Ms Vanessa Todd v Whitehaven Coal Mining Limited T/A Tarrawonga Open Cut Coal Mine

[2016] FWC 5003

[2016] FWC 5003

FAIR WORK COMMISSION

DECISION

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

Ms Vanessa Todd
v
Whitehaven Coal Mining Limited T/A Tarrawonga Open Cut Coal Mine
(U2016/1325)

COMMISSIONER SAUNDERS NEWCASTLE, 28 JULY 2016

Application for relief from unfair dismissal- award covered

[1] Ms Vanessa Todd was employed by Whitehaven Coal Mining Ltd (Whitehaven) in the position of Drill and Blast Engineer in the period from 12 December 2013 until 18 March 2016, at which time she was dismissed. Ms Todd contends that her dismissal was harsh, unjust and unreasonable. Whitehaven denies those allegations and contends that the Fair Work Commission (Commission) does not have jurisdiction in relation to Ms Todd’s unfair dismissal claim because she was not covered by a modern award or an enterprise agreement and the sum of her annual rate of earnings was more than the high income threshold. 1

[2] Ms Todd accepts that her annual rate of earnings exceeded the high income threshold and an enterprise agreement did not apply to her, but submits that she was covered by the Black Coal Mining Industry Award 2010 (the Black Coal Award) during her employment with Whitehaven.

[3] This decision deals solely with the question of whether Ms Todd was covered by the Black Coal Award at the time of her dismissal.

Legal principles – award coverage

[4] A modern award covers an employee if the award is expressed to cover the employee. 2

[5] It is important to note that awards only cover and apply to employees in relation to “particular employment”. 3

[6] The appropriate test for determining award coverage is referred to in the relevant authorities as the principal purpose test. That test requires an assessment of the principal purpose or primary function for which the employee was employed. 4 In applying the test, it is necessary to undertake an examination of the work the employee is employed to do.5

[7] In Kucks v CSR Ltd 6, Madgwick J considered the approach to be taken in construing an award:

“It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.

But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.”

Coverage of the Black Coal Award

[8] The Black Coal Award has both an industry coverage and an occupational coverage. 7 That is, in order to be covered by the Black Coal Award, an employee must be employed in:8

(a) 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

(b) a classification or class of work in Schedule A – Production and Engineering Employees or Schedule B – Staff Employees of the Black Coal Award.

[9] There is no dispute and I am satisfied on the evidence that, at the time of Ms Todd’s dismissal, she was employed in black coal mining industry by an employer (Whitehaven) engaged in the black coal mining industry, and Ms Todd’s duties were directly connected with the day to day operation of a black coal mine.

[10] The issue in dispute is whether Ms Todd was employed in a classification or class of work in Schedule B – Staff Employees of the Black Coal Award. The parties agree that Ms Todd was not employed in a class of work or classification in Schedule A of the Black Coal Award.

[11] At the hearing of this jurisdictional issue on 25 July 2016, Ms Todd submitted that she was employed in the classification of Engineer or Open-cut Overseer in Schedule B (Staff Employees) of the Black Coal Award. In further submissions made following the hearing on 25 July 2016, in answer to a question I identified after the hearing and invited the parties to address on, Ms Todd made a submission in the alternative that she was employed in the classification of Senior Foreperson in Schedule B (Staff Employees) of the Black Coal Award.

Was Ms Todd covered by the Black Coal Award?

Principal purpose of Ms Todd’s employment

[12] There is no real dispute between the parties in relation to the nature of the work Ms Todd was employed to do in her role as a Drill and Blast Engineer at the Tarrawonga and Rocglen open cut mines. Although no Position Description was prepared for Ms Todd during her employment with Whitehaven, such a document has been prepared by Whitehaven following Ms Todd’s dismissal in preparation for its recruitment of a replacement employee for Ms Todd. Subject two exceptions, Ms Todd accepts that the Position Description created by Whitehaven after the termination of her employment accurately records her “position goal” and accountabilities for the role of Drill and Blast Engineer.

