Construction, Forestry, Maritime, Mining and Energy Union v BHP Coal Pty Ltd [2020] FWC 4322

[2]Construction, Forestry, Maritime, Mining and Energy Union v BHP Coal Pty Ltd [2020] FWC 4322 | Case summary | Zoe

[7]

[1] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) applies under s.739 of the Fair Work Act 2009 (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). The Respondent in this matter is BHP Coal Pty Ltd (BHP/the Company).

[2] The dispute concerns three distinct issues arising from a decision of BHP to introduce Autonomous Haulage Trucks (AHTs) (driverless haul trucks) at the Goonyella Riverside Mine (GRM). The background, as set out in the Form F10 application filed by the CFMMEU, can be briefly stated. On 12 November 2019, BHP notified employees engaged at GRM that the company would commence implementing the introduction of AHTs at the mine. The stated intention of BHP is to deploy 86 AHTs on the GRM site, in stages, over a period of approximately two years. The introduction of AHTs will lead to the displacement of an estimated 300 to 340 roles at GRM that are currently filled by permanent employees and labour hire employees and is a major change to the operation of GRM.

[3] BHP commenced a consultation process that, at the time of the CFMMEU filing the dispute, included: presentations to employees commencing on 12 November 2019; four formal face to face meetings with employee representatives and Union representatives held on 14, 20 and 27 November and 9 December 2019; and the provision of a number of documents to employees and the CFMMEU. BHP contends that the consultation process meets its obligations under the 2018 Agreement. The CFMMEU contends that the Company has not complied with its obligations under the Agreement, has failed to provide information that it was required to provide and that new roles associated with the operation of the AHTs are covered by the Agreement.

[4] The CFMMEU and BHP have exchanged correspondence that sets out their fundamental disagreements. The dispute was not resolved in conciliation and the CFMMEU sought that it be determined under the Dispute Settlement Procedure set out in clause 37 of the 2018 Agreement. It is common ground that the Dispute Settlement Procedure has been complied with and that the Commission is empowered to determine the dispute by answering questions for arbitration agreed to by the parties.

[5] The matters in dispute can be summarised as follows. All matters involve the proper construction of the 2018 Agreement. The first matter concerns the interaction, if any, between a provision dealing with Continuous Improvement (clause 14) and the Model Consultation Term (clause 15) of the 2018 Agreement. The CFMMEU contends that in addition to the consultation requirements contained in the Model Consultation Term, BHP is required to first follow the process in clause 14 of the 2018 Agreement which deals with Continuous Improvement, to trial the introduction of AHTs.

[6] BHP contends that the processes set out in clauses 14 and the Model Consultation Term are mutually exclusive and maintains that clause 14 does not apply to the introduction of AHTs, on the basis that this involves a major change, and is covered by clause 15 and the Model Consultation Term. The second issue concerns whether BHP is required by clause 15 to provide information about trials of AHT at other sites, and information about safety issues and training that will be conducted as a result of the introduction of AHTs at GRM. The third and fourth issues concern whether the Agreement covers certain roles associated with the operation of AHTs designated as Controller AH Systems (Controller) and Field Officer AH Systems (Field Officer).

[7] Directions were issued requiring the parties to provide agreed questions for arbitration and to file and serve material upon which they intended to rely to enable the Commission to determine those questions. The following questions for arbitration were agreed by the parties:

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?

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

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

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?

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

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

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

[8] The matter was listed for Hearing by video on 27 April and 28 April 2020. The following persons provided witness statements on behalf of the CFMMEU:

• Mr Steven Pierce - Vice President of the Queensland District of the CFMMEU;[1]

• Mr Simon West - Vice President of the GRM Lodge of the CFMMEU and employee of BHP[2]; and

• Mr Stephen Watts - Industry Safety and Health Representative.[3]

[9] The following persons provided witness statements on behalf of BHP:

• Ms Caitlyn Ryan - Principal Employee Relations;[4]

• Mr Shaun Hansen - Manager Autonomous Haulage East;[5]

• Mr Shaun McKenzie - formerly Manager Employee Relations, BHP.[6]

[10] Mr McKenzie was not required for cross examination. All other witnesses were required for cross examination and attended the hearing by video to give their evidence. The parties also jointly tendered an agreed bundle of material which was marked as Exhibit A.

[11] The Dispute Settlement Procedure in the Agreement provides for both parties to be represented in proceedings before the Commission. At the hearing, the CFMMEU was represented by Mr A Bukarica, Legal Officer of the CFMMEU, with Ms E Sarlos and Ms H Thomas. BHP was represented by Mr M Coonan, of Herbert Smith Freehills, with Ms N Jones, and Ms E McRae.

[81]

[21] Mr Pierce gave evidence about discussions in relation to the proposal to introduce AHTs at GRM. Mr Pierce referred to a number of documents which had been provided to employees on 12 November 2019 as part of an initial Company presentation concerning the introduction of AHTs which were included in the agreed bundle of documents. Mr Pierce attended a consultation meeting on 14 November involving Union officials, delegates and management of the Company, at which the AHT proposal was outlined. A PowerPoint presentation was provided[8] and the following points were emphasised:

There would be no forced or voluntary redundancies as a result of the introduction of AHT;

The scope of the consultation would be confined to what was required under clause 15 of the Agreement and in particular safety and health issues would not be discussed but would be subject of a separate consultation;

There would be 24 new roles under the Agreement as a result of AHT but there would be two other roles filled by approximately 52 employees which would be staff roles and outside the Agreement; and

Expressions of interest (EOI) for the new roles would be rolled out quickly with a closing date of 26 November 2019.

