SC Hydro Pty Ltd v Construction, Forestry and Maritime Employees Union, Mr John Andrikopoulos
[2025] FWCFB 110
•28 MAY 2025
| [2025] FWCFB 110 |
| 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, 28 MAY 2025 |
Appeal against decision [2024] FWC 3196 of Commissioner Crawford at Sydney on 20 November 2024 in matter number C2024/3663 – Dispute arising under an enterprise agreement – Dispute about correct classification for employees performing tunnelling work on the Snowy Hydro 2.0 project – Right of appeal under enterprise agreement – Whether Commissioner erred in relation to the construction of the Agreement – Conditions for progression from classification of Tunneller Class 2 to Tunneller Class 1 – Appeal allowed and parties directed to confer.
Introduction
This appeal arises from a decision in relation to a dispute referred to the Fair Work Commission (the Commission) for determination under s 739 of the Fair Work Act 2009 (the Act) and clause 3.12, Dispute Prevention and Settlement Procedure, of the SC Hydro Pty Ltd – AWU Tunnel and Associated Works Greenfield Agreement 2021 – 2025 (the Agreement).
The dispute concerns a number of employees who drive concrete agitator trucks on the Snowy Hydro 2.0 project in New South Wales, and whether the employees are correctly classified as Tunneller Class 2 – TW2 or Tunneller Class 1 – TW3 under the Agreement. The dispute was referred to the Commission pursuant to s 739 of the Act by the Construction, Forestry and Maritime Employees Union and an individual employee, John Andrikopoulos (referred to collectively as the CFMEU). The dispute was allocated to Commissioner Crawford who had the difficult task of, among other things, construing the Agreement, which is far from wholly clear, in order to determine the dispute.
The Commissioner determined the dispute in a decision published on 20 November 2024. The Commissioner determined that the employer, SC Hydro Pty Ltd (SC Hydro), had incorrectly classified the following employees, and that they ought to have been classified as Tunneller Class 1 and TW3 from the following dates:
· Mr Brett Rewald, 6 April 2024;
· Mr Clyde Farr, 1 July 2022;
· Mr Gavin Blyth, 9 March 2023; and
· Mr Steven Roach, 22 December 2022.
Commissioner Crawford determined that SC Hydro had correctly classified the following employees in the classification Tunneller Class 2 and TW2:
· Mr Edward Riley;
· Mr Ian Starr; and
· Mr Raymond Orreal.
Because of insufficient evidence, Commissioner Crawford did not determine the proper classification for:
· Mr Glenn Willmott;
· Mr Christophe Biberian; and
· Mr Louis Brell.
Both parties were dissatisfied with the result. SC Hydro seeks permission to appeal from the decision. In short, SC Hydro contends that the Commissioner erred by taking into account tasks which the affected employees were not required to, and did not in fact, perform, erred by taking into account how their “jobs, positions or roles are described” in the Agreement and erred in relation to the proper construction of the Tunneller Class 1 and Tunneller Class 2 classifications in the Agreement.
The CFMEU filed a notice of contention in which it contends that the Commissioner erred in the construction of the classification of Tunneller Class 1 and should have found that an employee is within the classification of Tunneller Class 1 if the employees has at least six months tunnelling experience and one of the competencies described in any one, or part of, the second, third or fourth sentences of the classification description. It should be observed that the CFMEU’s notice of contention is more in the nature of a cross-appeal. The CFMEU does not seek simply to support the conclusion of the Commissioner on an alternative basis. It seeks a different outcome on the basis that the Commissioner erred in the construction and application of the Agreement. SC Hydro did not object to the Full Bench considering the matters raised by the notice of contention.
For the reasons that follow, permission to appeal is not required, and the appeal must be allowed. The parties will be directed to confer as to whether there are any issues that need to be resolved in relation to the individual employees who are subject of the dispute having regard to the construction of the Agreement arrived at by the Full Bench.