[13] The first exception is that the new Position Description gives the role a title of Drill and Blast Engineer/Co-ordinator, rather than Drill and Blast Engineer. In fact, Mr Anthony Margetts, Whitehaven Operations Manager, gave evidence that the title of the roll has changed again within the employer’s organisational structure to that of Drill and Blast Superintendent.

[14] The second exception is that Ms Todd gave evidence that she was responsible for assisting the Mine Manager to prepare written warnings and file notes, whereas the new Position Description states that one of the administration accountabilities for a person in the role is “written warnings and file notes communicated to Planning Superintendent”.

[15] The “position goal” of the role of Drill and Blast Engineer is described in the Position Description as follows:

“Direct supervision of the day to day Drill and Blast operations with responsibility for maintaining a safe operation through effective leadership of the Drill and Blast team and ensuring compliance with all statutory laws, company policies and procedures whilst meeting the required production quantities and quality as defined in the budgets and forecasts in mine planning.”

[16] Ms Todd did not obtain the job of Drill and Blast Engineer with Whitehaven by responding to an advertisement for the role. She was contacted directly by Mr Graham Cope, Whitehaven Group, Drill and Blast Manager, a person with whom she had worked in a previous job, to see if she was interested in the role. The advertisement placed by Whitehaven at about the time Ms Todd was contacted by Mr Cope in relation to the role was in the following terms:

“We currently have a vacancy for an experienced Drill and Blast Engineer to join our Open Cut Operations.

We are looking for someone with highly developed software and interpersonal skills to play a pivotal role in maximising production.

As part of this role some of the duties will include:

• Scheduling of OB and Coal Drills



• Designing of Drill Patterns



• Designing and Implementing of blast designs



• Tie up plans and cost monitoring



• Liaise with blasting contractors



• review any poor performance



• Supervision down the whole contract

Specific experience to include:

• Tertiary qualification in Engineering



• 3-5 years in an Open Cut mining environment



• Mine software capability



• Excellent verbal and written communication skills



• A strong commitment to safety”

[17] Prior to commencing employment with Whitehaven, Ms Todd had approximately 15 years’ experience in the coal mining industry. She was initially employed by a contractor as an Operator at the BHP Billiton Mt Arthur coal mine in the Hunter Valley. Ms Todd worked in that role for approximately three years. She then moved to Thiess, working as an Operator at South Walker Creek in Queensland for about 2.5 years. Ms Todd then worked for a further period at Mt Arthur as an Operator for another contractor. She then moved to Coal & Allied’s Hunter Valley Operations for five years, working initially as an Operator for about two years and then she progressed to the position of Supervisor. Ms Todd then moved to Glencore at its Bulga open cut mine and worked there for about three years in a variety of multi-skilled roles in mine design planning for coal and partings, drill and blast, shovel, dragline and excavator operations. Ms Todd is competent to operate multiple pieces of plant and equipment, including excavators, dozers, haul trucks and water carts. She obtained her Open Cut Examiner’s (OCE) certificate of competence on 18 June 2008. Ms Todd has no tertiary qualifications and is not in any way qualified as an engineer.

[18] Mr Margetts gave evidence, which I accept, to the effect that Ms Todd was:

“employed due to her experience supervising a team of shot firers at another mine. Ms Todd also had experience as a coaling team leader previously working for Coal and Allied at their Hunter Valley operations. The need for experience and people management was more significant to the Company than a tertiary qualification. Ms Todd does not have any engineering qualifications.”

[19] Mr Margetts also gave evidence, which I accept, that Ms Todd’s position was principally a supervisory one; she was not employed in a manager’s position, but she did manage, supervise and coordinate the work undertaken by the four Explosives Supervisors who reported directly to her.

[20] Consistent with this evidence from Mr Margetts, Ms Todd gave evidence, which I accept, that she met with the four Explosives Supervisors who reported to her each day at the commencement of their shift at 6am, unless she was working at the Rocglen mine and they were working at the Tarrawonga mine or vice versa. That did not happen often, and when it did Ms Todd ordinarily spoke to the Explosives Supervisors in person at some stage during the day. Ms Todd also assisted the Explosives Supervisors from time to time when they were undertaking a shot and required a hand. Ms Todd’s experience as an explosives handler meant that she was appropriately experienced to assist in such work.

