vehicle and haul roads), land clearing and topsoil stripping, mine rehabilitation and ancillary mine services.

[25] Ancillary mine services are those services around site that are not directly involved in the mining process involving maintenance of pre-existing structures on the mining lease, including road bund construction and maintenance, water management (eg drainage, cleanout and construction of new drains), light vehicle road maintenance, heavy vehicle road maintenance and so forth and the maintenance of TMM’s plant and equipment used to maintain those pre-existing structures. Mr Harper said that these services are not unique to the coal industry, and TMM regularly provide these services to other mining operators.

[26] By contrast, BMA – rather than TMM – is responsible for day-to-day maintenance of ‘active’ roads as part of its 24/7 mine circuit. That work is outside the scope of the Contract, and outside TMM’s expertise. The “active” parts of the mine include the operational pits, and the operational haul roads. BMA directly engages water carts and graders, not through TMM, to undertake day to day maintenance of haul roads directly related to the transportation of coal. TMM would only perform major works to repair haul roads when they are not active and would rarely work on active haul roads. Otherwise TMM equipment is engaged in constant, long-term maintenance of light vehicle roads adjacent to haul roads used in various parts of the mine, constructing new haul roads for the expansion of the mine, or other project work.

[27] In addition to maintenance services under the Contract, TMM is often successful in tendering for additional “project work” at the Site. Project work is separate and distinct from ancillary mine services provided under the Contract. Project work accounts for approximately 50% of the total revenue derived from the Site. Project work is the construction of new elements on the mining lease. As the mine expands and requires additional tailings dams, develops new pits and requires new roads to access them, or exhausts a pit and enters the rehabilitation phase of the mining process, new infrastructure is required to be built, or rehabilitation services provided. Those new infrastructure requirements might involve the construction of new light vehicle roads, heavy vehicle roads (haul roads), dam construction, shutdown pads construction and maintenance, geotechnical investigations, miscellaneous concrete works, and rehabilitation services.

[28] BMA awards that work on an ad-hoc basis through commercial tender processes. As with the ongoing Contract work, there is minimal involvement from BMA in relation to how project work is to be completed. The same equipment utilised for the Contract work (that is, the ancillary services) is utilised for project work. Mr Harper also tendered a list of equipment currently provided by TMM at the Site. This is the equipment that Mr Rogers was responsible for maintaining. The size of the machinery used in the actual mining, extraction, and processing of the mineral compared with the work TMM is concerned with can be up to a factor of 10. TMM’s equipment (save and except for perhaps the D11 Dozer) is too small to be effectively utilised in the day to day coal mining operation. It is equipment suited to the civil earthworks that TMM performs, not the day to day mining of coal.

[29] The closest TMM’s equipment comes to being utilised in the day to day operation of the black coal mine is when, on rare occasion, the mine operator’s equipment breaks down, and they request assistance from TMM to provide machinery. TMM has limited capability to service such a request,and would generally only provide water carts on the basis that other machinery operated by TMM is too small to be effectively utilised in the coal mining operation. This may occur up to once per week, for short periods: that is, for a period of hours, whilst a replacement is sourced by the mining operator, or the broken-down machinery is repaired (again, by BMA). The Contract does not include this service. TMM nonetheless provides this service on rare occasions, as a result of the good relationship TMM has with BMA.

[30] Mr Webb is employed by Macmahon Contractors in the role of Area Manager – Plant and is responsible for maintenance at several of Macmahon and TMM’s project sites in Queensland. Mr Webb is based at Macmahon’s Lycullin workshop in Coppabella. The Applicant was located at Peak Downs Coal Mine approximately 65 kilometres from Coppabella. During the Applicant’s employment, Mr Webb visited the Site regularly, up to four times per month and on each occasion he visited, observed the Applicant and his team performing work duties.

[31] Mr Webb’s evidence in relation to TMMS’s operations was as follows. TMM performs civil earthworks at the Peak Downs site involving earthworks including cleaning out drains, completion of construction projects (including roads and bunds) maintenance of light vehicle roads, construction of new haul roads, ad hoc maintenance of existing haul roads, bund construction and grading and general maintenance of existing light vehicle roads to ensure they are in good condition. TMM provides equipment at site to perform these works. TMM’s equipment is not used in connection with the mining of coal. TMM is responsible for maintaining the equipment it provides and the mined operator has no input into TMM’s equipment maintenance, schedules or procedures. TMM’s workforce on site is spilt into operator employees (who operate plant and machinery) and maintenance employees (who are responsible for maintaining plant and equipment owned and operated by TMM at the site). TMM maintenance employees do not work on any equipment owned or operated by the mine operator, BMA.

[32] According to Mr Webb, the Applicant’s core responsibility was the supervision of the execution of maintenance activities. Mr Webb tendered the Applicant’s position description which states that his role was:

“To ensure that all works conducted within the Maintenance Department are supervised appropriately and completed in a safe and efficient manner and compliant with TMM’s Safety & Health Management System, legislative requirements, internal policies and procedures and industry best practice guidelines.”

[33] The position description for the Applicant’s role also includes overseeing the planning, organising and supervision of maintenance activities, implementing a maintenance plan, monitoring rosters and leave, ensuring services and inspections are performed, and working with the Maintenance Superintendent and Maintenance Planner. The role also included allocation of resources to planned jobs and supervision and support to Crew Co-ordinators in relation to task allocation and conducting performance appraisals with Crew Coordinators and ensuring they conduct performance appraisals with their crew members.

[34] Mr Webb said that the Applicant’s daily activities included scheduling preventative maintenance of TMM plant and equipment, maintaining service sheets and logs, ensuring sufficient stock levels, ensuring workshop maintenance and attending to administrative and office related duties. The Applicant was also required to establish and maintain preventative maintenance schedules with the assistance of the Project Manager. TMM’s employees have little to no interaction with BMA employees and the Applicant did not supervise any BMA employees. The Applicant’s typical day would start with a pre-shift information meeting to discuss safety issues relevant to his team and to allocate work. Mine operations were not discussed, and no employees of the Mine operator would attend unless it was necessary to discuss a safety incident.