The Agreement
The Agreement covers employees of SC Hydro who are employed on the Snowy Hydro 2.0 project, in any of the classifications prescribed by the Agreement, and within the scope set out in clause 2.3 of the Agreement. Clause 2.3 relevantly provides:
This Agreement will apply to and be binding upon Employees of the Company on the Snowy Hydro 2.0 Project in the Tunnels, Shafts and associated works with the Project. This includes all tunnelling works and all associated works, where that work is located within the limits of the Project this includes:
Tunnel and Associated Works include but are not limited to:
(i) Excavation of the Tunnel and Caverns by mechanical or other means;
(ii) Installation of temporary and permanent tunnel supports and lining; and
(iii) Tunnel excavation ancillary services including the installation and maintenance of the spoil conveyor system; and
(iv) Construction of the TBM launch pad and assembly of TBM’s; and
(v) the construction, maintenance and operation of water treatment and Grouting plants associated with Tunnelling activities.
The clause goes on to provide for several exclusions. As to classifications, clause 5.1 of the Agreement provides, at paragraph (a):
(a) At the commencement of employment, each Employee will be appointed by the Company to a classification level based on skills, qualification and experience and in consideration of the substance of duties required to be carried out at the time of the Project. The classification level will be determined by the primary role which the Employee is engaged to perform, regardless of that person's level of skill or qualification. The skill-based classification structure is set out in Appendix A.
Paragraph (b) of the clause provides:
(b) Employees will be required to perform such duties as are within the limits of the employees skill, competence and training, including work that is incidental or peripheral to the Employee's main function.
The remainder of the clause relates to wage rates. Appendix A of the Agreement is entitled “Classification structure & wage rates: Tunnel Worker (“TW”).” It provides for six classifications, from TW1 to TW6, TW6 being the highest paid. The Appendix commences with a preamble, as follows:
The Tunnel Worker (“TW”) classification will apply to Employee(s) performing Tunnel Works who are engaged in the classifications set out below.
…
Determination of Classification for individual Employees
(a) The appropriate classification level will be determined by the primary role in which a person is engaged to perform by the Company, regardless of that person’s level of skill.
(b) This means that the appropriate classification level for an individual will be determined on a task rather than skill basis.
(c) Individual classification levels will only change where the primary task for which the individual is engaged changes.
Then, for each classification, under the heading “Primary Role Employee Engaged to Perform”, there is a list of roles falling within that classification level. “Tunneller Class 2” appears in the list for classification TW2. “Tunneller Class 1” appears in the list for classification TW3. The Appendix goes on to provide, in another table, four definitions, including one headed “Tunneller 2” and one headed “Tunneller 1.”
The Commissioner’s Decision
At first instance, the Commissioner described the dispute as concerning whether the relevant employees were correctly classified under the Agreement. He observed that SC Hydro considered that the employees were correctly classified as Tunneller Class 2 –TW2, while the CFMEU considered the employees fell within the higher Tunneller Class 1 –TW3 classification. There was no dispute that the Commission had jurisdiction to resolve the dispute by arbitration, following an attempt to resolve it by conciliation, and that all steps required under the dispute resolution procedure had been followed.[1]
The Commissioner set out the facts that had been agreed as between the parties and canvassed the parties’ evidence.[2] He referred to relevant provisions of the Agreement, including clauses 2.6, 3.2, and 5.1, and Appendix A and summarised the parties’ submissions as to interpreting enterprise agreements, including principles relevant to the task of resolving classification disputes,[3] and also considered submissions made with reference to the decisions of the High Court in ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2; (2022) 275 CLR 254 [4] and CFMMEU v Personnel Contracting Pty Ltd [2022] HCA 1; (2022) 275 CLR 165,[5] about whether regard could be had to conduct occurring after the employment contract had been made.[6] He went on to consider SC Hydro’s submission that the classification dispute needed to be decided by applying the two-stage test referred to in Zheng v Poten & Partners (Australia) Pty Ltd[2021] FWCFB 3478; (2021) 307 IR 339, including the “principal purpose” test.[7]
The Commissioner then undertook the task of interpreting the Agreement, including the relevant classifications, and applying the Agreement to the facts. He then determined the appropriate classification for each of the employees, as set out above, having regard to the evidence before him.[8] In doing so he did not grant relief in the terms sought by either party, but considered that his determinations, which are referred to above, constituted the dispute being resolved and arbitrated in accordance with clause 3.12(h) of the Agreement.
Grounds of appeal & notice of contention
SC Hydro relied on the following grounds of appeal.
The first ground of appeal is that the Commissioner erred by failing to properly apply the two-stage “principal purpose” or “primary function” test in order to ascertain the duties which the “Employees” were principally employed to perform.
The second ground of appeal is that the Commissioner erred by taking into account, for the purpose of “identifying the principal purpose of the employment,” how the “jobs, positions, or roles are described” in the Agreement.