[21] Ms Todd’s contract of employment describes the responsibilities of her role in the following way:

“You will be responsible for the Drill and Blast design and reporting at Tarrawonga and Rocglen Open Cuts and assist in the coordination of the Explosive Supervisors/Shotfirers, reporting to the Drill and Blast Manager. A Position Description containing more specific duties of your position will be issued in due course. The responsibilities and duties included in your role, and existing reporting structure, may alter from time to time. You must perform the duties reasonably associated with your position. In addition, you must perform other duties which you are capable of performing, as required by Whitehaven. These alterations or additional duties may be discussed with your Manager.”

[22] During her employment at Whitehaven Ms Todd was informed by Mr Margetts that instead of reporting to Mr Cope she would principally report to him in his capacity as Operations Manager, but she would also have some reporting responsibilities to Mr Conomos, Operations Manager at Rocglen, in respect of her work at the Rocglen mine, and Mr Cope, in his capacity as the Group, Drill & Blast Manager. Mr Margetts reviewed Ms Todd’s performance each year and was, in effect, her principal line manager.

[23] On 26 February 2015, Ms Todd was appointed by Whitehaven to the position of Mining Supervisor at the Tarrawonga mine. The reason Ms Todd was appointed to that position was so that she could fill in, as required from time to time, in the role of OCE when the regular OCEs employed by Whitehaven were unavailable to work. In this context, it is important to understand that an open cut coal mine cannot operate unless there is a certified and qualified OCE on duty at all times. Ms Todd’s appointment to the position of Mining Supervisor has not been revoked by Whitehaven. However, the uncontested evidence was that Ms Todd was only called upon to work in the role of OCE for 1.5 days during her period of about 2.25 years of employment with Whitehaven.

[24] An advertisement placed by Whitehaven for Ms Todd’s replacement described the position as follows:

“This position presents an opportunity for a high performing, enthusiastic person to ensure the health and safety of work teams while being responsible for design and operational control of activities involving drill and blast at Tarrawonga Mine with particular reference to maintaining compliance with applicable mining legislation.

This role is also responsible for engineering and coordinating the drilling and blasting activities at Tarrawonga Mine and the effective operation of plant and personnel within the drilling and blasting crews. To be part of the Tarrawonga team, applicant must have a commitment to working safely, be self-starters, proactive, results oriented, positive outlook, flexible and have a focus on maintaining the high standards in place at the mine.

Reporting to the Operations Manager, this role is responsible to:

• Lead by example, coach and mentor employees and contractors in the application of risk management principles when conducting work.



• Maintain compliance with Tarrawonga Mine health and safety management system requirements.



• Design drill and blast activities to provide fragmentation that enables mining activity to meet budgeted productivity.



• Effectively allocate team resources to manage all drill and blast activities and manage the people, systems and behaviours to achieve optimum plant performance and customer targets.

The successful applicant will possess the following qualifications and qualities:

• Tertiary qualification in mining engineering or related discipline.



• Sound knowledge of the risk management, safe work practices and statutory requirements required to create and maintain a safe work environment.



• OCE ticket or Shot Firer’s certificate (desirable).



• Strong leadership skills.”

[25] The evidence discloses that there were two main aspects to Ms Todd’s role of Drill & Blast Engineer. First, designing and scheduling the drilling and blasting work to be undertaken at the Tarrawonga and Rocglen open cut mines. Ms Todd did not need engineering qualifications to design the drilling and blasting work because computer software programs have advanced to such a stage that a person such as Ms Todd with experience on the job and some knowledge from her training as an OCE is able to undertake the tasks of designing and scheduling drilling and blasting work. Secondly, supervising and managing the drilling and blast functions at the Tarrawonga and Rocglen Mines, including supervision and management of a team of four Explosives Supervisors, who are responsible for undertaking, inter alia, the shot firing at the Tarrawonga and Rocglen Mines, in accordance with the plans and instructions prepared by Ms Todd as the Drill and Blast Engineer. Ms Todd was also required to supervise contractors who were engaged by Whitehaven to perform specialised drilling or blasting work. Ms Todd spent about 60% to 70% of her time at work in the office and 30% to 40% of her time at work undertaking activities in the field. She allocated her time between the Tarrawonga and Rocglen open cut mines, and was required to travel between the two mines to undertake her duties and responsibilities. The role required Ms Todd to work autonomously.

