Court and tribunal decisions
43 Before 2008, a number of authorities had considered the term "black coal mining industry" or a cognate and may be taken to be the decisions to which the chapeau to cl 4.2 and the Note to cl 4.3 refer. In addition to the assistance to be derived from their consideration of particular factual situations, these authorities also indicate different approaches to the resolution of the issue.
44 In R v Drake-Brockman; Ex parte National Oil Pty Ltd [1943] HCA 35; (1943) 68 CLR 51, the question was whether employees engaged in the extraction of crude oil from shale, and the subsequent processes to obtain petrol, were within the "shale mining industry" so as to come within the definition of "coal mining industry" for the purposes of a wartime regulation. It was held by majority (Latham CJ, Rich and Williams JJ) that they were not. That was so even though the extraction process was conducted at the place at which the shale was mined.
45 Latham CJ said at 56:
In my opinion the coal-mining industry is the industry which produces coal as the consequence of mining operations. Coal-mining operations include, not only the actual excavation of the coal from the seam, but also the removal of it from the pit to the surface and placing it upon the surface in a disposable form. All those operations would, according to the ordinary use of language, properly be included within coal-mining operations and would be conducted as part of the coal-mining industry. The subsequent treatment of coal, however, by turning it into gas or into petrol or into dyes or other products, would not, in my opinion, be part of the coal-mining industry. The result of such processes would not be coal, but something else.
46 Later, at 57, Latham CJ said that "the fact that two industries are carried on at the same place does not abolish the distinction between them. If a single company mined coal and then used the coal to manufacture gas in works alongside the mine, it would nevertheless still be the case that two industries were carried on by that company, one the mining of coal and the other the manufacture of gas".
47 Rich J, at 58, regarded the crude oil extraction process as "separate, distinct and independent from the operation which constitutes mining". Likewise, Williams J, at 65, said that "the industry of coal mining would not include the manufacture of coal into other substances such as the manufacture of coal into gas".
48 Starke J in dissent said, at 59, that "expressions such as the … "coal-mining industry" … are not technical expressions, but popular general descriptions without any definite or clear boundary lines. The character of the operations, their connected processes and usage must, in the end, determine the industrial classifications under which the operation should be placed".
49 In R v Hickman; Ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598, the issue was whether a haulage company and its employees transporting coal from a coal mine to a railway siding were engaged "in the coal mining industry" for the purposes of the same wartime regulation. It was held that they were not.
50 Latham CJ said at 608:
The fact that a person is engaged in carrying coal does not show that he is engaged in the coal mining industry. A coal merchant or carrier may deal in or with coal without it being possible to suggest that he was engaged in the industry of mining coal. It may be added that a man employed by a colliery owner to drive a lorry for the purposes of the colliery could be engaged in the coal mining industry though he never carried any coal. These examples are sufficient to show that the mere fact of coal-carrying is not in itself decisive of the question whether the carrier is engaged in the coal mining industry.
51 Dixon J noted, at 614, that the term "coal mining industry" was a "very indefinite expression", but later, at 618, characterised the term "in the coal mining industry" as one of limitation. His Honour also considered it likely that there would be a common understanding of the meaning of the term "coal mining industry" but noted that the Court had not been referred to documents containing such an understanding.
52 In R v Central Reference Board; Ex parte Thiess (Repairs) Pty Ltd [1948] HCA 9; (1948) 77 CLR 123 (Thiess Repairs), the issue was whether the Central Reference Board, established for the prevention or settlement of industrial disputes in "the coal mining industry", had jurisdiction to hear a complaint about the dismissal from employment of a fitter in an engineering workshop located adjacent to a coal mine. Major repairs on the machinery used in the coal mine were carried out in the workshop and that work formed the greater part of its work. The coal mine and the workshop were conducted by different entities but both companies were under the control of one person, the coal mine's governing director. Minor repairs on the coal mine machinery were undertaken at its own on-site workshop. Both the workshop and the coal mine's on-site workshop were under the supervision of a supervising engineer (not an employee of either company, the payment for whose services was allocated between the two companies).