[35] The days “known work” would be allocated at the meeting – ie. preventative maintenance according to the schedule. As the day would progress, other work would be undertaken to repair breakdowns. TMM employees do not perform work on the mine’s equipment and do not work on equipment that is used in the extraction, processing or transport of black coal. The maintenance of haul/dump trucks, excavators and shovels, trucks and water trucks used by the Mine operator is undertaken by the Mine operator and not by TMM employees. TMM has exclusive use of a workshop and brings plant and equipment to that workshop to repair it wherever possible. Where it was not possible to repair machinery in the workshop, the Applicant was responsible for allocating a member of his crew to undertake maintenance in-situ.

[36] Mr Webb also said that given the supervisory nature of the Applicant’s role, he was not regularly required to “work on the tools” and it would be rare for him to do this for any part of his day let alone a large portion of his day and certainly not more than 50%. The Applicant was not employed as an operator and was not authorised to operate TMM’s machinery. As Maintenance Supervisor he was responsible for the maintenance of that machinery and the time constraints on his role would not have allowed him to spend substantial time “on the tools” or operating machinery while still performing administrative and supervisory functions. Whilst the Applicant may have helped out “on the tools” in the case of an unusually busy or schedule or a shortage of staff, this was not the primary requirement of his role.

[37] The Applicant reported to the TMM Project Manager – Peak Downs, who in turn reported to Mr Harper in relation to activities on site generally and to Mr Webb in relation to maintenance activities. The Applicant was not required to report to anyone employed by the Mine operator. Mr Webb maintained that when he was on site he never saw the Applicant operate TMM equipment and if the Applicant was “on the tools” for 50% of his working time, he would not have the ability to perform the administrative requirements of his job, which required him to allocate work and ensure it was completed rather than completing it himself.

[38] The Applicant was also not required to deliver substantial amounts of training, because maintenance employees undertake extensive training and must be trade qualified before they are placed at the workshop at the mine site. Any additional training – for example site specific or equipment training – is completed by an accredited trainer. The Applicant is not an accredited trainer. The Applicant’s team was made up of two or three heavy diesel fitters, who were all trade qualified with extensive training in plant/equipment maintenance and repair. The only time the Applicant would be required to show staff how to use equipment would be if there was a problem that had not been previously encountered and the rest of the crew were not available or did not know how to fix it.

[39] Mr Webb said that the majority of equipment provided by TMM on site is owned by TMM and what is not owned, is rented from equipment providers. TMM does not perform maintenance on any equipment owned by the Mine operator. Further, the equipment TMM provides is different to that used in a mining operation, being smaller and used for civil earthmoving. Such equipment is never used for mining as it is too small. Mr Webb maintained that none of the plant or equipment provided on site by TMM, or maintained by the Applicant and his crew, was utilised in the extraction or mining of black coal, the processing of black coal, or any other work on the site directly connected to the extraction, mining and processing of black coal. The equipment used by the operational crew and maintained by the Applicant’s crew was engaged with construction and other civil works on site.

[40] In response to the Applicant’s statement Mr Webb said that the Applicant did not operate machinery 50% of the time and this was not his job, and nor was it his job to be on the tools for large portions of his day. Mr Webb also said that he has not heard of the term “demodelling” used by the Applicant in his witness statement. Under cross-examination, Mr Webb said that he did not give the Applicant day to day instruction, but would rather play a support role. Mr Webb agreed that the Applicant was responsible for the work of others and gave them technical guidance. Mr Webb did not agree that the Applicant provided on the job training. Mr Webb also agreed that the Applicant was employed to supervise the work of other employees.

[41] Mr Bracken said that where an employee is required to hold a qualification for his or her role, and does not have that qualification, Macmahon will evaluate the training requirement, ascertain options for obtainment and may action to provide training to obtain the outstanding qualification. Macmahon also requires employees to submit copies of all certifications they hold as part of the employment process and to submit a curriculum vitae (CV) as part of the application process. Mr Bracken tendered the Applicant’s CV and stated that the Applicant does not identify any relevant training and supervision qualifications or formal training in his CV.

[42] Mr Bracken also said that Macmahon has no record of the Applicant applying for recognition or experience of prior qualifications to obtain a full Certificate III or higher qualification. Mr Bracken said Macmahon also has no records of the Applicant completing training above that of the employees he supervises. Macmahon has records of the Applicant holding qualifications and completing the following training:

(a) a Craft Certificate noting completion of a Motor Mechanic apprenticeship;

(b) a Statement of Attainment noting completion of the following modules:

(i) RII.RIS301B – Apply risk management processes;

(ii) RII.OSH301A –Conduct safety and health investigations; and

(iii) RII.COM301B – Communicate information

(d) a Statement of Attainment noting completion of the following modules:

(i) AURHTB5005 – Analyse and Evaluate Heavy Vehicle Braking System Faults;

(ii) AURHTB502 – Analyse and Evaluate Wheeled Mobile Plant Baking System Faults; and

(iii) AURLTB5002 – Analyse and Evaluate Light Vehicle Braking System Faults

(e) a Statement of Attainment noting completion of the following modules:

(i) HLTAID001 – Provide cardiomyopathy resuscitation;

(ii) HLTAID002 – Provide basic emergency life support; and

(iii) HLTAID003 – Provide first aid

(f) a Statement of Attainment noting completion of the following modules:

(i) RIICOM201D Communicate in the workplace;

(ii) RIIENV201D Identify and assess environmental and heritage concerns;

(iii) RIIERR205D Apply initial response First Aid;

(iv) RIIERR302D Respond to local emergencies and incidents;

(v) RIIGOV201D Comply with site work processes/procedures;

(vi) RIIRIS201D Conduct local risk control; and

(vii) RIIWHS201D Work safely and follow WHS policies and procedures

[43] Mr Bracken agreed under cross-examination that the Applicant was employed to supervise other employees and to provide them with technical guidance but also maintained that the Applicant was not a trainer.

[44] The Applicant’s evidence was that he was employed with TMM as a Maintenance Supervisor at the Peak Downs Moranbah site and that he is a trade qualified motor mechanic.
The Applicant stated that he was in a very hands-on position in his daily work. Approximately 60 to 70% of the day was spent working in the mines with his maintenance team where he would provide training for new staff. The Applicant said that he also operated machinery. It was the Applicant’s written evidence that the primary and practical purpose of his role was to provide support to his colleagues in a supervisor capacity which involved tasks such as helping his colleagues on the tools in order to reach a target.