[22] Mr Pierce said that the Union raised questions and concerns which can be grouped as follows:

Questions concerning health and safety implications which were generally not answered by the Company and were "noted" for a separate consultation process to occur in relation to safety and health, except for questions about prior safety incidents involving AHT at the Jimbelbar Mine operated by BHP in the Pilbara which the Company committed to providing details about at the next meeting;

Questions concerning employee and contractor numbers in relation to which some clarification was provided to the effect that there would be a reduction in haul truck operator roles of 300 with labour hire employees being directly impacted;

Questions concerning the new roles of Field Officer, Controller and Service Technician and the rationale behind the Company designating the first two roles as "staff" roles that would not be covered by the Agreement with the Company stating that the roles do not perform work covered by the Award;

Questions in relation to the impact on career progression for Agreement employees arising from the designation of Field Officer and Controller as staff on the basis that this would broaden the recruitment pool beyond Agreement employees;

Questions concerning the impact of the introduction of AHTs on local communities in the Bowen Basin and in particular the impact on apprentices and trainees and the impact on local economies of a net reduction in mineworkers at GRM.

[23] In relation to the documents provided by the Company containing information about the roles of Field Officer and Controller Mr Pierce said that after reviewing them he noted similarities to existing roles at GRM and other coal mines. In particular the Field Officer seemed to have similarities to the role of an Open Cut Examiner (OCE). More generally, the use by workers in production and engineering roles of computers, GPS devices and electronic diagnostic equipment is becoming increasingly common. Mr Pierce referred to shot firing as an example and said it is now conducted by employees using a computerised sequence of blasts whereas previously the role was performed manually. Mr Pierce said that the Controller role has distinct similarities to the role of Despatch Operator which was a common role on BHP mine sites before the role was located offsite in Brisbane.

[24] There are also similarities between a Controller and the Coal Room Operator in Coal Handling and Preparation Plants (CHPP) in that these employees control the operations of the CHPP remotely via a bank of computer screens. Some of the duties of the Controller also cross over into traditional OCE duties with a smaller proportion of their work normally performed by either Servicepersons or Tradespersons. Mr Pierce said that he also could not see any reference to supervisory or typically "staff" duties attached to the Controller and Field Officer positions, and his view is that the proposed new roles were to be embedded within the production process at Goonyella Riverside mine and are not "management" roles as he had traditionally understood that term.

[25] At the second consultation meeting on 20 November 2019, Mr Pierce sought to press the Company about the exclusion of Controllers and Field Officers from the Agreement. Ms Ryan advised that BHP disagreed with the position Mr Pierce was putting, and that the Union should specify the basis of its claims by 22 November 2019. Mr Pierce advised that a written response would be provided, but that if the Company proceeded to advertise and fill the roles, the Union would be forced to notify a dispute under the Dispute Settlement Procedure in the Agreement.

[26] Mr Pierce also raised concerns about the Company's approach of excluding safety and health issues from the consultation process and argued that as the Company was required to undertake a full examination of safety and health systems as a result of the introduction of AHT, the consultation process could not finish until that was completed. Ms Ryan replied that the Company did not agree with that position and that the review of Safety and Health Management System (SHMS) would occur separately to the clause 15 process and in parallel.

[27] A further issue raised by Mr Pierce was in relation to the operation of clause 14 "Continuous improvement" of the 2018 Agreement, in the context of the introduction of AHT. Mr Pierce stated during meetings that it was the view of the CFMMEU that clause 14 of the Agreement applied and that as a result, the Company was obliged to conduct a trial before undertaking full implementation. Mr Pierce said that the Company representatives appeared surprised by this proposition and Ms Ryan put the position that the Company only had to comply with the Model Consultation Term in relation to the introduction of AHT. Mr Pierce said that by the conclusion of the second consultation meeting it was clear to him that the Company had a fixed view about its obligations under the Agreement in respect of the introduction of AHT and their approach in dealing with the Union would be within strict parameters.

[28] On 26 November 2019, Mr Smyth, District President of the CFMMEU, wrote to Ms Ryan expressing the concerns of the Union in respect to the consultation process undertaken, and the disputed issues relating to the operation of clause 14; the Agreement coverage of the roles of Field Officer and Controller and the exclusion of safety and health information from the scope of consultations. The letter also requested the provision of further specific information in relation to the introduction of AHT including:

Information concerning prior trials of autonomous haul truck operations at other BHP mines.

Studies concerning the safety benefits that AHT could bring to Goonyella Riverside mine.

Details of the training program that the Company intended to introduce as a result of the introduction of AHT.

Full job descriptions of the new roles to be introduced as a result of the implementation of AHT.

• The rationale for the designation of the roles of Field Officer and Controller as "staff" roles.[9]

[29] A third formal consultation meeting was held on 27 November 2019 at which the previous positions were maintained. Mr Pierce accepted the accuracy of the Record of Meeting in Exhibit A other than the assertion that the Union promised to provide written reasons as to why the Field Officer and Controller roles were covered by the Agreement, by 29 November 2019. On 28 November 2019, Mr Smyth sent a further letter to the Company stating that it was not possible to provide that information until the Company had provided the Union with additional information concerning the work undertaken by employees in these roles.[10] On 29 November Ms Ryan provided an initial response to the issues raised by the Union in its correspondence and previous meetings acknowledging the dispute in relation to clause 14 and consenting to the matter being referred to arbitration. The letter reiterated that the Company would not be dealing with the SHMS in the consultation process.