53 Latham CJ, who with Rich and Starke JJ formed the majority, held that the dismissed fitter was not working in the coal mining industry. His Honour said at 130-1:
"Coal mining industry " is not a technical term … It is a question of fact depending upon all the circumstances of the case whether a particular employer or employee is engaged in the coal-mining industry, with the result that an industrial question arising between the employer and the employee or an organization consisting of employees is a dispute or other matter in that industry. The line between industries is in many cases not clear. One industry may be entirely concerned with the service of another industry, and yet may not be part of that other industry. A laundry company may do work for hotels and restaurants but, to take a case at one end of the line, if the laundry business were conducted by a laundry company completely separate from any of the hotels and restaurants for which it did work (as for other customers) upon ordinary commercial terms, it would not be possible to say that the laundry was part of the hotel industry. A case at the other end of the line would be found where a hotel employed some laundresses on the hotel premises who did work exclusively for the hotel and were completely under the control of their employer. In such a case the laundresses might well be held to be working in the hotel industry.
(Emphasis added)
54 Later, at 133, Latham CJ said:
Plainly the workshops are connected with the coal-mining industry in so far as they execute repairs to machinery used in that industry, and plainly the execution of such repairs by the company or some other engineering service is essential to the maintenance of the opencut workings. But a full admission of the truth of these propositions does not show that the prosecutor company itself is engaged in the coal-mining industry.
55 Later, at 134-5, his Honour said:
[T]he fact that enterprise A is "closely associated" with enterprise B does not in itself establish either that enterprise A is engaged in the same industry as B or that enterprise B is engaged in the same industry as A.
Many industries supply goods to or provide services for other industries. A motor garage may be almost exclusively engaged in repairing trucks for a transport company, and it may do such work under a contract under which it is entitled to obtain and bound to do all the transport company's work. But it would not follow that the motor garage was in the transport industry. Similarly, an engineering workshop which does all the repairs for a coal mine and a gold mine and a shipping company would not, according to the ordinary use of language, be said to be engaged in the coal-mining industry, the gold-mining industry and the shipping industry. There would be as much reason for saying that it was engaged in any one of them as for saying that it was engaged in any other of them. There are obvious difficulties in saying that it is at one and the same time in each of these industries and in the engineering industry as well. Thus the fact that an enterprise provides a service for a particular industry cannot be held to identify that enterprise with that industry so as to make it a part of the industry.
(Emphasis added)
56 Latham CJ concluded that the issues were to be resolved by consideration of the "substantial character" of the industry in which the employer and employee were involved, at 135:
In my opinion the question to be asked is - What is the substantial character of the industrial enterprise in which the employer and employee are concerned? … [T]he more important fact is that [the workshop's] operations are separate from and different in kind from the operations carried on at the open cut. It supplies certain needs of the coal-mining industry in the same way as do many other industrial enterprises. But these facts do not show that all such suppliers of goods or services to that industry are themselves engaged in that industry.
(Emphasis added)
57 Dixon J, who with McTiernan J was in dissent, considered that the question was to be resolved by considering the separateness or degree of connection of the two enterprises. His Honour said at 140-1:
The function or activity with which we are concerned is the major repair and overhaul of the earth-moving and excavating equipment used in removing the over-burden and in winning the coal from the open cut. As a matter of reason, it seems to me that such repairs and overhauls may be carried out as an integral part of the operations of open-cut mining so as to form an indivisible element in the undertaking or may be relegated to separate and independent engineering operations outside the undertaking. In the one case I should have thought that they might quite well be considered part of the industry. In the other case I do not think they ought to be so considered. The difference must depend upon circumstances, the chief of which must be separateness of establishments in point of control, organization, place, interest, personnel and equipment. It must in the end come down to a matter of degree …
In the present case the prosecutor has not satisfied me that the major repair and overhaul of the machines is conducted otherwise than as an integral part of the mining undertaking, because of the following factors. The operations, although carried on by a distinct company, are under one control and management with the mining operations. The distinct company is a subsidiary. The works are situated close to the open cut, about three-quarters of a mile away, and the site was obviously chosen for that reason. The site is variously described as "upon" the open cut, as adjacent to but outside the area of the open cut and as upon the mine-owner's land but outside the fence. Although some other work has been done, the repair and overhaul of the mining machinery was the purpose of setting up the engineering shop and substantially, it has no other present purpose. It was set up because of the inconvenience, and I would assume cost, of having the work done by outside engineering establishments. Another workshop for minor repairs and adjustments is in the open cut. Though that belongs to the mining or excavating company there is an interchange of tools and spare parts. The major repair and overhaul of the machines doing the mining is of course essential to the mining operation and to do it as part of the same undertaking may be considered to give all the advantages of expedition, co-ordination and reduction of cost that are supposed to arise from unity of control and proximity. The fact that the operations of mining and of major mechanical repair are divided between distinct legal entities ought not, where the question is whether they form a main and an incidental part of the same undertaking, to weigh against the facts that they are under one control and management and conducted in the same interest.
