SC Hydro Pty Ltd v Construction, Forestry and Maritime Employees Union, Mr John Andrikopoulos
[2025] FWCFB 159
•29 JULY 2025
| [2025] FWCFB 159 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
SC Hydro Pty Ltd
v
Construction, Forestry and Maritime Employees Union, Mr John Andrikopoulos
(C2024/8921)
| VICE PRESIDENT GIBIAN | SYDNEY, 29 JULY 2025 |
Appeal against decision [2024] FWC 3196 of Commissioner Crawford at Sydney on 20 November 2024 in matter number C2024/3663 – Dispute about correct classification for employees performing tunnelling work on the Snowy Hydro 2.0 project – Full Bench determined proper construction of classification descriptors – Parties directed to confer – Parties unable to agree on implications of Full Bench decision for affected employees – Whether agi-truck drivers “assisting” other tunnelling employees – Dispute determined.
Introduction
On 28 May 2025, the Full Bench handed down its decision in relation to an appeal brought by SC Hydro Pty Ltd against a decision of the Commission determining a dispute concerning the classification level of certain employees engaged on the Snowy Hydro 2.0 project.[1] In short, the dispute concerns whether ten particular employees should have been classified as Tunneller Class 2 – TW2 or Tunneller Class 1 – TW3 for the purposes of the SC Hydro Pty Ltd – AWU Tunnel and Associated Works Greenfield Agreement 2021 – 2025 (the Agreement). At first instance, a member of the Commission determined that four of the employees should have been classified as Tunneller Class 1, three of the employees were correctly classified as Tunneller Class 2 and that he could not identify the correct classification for the remaining three employees.[2]
In its decision, the Full Bench made orders allowing the appeal and quashing the decision at first instance.[3] The Full Bench was required to construe the classification descriptors for the Tunneller Class 1 and Tunneller Class 2 classifications and, as will be apparent, reached a different view to the Commissioner at first instance in relation to the proper interpretation of the classifications. In the circumstances, the Full Bench directed the parties to confer and indicate if there was any remaining dispute as to the implications of the decision of the Full Bench for the employees who are subject of the dispute.
The parties subsequently communicated that they were unable to agree on the implications of the decision of the Full Bench. As a result, directions were made for further submissions to be filed in relation to the disposition of the dispute. SC Hydro filed submissions dated 7 July 2025. The primary contention of SC Hydro is that, on the construction adopted by the Full Bench, none of the employees are entitled to be classified as a Tunneller Class 1. In the alternative, SC Hydro submits that there is insufficient evidence in relation to three of the employees. The CFMEU filed submissions dated 11 July 2025. The CFMEU submits that all of the affected employees should be classified as a Tunneller Class 1.
In its submissions, SC Hydro suggests that two questions remain for determination:
(a)Whether the affected employees were “assisting” a Tunneller Class 1 within the meaning of Appendix A to the Agreement?; and
(b)Whether each of the affected employees should be classified as Tunneller Class 1 (TW3)?
It is convenient to address those two questions in turn.
“Assisting” Tunneller Class 1
In its decision, the Full Bench determined that the essential distinction between the Tunneller Class 2 classification and the Tunneller Class 1 classification is that a Tunneller Class 1 is “engaged underground in the work of assisting Tunneller Class 1”. The Full Bench explained the distinction between the two classifications as follows:[4]
[56] What then distinguishes a Tunneller Class 1 from a Tunneller Class 2. Ultimately, we think that the distinction between the two classifications is found in the description of the role of a Tunneller Class 2 which indicates both the nature of the role of a Tunneller Class 2 and the prerequisites for progression to the Tunneller Class 2 classification. The essential nature of the Tunneller Class 2 classification is made clear in the second paragraph of the classification description. That is, the Tunneller Class 2 classification is the appropriate classification for an employee who is engaged underground in the work of “assisting Tunneller Class 1”. The remainder of the second paragraph and the third paragraph then explain the type of duties that might be involved in the work of assisting a Tunneller Class 1 employee.