[45] The Applicant stated that his role included “demodelling” of machinery once an operation was complete, assisting with machine breakdowns and track outs and that he had “pre-start” duties on site during his first and last days of his shifts which was completed with fitters and operators. While the issue of what “demodelling” was not clarified at the hearing, I assume the Applicant intended to say that his role included “demobing” machinery and in any event this point is of no significance. The pre-start duties involved using the client service schedule to identify any defects and rectifications and logging them into a maintenance system, composing job sheets, ordering parts for clients with the approval of the superintendent, check on jobs which were running, assisting fitters with their jobs and ensuring that machines were operating correctly.

[46] In initial materials filed by the Applicant on 15 May 2020, it was the Applicant’s evidence that he fell under Group I of the Black Coal Award because he was never a manager and only supervised other maintenance workers; he was not signed off onsite by the BMA SSE and could not give directions. In the Applicant’s supplementary materials filed on 29 June 2020, an alternative position to the argument that the Applicant was covered by the Black Coal Award was advanced. The Applicant’s alternative evidence was that his employment fell into the Classification of ‘Supervisor/Trainer/Coordinator’ under clause A.4.2(a)(i) of the Manufacturing Award. The Applicant tendered his contract of employment and a letter of offer which states that he was employed as a Maintenance Supervisor on a total fixed remuneration of $170,481.64 including superannuation.

[47] Mr Evans said that he worked with the Applicant on multiple projects for TMM and saw the Applicant performing work including assisting fitters in the field with their servicing, repairing and diagnostics of machinery at least 50 – 60% of the time on site. Mr Mooney said that the Applicant was not just a supervisor, but spent 60% of his time in the workshop or out in the field, where Mr Mooney witnessed the Applicant assisting with breakdowns and track changeouts. Mr Ryan said that the Applicant was his supervisor and worked on the tools with for some 14 months as there were not enough staff members to fix equipment. Some of the duties performed included repairing all the equipment on site and demodelling equipment once the job was completed. Mr Morris was a plant operator with the Respondent for three years. During the time Mr Morris worked for the Respondent he witnessed that the Applicant spent approximately 60% of his time, if not more, either in the field or in the workshop being hands on with rods and fixing or maintaining machinery.

SUBMISSIONS

Applicant

[48] The Applicant submitted that when interpreting awards, the principles enunciated in Kucks v CSR Ltd (1996) 66 IR 182 (‘Kucks’) must be followed. This involves looking at the meaning intended when drafting the document, avoiding an interpretation that causes inconvenience or injustice, and giving simple or common words their ordinary meaning.

[49] With regard to the Award coverage, the Applicant cited Clause 4.1 of the Black Coal Award and submitted that his role involved working at an open cut black coal mine in Queensland and that his duties were directly connected to the operation of the mine. The Applicant’s duties involved the servicing and maintenance of equipment and the direct supervision of other workers attending to those tasks

[50] With regard to classification under the Black Coal Award, the Applicant submitted that the correct classification of his role was ‘foreman’ in Category I of the Award. This was on the basis that the Applicant:

• was a highly operational mine worker who supervised a small team of maintenance workers;

• reported to the mining superintendent;

• signed an employment contract which refers to him as a senior supervisor;

• had a clause within the employment contract which stated “your employment is governed by the terms of this Agreement, the Fair Work Act 2009 (Cth), and any applicable Award”

[51] The Applicant submitted that the term “foreperson” was a word with an ordinary meaning that was synonymous with the word ‘supervisor’, which was aligned with the title referred to in his contract of employment. In the Applicant’s supplementary materials filed on 29 June 2020, the Applicant stated that both he and his subordinate co-workers believed that they are or were at the time hired pursuant to the Black Coal Award. The Applicant submitted that the Award coverage of his subordinate co-workers were directly relevant to the question of Award coverage for the Applicant, noting his supervisory position.

[52] In the supplementary materials, the Applicant also outlined an alternative argument that he was covered under the Maintenance Award as a ‘Supervisor/Trainer/Coordinator’. With respect to this alternative argument, the Applicant submitted that he was specifically employed by the Respondent to be responsible for the work of other employees and to provide technical guidance to other employees. Further, the Applicant submitted that he met the qualification requirements of the classification under Clause A.4.2(a)(i) of the Manufacturing Award, due to his many years of prior experience being equivalent to the qualification at AQF III level or above.

[53] In oral submissions the Applicant’s representative asserted that the Applicant was “mortified to find out that the business he was working for … wasn’t even in the business of mining coal. It was further submitted that if the Black Coal Award did apply, the Applicant neatly fitted into a classification in that Award. It was further submitted that the Applicant fits neatly within the coverage of the Building Award on the basis of the plant and equipment operated by the Respondent and that the Applicant holds the qualification of motor mechanic. In closing the Applicant’s representative said:

“The evidence in front of the Commission speaks to that point. Additionally, there is a suggestion that it's at the exclusion of being a supervisor. In clause 43.3 the definitions in that award specifically say that a foreperson or supervisor shall mean an employee appointed as such and our client was appointed as such. I think the award also is at pains to suggest that it's not - the classifications are not at the exclusion of every other type of work that gets done. We would submit that our client, if it's found to apply, the Building and Construction General Onsite Award 2010 does neatly fit our client into it and the role that he had for TMM.

Deputy President, I don't intend to harp on about the way evidence was - the evidence spoke to the points today. I think it was made very clear that the applicant was obviously employed by TMM in a role that must fit into an award, unless it miraculously doesn't fit into any award classification, which we would say is unlikely. So unless there is - - -”¹⁶

Respondent

[54] With regard to the contention that the Applicant was covered by the Black Coal Award, the Respondent submitted that the Respondent delivers a suite of design, construction and maintenance services to the resource, mining, energy and infrastructure industries across Australia. It holds an ongoing maintenance services contract with BMA in relation to certain civil works at BMA’s Peak Downs Mine site which relevantly include:

(a) maintenance of light vehicle and haul roads, flood levees, creek diversions, drainage works, and dams (performed by TMM’s operational employees); and

(b) maintenance of the plant and equipment required to maintain those civil works (performed by TMM’s maintenance employees).