The third ground of appeal is that the Commissioner erred by construing the reference in the Tunneller Class 1 classification to an employee being “able to” operate certain equipment as being a reference to the employee being “ready, willing, and able” to operate that equipment, regardless of whether the employee is required to do so as part of the principal purpose of their employment.
The fourth ground of appeal is that the Commissioner erred in construing the reference in each employee’s employment contract to the role of ‘driver’ as being “the generic position of driver,” when that reference properly construed was to a driver of a concrete agitator truck.
The fifth ground of appeal is that the Commissioner erred in construing the Tunneller Class 2 classification as providing “experienced construction workers” with an automatic progression pathway subject only to a competency assessment.
As we have observed, the CFMEU filed a notice of contention, contending that the Commissioner erred in the construction of the definition of Tunneller Class 1, and should have found that on the proper construction an employee could fall within the definition if they had at least six months of tunnelling experience, and one of the competencies described in any one of, or part of, the definition’s second, third or fourth sentences.
Permission to appeal
In its notice of appeal, SC Hydro set out matters relevant to the public interest, in support of a grant of permission to appeal[9] and submitted that the conventional requirements for permission to appeal apply in this matter.[10] This is a reference to the ordinary position under s 604(1) of the Act.
However, when dealing with a dispute pursuant to a dispute settlement procedure in an enterprise agreement, the Commission is acting as a private arbitrator. The nature and extent of the function to be undertaken by the Commission is determined by the agreement of the parties, including the availability and nature of any appeal. The parties may agree that there will be a right of appeal or remove or modify the requirements ordinarily applicable to an appeal under s 604 of the Act, including the need for permission to appeal to be obtained.[11]
Whether permission to appeal is required depends on the proper construction of the provision conferring jurisdiction on the Commission. Clause 3.12(h) of the Agreement provides that if the Commission is unable to resolve the dispute by conciliation, it may then arbitrate the dispute and “make a determination that is binding on the Parties, subject to either Party exercising a right of appeal against the Decision to a Full Bench of the FWC.” Clause 3.12(h) employs wording found in dispute resolution provisions considered in earlier decisions of the Commission. In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Silcar Pty Ltd[2011] FWAFB 2555; (2011) 208 IR 33, for example, the Full Bench dealt with an appeal in relation to a dispute under a dispute resolution procedure contained in an enterprise agreement which provided [emphasis added]:
(h) The decision of FWA will bind the parties, subject to either party exercising a right of appeal against the decision to a Full Bench.
The Full Bench concluded that the language of the clause created an independent right of appeal for which permission to appeal was not required.[12] Provisions adopting equivalent wording have been construed in the same manner in a number of other decisions.[13] Clause 3.12(h) of the Agreement should also be construed as conferring an independent right of appeal which is not constrained by the requirement to seek permission to appeal. As such, SC Hydro does not require permission to appeal. To the extent it seeks (in effect) to cross-appeal, the CFMEU also does not require permission.
Consideration
As can be appreciated the grounds contained in the notice of appeal relate to the “primary purpose test”, as well as to the construction and application of the classification descriptors in the Agreement. Counsel for the CFMEU submitted, and we accept, that the questions of construction should be dealt with and resolved first.[14] Accordingly, we will first deal with appeal grounds 3 and 5, and the notice of contention.
Grounds 3 and 5, and the notice of contention
Grounds 3 and 5, and the notice of contention, raise questions as to the construction and application of the Agreement, including the definitions in Appendix A to the Agreement.
The proper construction of an enterprise agreement is a question of law to which there is only one true answer. Similarly, the application of the classifications in the Agreement is capable of having only one legally correct answer. Either each employee was entitled to be reclassified as a TW3 Tunnel Class 1, or they were not. As such, the appeal is one to which the correctness standard applies.[15] The question on appeal is simply whether the Commissioner’s answer, in respect of each employee, was correct or incorrect. For the reasons given above, no question of permission to appeal arises.