[57] The first paragraph of the description for a Tunneller Class 2 then explains the conditions for progression from Tunneller Class 2 to Tunneller Class 1.
(a)who has either had six months as a Tunneller Class 2, or is an experienced construction worker whose transition was accelerated;
(b)who has passed a competency assessment; and
(c)for whom there is a relevant position available.
[58] We think the conditions for progression, read together with the reference to “assisting a Tunneller Class 1” in the second paragraph of the classification description, indicate that a Tunneller must occupy an “assisting” role for the first six months of employment. The effect of the classification description is to confine the type of work that can be allocated to an employee engaged as a Tunneller with less than six months’ experience. Provision is made for an exception if the employees is “an experienced construction worker” who may be eligible for accelerated transition subject to being deemed competent. In that case, the employee may progress to the Tunneller Class 1 classification and allocated work beyond an “assisting” role sooner than six months if deemed to be competent to do so because of his or her experience.
[59] After six months as a Tunneller Class 2, an employee is eligible to progress to be a Tunneller Class 1. Progression depends on passing a competency assessment and a relevant position being available. An employee may remain at Tunneller Class 2 beyond six months if not assessed to be competent to perform work which involves more than an “assisting” role or if a position performing work which extends beyond an “assisting” role is not available. If, however, an employee has more than six months as a Tunneller Class 2, is (expressly or impliedly) assessed as competent to perform work in a position involving more than an “assisting” role and is required to perform work in or is appointed to a role which is not assisting a Tunneller Class 1 then the employee is entitled to progress to Tunneller Class 1.
The concept of “assisting” is not defined in the Agreement. SC Hydro submits that the term “assisting” should be given a broad meaning and is not limited to a person engaged to provide assistance to another in a subsidiary role. It submits that a Tunneller Class 2 need not provide “hands on” assistance to a Tunneller Class 1 in the nature of an assistant.
SC Hydro submits that three matters support that conclusion. First, it contends that, if an employee who solely drives an agi-truck cannot be said to “assist” Tunneller Class 1, such an employee could never gain the initial experience in the first six months of employment as envisaged by the Tunneller Class 2 classification. Second, it says that it is difficult to see how many of the tasks and equipment types set out in the Tunneller Class 1 description would ever require a person in a subsidiary assistant role. Third, it submits that a similar point arises with respect to the indicative tasks set out in the balance of the Tunneller Class 2 classification description in that neither the operation of dump trucks nor excavators for minor concrete works sits comfortably with a role of hands-on subsidiary. SC Hydro says that each of those matters tells against the narrow construction of “assisting” for which the CFMEU contends.
If the construction for which it contends is applied, SC Hydro submits that each of the affected employees provides “assistance” to a Tunneller Class 1 and properly falls within the Tunneller Class 2 classification. The substance of the submission is that the affected employees drive concrete agitator trucks from the batch plant to various locations where employees who are classified as Tunneller Class 1 work so that those employees can lay concrete or spray shotcrete. SC Hydro submits that, without the affected employees performing their work, the employees engaged in concreting or shotcreting would not be able to carry out their immediate tasks of laying concrete and spraying shotcrete. In that manner, SC Hydro submits that the affected employees “support, help, or aid” the work of Tunneller Class 1 employees.
The ordinary meaning of the expression “assist” or “assisting” is not in dispute. Dictionary definitions of the word “assist” include “to give support, help, or aid to in some undertaking or effort, or in time of distress”, “to be associated with as an assistant”, “to give aid or help” and “to act as an assistant”.[5] We accept that dictionary definitions may assist in ascertaining the ordinary meaning of a word or expression used in an award or other industrial instrument. However, it is important to remember that the words used in an industrial instrument must be construed having regard to their context and purpose.[6]
We do not accept that the phrase “engaged underground in the work of assisting Tunneller Class 1” in the classification description for a Tunneller Class 2 can be given the broad meaning attributed to it by SC Hydro. SC Hydro submits that an employee is “assisting” another whenever their work facilitates or is necessary for the work of another to be performed. In a complex workplace, the work of most employees might be said to facilitate or be essential to the work undertaken by others. That does not mean that it can sensibly be said that each employee “assists” each other employee. In the context of a classification structure, such a construction is likely to deprive the concept of “assisting” of any meaningful limit. It will, of course, be necessary to carefully examine the context in any case. However, in a classification structure which provides for a lower classification that “assists” a high classification, the lower classification is likely to be directed at an assistant or subordinate role. The “assistance” provided in a lower classification is likely to be intended to have some relatively direct relationship to the work performed in the higher classification such that it can be said that the employee assists in the performance of that work.