[30] On 3 December 2019 Ms Ryan responded to Mr Smyth's letter refusing to provide information in relation to how the decision to implement autonomous haulage was reached and maintaining that full data from which talking points about the safety benefits of AHT had been drawn would not be provided, on the basis that the information requested did not fall within the subject matter that the Company was required to consult about under the Model Consultation Term. Ms Ryan's letter also reiterated the Company's position that the Controller and Field Officer roles were staff roles because they did not fall within Schedule A of the Award. Some additional information was provided relating to the Field Officer and Controller roles including core accountabilities and training program associated with the introduction of AHTs. Mr Pierce maintained that the Company had refused to provide most of the material requested by the Union and at the final consultation meeting on 9 December 2019, it was agreed that further meetings would not be productive in light of the positions maintained by the Company and the Union.

[31] Under cross-examination, Mr Pierce agreed that at the first consultation meeting, Mr Milfull spoke to safety matters "generally" and that there were two overhead slides in the presentation in relation to safety. Mr Pierce also agreed that safety issues were discussed at the second consultation meeting but maintained that the discussion was about general rather than specific matters. Mr Pierce agreed that the Company representatives had maintained that safety matters would be discussed as part of the review of the Mine's Safety and Health Management System (SHMS) required under the Coal Mining Safety and Health Act.

[32] In relation to his evidence about other classifications said to be comparable with Controllers and Field Officers, Mr Pierce was not aware of whether OCEs undertake mine mapping. In relation to Despatch Officers, Mr Pierce agreed that they run data analysis to a degree including recording where vehicles were going, what loads they were carrying, where they were dumping the product and where that sat within the production requirements of the mine on that shift.

[33] Mr West said in his evidence that he has some concerns about the introduction of AHTs but is generally in favour and open to it. Mr West also said that for the Union, implementing the change as a trial and giving workers an opportunity to navigate issues that might emerge as part of the trial, is an important entitlement as the Company is required to engage throughout implementation rather than coming to the workers with a decision that they just have to live with. Mr West agreed that Mr Hansen answered some questions about what had occurred at the Jimblebar Mine but was brief and when pressed for detail was not able to provide it. The Union sees that one of the major effects of the change is an impact on safety and seeks to have safety included in the consultation process. According to Mr West, the Company told employees how much safer AHTs would be but would not provide any more information, such as the results of implementation at Jimblebar, and stated that this would be dealt with by a separate safety committee. Mr West also said that Mr Hansen did not provide any written material in relation to Jimblebar.

[34] Mr West tendered a letter he wrote to the General Manager of GRM seeking on behalf of the SBU that a member from each Union be included in the health and safety review in relation to the implementation of AHTs. The General Manager responded advising that there were 130 EOIs received in relation to the process and a cross-section of the Mine had been selected, including two Site Safety and Health Representatives and that in his view the cross-section was appropriate and the composition would not be changed. Mr West is also aware that the Company has formed focus groups of employees to discuss the implementation of AHTs and the group has gone to the Jimblebar Mine in Western Australia where AHTs have been trialled. The Union has not been involved in the focus groups.

[35] In relation to Mr McKenzie's evidence about the limited use of clause 14 during his time with the Company, Mr West agreed that this was correct but said that this is because there had not been any big changes to work practices or arrangements when it has been relevant to use the clause and it has only been used for roster changes. Mr West also said that the implementation of AHTs at GRM is the biggest change to work arrangements since he has been at the Company. The next biggest was termed "Project Zinc" and involved redundancies which meant that it was more relevant to commence a dispute in relation to clause 32 of the Agreement.

[36] In relation to Mr Hansen's statement, Mr West said that autonomous haulage was first raised with him in 2016 by the then Site Senior Executive (SSE) and in late 2018 or early 2019, 7 new trucks which had the ability to be automated arrived on the site. In around July 2019 employees were told that the Company was again looking at automation and more new trucks arrived at the site. Mr West tendered a letter he sent to the Manager Coal Mining on 2 September 2019 expressing excitement at the prospect of automation but concern about the lack of information. The letter also expressed the desire of the Lodge to understand and engage with the Company to find mutually beneficial outcomes for all involved. Mr West also said that he has expressed on multiple occasions the preparedness of the CFMMEU to work together to promote trust in the workplace and that as President of the Lodge he has indicated his support for the introduction of automation.

[37] Mr West detailed the preparation the Company has been engaged in for the implementation of AHTs including extensive road works in the test zone which have resulted in those roads being up to a standard higher than other roads on the site. Mr West said it is unusual that none of the preparation is happening as part of a trial, unlike other new processes introduced on the site such as the introduction of electronic detonators for shot firing, a blasting product called Soft Load and a trial of an explosive by Orica. Mr West said that the benefit of trials was that the Company could assess whether the changes would work and try different approaches if something did not work. Mr West can see no reason why the introduction of AHTs cannot be conducted as a trial process as provided in clause 14 of the 2018 Agreement.

[38] In relation to the Controller and Field Officer positions, Mr West said that the complexity is over-stated by Mr Hansen in his evidence. In relation to the Field Officer position, Mr West understands that its role is to keep the virtual mine current. Mr West also said that each of the components set out in Mr Hansen's statement in relation to the Field Officer role are versions of duties currently performed by Agreement covered workers on the physical site. Monitoring the Mine site, performing surveys, managing dumps and managing obstacles on the site are all jobs that are directly connected to production and are already being performed in relation to different activities on site. This does not change because mining is facilitated by an AHT. Mr West said that his understanding is that the Field Officer will be in a vehicle with a survey unit which conducts real time surveying and will then troubleshoot problems that might come up in the same way that any worker on site would.