The principles of interpretation of enterprise agreements are well established.[16] In summary, the starting point is the ordinary meaning of the words, read as a whole and in context. Context may be found in the provisions of the entire enterprise agreement, or in the arrangement and place of the words in the enterprise agreement and may extend to other documents with which there is an association. The statutory framework under which the enterprise agreement is made or in which it operates may also provide context, as might an antecedent instrument or instruments from which a particular provision or provisions might have been derived. The industrial context in which an agreement is made and operates is relevant, as is the evident purpose of the provisions or expressions being construed. A purposive approach is preferred to a narrow or pedantic approach, as such documents “are not always drafted carefully by lawyers or professional drafters” and the framers of the agreement may not have paid attention to “legal niceties and jargon”.[17] However, the task remains one of interpreting the document, and not to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the instrument or what the Commission might consider to be the preferrable outcome.[18]
As to ground 3, SC Hydro submitted that the phrase “able to,” in the definition of Tunneller 1, refers to a requirement by SC Hydro to have the stated ability in order to perform their role,[19] not simply whether a worker is capable of doing the things listed in the definition. In support of this proposition SC Hydro referred to clause 5.1(a) of the Agreement, which as set out above refers to the worker’s initial classification being “determined by the primary role” which they are engaged to perform, “regardless of that person's level of skill or qualification.” SC Hydro referred also to the preamble of Appendix A, provides that “the appropriate classification level for an individual will be determined on a task rather than skill basis.”
As to ground 5, SC Hydro referred to the construction of the ‘transition provisions,’ allowing for progression from Tunneller Class 2 to Tunneller Class 1. It specifically submitted that the progression for experienced construction workers is discretionary, not automatic subject to competency attainment, and was also dependent on there being a vacant position available.[20]
The CFMEU submitted that Tunneller Class 2 is an introductory and assisting role, where a person assists an experienced Tunneller, while Tunneller Class 1 was an experienced Tunneller and is the classification for employees engaged in the principal role of being a Tunneller. The CFMEU submitted that the fundamental difference between the two definitions is experience.[21]
The words of the Agreement, read as a whole and in context
As indicated above, clause 5.1(a) commences by providing that, at the start of the employment, the employer will appoint the employee “to a classification level based on skills, qualification and experience and in consideration of the substance of duties required to be carried out at the time of the Project.” “Tunneller,” whether Class 1 or 2, is not a classification under the classification structure in Appendix A; the classifications are Tunnel Worker (TW) levels 1 to 6. So, at commencement, the employer appoints the employee to one of the TW levels. How does the employer determine the applicable classification? Clause 5.1(a) of the Agreement goes on to provide that the classification level “will be determined by the primary role which the Employee is engaged to perform, regardless of that person's level of skill or qualification. The skill-based classification structure is set out in Appendix A.”
Appendix A commences by providing that the TW classification will apply to “Employee(s) performing Tunnel Works” who are engaged in the classifications set out in that Appendix. After dealing briefly with wage rates, it then provides as follows:
Determination of Classification for Individual Employees
(a) The appropriate classification level will be determined by the primary role in which a person is engaged to perform by the Company, regardless of that person’s level of skill.
(b) This means that the appropriate classification level for an individual will be determined on a task rather than skill basis.
(c) Individual classification levels will only change where the primary task for which the individual is engaged changes.
A table of classifications then appears (“the classification table”). The following is an excerpt:
| Primary Role Employee Engaged to Perform | From the first full pay period after Agreement approved | |
| TW1 | … | … |
| TW2 | · Yardman · Form worker/Tunnel Concreter · Steel Fixer · Dogman/Rigger · Dumper Driver · Tunneller Class 2* · Water Treatment Plant Operator · Grout Plant Operator · Tunnel Steel Fixer | $44.04 |
| TW3 | · Loader/Excavator Operator · Service Vehicle Operator · Tunneller Class 1** | $46.55 |
| TW4 | · Shotcreter · Rock Bolter · Jumbo Operator · Shot Firer · Ring Builder · Mechanical or Electrical or Other Tradesperson with <12 months experiencing in tunnelling# · Pipe Fitter | $50.94 |
| TW5 | · Experienced tunnelling Mechanical or Electrical or Other Tradesperson# · … | $51.79 |
| · Special Class Mechanical and/or Electrical Tradesperson## | $54.24 |
The language used in the text of Appendix A (“the primary role in which a person is engaged to perform”), and the relevant heading in the classification table (“Primary Role Employee Engaged to Perform”), mirrors the language used in clause 5.1(a) (“the primary role which the Employee is engaged to perform.”) It is clear enough that the drafters of the Agreement intended the employee to be classified according to whichever of the listed roles the employee was primarily engaged to perform. Also, having regard to the preamble, if an employee was engaged to perform one of the roles listed against TW2, then they would be classified at TW2, even if they also had the skills and qualifications for any of the roles listed in relation to a higher classification.