(Emphasis added)
58 As is apparent, the particular features which led Dixon J to conclude that the workshop was an integral part of the mining operation included that it was under the same control and management as the mining company (it was a subsidiary), its close proximity to the mine, the workshop had no other current purpose than the repair and overhaul of mining machinery, there was an interchange of tools and parts with the mine's own workshop in which it undertook minor repairs, and the repair and maintenance of the equipment was essential to the mining operation.
59 The "substantial character" test adopted by Latham CJ in Thiess Repairs was applied by Barwick CJ, in the judgment of the High Court, in R v Moore, Ex parte Australian Workers' Union (1976) 51 ALJR 266 at 268-9 (Poon Bros Case). The Court held that employers providing catering and cleaning services to mine workers at Newman in the Pilbara (which had been established for the purpose of accommodating those workers) were not themselves engaged in metalliferous mining so as to be within a union coverage clause framed with reference to the industries or callings in which the employees were engaged. In accordance with R v Hibble; Ex parte Broken Hill Proprietary Company Limited [1921] HCA 15; (1921) 29 CLR 290 at 297, this required consideration of the industry in which the employer was engaged. Barwick CJ said in the Poon Bros Case that:
The business of the respondent companies was quite distinct and separate from that of the mining companies engaged in metalliferous mining. True it is that the respondent companies served the mining companies and provided them with commodities and services the provision of which was desirable if not indeed necessary for the maintenance of the workforce to carry on the mining operations. But that does not mean that in contracting to provide and in providing these commodities and services the respondent companies entered into the business of the mining companies so as themselves to be carrying on metalliferous mining; nor were their employees employed in connection with that industry. Their businesses remained distinct. Those serving the mining industry, the respondent companies did not carry on metalliferous mining or a business or industry in connection with metalliferous mining. Although employees of the mining companies who provided food or services of the kind furnished by the respondent companies, might have been held to be working in the industry of metalliferous mining, such work done by an independent contractor has a different nature or quality. It cannot be said to be done as an integral part of the metalliferous mining operation. Sir Owen Dixon in [Thiess Repairs] thought that the separateness of the establishments in point of control, organization, place, interest, personnel and equipment might furnish a relevant discrimen in deciding the question of fact. Sir John Latham in the same case, at p 135, thought that the substantial character of the industrial enterprise in which the employer and employee were concerned was decisive of the question whether the employee was engaged in an industry of given description. Here the substantial character of the industrial enterprise in which the respondent companies are engaged is that of catering and of providing cleaning, etc. services. That they should at a particular place perform such work exclusively for mining companies and under contract with them does not require or permit the conclusion that in doing so the respondent companies carry on an activity in or in connexion with metalliferous mining or that their employees are employed in or in connexion with such an industry.
(Emphasis added)
60 In R v Moore; Ex parte Federation of Miscellaneous Workers' Union of Australia [1978] HCA 51; (1978) 140 CLR 470 (The Uranium Mines Case), Jacobs J at 477, summarised the result in the Poon Bros Case succinctly by saying:
Catering and cleaning services were far removed from any concept of metalliferous mining which was the relevant industry in that case.