[39] Mr West gave examples and said that if there was a spillage of rocks, a truck operator would address it by getting a grader to come and sort the problem. A shot firer who spotted a hazard would notify the supervisor and an Open Cut Examiner (OCE) who would deal with the issue. The focus of an OCE's job is to ensure that safety is being complied with in every area of the Mine and that roads are graded properly and vehicles are compliant. Mr West also said that some elements of the Field Officer position reminds him of a blast Controller's role which involves taking GPS points of the shot that is going to be fired and converting them to a blast clearance map and driving the area to make sure that it is evacuated including selecting roads to be shut. Blast controller can shut down circuits and production in areas in order to clear personnel from a zone. They then coordinate the blast, put guards in position and sweep the zone to make sure that no-one is in it. The shot firer also assesses the success of the blast and ensures it went off the right way. As a shot firer, Mr West has a tablet that is loaded with the blast pattern of the holes provided by engineers. Mr West and a team measure the depth of the holes and the presence of water, wet sides or water dribbling in at a certain level. These factors need to be measured and reported and determine the explosive product that will be used and the loading method.

[40] The Shot Firer has ultimate responsibility for the result of the shot and has a large say in the explosive product used. Decisions are required to be made on the go and the Shot Firer also manages and supervises a measuring team. The Shot Firer's role, like that of the OCE, is a statutory one and has a different level of responsibility to that of the Field Officer. The Shot Firer and OCE roles are covered by the Agreement. Mr West said that the Controllers that he knows of who have been hired by BHP are former truck drivers, some of whom have less than two years' experience in mining. Mr West said that the Controller role requires no qualification or competency beyond on the job training, compared to a Shot Firer or OCE which are roles that require statutory licensing and recognised training. Mr West has difficulty with the idea that the Controller position is more technical than either of the Shot Firer or OCE roles. Mr West also said that the unplanned events referred to by Mr Hansen are events that happen on site now, and a Controller would deal with them in the same way as current employees, as and when the events arise.

[41] Under cross-examination, Mr West accepted that Mr Hansen was present at the consultation meeting on 20 November and that he responded to questions about Jimblebar. Mr West maintained that the discussion was brief and Mr Hansen spoke for one or two minutes. Mr West also accepted that Jimblebar was on the agenda for discussion and that Mr Hansen gave a presentation in response to questions from the Union representatives about that site. Later Mr West said that he had no reason to say that Mr Hansen's presentation did not go for half an hour.[11] Mr West maintained that Mr Hansen was asked a number of questions which he responded to by stating that he did not have the details. Mr West could not recall Mr Hansen stating that he could get more information from Mine reports.

[42] Mr Watts has a number of mining related competencies including a Deputy's Certificate, a Certificate IV in Workplace Training and has completed the last module of an Advanced Diploma of Underground Coal Mine Management. Mr Watts has also performed the role of Trainer Assessor at various underground coal mines between 2005 to 2019 and is an Employee Organisation Representative on the Coal Industry Reference Committee, an advisory group responsible for the development of national training packages relevant to the coal mining industry. Mr Watts gave evidence about qualifications and training packages in the coal mining industry.

[43] Over the course of Mr Watts' career in the coal mining industry he has witnessed the development and deployment of a number of new technologies in the production and maintenance areas of coal mines, including remote control and computerised systems. Some examples are:

The emergence of pit-top Control Room Operators in underground coal mines who work with computers to control various aspects of the mining process happening underground;

The increasing computerisation of shot-firing in open cut coal mines including the emergence of electronically programmable detonators allowing shotfirers to program each individual detonator in-situ via laptop computer.

The employment of "Despatch Operators" located on mine sites and also remotely, who use a computer interface to undertake various tasks such as conveying messages about road conditions and speed limits to haul trucks and other machinery.

The development of Control Room Operators in Coal Handling and Preparation Plants (CHPP) who use a computer interface to control all aspects of the CHPP process.

The increasing use of diagnostic electronic and computerised systems by certain trades, particularly Electricians and Diesel Mechanics in their day-to-day work reflecting the increasing technological sophistication of Haul Trucks and other equipment used in coal mining; and

The increased automation of equipment in underground coal mines to provide for safer and more efficient operation including technologies for the effective operation, control and monitoring and the making of required adjustments during the operation of the equipment.

[44] Mr Watts is also generally aware of the increasing use of autonomous haul trucks and ore trains, primarily in the iron ore mining industry in the Pilbara District of Western Australia. In addition, via his role on the Coal Industry Reference Council (Coal IRC), Mr Watts is aware that there has been a specific unit of competency developed for workers involved in remotely operating autonomous mining machinery in the metalliferous mining industry in Western Australia. Mr Watts tendered details of a unit of competency known as "RIIMPG301D - Control and monitor automated plant/machinery".[12] Mr Watts is also aware of a unit of competency that applies to both coal and metalliferous mining in the context of a Certificate III in Surface Extraction Operations, relating to Control Centre Operations and tendered details of a unit of competency referred to as RIIMCO301D - "Conduct control centre operations".[13] Through his role on the Coal IRC Mr Watts is also aware of efforts to develop more specific training and competency units relating to remote operations and autonomous machinery.