If the primary role of an employee is that of Tunneller, an issue then arises in relation to the role of Tunneller because it has two different classes, attributable to two different classifications and attracting different rates of pay. Similarly, there are also three gradations of Mechanical and/or Electrical Tradesperson (with the bottom two gradations also encompassing other trades). Those classes and gradations are expanded upon in a table (“the definition table”) immediately below the classification table.
There are four definitions in the definition table: Tunneller 2, Tunneller 1, Mechanical or Electrical Tradesperson, and Special Class Mechanical or Electrical Tradesperson. The names of the roles are in slightly different terms in the definitions table than in the classification table. But it is tolerably clear, having regard to the asterisks and pound signs (hashes), that these definitions shed light on the equivalent roles in the classification table. The definitions clarify the gradations within the roles. As can be seen from the excerpt above, the Tradesperson role also has a gradation within the classification table itself (in TW4). The other roles that appear in the classification table do not have definitions attached to them.
The Agreement is a greenfields agreement made with The Australian Workers’ Union (the AWU). There are earlier enterprise agreements for other projects, with tunneller definitions in their classification structures. These provisions do not appear to have been the subject of Commission or judicial interpretation.[22]
The employees the subject of these proceedings
The first step for determining classifications, under clause 5.1 and Appendix A, is to determine the primary role for which the employee has been engaged, within the meaning of that term for the purposes of Appendix A. The role is identified “regardless of” the person’s “level of skill.” So, it is not necessary to consider whether the workers have the skills to perform other, better paid roles.
The employees’ written contracts described them as “drivers.” It is not in dispute that as a matter of fact they worked as concrete agitator truck drivers. As SC Hydro points out neither “driver” nor “concrete agitator truck driver” is a “role” appearing in the classification table.[23] All parties nonetheless accepted the workers were Tunnellers. The Amended Statement of Agreed Facts that was before the Commission at first instance relevantly stated:
6. A dispute has risen between the Affected Employees and SC Hydro (Parties) concerning whether the Affected Employees should be classified and paid under the Agreement as ‘Tunneller Class 1’ (TW3) or ‘Tunneller Class 2’ (TW2). …
…
9. SC Hydro contends that the Affected Employees are correctly classified as Tunneller Class 2 under the Agreement. …
10. The Affected Employees contend that as agi-truck drivers:
a. they should each be classified and paid under the Agreement as a Tunneller Class 1; and
b. they each should have been classified and paid as a Tunneller Class 1 from the commencement of their employment as agi-truck drivers with SC Hydro.
This makes clear that the primary role each employee has been engaged to perform, for the purposes of that phrase within clause 5.1(a) and Appendix A, is that of Tunneller, in one of two classes of that role. Having identified the primary role for which each employee was engaged, the next step is to match that role to the relevant classification, using the classification table in Appendix A.
If an employee is primarily engaged to perform the role of Tunneller, the employee must be either a Tunneller Class 2 or a Tunneller Class 1. We consider that reading the Agreement as a whole, including the coverage, scope, and exclusions provisions, the intention was for all persons engaged to be Tunnellers on the Snowy Hydro project to fall within the classification structure. So, the workers were to be classified as one of the two classifications for which the list of primary roles includes the role of Tunneller. Those are TW2, for second class Tunnellers and TW3, for first class Tunnellers.
Having identified the role, and the two potential classifications, the question becomes which of the two classes each employee fell into. This is determined by reference to the definitions table. As to that table, we make the following general observations:
(a)the question of which class a Tunneller falls into turns on the definitions in the definitions table;
(b)the requirement in the Appendix to classify according to primary role, not skill, said to mean that classification is task-based, not skill-based, cannot prevent skill being taken into account in determining which class or gradation, if the definitions so require;
(c)having regard to the drafting, the language in the definitions cannot be applied in a strictly literal manner as doing so would lead to nonsensical outcomes, and a purposive interpretation is to be preferred.