The employees were instead engaged in the industry of the provision of the catering and cleaning services.
61 The substantial character test was also applied in The Uranium Mines Case in which it was held that the industry of "metalliferous mining" for the purpose of the eligibility clause in the Australian Workers' Union encompassed the construction of a mine, a treatment plant and associated facilities before the actual mining commenced. Likewise, in R v Coldham; Ex parte the Australian Workers' Union [1983] HCA 35; (1983) 153 CLR 415, it was held that workers engaged in the construction of workshops and other buildings, a power plant, a conveyer belt, refinery tanks, roads and bridges at a bauxite mine were engaged in the industry of metalliferous mining.
62 Circumstances slightly more like the present were considered by the Court of Appeal in New South Wales in Central West Group Apprentices Ltd v Coal Mines Insurance Ltd [2008] NSWCA 348 (Central West). The issue was whether an entity (CWGA) providing workers and apprentices to workplaces was, in respect of its provision of employees to coal mines, an "employer in the coal industry" for the purposes of s 7A(4) of the Workers' Compensation Act 1987 (NSW). If so, the insurer (CMI) was obliged to indemnify CWGA and another insurer with respect to the compensation payments made to a worker injured whilst working in a mine. Allsop P, with whom Giles J and Bell JA agreed, referred to the substantial character test and attached significance to the preposition "in" in the phrase "employer in the coal industry", at [46]. His Honour held that to be "in" the coal industry, there needed to be a "substantive connection" between the entity and the coal industry, at [50]. Merely being the employer of a person who works in and about a mine was insufficient. The appeal seems to have been argued on the basis that the application of that approach meant that CWGA was not an employer in the coal industry.
63 In Kuypers v Ashton Coal Operations Pty Ltd [2014] NSWSC 1276, Hoeben CJ at CL considered the application of s 7A(4) of the Workers' Compensation Act (NSW) in relation to a drilling contractor providing drilling services generally, and not just to the coal industry. His Honour held that it was not an employer in the coal industry.
64 In Australian Colliery Staff Association and Queensland Coal Owners Association - No. 20 of 1980, 22 February 1982 (Colliery Staff Case) (which is referred to in the Note to cl 4.3 in the Black Coal Award), the question was whether the office employees of seven different coal mining companies were employed in the coal mining industry so that the Coal Industry Tribunal had jurisdiction to deal with a log of claims. In nearly all cases, the employees worked in offices away from the mines or were based in such offices. The case involved a detailed examination of the manner in which the employees worked in the performance of their services for the seven different collieries.
65 Commissioner Cross determined the dispute by examining the factors mentioned by Dixon J in Thiess Repairs, namely, the separateness of the establishments in point of control, organisation, place, interest, personnel and equipment, while noting that it could come down to the degree of connection. He regarded the separation of the employer's offices from the mining operation as a relevant factor; said that the presence of employees on a mine site was a relevant factor, but not a "final determinant"; said that the mere fact that the employer's enterprise was characterised as being in the coal mining industry did not mean that everything done by the employer to further that enterprise was within that industry; and said that, to be in the coal mining industry, the relationship between the employer and employee had to have some connection with the activity of coal mining, whether it be industrial (i.e, usage); physical (i.e, place); concerned with production; preparatory (i.e, the sinking of a shaft); or ancillary (i.e, keeping of records, stores or effecting pays).
66 The Commissioner then found that, in the case of only one of the seven employers, was the relationship between the office workers and the employer "in the coal mining industry". The features which led the Commissioner to conclude in the single case that such a relationship existed were that the employer, Dampier Mining Co Ltd (Dampier) was engaged in the mining and marketing of coal; it was a respondent to coal mining awards; the employees in question were based in Emerald, some 61 kms from one of Dampier's mines (at Gregory); the General Superintendent in control of the mining operations was also responsible for the Emerald office; the wages for the mine were paid (by cheque) from the Emerald office; Emerald, while not itself a mining town, was one of two residential areas for the Gregory employees; there was a degree of transfer of personnel between the mine and the Emerald office; there was a close connection between the office and the mines, in particular because a considerable proportion of the work performed at the office was "traditional colliery work"; and of the 14 employees in the Emerald office, nine were either substantially or significantly "involved with coal mining operations" and a further two were "slightly involved".