[45] In response to Mr Hansen's evidence, Mr Watts said that he disagrees that there is a difference between people being trained to use computer interface technology and the responsibility that has been assigned to the AH system positions for ascertaining and analysing data, defining solutions and tolerances and delivering production through technology. In particular Mr Watts disagreed with the distinction that is sought to be drawn between what are described as the "AHS positions" and a number of other existing positions in the coal mining industry. Mr Watts said that Mr Hansen had significantly downplayed the level of competency, responsibility and authority required in certain roles he had referred to in his evidence, in particular, automated longwall operators. Mr Watts said that the Broadmeadow underground coal mine operated by BHP Coal Pty Ltd has in place a fully autonomous longwall operation. To operate the longwall autonomous system at Broadmeadow Mine, competent longwall operators are deployed at all times both underground on the longwall "face", and in the operating centre located on the surface (Surface Remote Operating Cab).

[46] The operators of fully autonomous longwall operations are involved in operating a complex computerised system which largely controls itself. Mr Watts used the analogy of an autopilot system on a modern aircraft. The role of the operator is to monitor the operation of the longwall operating system, input real life variations in mining conditions into the system, survey plot horizon target lines, change the operating parameters of the longwall as required and to analyse the production output of the machine. Also, crucially, the human operator can intervene to shut down or temporarily override the autonomous longwall operation in the event of an unplanned event. Longwall operators are accountable to optimise the outcome. Under normal operation, environmental variations, or stoppages, they are required to ascertain and analyse data, define the solution and tolerances, delivering production and directing outcomes using the automated technology including by adjusting parameters of the system. Longwall operators are also required on regular occasion to physically survey plot the travel profile of the longwall shearer cutting drums by plotting and entering horizon target lines into the autonomous system. This maps out the cut profile of the autonomous operation. They also have the responsibility to ensure optimal performance of the longwall in accordance with mine plans.

[47] In relation to Mr Hansen's evidence that data management and business skills are the competencies that matter most for the Field Officer and Controller position, Mr Watts said that he disagrees and that it is unclear what the term "business skills" means. Mr Watt considers that the fundamental role of mine production operators, and that of Field Officer and Controller, is to optimise the safety and production performance of mining equipment utilising the tools available to achieve the plan. The competencies that matter most are those that enable them to achieve this.

[48] Mr Watts also said that the information provided by BHP about the AHS Controller and Field Officer positions included in the documents "job description", "day in the life" and "success profile" for the respective positions mention in various ways that mining equipment experience is a desired and mining experience is highly regarded. These documents also mention in various ways that digital fluency and ability to use technology is a desired experience, skill and attribute for these positions, and in Mr Watts' view these skills are not rare in times where almost everyone has a smart phone and/or a computer.

[49] Further, Mr Watts said that there are already comprehensive competency packages in place that deal with the necessary skills required for autonomous mining operations. These training and competency packages deal with a range of skills required to successfully operate autonomous mining equipment, including operator skills and use of computer interface. For example, the role of Field Officer will necessarily require the person to have operator skills as they would be required from time to time to manually override the AHT system and physically operate the AHT which in Mr Watts' view means that it is not accurate to describe this role as being principally concerned with data management.

[50] On 1 April 2020, Mr Watts attended a meeting of the Coal Mining Project Working Group dealing with the introduction of autonomous and semi-autonomous vehicle operations in the Coal mining industry. The meeting was convened by PWC Consultants who act as secretariat for the Coal IRC. Also at the meeting were an OCE employed at GRM and an Operator/Maintainer employed at the Daunia Mine who are on automation committees established at those mines. The meeting was the first step in developing specific competencies and training packages for autonomous operations in the coal mining industry and it is proposed to use as far as possible, work that has been done in the metalliferous mining industry in relation to autonomous operations. Mr Watts tendered a summary of the meeting outcomes prepared by PWC which refer to the need to create new AQFL level 3 units relating to working in an autonomous environment including "Operate Autonomous Vehicle Manually" which addresses skills required to take over and operate an autonomous vehicle in manual mode. The outcomes also included reference to training gaps for new job roles directly involved in autonomous operations including field builders responsible for working with crews to build the travel path for an autonomous vehicle and pit controllers responsible for overseeing and maintaining autonomous vehicle operations.[14]

[51] Under cross-examination, Mr Watts conceded that he was not aware of all of the detail contained in the appendices to his witness statement and that he could not explain some terminology used in those documents. Mr Watts said that the documents were indicative of the Industry Reference Council's response to developing more specific training and competency relating to remote operations and autonomous machinery.

[82]

[52] Ms Ryan said that the definite decision to introduce autonomous haulage (AH) at GRM was notified to employees during rolling crew briefings between 12 and 15 November 2019. At the end of the presentations, employees received the presentation,[15] a letter from the General Manager,[16] a Q&A document[17] and an EOI form for Agreement covered employees to apply for the new Service Technician role. On 12 November 2019, Ms Ryan also emailed representatives of the three Unions bound by the Agreement notifying of the decision to implement AH and forwarding copies of the documents provided to employees. Ms Ryan attended consultation meetings with employee representatives and State level Union officials on 14 November, 20 November, 27 November and 9 December 2019. Ms Ryan referred to a range of documents provided in the consultation meetings which were included in the agreed bundle that was Exhibit A in the proceedings. Ms Ryan also tendered documents for employees to express interest in AH system training and for a Service Technician role.