The work performed by the employees who are the subject of the dispute was described in general terms in the statement of agreed facts at first instance in the following manner:[7]
At the Project, agi-trucks are used to transport concrete from concrete batch plants to various locations on the site where concrete is required. This involves transporting the concrete from the onsite concrete batch plants at Lobs Hole, Tantangara and Marica for use at the three tunnels which are currently under construction. Once in the tunnel, the agi-truck driver discharges the concrete into a pump. Where the concrete is used for shotcreting, the concrete is discharged into a shotcrete pump which is then used by the shotcrete pump operators to spray onto surfaces where a rock fall may occur, for example on the roof and walls of the tunnel or at the entrance of a tunnel portal. When the concrete is used for other purposes, the agi-truck driver will either discharge the concrete into a pump or directly onto the surface where it is required (such as on the ground within form work to lay a slab).
Other evidence suggests that the agi-truck drivers have some interaction with tunnel workers, including discharging the concrete where it is required and as directed by tunnelling employees.[8]
We do not consider that the fact that the employees driving the agi-trucks deliver concrete or shotcrete to locations and the concrete or shotcrete is then used by shotcrete pump operators or concreters can sensibly be said to support a conclusion that the agi-truck drivers are engaged in “assisting” the pump operators or concreters in their work. Other than interacting to ensure that concrete is delivered when and where it is required, the evidence does not suggest that the agi-truck drivers have any involvement in or assist in any way in the performance of work by pump operators or other tunnelling employees. On the evidence that was before the Commission, we do not consider it can be said that the affected employees are “engaged underground in the work of assisting Tunneller Class 1” for the purposes of the Tunneller Class 2 classification description.
We do not consider that the context relied upon by SC Hydro is sufficient to support the adoption of the interpretation for which it contends. First, in the case of the operation of agi-trucks, it is said that there is no room for an “assisting” role in which an employee could gain experience in the first six months of employment. We do not think that the evidence establishes that there are not tasks that could be undertaken by an assistant in conjunction with the person driving the truck. In any event, the classification description for a Tunneller Class 2 contemplates that an experienced construction worker can, subject to a competency assessment, be directly appointed to a role as a Tunneller Class 1 and independently operate an agi-truck without being required to perform work for six months as a Tunneller Class 2.
Second, SC Hydro also says that it is difficult to see how many of the types of equipment and tasks set out in the classification description of a Tunneller Class 1 would require an assistant role. We do not consider the submission rises above assertion. It is unsupported by any evidentiary references. As the CFMEU observes, some of the types of mobile plant referred to in the classification description are not uncommonly operated with a dogger, spotter or other type of assistant. In circumstances in which the classification description for a Tunneller Class 2 expressly contemplates that it involves “assisting Tunneller Class 1”, we do not accept there is no scope for an assistant role.
Third, it is suggested that the balance of the Tunneller Class 2 classification description does not sit comfortably with a role as a hands-on assistant. We also do not consider the remainder of the description of a Tunneller Class 2 is incompatible with an assistant role. The remainder of the classification description refers to an employee being able to operate a dump truck or pieces of normal tunnelling equipment, undertaking the general duties of a member of a bull gang or carry out general excavation operations. Those tasks are inconsistent with an assistant role.
For these reasons, we reject the submission advanced by SC Hydro that the affected employees have not been appointed to roles that require anything more than assisting a Tunneller Class 1.