Each definition provides a brief description of a Tunneller in that class as follows:.
| Tunneller 2 | Tunneller 1 |
| A period of 6 months is required to be spent in this role prior to being eligible to progress to Tunneller Class 1. Reclassification is subject to the Employee passing a competency assessment and a Tunneller Class 1 position being available. There is no requirement for the Company to automatically reclassify a Tunneller Class 2 after 6 months. Note an experienced construction worker may be eligible for accelerated transition to Tunneller 1 subject to being deemed competent. A Tunneller Class 2 is able to operate pieces of normal tunnelling equipment. | An experienced Tunneller familiar in the operation of hydraulic and/or electrical equipment; replacement of ground engaging tools for the road header; lifting and placement devices and other mucking equipment, concrete pumping equipment, and grouting equipment. Able to operate excavator with/without rock breaker, forklifts, skid-steer loader, concrete agitator, vehicle loading crane (Hiab), tele-handler, hoists, dump trucks, grout pumps & mixers, loaders, trucks, rock drilling machines, shotcreting (in training) and rock bolting equipment (in training), gantry cranes and road headers and TBM (in training). Able to operate a wide range of equipment (excluding mobile cranes) and able to undertake minor concrete works associated with the tunnel excavation temporary and permanent works. Able to work with a shotfirer for blasting in the tunnel. |
SC Hydro says the phrase “able to” in both classification descriptions is to be read as “able to do if required by the employer”, such that the question is not whether a person has these abilities but whether they have the abilities and may be required to exercise the abilities in the course of their work. It says none of the employees the subject of these proceedings are required to do anything else other than operate an agi-truck. It submits that such a person, not being required to exercise the capabilities listed in the definition of a Tunneller Class 1, does not meet that definition and must be within the Tunneller Class 2 classification. In substance, SC Hydro submits that the distinction between the Tunneller Class 1 and Tunneller Class 2 classifications is that a Tunneller Class 1 is required to be multi-skilled. SC Hydro accepted this construction requires departure from the ordinary meaning of the words, but says that read in context the language used points to the construction for which it contended.[24]
There was some evidence that employees were asked to provide copies of relevant tickets for competencies other than driving agi-trucks. But even disregarding that, the question that must be answered is whether the construction contended for by SC Hyrdo can be accepted? That is, whether it is correct to say that, to fall within the classification of Tunneller Class 1, an employee must be required to be multi-skilled in the sense they are required to be skilled and to operate a range of machinery. This requires an exercise of construing the Tunneller 1 classification, which can be done having regard to the same considerations as are set out above.
It can be accepted that no Tunneller would be able, or required, to operate each of the types of machinery set out in the second sentence of the definition of Tunneller 1. So, that sentence cannot sensibly be read as requiring a person to be able to, or to be required to, operate all of that machinery in order to qualify as a Tunneller Class 1. As the CFMEU pointed out, such an interpretation would not make industrial sense. Also, such a reading would be inconsistent with those of the other roles listed for the TW3 classification that require only one competency.[25]
The CFMEU argued and we accept that the reference to “equipment” in the third sentence is not confined to the plant and machinery referred to in the second. Equipment could readily include tools, communication devices, personal protective equipment, and other items that are likely to be in day-to-day use. The term can also be contrasted with the reference to “normal tunnelling equipment” in the Tunneller Class 2 definition. Furthermore, the reference to a “shotfirer” in the final sentence of the Tunneller Class 1 definition strong suggests that the second, third and fourth sentences of the description are alternatives rather than cumulative prerequisites. It is unlikely a shotfirer would necessarily be involved in the operation of the other types of equipment or machinery referred to in the second or third sentences.
Do the four sentences in the definition of Tunneller 1 set out a series of conditions, of which must be met in order for a person to be considered a Class 1 Tunneller or does the definition set out indicators of whether a person is an experienced Tunneller? The CFMEU argued that the discrete and varied nature of the competencies “suggests they are indicative of the types of things that an experienced Tunneller might do, but not a cumulative requirement that each of them has to be satisfied”.[26] We agree. The definition does not make sense otherwise; the last sentence, at least, would have to be non-cumulative given its nature, and the better view is to treat the whole of the definition that way.
Does “able to” relate to the person possessing skills or competencies, or possessing them and being required to exercise them? As we have indicated above, under Appendix A, classification depends on role, not skill. But that does not mean role itself cannot be informed by skill and competencies if that is what the descriptors in the definitions table require. Here, they do, having regard to both the ordinary, natural meaning of “able to” and the context in which it appears, which is to assist in understanding whether someone is an experienced Tunneller or a person who assists an experienced Tunneller.