67 The "substantial character" test was applied in the AIRC before the making of the Black Coal Award (see Dyno Nobel Asia Pacific Limited v Construction, Forestry, Mining and Energy Union [2005] AIRC 622 at [59]-[60] (by the majority)) and has been applied by the FWC since its making: see Re Transfield Services (Australia) Pty Ltd [2014] FWC 5368 at [13]-[17]; Re CQ Industries Pty Ltd [2017] FWC 5667 at [37]-[53]; and Re Spotless Facility Services Pty Ltd [2019] FWC 5890.
68 Dyno Nobel manufactured and supplied explosives and provided various "explosive related services" to its customers, including customers in the coal mining industry. A relatively small number of its overall workforce were engaged in services which included ensuring that Dyno Nobel stock was properly stored at coal mines, providing advice as to the placement of the explosives to be used, preparing for shot firing, shot firing itself and providing training to mining employees.
69 The question was whether Dyno Nobel employees engaged in this work were "engaged in or in connection with the coal and shale industries" for the purposes of the eligibility rule of the CFMMEU (then the CFMEU). The majority (Lawler VP and Hamberger SDP) considered, consistently with R v Hibble and the Poon Bros Case, that this question was to be resolved by considering whether Dyno Nobel itself was engaged "in or in connection with" the coal industry. The majority concluded that the predominant purpose of the single integrated business of Dyno Nobel was the manufacture and supply of explosives. This meant that the substantial character of the industry in which it was engaged was the chemical industry, at [60]. As was the case with the catering and cleaning services provided by Poon Bros, the services which Dyno Nobel provided to coal mines were properly to be seen as the supply of a service to employers in one industry by an employer whose business was in another industry, at [59].
70 In Transfield Services, Asbury DP considered that Transfield's employees performing maintenance and miscellaneous service work at surface mining sites were not covered by the Black Coal Award. The Deputy President noted, amongst other things, that Transfield was not under the control of the mine owners or contractors conducting mining operations, did not itself undertake any mining activities, undertook itself the supervision of its employees performing the work at the mines, and that its employees were not "embedded in or supplementary to the workforce of the mines" at [15]. She considered that the circumstances of the case were virtually identical to those considered in Thiess Repairs.
71 CQ Industries involved the question of whether the Black Coal Award was to be considered when addressing the "better off overall" test in the approval of an enterprise agreement. Asbury DP accepted that some employees of a contractor providing maintenance services to coal mines were covered by the Black Coal Award, reasoning:
(a) the Black Coal Award recognised that an employer may be in more than one industry, at [47]-[48];
(b) the earlier cases had not been concerned with labour hire arrangements, at [48];
(c) the employees who go onto black coal mine sites to perform "project work" such as maintenance shutdowns or installations of new equipment which CQ had contracted to perform as a package were not within the Black Coal Award, even if they were working alongside the mine workforce, at [49]; and
(d) the CQ employees hired to coal mines to provide coverage during periods of leave were covered by the Black Coal Award because, in particular, they were integrated into the workforce of the coal mine operator, their work was directly connected to the day to day operations of the coal mine, they were supervised by the coal mine operator and their work was within a classification in the Black Coal Award, at [50]-[51].
72 In Re Spotless at first instance, the question was whether Heavy Industry Cleaners who, with other employees (service attendants, cooks, chefs, security guards, administrative officers, technical trades, other trades, and non-trade personnel) were supplied by Transfield at black coal mines or at the camps, houses and town services, which supported those mines, were covered by the Black Coal Award. Lake DP considered a number of aspects of the employment and employment arrangements of the Heavy Industry Cleaners and, applying the approach in the Colliery Staff Case, concluded that they were not employees in the coal industry and were not covered by a classification in the Black Coal Award.