[53] The Q&A document indicates that there would be up to 24 Service Technician Roles which would be Enterprise Agreement (EA) roles, 20 Field Officer roles and 32 IROC Controller roles which would be staff positions. The Q&A document also indicates that due to the unique nature of the Komatsu system, the Company will not require any builder positions and that instead, Controllers would perform a blend of dispatch, control and road and network design tasks. The Q&A makes clear that EA employees will be able to express interest in the new Service Technician roles in accordance with the recruitment process in the Agreement. It is also stated that information will be provided in relation to applications for the Field Officer and Controller roles. Further, it is stated that everyone required to work in and around autonomous zones will receive training in autonomy awareness and that EOIs will be sought from employees in this regard. The Q&A document also indicates that employees may be required to operate autonomous trucks in manual mode.

[54] In response to Mr Pierce's evidence, Ms Ryan said that she informed Mr Pierce of the Company's view that clause 14 did not apply to the implementation of AHTs and sought further explanation in relation to the basis upon which Mr Pierce believed that clause 14 had been triggered, so that the Company could consider its position. Mr Pierce responded by saying that clause 14 had previously been used for roster changes and gave an example of a new practice relating to the dig technique for draglines. Ms Ryan said that the discussion concluded when she asked for further information on how clauses 14 and the Model Consultation Term worked together.

[55] Ms Ryan did not agree with Mr Pierce's assertion that BHP was interested only in complying with the minimum legal obligations and did not want or appreciate the CFMMEU's input. Ms Ryan said that Mr Hansen attended three of the four consultation meetings and provided safety information and answered the questions the CFMMEU had asked about safety incidents including incidents which had occurred at Jimblebar. Ms Ryan also noted that during the meeting on 27 November 2019, she again sought clarification from Mr Pierce to understand:

his position on clause 14 of the Agreement and how this clause interacted with the Company's obligations under clause 15 of the Agreement; and

the CFMMEU's position in respect of why it considered that the new positions of Field Officers and Controllers were covered by Schedule A of the Black Coal Mining Industry Award 2010.

[56] Ms Ryan said that Mr Pierce did not respond to these questions. In oral evidence at the hearing, Ms Ryan was referred to the record of a consultation meeting conducted with Unions on 14 November 2019.[18] The meeting record contains a box for the purpose of listing questions taken on notice in relation to which a response was not provided at the meeting. The 14 November 2019 meeting record indicates that one of the matters taken on notice was the sharing of information about safety incidents at the Jimblebar Mine following the introduction of AH at that Mine. Ms Ryan said that this information was shared at the next meeting on 20 November 2019. Ms Ryan's evidence was that at that meeting Mr Hansen spoke to a number of PowerPoint slides he had prepared which talked about different types of incidents at Jimblebar and comparing safety incidents that occurred prior to the introduction of AH with safety incidents post AH, including reference to significant events and discussion about the different types of reportable incidents experienced at Jimblebar as a result of the changes to technology. Ms Ryan maintained that the discussion on this matter went for 25 - 30 minutes. The 20 November 2019 meeting record tendered in the agreed bundle of documents does not record this discussion and the slides used by Mr Hansen were not in evidence. The record of meeting also indicates that there was a discussion about the SHMS process and that the Unions sought information about the selection of a cross-section of coal mine workers for this process.

[57] Ms Ryan was referred to the PowerPoint presentation for the first consultation meeting with Unions and employee representatives on 14 November 2019 and agreed that Slide 2 entitled "Scope of Consultation" sets out the Company's view in relation to what it is obligated to consult about. The slide states:

[89]

[61] Ms Ryan agreed that the information sought by Mr Smyth in his letter of 26 November 2019 was broader than SHMS matters. Ms Ryan maintained that the letter of 29 November was not the Company's full response to the matters raised by Mr Smyth and rejected the proposition that the stance of the Company was that it would not provide relevant safety and health information during the course of the consultation process. Ms Ryan maintained that:

During the consultation the Company provided information about the effects of AH on employees including safety and the safety features of the Komatsu AH systems;

Safety information was provided in relation to the Jimblebar operation as requested;

The Company did not accept that the consultation process pursuant to clause 15 of the 2018 Agreement could not be completed until after the SHMS process was completed;

The request from the Union for full data on the safety and health benefits from which the talking points in presentations were drawn was refused on the basis that it was not relevant to consultation and did not relate to the effects on employees;

Data relied on by the Company to contend that the AH system was superior in terms of health and safety was refused on the basis of Ms Ryan's view that it did not fall within the scope of what clause 15 required the Company to do; and

• Mr Smyth's request for full data from which the safety benefits points were drawn was considered to be related to the reason why the Company had made its decision and not the effects on employees.[23]

[62] Ms Ryan maintained under cross examination that the discussion by Mr Hansen in relation to the incidents at Jimblebar, at the second consultation meeting with the Unions and employee representatives, went for 25 - 30 minutes.[24] Ms Ryan agreed that copies of the PowerPoint slides used by Mr Hansen were not provided to the Union representatives and that no documents in relation to the incidents and their causes were provided. Ms Ryan accepted that the Jimblebar incidents discussed at the meeting occurred prior to the decision to implement AH at GRM. Ms Ryan also accepted that she was happy that Mr Hansen offered up information about incidents at Jimblebar but that she had refused to provide full data about the prior operation of AHTs in Western Australia as requested by Mr Smyth. Ms Ryan reiterated that the Company did not provide information regarding its reasons for making the decision to implement AH at GRM but provided information about the effects of AH on employees, one of those being improved safety performance at the Mine, based on Jimblebar.