[55] None of the Respondent’s employees enter the pits at the Site. Its operational employees maintain civil works at times when those works are not in active use. Its maintenance employees perform their maintenance work in a separate workshop designated for their exclusive use. They do not perform any maintenance work on equipment used in the extraction, processing, or transport of black coal. They are not integrated with BMA’s workforce. Mr Rogers – as a Maintenance Supervisor employed by a civil earthworks business – was not employed in the ‘black coal mining industry’, nor was TMM an employer in that industry. His duties lacked a direct connection with BMA’s day- to-day operation of the mine at the Site, and fell outside the Award’s classification structure.

[56] It was submitted that for the Applicant to be covered by the Black Coal Award, he must:

(a) be employed in the black coal mining industry; and

(b) either:

i. be employed by an employer engaged in the black coal mining industry; or

ii. perform work directly connected with the day to day operation of a black coalmine; and

[57] Whether the Applicant was employed in the black coal mining industry (as defined) is a question of fact. That question – as with the subsequent question of whether he was employed in an Award classification – is determined with reference to the principal purpose or primary function of his employment (in the sense of what he was employed to do, not that which he merely preferred to do). An examination of that principal purpose shows a clear delineation between the supervisory function the Applicant performed for TMM in its delivery of maintenance and construction services to the black coal mining industry on the one hand, and the performance of work in the black coal mining industry on the other. The principal purpose of the Applicant’s role was to supervise the execution of maintenance activities as evidenced by his day-to-day duties included. TMM did not require the Applicant to regularly work “on the tools”. Whilst he might occasionally do so in situations of staff shortage or peak periods, that work was not the primary function of his role and if he was required to spend a substantial proportion of his time “on the tools”, he would not have had sufficient time to perform his supervisory and administrative duties.

[58] It was also submitted that the fact that the Applicant carried out his duties on a black coal mining lease, whilst relevant, does not determine whether he was employed in the black coal mining industry. The question “depends on circumstances, the chief of which must be separateness of establishments in point of control, organisation, place, interest, personnel and equipment, and is a matter of degree”.¹⁷

[59] While TMM accepts that the Applicant’s work was carried out on a black coal mining lease, it submitted that fact carries little weight here, when the primary location at which the Applicant’s duties were performed – the Workshop – was designated for TMM’s exclusive use. It was not a communal space used by BMA or other contractors engaged in the extraction, processing, or transportation of black coal. The remaining factors – point of control, organisation, place, interest, personnel and equipment all weigh against a finding of employment within the black coal mining industry. In this regard, the Respondent submitted that:

• TMM (and not BMA) controls which maintenance tasks are to be performed, when they are to be performed, how they are to be performed, and by whom;

• In performing his supervisory role, the Applicant reported to TMM managers: he had no reporting line to BMA managers.

• The remuneration under the Applicant’s contract of employment was not tied to the productivity or profitability of the mine, nor is TMM’s remuneration under its contracts with BMA;

• The Applicant supervised TMM employees and had no role in supervising BMA employees (or other contractors) engaged in the extraction, processing, or transportation of black coal. The same can be said of other TMM employees at the Site; and

• the TMM-owned plant and equipment which the Applicant’s team maintained was not used for the extraction, processing, or transportation of black coal and nor could it have been on the basis that it was of a class far too small for extraction, processing or transportation purposes.

[60] It follows that consistent with the prevailing construction of ‘black coal mining industry’ applied by courts and industrial tribunals to pre-modern awards – the Applicant cannot be employed in the “black coal mining industry” as defined by clause 4.2 of the Black Coal Award and cannot be a “coal mining employee” within the meaning of clause 4.1(b).

[61] Further, it is submitted that TMM is not an employer engaged in the black coal mining industry for the purposes of clause 4.1 of the Black Coal Award. Whether an employer is engaged in the black coal mining industry depends on the substantial character of the industrial enterprise in which the employer and the employee are concerned. TMM does not – whether at the Site, or more broadly across its other commercial contracts – provide services in relation to the extraction, processing, or transportation of black coal. The substantial character of its enterprise concerns the provision of civil works design, construction and maintenance services to clients in the resources sector. Maintaining those civil works – cannot be said to be directly connected with extraction, mining and processing of black coal.

[62] Whilst that work is in one sense “connected” with those matters (in the sense that TMM provides a service which contributes to the operation of the mine), that “connection” is not “direct”. Insofar as TMM’s substantial character comprises the construction of civil works, TMM submitted it is excised from Award coverage by operation of clause 4.3(d). In any case, its maintenance work – whether relating to the civil works themselves, or to the plant and equipment used in constructing and maintaining those civil works – cannot be said to be directly connected with extraction, mining and processing of black coal. In the same way, whilst the maintenance of various civil works at the Site might be “necessary…to carry on the mining operations” that fact does not mean those services are provided in the black coal mining industry. They are not – when performed by an independent contractor like TMM – an “integral part” of BMA’s black coal mining operation at the Site.

[63] Further, even if it could be said that TMM’s road maintenance services were ‘directly connected’ with the extraction of black coal in the sense of facilitating mining equipment reaching the pit (a proposition which TMM disputes), this would not suffice. The “direct connection” must be established in relation to each of extraction, mining, and processing of black coal. To this end, there is no apparent connection – direct or otherwise – between TMM’s maintenance services and the processing of black coal. It follows that, as TMM is not an employer engaged in the black coal mining industry, the Applicant cannot satisfy clause 4.1(b)(i) of the Award. TMM submitted these matters lead to a conclusion that Mr Rogers’ primary function was not “directly connected with the day-to-day operation of a black coal mine”. That conclusion is fatal to establishing coverage under clause 4.1(b)(ii) of the Award.

[64] According to the Respondent, given these matters, it is strictly unnecessary to consider whether or not the Applicant was employed in a classification within the Black Coal Award. Should it nonetheless become necessary to consider that question, the Respondent submitted that the Applicant was not covered by a relevant classification.

[65] The Respondent referred to the Applicant’s submission that he was he was “either a Group I or Group J employee under the Black Coal Award”, and that the Applicant relies upon an assertion that 60 to 70 per cent of his day-to-day work was “directly contemplated by the competencies in the Black Coal Award”. The Respondent disagreed with this assertion. The Applicant was not required to spend 60 to 70 per cent of his time “on the tools”. Rather, the principal purpose of his role was to supervise the maintenance function (rather than perform it himself).