73 An application for leave to appeal against the decision of Lake DP was refused: Construction, Forestry, Maritime, Mining and Energy Union v Spotless Facility Services Pty Ltd [2020] FWCFB 1235. The Full Bench held that the question of award coverage was to be determined by reference to the Cleaning Award which not only covered the work of the Heavy Industry Cleaners but also provided that it applied "to the exclusion of any other modern award", at [24]. That provision by itself resolved any issue as to the competing coverage of the two awards.
74 Counsel for the CFMMEU also referred to the decision in Groves v Kal Tire [2020] FWC 3689. The question in that case was whether employees of Kal Tire engaged in providing on-site tyre fitting and maintenance services to coal mines were covered by the Black Coal Award rather than the Vehicle Manufacturing, Repair, Services and Retail Award 2010 (the Vehicle Award). Saunders DP decided the application of the Black Coal Award by reference to cl 4.1(b)(ii) and considered whether there was a "substantial connection" between the employees and the black coal industry, at [105]. In so doing, the Deputy President adopted the approach of the Court of Appeal in NSW in Central West. The Deputy President concluded that the tyre fitters were engaged in the black coal mining industry and that their work was directly connected to the day to day operations of the mines. However, the Deputy President considered that he could not give effect to that view because the Vehicle Award contained an exclusion clause in the same terms as that in the Cleaning Award considered by the Full Bench in Re Spotless.
75 An application by the unsuccessful employees for leave to appeal against the decision of Saunders DP was refused: Allgood v Kal Tire (Australia) Pty Ltd [2020] FWCFB 5816. The Full Bench regarded Re Spotless as correctly decided, with the effect that, even if the employees would otherwise have been within the coverage of the Black Coal Award, its application was precluded by the exclusion clause in the Vehicle Award. The correctness or otherwise of the reasons of Saunders DP concerning the application of the Black Coal Award in the absence of that exclusion clause was not put in issue on the application for leave to appeal.
76 This review of the authorities suggests that the following conclusions may be drawn about the term "black coal mining industry" and employment in that industry:
(a) the terms "coal mining industry" and "black coal mining industry" are not capable of clear definition: Drake-Brockman per Starke J at 59; R v Hickman at 614 (Dixon J). The difficulty of definition is reflected in cll 4.2 and 4.3 of the Black Coal Award;
(b) the industry is the production of black coal by mining operations. Those operations include the excavation of the coal from the seam; its removal from the pit; and the placement of coal on the surface in disposable form: Drake-Brockman per Latham CJ at 56. This seems to be reflected in cl 4.2(a) of the Black Coal Award which states that the industry includes the extraction or mining of black coal on a coal mining lease by means of underground or surface mining methods;
(c) the industry does not include all the forms of subsequent processing, treatment or use of black coal (Drake-Brockman at 56) but does include its processing at a coal handling or processing plant on or adjacent to a coal mining lease (cl 4.2(c));
(d) the industry does include the transportation of black coal on a coal mining lease (cl 4.2(c)) but not the haulage of the coal away from the mine site: R v Hickman;
(e) the mere fact that the activities are carried on at a mine site does not necessarily mean that they are undertaken in the coal mining industry;
(f) correspondingly, the fact that activities in connection with coal mining operations are carried on at locations geographically separate from the coal mine will not necessarily mean that the activities are not part of the coal mining industry;
(g) the control exercised by the mine operator of the work is an important consideration (Thiess Repairs; Transfield Services; CQ Industries);
(h) whether particular employment is in the black coal mining industry is to be determined as a question of fact by consideration of the "substantial character" of the industrial enterprise in which the employer and the employee are concerned (Thiess Repairs per Latham CJ at 130-1, 135; Poon Bros Case at 454-5) and by consideration of the degree of connection or separateness between the activity in question and the mining operations (Thiess Repairs per Dixon J at 140-1; Colliery Staff Case at 16; Central West at [50]); and
(i) some activities associated with coal mines have not been regarded as part of the coal mining industry. These include:
(i) the haulage of the coal by an independent contractor from the mine to an offsite location: R v Hickman and see cl 4.3(f);
(ii) the maintenance of equipment used in a mine by employees of an entity separate from the mine operator which is undertaken in a workshop separate from, but adjacent to, the mine: Thiess Repairs; Transfield Services; and
(iii) the provision of catering and cleaning services to mining companies by the employees of independent contractors: Poon Bros Case at 454-5; Re Spotless and see cl 4.3(e).