[26] Whitehaven accepts that the role of Explosives Supervisor comes under the Black Coal Award classification of shotfirer, but says the role of Explosives Supervisor is more senior than a traditional shotfirer because Whitehaven’s Explosives Supervisors manage relationships with explosives suppliers, co-ordinate contractors and make routine contact with suppliers for additional resources, in addition to undertaking the shotfiring function.

[27] Ms Todd submits that the principal purpose of her role was supervisory. Whitehaven submits that the principal purpose of Ms Todd’s role was to supervise and manage the drilling and blasting function at the Tarrawonga and Rocglen Mines, including the supervision of the four Explosives Supervisors.

[28] I am satisfied, on the basis of the evidence adduced in relation to the nature of the work that Ms Todd was employed to do, that the principal purpose of her role of Drill and Blast Engineer was to supervise the drilling and blasting function at the Tarrawonga and Rocglen Mines, including the direct supervision of the four Explosives Supervisors and the contractors who were engaged by Whitehaven to perform specialised drilling or blasting work.

[29] I accept that there can, in some roles and tasks, be a fine distinction between a managerial role or task and a supervisory one. I also accept that some aspects of Ms Todd’s role were managerial, including undertaking performance reviews of the four Explosives Supervisors who reported to her, but they were, in my view, subsidiary to her primary role as a supervisor. This conclusion is also supported by the fact that:

(a) Mr Margetts agreed that Ms Todd was not a manager; her role was principally supervisory;

(b) the new Position Description does not use the word “manage” at all to describe the role of Drill and Blast Engineer, now known as Drill and Blast Superintendent; and

(c) the new Position Description states that the “position goal” is “direct supervision of the day to day Drill and Blast operations …” and one of the productivity accountabilities is to “oversee and supervise the entire drill and blast operation as per company policy”.

Open-cut overseer

[30] Schedule B of the Black Coal Award includes a number of supervisory classifications, some of which are defined and others are not. Two of the defined supervisory classifications are as follows:

“Production Supervisor means an employee at an open–cut mine whose duties include operational planning, coordination, supervision and control of mining and overburden operations and personnel on all shifts worked at the mine.

Open–cut Overseer means an employee appropriately qualified and certified performing general supervisory duties which may include the duties of an open cut examiner under the Coal Mine Health and Safety Act 2002 (NSW)”

[31] The classification of Open-cut Overseer has been in existence in awards in the black coal mining industry for many years. For example, the classification of Open-cut Overseer was included in the Collieries Staff Award, 1984 (NSW, Qld & Tas) and the Coal Mining Industry (Supervision & Administration) Interim Consent Award, 1990, (NSW & Tas). Notwithstanding the long history of the classification, neither party was aware of any case in which the classification of Open-cut Overseer has been considered by a court or tribunal.

[32] The structure of Schedule B of the Black Coal Award is such that employees are grouped into various categories or groups, with Group A at the bottom of the hierarchy and Group M at the top of the hierarchy. The following classifications within these groups can be characterised as principally supervisory classifications:

• Foreperson (Group I);



• Open-cut Overseer, Assistant Undermanager, Senior Foreperson, Washing Plant Superintendent and/or Supervisor, EDP Supervisor (Group J);



• Senior Open-cut Overseer, Coal Preparation Plant Supervisor (Group K);



• Production Supervisor (Group L); and



• Undermanager (in charge) (Group M).

[33] When viewed in context in this way, it is apparent that the reference to “general supervisory duties” in the definition of the Open–Cut Overseer classification cannot be considered in isolation. Each of the classifications referred to in the previous paragraph would have “general supervisory duties”.