Should the employees be reclassified?
If its submissions with respect to the first question are not accepted, SC Hydro appears to acknowledge that the employees who the Commissioner determined should be reclassified (Mr Rewald, Mr Farr, Mr Blyth and Mr Roach) as well as Mr Riley, Mr Orreal and Mr Starr should be classified as Tunneller Class 1. We consider that concession to be correct and it is appropriate that the Full Bench resolve the dispute by so determining.
SC Hydro submits, however, that there is no evidence with respect to Mr Willmott, Mr Biberian and Mr Brell which could allow the Commission to safely conclude anything about their proper classification. The submission of SC Hydro perhaps proceeds on a misapprehension in relation to the decision of the Full Bench. The Full Bench relevantly concluded:
[55] In light of the foregoing, we consider a Tunneller can be a Tunneller Class 1 notwithstanding they are required only to operate agi-trucks, provided they are experienced having regard to the indicators of experience set out in the definition of Tunneller Class 1. There is no need to read into the definition any further condition, such as a requirement for twelve months’ experience performing tunnelling work, or a requirement to have at least four of the competencies in the second sentence of the definition.
SC Hydro appears to have read that passage as suggesting the Tunneller Class 1 classification has a distinct and undefined “experience” requirement. The intention of the Full Bench was only to indicate that an experienced Tunneller is an employee with experience undertaking any of the type of duties set out in the classification description rather than that some separate and impressionistic “experience” assessment is required. Experience operating a concrete agitator in a relevant context would be sufficient.
The difficulty so far as Mr Willmott, Mr Biberian and Mr Brell are concerned is that there was no evidence at all before the Commissioner in relation to their employment background and experience with SC Hydro or otherwise. The CFMEU submits that it is sufficient that the agreed statement of facts recorded that Mr Willmott, Mr Biberian and Mr Brell were employed and had the primary role of driver/operating an agi-truck. The agreed statement of facts recorded employment start dates for Mr Willmott of 11 December 2023, for Mr Biberian of 23 May 2022 and of Mr Brell of 20 June 2022.[9] It may be those employees have performed work of a relevant type since that time. However, there is not evidence clearly establishing that this is the case. It is not appropriate for the Full Bench to determine the dispute in relation to Mr Willmott, Mr Biberian and Mr Brell in the absence of clear evidence. The circumstances of Mr Willmott, Mr Biberian and Mr Brell should be left to the parties to resolve.
Conclusion and disposition
In circumstances in which the parties have been unable to agree on the implications of the earlier decision of the Full Bench, it is necessary for the dispute to be redetermined on appeal. The Full Bench determines that:
Raymond Orreal, Edward Riley, Gavin Blyth, Steven Roach, Clyde Farr, Ian Starr and Brett Rewald should be classified as Tunneller Class 1 (TW3) in their current roles.
VICE PRESIDENT
Appearances:
A Pollock, of counsel, instructed by Ashurst for the appellant.
C Massy, of counsel, instructed by L Charlson of the CFMEU for the respondents.
Final written submissions:
11 July 2025
[1] SC Hydro Pty Ltd v Construction, Forestry and Maritime Employees Union[2025] FWCFB 110.
[2] Construction, Forestry and Maritime Employees Union v SC Hydro Pty Ltd [2024] FWC 3196 at [77]-[87].
[3] SC Hydro Pty Ltd v Construction, Forestry and Maritime Employees Union[2025] FWCFB 110 at [66].
[4] SC Hydro Pty Ltd v Construction, Forestry and Maritime Employees Union[2025] FWCFB 110 at [56]-[59].
[5] Macquarie Dictionary Online.
[6] See, for example, Clinical Laboratories Pty Ltd T/A Australian Clinical Labs v Health Services Union [2024] FWCFB 296 at [45].
[7] Amended Statement of Agreed Facts at [13].
[8] Witness statement of Glenn Pottinger, 12 September 2024 at [14]-[15].
[9] Amended Statement of Agreed Facts at [18].
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