[66] The Respondent submitted that even if the Applicant did spend that proportion of time “on the tools” that fact would not assist him for two reasons. First, those duties were not the primary function for which he was employed. Second, and in any event, the advancement competencies set out at clause A.5.1 must be contextually construed. Whilst they encompass “equipment servicing and maintenance”, the remaining advancement competencies within that clause are concerned with extracting, processing or transporting black coal. In that context, the “equipment” to which the composite phrase refers are those items used in extracting, processing or transporting black coal (that is, the draglines, augers, trucks, shovels, drills, loaders etc).

[67] The Respondent submitted the remaining matters upon which the Applicant relies are either wrong, or else do not assist him. In this regard:

• The duties the Applicant performed are not those of a “highly operational mine worker”;

• The Applicant was required under his contract of employment to report to the Maintenance Superintendent, not the Mining Superintendent as he submits, and Maintenance Superintendent is an employee of TMM, not BMA;

• The Applicant’s contract of employment describes his role title as “Maintenance Supervisor”, not “senior supervisor”; and

• The Applicant’s contract of employment did not expressly refer to the Black Coal Award and did not expressly state that his employment was covered by any award. Rather, it simply included the catch-all phrase “[y]our employment is governed by the terms of this Agreement, the Fair Work Act 2009(Cth), and any applicable Award” [emphasis added]. Template phrases such as these are of course notorious: they say nothing about whether a particular Award in fact applies. Nor would it have mattered if it did so: the Award’s coverage of the Applicant is determined by operation of s 48 of the FW Act and the terms of that award, not what the parties said about that fact in the Applicant’s contract of employment.

[68] The Respondent also submitted that whilst the words ‘supervisor” and “foreperson” are synonymous in their dictionary meanings, their use in the context of the Black Coal Award is not. A cursory review of the Award shows that where intends to refer to a supervisor, it does so expressly (and in contradistinction to a “foreperson”). Even if the term “foreperson” encompasses an employee with substantial supervisory functions, that fact does not mean that any employee with supervisory functions is capable of falling within that classification. A relevant direct connection must still be drawn between the primary function of the foreperson’s employment and the day-to-day operation of the mine. Put another way, the classifications within Schedules A and B are to be construed contextually with the scope of employee duties contemplated by each of subclauses 4.1(b)(i) and (ii). They cannot be construed more broadly than those subclauses allow. Here, no such direct connection can be established.

[69] In relation to whether the Manufacturing Award covered the Applicant, the Respondent submitted that:

• TMM’s enterprise has a substantial character falling with the scope of the Manufacturing Award:

• The Applicant’s employment does not fall within the scope of the Supervisor/Trainer/Coordinator classification in the Manufacturing Award because he lacks the requisite qualifications or equivalent training; and

• No other Manufacturing Award classification appears capable of covering the principle purpose of Mr Rogers’ role with TMM.

[70] The Respondent submitted that although TMM’s enterprise is that of a civil earthworks business, the substantial character of that enterprise concerns the provision of civil works design, construction and maintenance services to clients in the resources sector. Insofar as the maintenance services component of that enterprise is concerned, the Respondent submitted that its enterprise has a substantial character falling within clause 4.8(a)(iii) of the Manufacturing Award. The Respondent further submitted that the question then becomes whether or not the Applicant is covered by a Manufacturing Award classification. Given the nature of the Applicant’s role the Supervisor/Trainer/Coordinator – Level 1 classification (at clause A.4.2(a)(i)) appears at first glance capable of covering the Applicant’s employment given that the Applicant was “responsible for the work of other employees”. However, to be covered by that classification, the Applicant must also have “completed a qualification at AQF III level or above, of which at least one third of the competencies are related to supervision/training, or equivalent”. The Applicant does not meet this requirement as evidenced by his training record.

[71] The Respondent also submitted that the Applicant does not meet the requirements in clause A.4.2(a)(ii) of the Manufacturing Award and does not have “sufficient additional training” beyond the employees supervised, to enable him to perform work within the scope of the Supervisor/Trainer/Coordinator – Level 1 classification. It is not apparent what “sufficient additional training” the Applicant says he has received beyond that of those employees he supervised which was necessary for him to perform supervisory duties, nor is any such “sufficient additional training” apparent on the face of the training records which TMM holds. It follows that the Applicant is not covered by the Supervisor/Trainer/Coordinator classification within the Manufacturing Award.

[72] It is similarly not apparent which other classification(s) within the Manufacturing Award the Applicant says are capable of covering him. The higher level tradesperson classifications (eg. C5 Advanced Engineering Tradesperson Level II, and C6 Advanced Engineering Tradesperson Level I) impose minimum training requirements which the Applicant does not appear to hold. The lower level classifications in relation to which the Applicant’s trade certificate meets the minimum training requirements (eg. C10 Engineering/Manufacturing Tradesperson Level 1) do not cover supervisory duties which remain the principal purpose of the Appliant’s role.

[73] In relation to the submission made on behalf of the Applicant during the hearing that the Building Award covered him in his role with TMM, and that he relied on the Construction Worker Level 3 classification in that Award, the Respondent submitted that the Building Award did not cover the Applicant because of the exclusion in the Building Award which operates in relation to the Manufacturing Award. It was also submitted that if this argument was not accepted, the Respondent submitted that the classification relied on by the Applicant did not capture his supervisory duties and that the CW3 classification was indicative of an employee who is operational and performs work under limited supervision in a team environment. The Respondent further submitted that the classification structure in the Building Award does not extend to supervisors or employees whose primary function is to undertake supervisory work as opposed to the work of a leading hand. Notwithstanding that the Applicant did not advance an argument in relation to the CW8 classification, it was submitted that he had not established that he had the qualifications required for that level.