[63] Mr McKenzie gave evidence about the 2012 Agreement which was approved on 26 October 2012. There were a number of major changes to the 2012 Agreement to allow BMA to implement productivity arrangements and Mr McKenzie's major remit on commencing his role as Manager Employee Relations in November 2012, was to begin to roll these out. Mr McKenzie said that none of those improvements were progressed through clause 14 of the 2012 Agreement which was in identical terms to clause 14 of the 2018 Agreement. Changes relating to rosters did require use of Clause 14. This is a requirement of clause 11.5 relating to the introduction of new rosters.

[64] It was also expected from previous experience that the union parties to 2012 Agreement would be exploring the extent of the changes. Mr McKenzie's role required him to respond to union claims seeking to explore, expand or contract the many changes made available through the 2012 Agreement. None of those were raised through clause 14. Mr McKenzie said that over the next 5 years that the Agreement was operational, there were in excess of 650 disputes notified. Almost all were either in response to changes that BHP wished to make or claims by the Unions to limit the scope of the changes. A large number ended up in the Fair Work Commission. In none of them, other than disputes concerning rosters, did the unions ever assert that clause 14 applied.

[65] In relation to bargaining for the 2018 Agreement, Mr McKenzie said that the company's claims included the removal of clause 14. Outside of the requirements for roster changes, clause 14 had never been utilised by BHP or the unions. The Company's claims also included changes to clause 11.5 to remove the requirement to utilise clause 14 for roster changes. The CFMEU's claims were contained in a 105 point log of claims on the main agreement and later additional claims for the various schedules (apprentices and site schedules). Item 38 of its first log of claims was to remove Clause 14. The CFMEU's rationale for seeking to remove the clause from the Agreement was that it was not utilised. This was an accurate reflection of the parties' shared experience, and reflected the company's position. Ultimately, the removal of clause 14 ceased to be on the table, once the parties agreed, after approximately 15 months of bargaining, to progress a "roll over" approach, rather than continuing to pursue their respective claims.

[66] Mr Hansen's evidence provided an explanation of Autonomous Haulage Systems (AHS) and related positions as well as the consultation process engaged in by BHP. AHS is an integrated system of hardware, software and technology infrastructure that operates the truck fleet as follows:

Additional hardware components are fitted to existing haul trucks by the original equipment manufacturer (OEM) including a Position System (GPS), Obstacle Detection System (Radar & Laser), mode lights, and other control hardware.

The hardware components then interface with the AHS software program.

The AHS software program then creates and communicates instructions to the truck with details about the virtual mine model and the predicted path of each truck and other vehicles in the autonomous zone.

The truck will then follow the instructions communicated by the program.

[67] Trucks are operated by the AHS and are not operated by a driver. The Controllers manage the system. The AHS uses technologies such lasers, radar and GPS to enable applications such as interactive mine mapping and the viewing and operation of the AHT fleets and equipped manned vehicles (EMVs). In order to set up the autonomous mining area, whether for one truck or many, there is significant advance work required involving purchasing of the program and hardware, version of the fleet and building, fitting out and setting up infrastructure.

[68] The AHS being used at GRM is the Komatsu FrontRunner system that operates a fleet of Komatsu AHTs. It offers a mature product with the technology having been tested for more than 10 years. Controllers use the FrontRunner system as a complete technology solution for the AHT fleet from work stations in a designated control room. The FrontRunner system does not require the Controllers to remotely control the trucks. Instead, the system is programmed to and operates the trucks. The integrated system of hardware components, software and technology infrastructure allows each AHT to follow a predictable path (as designated for the particular AHT by the Controllers, and planned by AHS Field Officers) and to independently drive, accelerate, brake, steer, and indicate to follow that predicted path or a new assigned path.

[69] The AHTs operate in a clearly defined autonomous zone (AZ) which is segregated from the non-autonomous areas of the mine by physical barriers. Access into the AZ is restricted to those workers who are required to interact with the AHTs and who are trained, competent and authorised to work within the AZ. The movement of AHTs within the AZ is governed by sophisticated rules which are built within the system and are based on AZ protocols and the circumstances in the AZ at any time. In FrontRunner, the system will cause the AHT to:

Automatically navigate haul roads and intersections along predefined GNSS (Global Navigation Satellite System) courses;

Maintain a pre-defined speed;

Automatically arrive at the loading and dumping destinations they are assigned to;

Automatically move within loading areas (enter, position for loading, and leave) using GNSS spot courses created by load operators;

Automatically move within paddock and high dumps (enter, dump loads, and leave) using GNSS courses created by the systems central controller; and

Automatically dump loads at ROM bins and crushers, using predefined GNSS courses.

[70] Mr Hansen said that the AHS significantly reduces unplanned variations in haul cycles as the system operates the AHTs to known destinations and repeatable travel times in a smooth and consistent manner. This results in predictable production through improved planning and operation and decreases component wear and maintenance.

