Fair Work Act 2009

s.604 - Appeal of decision

Construction, Forestry, Maritime, Mining and Energy Union

Appeal against decision [2020] FWC 4322 of Deputy President Asbury at Brisbane on 20 August 2020 in matter number C2019/7536.

[1] BHP Coal Pty Ltd (the Appellant) has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (the Act), for which permission to appeal is required, against a Decision[1] of Deputy President Asbury (Deputy President) issued on 20 August 2020. The Decision dealt with an application made by the Construction, Forestry, Maritime, Mining and Energy Union (the Respondent) under s 739 of the Act for the Fair Work Commission (the Commission) to deal with a dispute in accordance with the dispute settlement procedure in clause 37 of the BMA Enterprise Agreement 2018 (the 2018 Agreement).

[2] On 28 October 2020, the Commission made an order to stay the Decision pending the hearing and determination of this appeal or until further order of the Commission.[2]

[3] The matter on appeal was subject to a telephone hearing on 19 November 2020. The Appellant and the Respondent sought permission to be legally represented. The Full Bench granted the parties' applications for permission to be represented pursuant to s 596(2)(a) of the Act in the hearing.

[4] The Full Bench has heard the parties on permission to appeal and the substantive appeal.

[5] The parties agreed that the following four questions ought to be determined by the Commission, following the Appellant's decision to introduce Autonomous Haulage Trucks (AHTs) (driverless haul trucks) at the Goonyella Riverside Mine:

1. What additional obligation does the Company have, if any, under clause 14 "Continuous improvement" in respect to the use of autonomous haul trucks at Goonyella Riverside coal mine?

2. Under clause 15, must the Company provide the additional information sought on the following to satisfy its consultation obligations under that clause:

a. The prior trials of autonomous haul truck operations conducted by the Company (or related corporate entities) on other mine sites?

b. The safety benefits of autonomous haul trucks relied upon by the Company in its decision to implement autonomous haul trucks at Goonyella Riverside coal mine?

c. The training program to be conducted as a result of the implementation of autonomous haul trucks at Goonyella Riverside coal mine?

3. Does the role of "Mine Controller (AH Systems)" fall within the scope of the Agreement?

4. Does the role of "Field Officer (AH Systems)" fall within the scope of the Agreement?

[6] After considering the relevant provisions of the 2018 Agreement[3] and the approach to construing agreements[4], the Deputy President considered the evidence and submissions of both parties[5] in relation to each of the aforementioned questions.

[7] As only the Deputy President's answers to questions 3 and 4 are under appeal, we note the following observations made by her in respect of those questions. In respect of question 3, the Deputy President concluded that the Mine Controller (Controller) role was covered by the 2018 Agreement.[6] The Deputy President reasoned, inter alia, that:

• notwithstanding that a Controller works in a control room, coverage of the Black Coal Mining Industry Award 2010 (the Award) Award extends to other locations where employees use computers to undertake work that has the requisite connection to the production of coal[7];

• the fact that technology is interposed between the Controller and AHTs does not change the fact that the Controller is an integral part of their operation[8];

• the role would not logically fall within Part B of the Award, having regard to the formal qualifications and functions of Controllers[9]; and

• the agreement contains scope for broad coverage of various roles[10].

[8] In respect of question 4, the Deputy President concluded that the Field Officer role was covered by the 2018 Agreement.[11] The Deputy President reasoned, inter alia, that:

• the sophistication of the autonomous haulage technology was not a basis for finding that Field Officers are not covered by the Award[12];

• the training package for Field Officers is significantly less than the training undertaken by other classifications of employee who are covered by schedule A of the Award[13]; and

• having regard to the fact that the Award has a broad-based classification structure, the Field Officer role is covered by the classifications in schedule A either for Advanced or Specialist Mineworker[14].

[9] An appeal under s.604 of the Act is an appeal by way of rehearing and the Commission's powers on appeal are exercisable only if there is error on the part of the primary decision maker.[15]

[10] The Decision under appeal did not involve the exercise of discretion. It was concerned with determining, inter alia, whether the positions of Controller and Field Officer fell within the scope of the 2018 Agreement. There is no discretionary element involved in such a task. It follows that our task on appeal is to determine whether the interpretation adopted of the 2018 Agreement, and that of the Award, was correct.[16] If the instrument was erroneously interpreted or the facts erroneously applied to its proper interpretation then it is open for an appellate bench to grant the appeal.