CONSIDERATION

The Approach to determining award coverage

[74] As a Full Bench of the Commission observed in Gourabi v Westgate Medical Centre¹⁸:

“For relevant purposes,each modern award has a ‘coverage’ clause that determines ‘the employers, employees, organisations and outworker entities’ that are covered by it. The determination of whether a particular employment falls within the coverage clause of a modern award usually involves two considerations: first, a legal question concerning the proper construction of the coverage clause (and any other relevant provisions of the award) and, second, a factual question as to whether the employer and employee fall within the scope of the coverage clause, properly construed.”19

[75] In interpreting an award provision, the words of the clause are to be given their ordinary meaning.²⁰ Award history and subject matter may be considered to resolve any ambiguity.²¹ In considering whether a modern award covers a person, the test has been stated as: “to discern the objective meaning of the words bearing in mind the content in which they appear and the purpose they are intended to serve”.²² The approach to determining whether an employee is covered by an award is to assess the principal purpose or primary function for which the employee was employed.²³

[76] I turn now to consider the terms of each of the awards with relevance in the present case and whether those awards cover the Applicant. The awards for consideration are: the Black Coal Award,the Manufacturing Award and the Building Award. I am satisfied that there are no other awards that could apply to the Applicant. The Applicant’s dismissal took effect on 17 February 2020. Since that date, the 2010 version of the Manufacturing Award referred to in this decision has been replaced by the 2020 version. All references in this decision will be to the 2010 version of the awards, however, the coverage of the 2020 version of the Manufacturing Award is the same as the 2010 version.

Whether the Black Coal Award covers the Applicant

[77] The Black Coal Award has an industry and an occupational coverage. The coverage provisions of the Black Coal Award are found in clause 4 and are in the following terms:

4.1 This award covers:

(a) employers of coal mining employees as defined in clause 4.1(b); and

(b) coal mining employees.

Coal mining employees are:

(i) employees who are employed in the black coal mining industry by an employer engaged in the black coal mining industry, whose duties are directly connected with the day to day operation of a black coal mine and who are employed in a classification or class of work in Schedule A—Production and Engineering Employees or Schedule B—Staff Employees of this award;

(ii) employees who are employed in the black coal mining industry, whose duties are carried out at or about a place where black coal is mined and are directly connected with the day to day operation of a black coal mine and who are employed in a classification or class of work in Schedule A—Production and Engineering Employees or Schedule B—Staff Employees of this award; and

(iii) employees employed by a mines rescue service.

4.2 For the purposes of this award, black coal mining industry has the meaning applied by the courts and industrial tribunals, including the Coal Industry Tribunal. Subject to the foregoing, the black coal mining industry includes:

(a) the extraction or mining of black coal on a coal mining lease by means of underground or surface mining methods;

(b) the processing of black coal at a coal handling or coal processing plant on or adjacent to a coal mining lease;

(d) other work on a coal mining lease directly connected with the extraction, mining and processing of black coal.

4.3 The black coal mining industry does not include:

(a) the mining of brown coal in conjunction with the operation of a power station;

(b) the work of employees employed in head offices or corporate administration offices (but excluding work in town offices associated with the day-to-day operation of a local mine or mines) of employers engaged in the black coal mining industry;

(d) construction work on or adjacent to a coal mine site;

(e) catering and other domestic services;

(f) haulage of coal off a coal mining lease (unless such haulage is to a wash plant or char plant in the vicinity of the mine); or

(g) the supply of shotfiring or other explosive services by an employer not otherwise engaged in the black coal mining industry.

NOTE: The coverage clause is intended to reflect the status quo which existed under key pre-modern awards in relation to the kinds of employers and employees to whom those awards applied and the extent to which the awards applied to such employers and employees.

An example of the types of issues and some of the case law to be considered when addressing coverage matters can be found in Australian Collieries Staff Association and Queensland Coal Owners Association – No. 20 of 1980, 22 February 1982 {Print CR2297} and in the Court decisions cited in this decision.

[78] The relevant decisions cited in Australian Collieries Staff Association and Queensland Coal Owners Association referred to in the note under clause 4.3, establish the following principles:

• Whether an employer is engaged in the black coal mining industry for the purposes of clause 4.1 of the Black Coal Mining Industry Award 2010 depends on the substantial character of the industrial enterprise in which the employer and the employee are concerned.²⁴

• The supply of goods or services to companies in a particular industry is not sufficient to identify that the supplier is in the industry to which the goods and services are supplied.²⁵

• The fact that an activity is carried out at a coal mine is not the sole determinant of the issue. The difference depends on circumstances, the chief of which must be separateness of establishments in point of control, organisation, place, interest, personnel and equipment, and is a matter of degree.

• The fact that two industries are carried on at the same place does not abolish the distinction between them.²⁶

• The relationship of employer and employee must have some connection with the activity of mining of coal.²⁷

[79] In the present case, I am satisfied and find that the Applicant was not employed in the black coal mining industry. Rather, the principal purpose of the Applicant’s employment was to supervise the execution of maintenance activities undertaken by TMM under its contract with BMA. The fact that he carried out his work on a black coal mine lease, does not mean that the Applicant was employed in the black coal industry. The work was performed in a workshop designated for TMM’s exclusive use. The Applicant did not supervise employees of BMA and the equipment the employees supervised by the Applicant were working on was not used for the extraction, processing or transportation of black coal.

[80] The Applicant’s argument that the fact that the Coal Mining Health and Safety Act 1999 applied to him resulted in him being a coal mining worker and covered by the Black Coal Award can be quickly disposed of. By virtue of s. 3 the Coal Mining Health and Safety Act 1999 applies to all persons and by s. 4 to coal mines and coal mining operations. However, by virtue of s. 5 the Coal Mining Health and Safety Act 1999 applies to:

(a) everyone who may affect the safety or health of persons while the persons are at a coal mine;

(b) everyone who may affect the safety or health of persons as a result of coal mining operations; and

[81] Clearly it is not necessary for a person undertaking work at a coal mine to be covered by the Black Coal Award in order to subject to the application of the Coal Mining Health and Safety Act 1999.

[82] Further, I am satisfied and find that TMM is not an employer engaged in the black coal mining industry. Rather, TMM supplies services to an employer which is engaged in that industry. In this regard, I accept the evidence of witnesses for TMM that the substantial character of its enterprise is that of a civil earthworks business and that it does not provide services in relation to the extraction, processing or transportation of black coal. On the basis that the black coal mining industry does not include construction work on or adjacent to a coal mine site, the Black Coal Award does not apply to TMM and did not cover the Applicant. I also accept that the Applicant’s duties were not directly connected with the day to day operation of a black coal mine.