The construction advanced by SC Hydro, in this respect, fails to give the classification descriptors to Tunneller Class 1 and Tunneller Class 2 a sensible or practical operation. SC Hydro accepts that the Tunneller 1 classification does not require that an employee is required to be able to, and to actually, operate each piece of machinery listed in the second sentence of the classification description but says that the employee must be required to operate a range of the machinery. That construction begs the question as to when an employee would qualify for that classification. It would, if that construction is correct, always be unclear whether an employee qualifies for the Tunneller Class 1 classification.
The Commissioner endeavoured to give meaning and practical operation to the classification description for a Tunneller 1 by determining that, in order to be considered to be able to operate a “wide range of equipment”, the employee must be able to operate at least four of the types of equipment listed in the Tunneller Class 1 definition.[27] The Commissioner’s reasoning represents an admirable attempt to give the classification definitions sensible operation in a poorly drafted classification structure. However, whilst it would provide clarity in the operation of the classification structure, the stipulation that an employee must be able to operate four types of equipment to qualify for the Tunneller Class 1 classification has no foundation in the text of the classification descriptions. With respect, we are unable to accept that the construction is consistent with the terms of the Agreement.
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.
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.
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.
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.
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.
In its submissions, SC Hydro placed some reliance on the requirement that there be a “relevant position available” before an employee can progress from Tunneller Class 2 to Tunneller Class 1. We accept that progression to Tunneller Class 1 depends on a position being available at that level. However, SC Hydro accepted that this requirement does not depend on it referring to, or recognising, a position as warranting being classified as Tunneller Class 1.[28] The requirement for a position to be available depends on the operational needs of the employer, not what the employer chooses to call the position concerned. If a worker is already performing the work of a Tunneller Class 1 then, clearly enough, a position is available, and the worker is already occupying the position. That outcome would make progression, and access to the relevant rate of pay for a Tunneller Class 1, entirely at the discretion of SC Hydro. We do not think that is the intention of the drafters of the Agreement. Rather, if an employee is allocated to a position that is beyond an “assisting” role and is required to operate a type of equipment or machinery referred to in the Tunneller Class 1 classification, then they are eligible for progression to Tunneller Class 1.
It follows from the foregoing that we consider that a Tunneller who is required only to operate an agi-truck can nonetheless be a Tunneller Class 1 so long as the employee has more than six months’ experience as a Tunneller Class 2 (or is subject of accelerate progression), is 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.
Conclusion and disposition
In light of the foregoing, and with respect, we have arrived at the conclusion that the construction of the Agreement as determined by the Commissioner at first instance was not correct. We do not believe the Commission was correct to find that an employee only falls within the Tunneller Class 1 classification if the employee has 12 months of experience performing tunnelling work, has the skills and competencies to operate at least four of the pieces of equipment listed in the classification definition and the employee is ready, willing, and able to operate the equipment if directed and can be lawfully and reasonably directed by SC Hydro to work in a multi-skilled manner operating the types of equipment they are competent to operate.
Given our findings above it is unnecessary to deal with appeal grounds 1, 2 and 4. Grounds 1 and 2 sought to identify error in the reasoning process engaged in by the Commissioner. In circumstances in which the question on appeal is whether the Commissioner was correct in the construction of the classifications which he adopted, it does not advance the position of SC Hydro to point to errors in the process of reasoning. Ground 4 asserts error in construing the reference in each employee’s employment contract to the role of “driver” as being “the generic position of driver”, when that reference properly construed was to a driver of a concrete agitator truck. We do not believe that aspect of the reasoning of the Commissioner is relevant to the correct classification of the employees.
We briefly observe that the primary purpose test is of most assistance in assessing which of two instruments a person’s employment is covered by. In a dispute such as this the proper classification of the workers will turn on the proper construction of the classification provisions under the Agreement, and on the application of that construction to the facts. As we consider that our conclusions above render it unnecessary to deal with appeal grounds 1, 2 and 4, it is not necessary for us to canvass the parties’ submissions, including their submissions as to the effect of various decisions and authorities to which they took us in relation to those appeal grounds.
The conclusions we have reached require that the appeal be allowed, and the decision of the Commissioner be quashed. It is unclear to us whether it is necessary for the dispute to be redetermined in light of the construction of the classifications of Tunneller Class 1 and Tunneller Class 2 which we have adopted above. The appropriate course is to direct the parties to confer as to the application of that construction to the individual employees who were subject of the dispute.