[11] Accordingly, the question on appeal, as concerns the Deputy President's interpretation of the 2018 Agreement, is whether her interpretation was correct.[17] Error might also be discussed in the reasoning process, where construction principles are misapplied or not understood. Other decisions made in the course of hearing and determining the dispute might involve the exercise of discretion. Such decisions are appealable on the bases identified in House v The King.[18]

[12] Appeal ground one was that the Deputy President erroneously answered 'yes' to question 3, when the correct answer is 'no'.

[13] In order to assess the correctness of the Deputy President's answer to question 3, it is first necessary to set out the criteria that must be met in order for an employee to be covered by the 2018 Agreement. As discussed at [268] in the Decision, by virtue of clause 1.1 of the 2018 Agreement, the 2018 Agreement applies to employees of the Appellant who are:

1. Employed by the Company;

2. Performing work covered by Schedule A of the Award;

3. Members or eligible to be members of the Unions who are covered by the Agreement pursuant to s. 183 of the Act;

4. Engaged at one of the listed mines; and

5. Engaged in the classifications in the 2018 Agreement.

[14] We would agree with the Deputy President's observations that the parties were in agreement that the Controller position meets criterion 1 and 4 and that the Controller position satisfies criterion 3.[19] Accordingly, in order for the Controller role to fall within the scope of the 2018 Agreement, turns on whether the role satisfies criterion 2 and 5.

[15] Criterion 2 emanates from clause 1.1(b) of the Agreement which stipulates that:

"1.1 This enterprise agreement ("Agreement") will cover and apply to:

(b) The Employees employed by the Company who perform work covered by Schedule A of the Black Coal Mining Industry Award 2010 ("BCMI Award") ..."

[16] To determine whether an employee is employed under a classification within a modern award, the Commission must assess the principal purpose of the employee's employment. The 'principal purpose test' was summarised in Carpenter v Corona Manufacturing[20]:

"In our view, in determining whether or not a particular award applies to identified employment, more is required than a mere quantitative assessment of the time spent in carrying out various duties. An examination must be made of the nature of the work and the circumstances in which the employee is employed to do the work with a view to ascertaining the principal purpose for which the employee is employed. In this case, such an examination demonstrates that the principal purpose for which the appellant was employed was that of a manager. As such, he was not "employed in the process, trade, business or occupation of ... soliciting orders, obtaining sales leads or appointments or otherwise promoting sales for articles, wares, merchandise or materials" and was not, therefore, covered by the award."[21] (references omitted)

[17] A recent Full Bench decision of the Commission confirmed that the principal purpose test directs a decision-maker's line of inquiry towards the nature of the role in question and the nature of the work covered by the relevant award.[22]

[18] Having regard to the coverage provisions of the Award in clause 4.1, we are satisfied on the evidence before us that Controllers are employed in the black coal mining industry and carry out their duties at or about a place where black coal is mined. We are also satisfied that Controllers are directly connected with the day to date operation of a black coal mine, on the basis outlined by the Deputy President at [259] in the Decision. Additionally, the Controller position must fall within a "classification or class of work in Schedule A".[23]

[19] For the following reasons, the Controller position does not fall within a "classification" or "class of work" in schedule A. It is necessary to first establish the principal purpose of the Controller role. In the success profile for a Controller, it indicates "the main game" for a Controller as the responsibility for the effective operation of the technology and systems that monitor and control AHTs and for the effective management of systems and technology to safely execute the daily mine plan. Having regard to the accountabilities, the competencies of the role and the evidence concerning the circumstances in which Controllers are employed, we agree with the Deputy President's conclusion that the principal purpose for which Controllers are employed is to operate an automated haulage system in connection with the production of coal.[24]

[20] When the principal purpose of the Controller position is considered, and read together with the classifications and indicative competencies outlined in schedule A of the Award, it is apparent that two key features of the Controller role render it outside the scope of schedule A of the Award. The first key feature concerns the use of technology of the role. We agree with the Appellant's submission that the Deputy President focussed on the irrelevant question of whether the technology used in the Controller role disconnected the Controller role from the production of coal.[25] As contended by the Appellant in oral submissions, there is a difference between technological change that affects the tools used to perform work, and technological change that changes the purpose and nature of the work itself. The importance of executing the "daily mine plan" within the Controller role, and the specific use of software systems to monitor the AHTs, are not akin to any of the classifications in schedule A of the Award. Contrary to the Deputy President's finding at [290] in the Decision, there are no classifications in schedule A that are sufficiently broad enough to align with the principal purpose of the Controller role. The nature of the computerised system that the Controller operates, renders the work performed substantially different to the classifications or class of work covered under schedule A of the Award.