[83] I accept that the Applicant was not employed in a classification within the Black Coal Award. In particular, notwithstanding that the competencies in the Black Coal Award encompass equipment servicing and maintenance, the equipment to which those competencies relate is equipment used to extract, process or transport black coal. I am satisfied that none of the equipment provided by TMM to BMA and in relation to which the Applicant’s work related, was not equipment contemplated in the classification structure in the Black Coal Award. For these reasons, the Applicant was not covered by the Black Coal Award.

Whether the Applicant was covered by the Manufacturing Award

[84] The Manufacturing Award has a coverage that is both industry and occupationally based. The coverage of the Manufacturing Award is set out in clause 4. Clause 4.1 provides that:

“4.1 This award covers employers throughout Australia of employees in the Manufacturing and Associated Industries and Occupations who are covered by the classifications in this award and those employees.”

[85] By virtue of clause 4.2, the Manufacturing Award does not cover:

“4.2 The award does not cover:

(a) an employer who is outside the scope of clause 4.9(a) or (b) unless such employer employs an employee covered by clause 4.9(c) and the employer is not covered by another modern award containing a classification which is more appropriate to the work performed by the employee; or

(b) an employee excluded from award coverage by the Act; or

…”

[86] Clause 4.9 of the Manufacturing Award provides:

“4.9 Manufacturing and Associated Industries and Occupations means:

(a) the following industries and parts of industries:

(i) the manufacture, making, assembly, processing, treatment, fabrication and preparation of:

• the products, structures, articles, parts or components set out in clause 4.10; or

• the materials or substances set out in clause 4.10; or

• any products, structures, articles, parts or components made from, or containing, the materials or substances set out in clause 4.10.

(ii) the coating, painting, colouring, varnishing, japanning, lacquering, enamelling, porcelain enamelling, oxidising, glazing, galvanising, electroplating, gilding, bronzing, engraving, cleaning, polishing, tanning, dyeing, treatment and finishing of any of the items referred to in clause 4.9(a)(i).

(iii) the repair, refurbishment, reconditioning, maintenance, installation, testing and fault finding of:

• any of the items referred to in clause 4.9(a)(i); or

• floor covering; or

• plant, equipment and buildings (including power supply) in the industries and parts of industries referred to in clauses 4.9(a)(i) and (ii); or

• plant, equipment and buildings (including power supply) in any other industry.

(iv) mechanical and electrical engineering.

(v) space tracking.

(vi) farriery (other than in the racing industry).

(vii) bottle merchants.

(viii) the printing and processing of photographs from film.

(ix) every operation, process, duty and function carried on or performed in or in connection with or incidental to any of the foregoing industries, parts of industries or occupations.

(x) handling, sorting, packing, despatching, distribution and transport in connection with any of the foregoing industries or parts of industries.

(b) the provision of any of the operations or services set out in clause 4.9(a) on a contract basis by one business to another business, where the first business is independent of the second business.

(i) maintenance employees in the engineering streams.

(ii) technical workers.

(iii) draughtspersons.

(iv) production planners.

(v) trainee engineers.

(vi) trainee scientists.

(vii) engine drivers.”

[87] The engineering streams referred to in clause 4.9(c)(1) are defined in clause 3.1 of the Manufacturing Award as follows:

“engineering streams are the three broad engineering streams recognised within the classification definitions set out in Schedule B namely, electrical/electronic, mechanical and fabrication. The streams are defined as the:

(e) electrical/electronic stream which includes the design, assembly, manufacture, installation, modification, testing, fault finding, commissioning, maintenance and service of all electrical and electronic devices, systems, equipment and controls, such as electrical wiring, motors, generators, PLCs and other electronic controls, instruments, refrigeration, telecommunications, radio and television, and communication and information processing.

(f) mechanical stream which includes the design, assembly, manufacture, installation, modification, testing, fault finding, commissioning, maintenance and service of all mechanical equipment, machinery, fluid power systems, automotive mechanics, instruments and refrigeration, and the use of related computer controlled equipment, such as Computer Numeric Controlled machine tools.

(g) fabrication stream which includes fabrication in all materials, forging, carpentry, plumbing, founding, structural steel erection, electroplating, metal spinning, metal polishing and sheet metal work and the use of related computer controlled equipment.”

[88] Clause 4.10(h) and (i) provide that for the purposes of clause 4.9(a)(i) and by extension 4.9(a)(iii), the products, structures, articles, parts, components, materials and substances include… “motor driven vehicles and components” and “industrial machinery”. The Respondent contends that while its enterprise is the provision of civil works design, construction and maintenance services to clients in the resources sector, the maintenance services component has a substantial character falling within clause 4.9(iii) of the Manufacturing Award. The Note found at the bottom of clause 4.11 states:

“NOTE: Where there is no classification for a particular employee in this award it is possible that the employer and the employee are covered by another award with occupational coverage.”

[89] Assuming that the Respondent’s submission in relation to the coverage of the Manufacturing Award on this point is correct, it is necessary for the Applicant to be covered by the Manufacturing Award that he is covered by a Manufacturing Award classification. For the Applicant to be so covered, the principal purpose of his employment must be to perform work in accordance with a Manufacturing Award classification. While the Applicant has completed an apprenticeship as a motor mechanic, the performance of work as a motor mechanic, is not the principal purpose of the Applicant’s engagement. It is also the case that the Applicant does not meet the classification definition for Supervisor/Trainer/Co-ordinator – Level 1 as defined in Item B.3.2 in Schedule B of the Manufacturing Award. In this regard, while the Applicant was responsible for the work of other employees, he was not responsible for the provision of structured on-the-job training and has not completed the requisite competency units for that classification.

[90] It is also relevant that the wage rate for a Supervisor/Trainer/Co-ordinator under the Manufacturing Award is not set as a dollar amount, but rather is set be reference to a fixed percentage above either the minimum hourly rate of the highest qualified person being supervised or trained or the standard rate under the Award. The Applicant’s salary of $170,000 per annum was set at a significantly higher amount than he would have been entitled to be paid as a Supervisor/Trainer/Co-ordinator for motor mechanics. While this is not determinative, it is indicative that the Applicant’s role was not within this classification and as such, he was not covered by the Manufacturing Award. Contrary to the submission for the Applicant, there is nothing miraculous about an employee remunerated at the level of the Applicant and principally employed to undertake the duties that the Applicant was undertaking, to be award free.