[34] The requirement in the definition of the Open–cut Overseer classification for the employee to be “appropriately qualified and certified”, together with the reference to the fact that the “general supervisory duties … may include the duties of an” OCE, indicates that the “general supervisory duties” must be duties for which appropriate qualifications and certification is required under a legislative scheme, industry standard or other regime. The position of an OCE, which falls within the definition of a Mining Supervisor under the Work Health and Safety (Mines) Regulation 2014 and requires the holder of the position to exercise statutory functions at the mine, is an obvious example of a supervisory position that would fit within the classification of Open-cut Overseer. However, it is clear from the use of the expression “may include the duties of” an OCE that the classification of Open-cut Overseer includes roles with general supervisory duties other than the role of OCE.

[35] The principal purpose of Ms Todd’s role of Drill and Blast Engineer fits into the category of “general supervisory duties”; however those duties did not require Ms Todd to have any particular qualifications or certification. So much is clear from the fact that Ms Todd was recruited by Whitehaven for the role of Drill and Blast Engineer without any engineering or other particular qualifications for that role and both parties accept that Ms Todd did not have to be certified as an OCE, or in any other way, to undertake the role of Drill and Blast Engineer.

[36] Ms Todd contends that her appointment by Whitehaven to the position of Mining Supervisor on 26 February 2015 on an on-going basis, for which she was required to have an OCE certificate of competence, is sufficient to bring her within the classification of Open-cut Overseer. I reject that argument. Whitehaven had the contractual right to require Ms Todd to “perform other duties which you are capable of performing, as required by Whitehaven”. Whitehaven exercised that contractual right when it appointed Ms Todd to the position of Mining Supervisor so that she could fill in from time to time in the role of OCE. She did that for 1.5 days during her employment with Whitehaven. Had Ms Todd worked in the role of OCE on a permanent or regular basis, then there could have been no doubt that she was covered by the Open-cut Overseer classification. However, Ms Todd’s substantive role was that of Drill and Blast Engineer. She undertook that role for all but 1.5 days of her 2.25 years of employment with Whitehaven. The first of those days was an overtime shift on a Saturday in February 2015. The evidence did not reveal when the other 0.5 day was undertaken. It is the nature of the work Ms Todd was employed to undertake in the role of Drill and Blast Engineer which must be examined in order to determine whether she was award covered at the time of her dismissal.

[37] Further, it would, in my view, be impermissible to have regard to the fact that Ms Todd had to be qualified and certified as an OCE to work in the position of OCE/Mining Supervisor on a temporary fill-in basis for what turned out to be 1.5 days in 2.25 years in determining whether Ms Todd’s “general supervisory duties” as a Drill and Blast Engineer required her to have any qualifications or certifications. 9

Foreperson or Senior Foreperson

[38] As explained above, Schedule B of the Black Coal Award (Staff Employees) includes a wide range of supervisory and managerial classifications, including up to the classifications of Open-cut Overseer, Senior Open-cut Overseer, Coal Preparation Plant Supervisor, Production Supervisor, Chief Electrical and/or Mechanical Engineer, Electrical and/or Mechanical Engineer (in charge) and Undermanager (in charge). Many positions in those classifications would, in my view, be fairly considered to be about the same level as, or more senior than, Ms Todd’s position of Drill and Blast Manager.

[39] The classifications covered by Schedule B of the Black Coal Award do not go as high as Mine Manager, but it is clear that the Black Coal Award is intended to, and does, cover relatively senior staff employees who work at an open cut black coal mine. Such employees have traditionally been covered by awards in the black coal mining industry. 10 This is apparent from as early as 1945 when the Coal Reference Board made its first comprehensive award in New South Wales covering staff employees in the coal mining industry. In part resolution of that dispute, the Coal Reference Board made the Award Coal Mining Industry Staff CRB 325. In making that Award, the Coal Reference Board said: “The employees covered by this claim are in permanent employment and include some men in professional occupations. Many of the positions are managerial in which it is necessary (to some extent) they should be on duty before and beyond ordinary pit time”.  