[21] The second key feature of the Controller role that renders it outside the scope of a classification or class of work under schedule A of the Award is the competencies required for the role. Among other competencies detailed in the Controller "success profile", "data management" and "digital literacy" are intentionally highlighted as two of the five "top 5 behaviours which separate the top performers in the role".[26] We would disagree with the Deputy President's observation at [268] that the "generic references to competencies in the Award does not exclude thoswe related to digital or automated equipment" [sic].[27] Upon close examination of the "indicative competencies" in schedule A of the Award, it is apparent that the Award did not contemplate a role akin to that of the Controller, which requires a particular aptitude for the use of technological systems. We would agree with the characterisation of the Controller role proffered by the Appellant in oral submissions, the Controller role requires skills in data assessment and application, in addition to management and business.[28] Overall, the duties performed in the Controller role are outside any "classification" or "class of work" contemplated in schedule A of the Award, and do not fall within the skillset and competencies consistent with the classification structure in schedule A of the Award.

[22] Finally, in any event, the Controller role would not be engaged in the classifications set out in the 2018 Agreement, thereby failing to meet criterion 5 aforementioned (at [13]). As identified by the Deputy President[29], there are no definitions for the classifications in the 2018 Agreement other than that employees are employed in "production" or "engineering" at the Goonyella Riverside Mine. We would agree with the Deputy President's observation at [282] that "the effect of the classification structure in schedule 4 of the 2018 Agreement is to amalgamate all the classification levels in the Award into a single level for production employees and a single level for engineering employees."[30] Having regard to our earlier observations regarding the nature of the Controller role, it is clear that this role could not have been contemplated at the time the 2018 Agreement was made as either a "production" or "engineering" role. We would observe that, it would be open for the Respondent to file an application to vary the Award to include the role of Controller.

[23] Accordingly, by concluding that the classifications in schedule A are sufficiently broad enough to cover Controllers, and that the Controller role is covered by the classifications in schedule A, either Mineworker - Advanced or Mineworker - Specialised, the Deputy President fell into error. Contrary to the Deputy President's conclusion, the scope of coverage in schedule A is not broad enough to capture the Controller role. The Deputy President erroneously answered 'yes' to question 3 (at [5]), when the correct answer is 'no'.

[24] Accordingly, based on our reasons above, we would uphold appeal ground one.

[25] Appeal ground two was that the Deputy President erroneously answered 'yes' to question 4, when the correct answer is 'no'.

[26] Following our analysis above, the Field Officer position meets criterion 1, 3 and 4[31]. We will now deal with criterion 2, concerning whether the work performed in the Field Officer role is covered by schedule A of the Award.

[27] On the evidence before us, we are satisfied that Field Officers are employed in the black coal mining industry and carry out their duties at or about a place where black coal is mined, pursuant to clause 4.1 of the Award. We are also satisfied that Field Officers are directly connected with the day to date operation of a black coal mine. As identified by the Deputy President at [276] in the Decision, the Field Officer is integral to the operation of the AHTs and the use of trucks to haul coal, a critical production activity. We would also agree with the Deputy President's conclusion regarding the principal purpose of the Field Officer role; to ensure the efficient and optimal operation of the autonomous system, including AHTs.[32]

[28] In respect of whether the Field Officer role falls within a "classification or class of work in Schedule A"[33], we would make the following observations. First, the fact that Field Officers are involved with manually operating AHTs means that they fall within the "class of work" envisaged in schedule A of the Award. As identified by the Deputy President at [275], the Field Officer may be required to switch an AHT to manual and operate it like a normal truck to remove it from the autonomous zone. We would note that one of the competencies in the non-exhaustive list of competencies at A.5.1 of the Award is "Truck operation". Clearly, the requirement to manually operate the AHTs is sufficiently connected with this advancement competency in schedule A. This demonstrates that the class of work envisaged in schedule A of the Award is sufficiently broad enough to align with the principal purpose of the Field Officer role.