The Full Bench makes the following orders:
(a)The appeal is allowed;
(b)The decision in Construction, Forestry and Maritime Employees Union and Anor v SC Hydro Pty Ltd[2024] FWC 3196 is quashed; and
(c)The parties are directed to confer and communicate to the chambers of Vice President Gibian within 14 days whether there is any remaining dispute as to the implications of the decision of the Full Bench for the employees who are subject of the dispute.
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.
Hearing details:
14 February 2025.
Sydney (in person).
[1] [2024] FWC 3196, [2].
[2] [2024] FWC 3196, [4]-[30].
[3] [2024] FWC 3196, [37]-[38].
[4] ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2; (2022) 275 CLR 254, [8]-[9], [48] and [109].
[5] CFMMEU v Personnel Contracting Pty Ltd [2022] HCA 1; (2022) 275 CLR 165, [44] (Kiefel CJ, Keane and Edelman J).
[6] [2024] FWC 3196, [39]-[41].
[7] [2024] FWC 3196, [42]-[49].
[8] [2024] FWC 3196, [50]-[87].
[9] Notice of appeal, 6.
[10] Appellant’s outline of submissions filed 28 January 2025, [5].
[11] Health Services Union v Northern Health[2025] FWCFB 5, [18], referring to, by way of example, Victoria Police Force v Police Federation of Australia [2009] AIRCFB 146; (2009) 178 IR 275, [13];PHI (International) Australia Pty Ltd T/A HNZ Australia Pty Ltd v Nash[2024] FWCFB 396, [16].
[12] Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Silcar Pty Ltd[2011] FWAFB 2555; (2011) 208 IR 33, [28].
[13] University of Western Sydney v Fletcher [2009] AIRCFB368; (2009) 183 IR 256, [8]; Shop, Distributive and Allied Employees Association (Queensland Branch) Union of Employees v Woolworths Limited T/A Woolworths[2013] FWCFB 2814; (2013) 232 IR 255, [22]; Vendrig v Ausgrid Pty Ltd[2021] FWCFB 370, [24]; Ricegrowers Ltd (t/as SunRice, CopRice Feeds and Australian Grain Storage Pty Ltd) v United Workers’ Union [2022] FWCFB 205, [46]-[47]; PHI (International) Australia Pty Ltd T/A HNZ Australia Pty Ltd v Nash[2024] FWCFB 396, [19].
[14] Transcript, PN382.
[15] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541, [46] and [48]-[49] (Gageler J); Rail Commissioner v Rogers[2021] FWCFB 371, [61]; FreshFood Management Services Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union[2023] FWCFB 97, [29]; Clinical Laboratories Pty Ltd T/A Australian Clinical Labs v Health Services Union[2024] FWCFB 296, [18].
[16] James Cook University v Ridd [2020] FCAFC 123, (2020) 278 FCR 566, [65] and the authorities cited therein; Workpac Pty Ltd v Skene (2018) 264 FCR 536, [2018] FCAFC 131, [197] and the authorities cited therein.
[17] Kucks v CSR Ltd (1996) 66 IR 182, 184 (Madgwick J); Ridd v James Cook University [2021] HCA 32;(2021) 274 CLR 495, [17] (Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ); Hempel (Wattyl) Australia Pty Ltd v United Workers’ Union [2024] FCAFC 298, [64]-[66] (Rangiah, Snaden and Abraham JJ).
[18] City of Wanneroo v Holmes (1989) 30 IR 362, 379 (French J).
[19] Appellant’s outline of submissions filed 28 January 2025, [19].
[20] Appellant’s outline of submissions filed 28 January 2025, [28].
[21] Transcript, PN384.
[22] See, for example, the John Holland CPB Contractors Joint Venture - Rozelle Interchange and Western Harbour Tunnel Enabling Works AWU Tunnelling Works Greenfield Agreement 2019 – 2023, the CPB Contractors Pty Ltd Cross River Rail - Tunnel and Shaft Greenfields Agreement 2019-2023, and Application by Austunnel Pty Ltd [2014] FWCA 4288.
[23] Transcript, PN218.
[24] Transcript, PN240.
[25] Transcript, PN439.
[26] Transcript, PN466.
[27] [2024] FWC 3196, [59].
[28] Transcript, PN289.
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