[40] The Black Coal Award was intended to “neither expand nor contract the reach of the key pre-reform awards both in relation to the kinds of employers to whom those awards apply and the extent to which the awards apply to such employers”. 11

[41] The classifications in Schedule B of the Black Coal Award include Foreperson and Senior Foreperson. The Foreperson classification is at Group I in the hierarchy of Schedule B, along with classifications such as Mine Surveyor and Senior Analyst and/or Programmer, whereas the Senior Foreperson classification is at Group J in the hierarchy, along with classifications such as Open-cut Overseer, Engineer, Washing Plant Superintendent and/or Supervisor and EDP Supervisor.

[42] The classifications of Foreperson and Senior Foreperson, known in previous awards in the coal mining industry as “Quarry Foreman” 12, “General Surface Foreman”13, “Foreman”14, and “Senior Foreman”15, have been included in awards in the coal mining industry for many years.

[43] The classifications of Foreperson and Senior Foreperson in Schedule B are not defined in the Black Coal Award, nor have those classifications or their predecessors been defined in earlier awards in the coal mining industry. However, one of the earlier decisions of the Coal Industry Tribunal describes a “foreman” in the coal mining industry as a type or category of “open cut supervisor”: 16

“The evidence in relation to A division staff was drawn from under managers, assistant under managers, open cut overseers, engineers, a chemist, a computer programmer and open cut supervisors (both overseers and foremen).” [emphasis added]

[44] Further, one of the exhibits to the 1980 decision of the Coal Industry Tribunal referred to in the previous paragraph was entitled: “G55 Comparison of rates, open cut foreman and open cut examiner”. 17

[45] A “foreman” is defined in the Macquarie Dictionary 18 as “the supervisor of a group of workers”.

[46] Avoiding a narrow approach to the interpretation of an award and having regard to both the ordinary meaning of “foreman” and its historical meaning in the coal mining industry (as set out in paragraphs [42] to [45] above) and the structure of Schedule B of the Black Coal Award (as explained in paragraphs [32] and [38] to [41] above), I am of the view that the classifications of Foreperson and Senior Foreperson in Schedule B of the Black Coal Award are not limited to the supervision of workers. Further, taking into consideration that the framers of the classifications of Foreperson and Senior Foreperson were likely of a practical bent of mind, 19 I am of the opinion that the classifications of Foreperson and Senior Foreperson extend, on their proper construction, to include the supervision of a function or a part or area of an operation at a coal mine, not just the supervision of the workers who work in that function or part or area of an operation at a coal mine.

[47] The classification of Senior Foreperson is clearly higher than that of Foreperson. In deciding which of those two classifications a particular foreperson belongs to it is relevant to have regard to a range of factors, including the duties, responsibilities and remuneration of the role, the duties and seniority of the employees being supervised, and the seniority of the person to whom the foreperson reports.

[48] As I have stated above, the principal purpose of Ms Todd’s position of Drill and Blast Engineer was to supervise the drilling and blasting function at the Tarrawonga and Rocglen open cut mines, including the direct supervision of the four Explosives Supervisors and the contractors who were engaged by Whitehaven to perform specialised drilling or blasting work. Having regard to that principal purpose, I am of the view that Ms Todd’s position of Drill and Blast Engineer fits within the classification of Senior Foreperson at Group J in Schedule B of the Black Coal Award. I reject Whitehaven’s contention that the structure of classifications in Schedule B of the Black Coal Award does not contemplate a supervisory position for drill and blast work.

[49] I have decided that the Senior Foreperson classification, rather than the Foreperson classification, is appropriate because Ms Todd worked in a relatively senior role, as is apparent from her duties, responsibilities, remuneration, the duties and seniority of the Explosives Supervisors who reported to Ms Todd, and Ms Todd’s reporting line to the Operations Manager. Other award covered roles such as Senior Open-cut Overseer also report to Mr Margetts as Operations Manager.