[29] The Appellant submitted that it is a common feature of the competencies in schedule A of the Award that they concern the direct physical use, operation or maintenance of mining equipment and vehicles. We need not deal with this contention further than to note that this test frames the scope of coverage of schedule A too narrowly. In any event, even if we were to accept the Appellant's contention, the Field Officer role would fall inside the class of work that the Appellant contends is envisaged through the indicative competencies. This is because the Field Officer directly operates AHTs and would, following the Appellant's contention, be directly operating mining vehicles.

[30] Additionally, that the Field Officer reports directly to "Supervisor Pre-strip" and "Supervisor Coal", positions that are directly covered in classifications in schedule A of the Award, further highlights that the role falls within the "class of work" envisaged in schedule A of the Award. The Field Officer's reporting lines are evident in the "new organisational structure" charts tendered by the parties as part of the agreed bundle[34]. We would note that the "Supervisor Pre-strip" and "Supervisor Coal" positions, which include supervisory responsibilities, fall within the "Minework - Advanced" or "Mineworker - Specialised" classifications in schedule A of the Award. Both classifications may require the relevant employee to "supervise the work of other employees".[35] A Field Officer is therefore supervised by positions that are directly covered by schedule A of the Award. Furthermore, we would agree with the Deputy President's observations at [280] in the Decision, that the "new organisational structure" does not indicate that Field Officers are at a managerial level or a level that is considered as not being covered by the Award.

[31] Whilst no submissions were expressly made concerning this issue, we would also make the general observation that the fact that the Field Officer position was named as such, and designated as a "Staff role", is of no materiality on the question of whether this role is covered by schedule A of the Award. There are various authorities for the proposition that in determining award coverage, it is the duties performed by an employee, rather than the title of their position, that is of significance.[36] Attempts by employers to construct novel titles for positions that ostensibly fall outside the scope of an award only serves to frustrate the purpose of modern awards and enterprise agreements.

[32] Finally, the Field Officer role satisfies criterion 5 of the criteria aforementioned (at [15]), as the role is engaged in the classifications in the 2018 Agreement. As per our earlier observations regarding the crucial role that Field Officers play in operating the AHTs to haul coal, the Field Officer role is clearly a "production" employee at the Goonyella Riverside Mine.

[33] It follows that, as the Field Officer role is covered by schedule A of the Award and is engaged in the classifications in the 2018 Agreement, the role does fall within the scope of the 2018 Agreement. Accordingly, the Deputy President did not fall into error by answering 'yes' to question 4. Appeal ground two therefore fails.

[34] Having regard to the above, we are satisfied that the appeal enlivens the public

interest. The Appellant has identified, an appellable error of law within the Decision. It is in the public interest to ensure that enterprise agreements and modern awards are properly considered and applied in each matter. Appellate intervention is both warranted and necessary to examine the identified error and vary the Decision under s 607(3)(a) of the Act insofar as answering 'no' to question 3.

[35] We have read the Decision fairly and as a whole and considered all of the materials

filed by the parties. The error of law warrants the varying of the Deputy President's Decision.

[36] We order as follows:

• Permission to appeal is granted.

• Appeal ground one is upheld.

• The Decision ( [2020] FWC 4322) is varied and the answer to question 3 is no.

Mr I Neil of Senior Counsel and Ms J Alderson of Counsel on behalf of the Appellant

Ms S Howell of Counsel on behalf of the Respondent

[1] Construction, Forestry, Maritime, Mining and Energy Union v BHP Coal Pty Ltd [2020] FWC 4322 (the Decision).

[2] PR724057.

[15] Coal and Allied Operations Pty Ltd v AIRC [2000] HCA 47; (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.

[16] Australasian Meat Industry Employees Union v Golden Cockerel Pty Ltd [2014] FWCFB 7447 at [7].

[17] Energy Australia Yallourn Pty Ltd T/A Energy Australia v Construction, Forestry, Mining and Energy Union [2017] FWCFB 3574 applying Pawel v AIRC [1999] FCA 1660.

[18] [1936] 55 CLR 499.

[20] (2002) 122 IR 387 (AIRC, 17 December 2002).

[22] Andrew McFarlane v SRG Civil Pty Ltd [2019] FWCFB 8682 [21]-[22].

[25] Appellant's submissions 16 October 2020, paragraph 29; Decision [286].

[36] See inter alia; Mr James Kaufmann v Jones Lang LaSalle (Vic) Pty Ltd t/a JLL [2017] FWC 2623 at [45]; Karen Muscat v Chase Commercial Pty Ltd t/a Chase Commercial [2018] FWC 1398.

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