77 The authorities do not undermine the need to construe the Award provision in accordance with ordinary principles.
78 Counsel for the CFMMEU submitted that it was inappropriate to apply the "substantial character test" in the present context. He referred to TWU v Coles Supermarkets in which the Full Court (Siopis, Buchanan and Flick JJ) said:
[21] The "substantial character" test is one which was developed and expressed by the High Court in relation to union eligibility rules … In our view, the "substantial character" test was not the appropriate test for deciding whether the Transport Award applied.
[22] The test that should be applied is to discern the objective meaning of the words used bearing in mind the context in which they appear and the purpose they are intended to serve. Here, the definition in question expressly extended to work ancillary to the principal business. That was the true question for examination.
(Citations omitted)
79 As is apparent, the Court considered that the substantial character test is applicable in the construction of union eligibility rules but not in the construction of industrial awards. I observe that, while the Poon Bros Case and the Uranium Mines Case concerned the construction of union eligibility rules, Thiess Repairs did not concern that question, being concerned instead with the construction of a term in a wartime regulation. Further, as the authorities reviewed above indicate, the test has been applied on several occasions in contexts other than the construction of union eligibility rules. Nevertheless, as the Full Court noted, the Court is concerned to discern the objective meaning of the words used in the award. In the present case, the Black Coal Award itself directs attention to the meaning applied by the courts and industrial tribunals and to the pre-modern award status quo. There is a difficulty in identifying those matters appropriately without reference to the approach which the courts and tribunals have applied. Accordingly, I do not regard the substantial character test as being immaterial to the resolution of the issues presently before the Court.
80 Counsel for Bis submitted that the status quo to which the Note to cl 4.3 refers was that the major mechanical, electrical or other contracting entities which provided mechanical or electrical trades, or other services (haulage, food and laundry, etc) to a range of different entities and a range of different industries, which may include (even extensively) the black coal industry, are not employers engaged in the industries to which they provide those services, and did not engage employees who were themselves employed in that industry. He cited the passages in Thiess Repairs at 131 and 134-5 (Latham CJ) set out earlier in these reasons as authority for this proposition.
81 In my opinion, the existing position is not so clear as counsel supposed. Latham CJ was not purporting to state some form of a priori proposition. To the contrary, in the very passage in Thiess Repairs on which counsel relied, Latham CJ said that it was "a question of fact depending upon all the circumstances of the case whether a particular employer or employee is engaged in the coal-mining industry" (emphasis added). Further, his Honour's postulation of a criterion with an evaluative content, namely, "the substantial character of the industrial enterprise in which the employer and employee are concerned" is an indication that he was not purporting to lay down some hard and fast rule.
82 This submission of Bis is also inconsistent with the rejection by the Full Bench, when making the Black Coal Award, of the submissions "that sought to have mechanical and electrical contractors invariably covered by awards other than the modern award for the black coal mining industry" - see [156] of the reasons of the Full Bench quoted in [41] above. The Full Bench thereby recognised that there were instances in which employees of mechanical and electrical contractors had been covered by predecessors of the Black Coal Award. In this respect, it is also pertinent that, while cll 4.2 and 4.3 in the Black Coal Award do seem to reflect some of the previous decisions (Drake-Brockman in cl 4.2(a), R v Hickman in cl 4.3(f), Colliery Staff Case in cl 4.3(b), and Dyno Nobel in cl 4.3(g)), they do not purport to address, at least directly, the provision by contractors of engineering and maintenance services. Had the position been as clear as counsel's submission supposed, it is likely that some attempt would have been in the Black Coal Award itself to address those services.