(a) The permanent workforces at the 56 mines in NSW are covered by the federal award.
(b) The vast majority of employees in the permanent workforce are covered by federal certified agreements.
(c) There are employers in the industry who have not been served with a log of claims by the union.
(d) The vast majority of certified agreements have a provision that reflects the accident pay provision in the federal award.
(e) Once the CIT was abolished industrial regulation in the industry became more complex.
(f) There has been a burgeoning use of contractors in the industry since the CIT was abolished.
(g) The process of roping in contractors to the federal award has been going on for a long time.
(h) New contractors employing production and engineering employees enter the industry fairly regularly.
(i) The union has a valid concern that some production and engineering workers are not getting 78 weeks accident pay.
(j) There are workers performing production and engineering work in the industry who are not covered by an accident pay provision.
20 Evidence as to actual disadvantage was given by Mr Keen, an employee of a contractor engaged by and providing services to Endeavour Coal Pty Ltd, the operators of the Elouera Colliery in the Illawarra region of New South Wales. Mr Keen deposed to almost thirty years employment as a coal miner all but the last four years of which have been with a mine operator as distinct from his present employer, a contractor. He had suffered injury in the past years and I infer had been paid benefits at the industry standard.
21 In October 2004, Mr Keen suffered a back injury whilst installing roof bolts at Elouera Colliery. He was surprised to receive weekly compensation of $500, less than half his average take home pay of $1200 to $1400 per week and even more surprised to learn after contacting CMI that there was no mistake and that his employer (and therefore CMI) was under no obligation to pay the normal "make-up pay" as he described it. This was a novel experience for him in his lengthy period of employment as a coal miner and at the time his evidence was taken, he was still receiving the lower weekly payments and was uncertain of when he would be cleared for return to work.
22 In my opinion, the comprehensive empirical evidence given by Ms Heiler on behalf of the CFMEU and by Professor Cliff on behalf of the employers can be taken as evidence going to the inherent risks of injury routinely encountered by coal miners in New South Wales and although there was a substantial amount of forensic energy expended on both sides of the record in testing the various qualitative research opinions of those expert witnesses, it is beyond argument that coal mining is an inherently dangerous occupation requiring careful risk management strategies albeit with greater success in some circumstances than others.
23 It is not to the point, as I am disposed, that the New South Wales coal mining industry compares favourably or unfavourably with other industries in terms of occupational health and safety performance or whether and to what extent, there have been improvements in that regard in the past decade or so. It can be accepted I think for the purpose of the issues to be tried here that the approach taken within the coal mining industry to the compensation of injured workers has historically been and remains unique and that the premise upon which the CFMEU application is essentially based is one of fairness and reasonableness in that workers performing the same work in the same industrial environment are entitled to enjoy the same conditions of employment.
24 Turning then to the award the Commission is asked to make, a number of matters arise in the contentions of the various respondents to the proceedings about the form of the award. One matter concerns the proposed scope of the award and another the entitlement clause which it is said, does not reflect the federal award provision as is its purport.
25 As to the first matter, the CFMEU has made it abundantly clear from the outset that its intention is to cover production and engineering employees in the coal mining industry and as correctly submitted by the CFMEU, the evidence of both Mr Turner on the employers side and Mr Maher for the CFMEU indicate a clarity of understanding and an absence of controversy about the category of production and engineering employees.
26 As the following extract of Mr Turner's cross-examination evidence reveals, this category of employees is accepted within the coal mining industry as being those employees engaged in the production of coal on the one hand and in the maintenance of machinery used for that purpose on the other: -
Q: When I use the term production and engineering work force, are you clear on what I mean?
A: If you tell me I would be, but I assume you mean people involved in the production of coal for the purposes of selling the coal.
Q: And engineering workers are those who do maintenance on machinery that is used in production?
A: Okay, but the general terminology in the industry, that is consistent with what you are saying, but also they are often grouped as one group, and for the purpose of the award, that is the case.
Q: You understand the term blue collar workforce is another term for the production and engineering workers?
A: It's a common term in the industry generally.
27 The following evidence given earlier by Mr Maher is also instructive in that regard: -
SLEVIN: Q: In the questioning this morning from Mr Ryan you were asked about the definition of mine worker. In one of your responses you referred to production and engineering work. What do you mean by production and engineering work?
A: Well, "production" and "engineering" were terms that were in the award before it was changed again by the Commission in, I think, the second award simplification. Production work was the stream of skills that took the place of all the task base classifications in the early 90s and it included open cut and underground production skills, such as operating continuous miners, load hauls and open cut that would include all the open cut machinery and what-not, truck and shovels, which includes washeries. And engineering work is a combination of the electrical and mechanical skills and, you know, includes tool repairs and all manners (sic) of mechanical and electrical work, cables for various machinery that's electrically operated. So, yes, it's wide - a whole range of classifications were in production and engineering and now are replaced by the various mine worker levels and that was done by arbitration.
Q: And do you understand if the new classification structure still reflects the work that is described as production and engineering work in the earlier award?
A: Yes, it's to replace it, yes.
28 Furthermore, there was no evidence of any disputation let alone excessive disputation as to the scope of the federal award which the CFMEU here seeks to reflect and that purpose namely to reflect the federal award is to my mind materially assisted by the various amendments to the application made by the CFMEU in the interests of accommodating concerns raised by those on the respondent's side of the record.
29 For example, the amended application upon which the CFMEU proceeds, makes reference to employers who are required to take out insurance with CMI thus avoiding or at worst minimising argument about award definitions and thus also providing an entitlement to accident pay for employees the subject of such policies of insurance.
30 A further amendment limits the application of the proposed award to classes of work and classifications contained within the federal award which as earlier observed, applies to production and engineering employees in the coal mining industry.
31 Throughout the proceedings, the respondents have raised concerns about the potential for confusion if the proposed award is made and about difficulties which might arise in the construction of the award. Clearly and as Mr Slevin of counsel for the CFMEU submits, the construction of an award, absent agreement, is a matter with which courts and tribunals generally and this Commission in particular are traditionally familiar. Mr Slevin points by way of example to the High Court consideration of the term coal mining industry in The King v Central Reference Board and Others; Ex parte Theiss (Repairs) Pty Ltd (1948) 77 CLR 123, Latham CJ said at 130-131: -
"Coal mining industry" is not a technical term: see R. v. Drake-Brockman; Ex parte National Oil Pty. Ltd. (1943) 68 CLR 51; R. v. Hickman; Ex parte Clinton and Fox (1945) 70 CLR 598. 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.
32 Further it is contended and I agree, that the Commission should not be concerned at the point of making an award to construe the award in every conceivable application. In fact it may well be and as the CFMEU submitted, probably is the case on the evidence given by Mr Condie, Mr Priestly and Mr Berriman that those employers as presently structured would not be caught by the proposed award. That is not to say that at some future time in different circumstances, those employers may not have employees to whom the proposed award would apply.
33 Simply put, each case turns on its own facts and circumstances as is evident from the recent decision of Senior Deputy President Drake in the Australian Industrial Relations Commission to which the Commission was taken. In CFMEU v AAA Services & Equipment Hire and Others Print PR 954681, Drake SDP found that the employer of employees engaged to work as shot firers on a coal mining lease was engaged in the coal industry. In so concluding her Honour said: -
[342] It is clear that the determination of industry is a matter to be resolved on the facts and circumstances of each respondent employer and its employees and that the work performed by the employees of that employer is a relevant consideration.