Whether the Applicant was covered by the Building Award

[91] The Building Award has a coverage that is industry based. By virtue of clause 4.1 it covers employers throughout Australia in the on-site building and civil construction industry and their employees in the classifications within Schedule B – Classification Definitions, to the exclusion of any other modern award. By virtue of clause 4.2 the Building Award does not cover employees covered by the Manufacturing Award. Clause 4.10 defines “general building and construction”, “civil construction” and “metal and engineering construction”. “Civil construction” is defined in clause 4.10(b) as follows:

“(b) civil construction means:

(i) the construction, repair, maintenance or demolition of:

• civil and/or mechanical engineering projects;

• power transmission, light, television, radio, communication, radar, navigation, observation towers or structures;

• power houses, chemical plants, hydrocarbons and/or oil treatment plants or refineries;

• silos; and/or

• sports and/or entertainment complexes;

(ii) road making and the manufacture or preparation, applying, laying or fixing of bitumen emulsion, asphalt emulsion, bitumen or asphalt preparations, hot pre-mixed asphalt, cold paved asphalt and mastic asphalt;

(iii) the prefabrication and installation of geomembranes, geotextiles and appurtenances;

(iv) dredging or sluicing work for or at premises provided for persons mentioned in or in connection with work under clause 4.10(b)(i);

(v) batch plants and precast yards at a construction site in or in connection with work under clause 4.10(b)(i);

(vi) traffic management in or in connection with work under clause 4.10(b)(i);

(vii) construction and/or establishment of landscape gardens in or in connection with work under clause 4.10(b)(i), provided that this award does not apply to the:

• maintenance or horticultural establishment work following practical completion of work as specified under the terms of the construction contract or project; and/or

• laying-out, construction, cultivation or keeping in order of gardens in connection with private houses;

(viii) the industry or calling of either or both catering and cleaning for or at premises provided for persons mentioned in clause 4.10(b)(i);

(ix) car parks excepting car park buildings and car parks within the alignment of a building; and

(x) railways, tramways, roads, freeways, causeways, aerodromes, drains, dams, weirs, bridges, overpasses, underpasses, channels, waterworks, pipe tracks, tunnels, water and sewerage works, conduits, and all concrete work and preparation incidental thereto;”

[92] Relevantly, there is no supervisory classification in the Building Award. While there are allowances for leading hands, the Applicant was not employed as a leading hand. The Applicant’s supervisory duties related to the maintenance being performed by those he was supervising as well as the supervision of the persons performing that work. Contrary to the submissions for the Applicant, he cannot be classified as a motor mechanic under the Building Award, on the basis that this is not the principal purpose for which he was employed. There is no classification in the Building Award for the Applicant and accordingly it does not cover him.

CONCLUSION

[93] For these reasons, I found that the Applicant was not a person protected from unfair dismissal on the basis that his annual rate of earnings exceeded the high-income threshold and a modern award did not cover him. Accordingly, I was required to dismiss his application and an Order to that effect was issued.

DEPUTY PRESIDENT

Appearances:

Mr Z Casagrande of Industrial Relations Claims for the Applicant

Mr A Pollock of Counsel instructed by Mills Oakley for the Respondent

Hearing details:

2020.

30 June.

By telephone.

Printed by authority of the Commonwealth Government Printer

1 PR723128.

2 Exhibit A2 – Witness Statement of Matt Morris.

3 Exhibit A3 – Witness Statement of Jarvis Evans.

4 Exhibit A4 – Witness Statement of Anthony Ryan Exhibit A4.

5 Exhibit R1 – Witness Statement of John Harper.

6 Exhibit R2 – Witness Statement of Justin Webb.

7 Exhibit R3 – Witness Statement of James Bracken.

8 [2014] FWCFB 5595.

9 [2018] FWC 3078.

10 TIOBE Pty Ltd T/A TIOBE v Cathy (Yaquin) Chen[2018] FWCFB 5726.

11 Layton v North Goonyella Coal Mines Pty Ltd (2007) 166 IR 394; [2007] AIRCFB 713 at [25].

12 The Clothing Trades Award (1950) 68 CAR 597; cited in City of Wanneroo v Holmes [1989] FCA 369 [43].

13 Pickard v John Heine & Son Ltd (1924) 35 CLR 1, 9; cited in City of Wanneroo v Holmes [1989] FCA 369 [43].

14 Transport Workers’ Union of Australia v Coles Supermarkets Pty Ltd [2014] FCAFC 148 at [22].

15 Halasagi v George Weston Foods Limited [2010] FWA 6503.

16 Transcript at PN748 – 749.

17 Transfield [2014] FWC 5368at [14], citing Australian Collieries Staff Association and Queensland Coal Owners Association, 22 February 1982 (Print CR2297) and the cases cited therein.

18 [2019] FWCFB 3874.

19 Ibid at [26].

20 The Clothing Trades Award (1950) 68 CAR 597; cited in City of Wanneroo v Holmes [1989] FCA 369 [43].

21 Pickard v John Heine & Son Ltd (1924) 35 CLR 1, 9; cited in City of Wanneroo v Holmes [1989] FCA 369 [43].

22 Halasagi v George Weston Food Limited [2010] FWA 6503.

23 Layton v North Goonyella Coal Mines Pty Ltd (2007) 166 IR 394; [2007] AIRCFB 713 at [25].

24 The King v Central Reference Board; Ex Parte Thiess (Repairs) Pty Ltd (1948) 77 CLR 123 at 135

25 Ibid at 135.

26 The King v Drake Brockman; Ex parte National Oil Pty Ltd (1943) 68 CLR 51 at 57.

27 Australian Collieries Staff Association and Queensland Coal Owners Association No. 20 of 1980, 22 February 1982 and [CR2297]

Mr Patrick Alan Rogers v TMM Group (Operations) Pty Ltd

[2020] FWC 5506

16 OCTOBER 2020

REASONS FOR DECISION

OVERVIEW