[50] Ms Todd was paid at a much higher rate in her role as Drill and Blast Engineer than the rate provided for a Group J classification in Schedule B of the Black Coal Award. However, the rates in the Black Coal Award are minimum rates of pay. Many employees working in open cut mines in the Hunter Valley are paid well above the minimum rates provided for in the Black Coal Award, particularly in circumstances where, as in Ms Todd’s case, they were poached from another mine and the employee was able to negotiate their remuneration package with their new employer on that footing. 20 In those circumstances, when considering whether Ms Todd was covered by the Black Coal Award I place limited weight on the fact that Ms Todd was paid substantially more remuneration by Whitehaven than the minimum rate provided for at Group J of Schedule B of the Black Coal Award.

Engineer

[51] I am satisfied that Ms Todd was not employed within the classification of Engineer in Schedule B of the Black Coal Award because she was not employed for the principal purpose of undertaking engineering duties or work. Further, Ms Todd does not have any qualifications as an engineer. In that regard, I note that the Black Coal Award provides for a number of classifications of Engineer, starting with a Graduate Engineer, who is defined as a “degree qualified Engineer”, then moving to Engineer, followed by Senior Engineer, then Chief Electrical and/or Mechanical Engineer, and finally Electrical and/or Mechanical Engineer (in charge). Given that the lowest classification of Engineer (being a Graduate Engineer) must be degree qualified and having regard to the hierarchy of engineering classifications covered by Schedule B, I am satisfied that an employee must be a degree qualified engineer to fall within any of the Engineer classifications in the Black Coal Award.

Conclusion

[52] For the reasons set out above, I am satisfied that Ms Todd was, at the time of her dismissal, in her position of Drill and Blast Manager:

(a) employed in the Senior Foreperson classification in Schedule B of the Black Coal Award; and

(b) not employed in the Engineer or Open-cut Overseer classification in Schedule B of the Black Coal Award.

[53] It follows that Ms Todd was covered by a modern award at the relevant time and given there is no question that she was employed by Whitehaven for at least the minimum employment period she is a person who was protected from unfair dismissal within the meaning of s.382 of the Act. I therefore reject Whitehaven’s jurisdictional objection.

COMMISSIONER

Appearances:

Mr K Endacott (CFMEU) for the applicant.

Mr J de Flamingh, solicitor, on behalf of the respondent.

Hearing details:

2016.

Newcastle:

July, 25.

 1 s.382(b) of the Fair Work Act 2009 (Cth) (the Act)

 2   s.48 of the Act

 3   ss 47(3) & 48(5) of the Act

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

 5   McMenemy v Thomas Duryea Consulting Pty Ltd[2012] FWAFB 7184 at [37]

 6 (1996) 66 IR 182

 7   Halasagi v George Weston Foods Limited[2010] FWA 6503 at [5]

 8   See clause 4.1(b)(i) of the Black Coal Award. Clause 4.1(b)(ii) is in slightly different terms, but they are not relevant for the purpose of this case because Whitehaven is an employer engaged in the black coal mining industry.

 9   Halasagi v George Weston Foods Limited[2010] FWA 6503 at [23] (second bullet point)

 10   See s.143(7) of the Act and cf Norman v Fyfe Pty Limited[2014] FWC 7927 at [66]

 11   Decision re the Making of Priority Modern Awards [2008] AIRCFB 1000 at [156]

 12   See, for example, CRB 325, order made in 1945

 13   See, for example, CRB 368, order made in 1946, and CRB 767, order made in 1951

 14   See, for example, the Collieries Staff Award, 1984 (NSW, Qld & Tas), Schedule A (Qld)

 15   See, for example, the Collieries Staff Award, 1984 (NSW, Qld & Tas), Schedule A (Qld)

 16   CR 2901 (1980) at p7

 17   See CR 2901 decision at p16

 18   Revised Third Edition

 19   Kucks v CSR Ltd – see paragraph [7] above

 20   Statement of Ms Todd at [12]

Printed by authority of the Commonwealth Government Printer

<Price code C, MA000001 PR583278>