[71] Mr Hansen also gave evidence in relation to engagement with employees regarding AHTs from 8 July 2019 to 12 November 2019. On 8 July 2019, BHP's Asset President, communicated with the workforce about the study of AH at GRM. That communication, tendered by Mr Hansen, states that the Autonomous Haulage Australia Study will look closely at GRM as potentially the first coal site to introduce AH.[25] On 8 July 2019, the then General Manager of GRM, sent an email to the workforce attaching a document titled "Information Brief Template- Autonomous Haulage Study", indicating that while a decision had not been made to implement AH, GRM was being considered.[26]

[72] From 8 July 2018, a program entitled "My Future Program" was rolled out to employees at GRM. That program dealt with preparing for a changing nature of work and providing employees with an understanding of the types of roles that might exist if AH was implemented. Participation in the My Future Program was not compulsory, but all employees were encouraged to participate. Mr Hansen said that BHP also communicated with the unions regarding the "My Future Program", and the program appeared to be well received. In this regard, Mr West, advised that the overall feedback about automation was one of excitement, however he wanted more details on the questionnaires employees were asked to complete. In response, BHP provided Mr West with the My Future Handbook which had been provided to employees. On or around 24 September 2019, BHP set up focus groups (comprised of 26 workers) which were intended to provide the workforce with a more detailed understanding of AH.

[73] As at the date Mr Hansen made his statement, the first AHT has still not been "turned on" at GRM. Mr Hansen said that just to get the project to this stage, more than $50M has been invested since 12 November 2019, based on the significant lead time to get hardware and technology infrastructure in place. In addition, a cross section of site based employees at all levels had invested more than three months under section 10 of the Coal Mine Safety and Health Regulations to review, modify and update the Mine's Safety and Health Management System (SHMS) to ensure that site procedures and systems are ready for the first AHT to be turned on.

[74] Mr Hansen also said that a significant number of employees have been recruited into new roles to enable training and readiness for the first Autonomous Zone. Eight AHS Controller roles have been on-boarded due to the long lead training requirement and seven AHS Field Officers are in the process of being on-boarded to enable first operations. After on boarding, training can begin. In addition, the GRM AH project team has employed more than 60 other roles to support project implementation, and various local and inter-state vendors have engaged teams to support construction, training and technology deployment activity. Prior to the end of April, the plan is for every GRM worker to have completed initial AH training as a site entry requirement. Following this, there will be a requirement for training for the specific AH related roles.

[75] Mr Hansen also gave evidence in relation to the AHS positions. Mr Hansen said that during the consultation discussions the CFMMEU only raised questions about the positions of AHS Field Officer, AHS Controller and AHS Service Technician and that when BHP confirmed that the Technician role was covered by the 2018 Agreement, the Union showed no further interest. According to Mr Hansen's evidence, the Field Officer is responsible for ensuring that the virtual mine (that is created, uploaded into and then used by the AHS) correlates with the physical mine and keeps the virtual mine current.

[76] The virtual mine is built by collaboration between the Field Officer and the AHS Controller from mine data and information collected and analysed by them and uploaded into the Komatsu FrontRunner program and processed to create a computer generated virtual mine plan, which can then be programmed in multiple sub files for processing and operating. The Field Officer is ultimately responsible for gathering, analysing and applying data analytics and problem solving to ensure that the AHS is operating efficiently and effectively to align production priorities and deliver the mine plan. The core duties of the Field Officer position include:

performing surveys (which are then translated to the virtual mine used for the autonomous system);

monitoring the physical mine model to ensure the virtual mine model is aligned for accuracy;

managing dump plans (which involves monitoring the dump locations and ensuring the Controller has any information they may require in relation to the dump locations); and

managing and clearing obstacle detections.

[77] As an example of tasks, a Field Officer is required to monitor performance of the AHT fleet and make changes in collaboration with other roles (Controller, supervisors and operators). This might involve opening up new areas of the mine to optimise the flow of traffic and ultimately the haulage system performance. The Field Officer would take the light vehicle (fitted with an on board field computer and high precision GPS) to conduct a survey. The Field Officer then sends the survey through to the Controller for review and agreement. Based on feedback from the Field Officer and in collaboration with the supervisor, the Controller would then open the newly created road for the AHTs to travel on. The Field Officer would monitor the change in the field and ensure it is working as intended and the trucks are working productively.

[78] If there are any issues with the virtual or real mine which affects the AHT fleet (for example, a work around is required for an obstacle, ground conditions or other vehicles), the Field Officer will examine the site; gather and analyse data and decide on the solution; use the technology (GPS and in-field computer) to survey the AZ to build a virtual model; and input instructions for changes to the virtual model into the FrontRunner system. The system will then use the amended virtual plan to control the new path for the AHTs.

[79] A Field Officer is also expected to work proactively to optimise Mine production and work with the Production Supervisor and AHS Controllers to optimise the Mine plan and survey and identify opportunities to enhance the AHS by identifying opportunities for improvement. These may include refining dump locations; setting up optimised passing lanes: controlling the movement of other workgroups to minimise disruption to the AHS cycle and responding to stoppage or slowdown events and refining the virtual model to allow more productive movement. The Field Officer also supports the Production Supervisor in managing and supervising the AHS. Mr Hansen referred to information provided to the Unions and employees in relation to the Field Officer position:

• Day in the life of a Field Officer;[27]

• Success Profile for a Field Officer;[28]

• Job advertisement for a Field Officer;[29] and

• Pamphlet for a Field Officer.[30]

[80] Mr Hansen said that the attributes of the Field Officer role include reliance on using digital and data skills to inform judgement and preparing solutions, and multi-tasking between systems and fleets. The Success Profile for the Field Officer summarises the "main game" of the position as co-ordination of all operational variables impacting on the use of AHTs. The Success Profile also reinforces the accountabilities and responsibilities in the management of the virtual mine plan through real time surveying, which involves competencies in data management, analytics and diagnostics in the comprehensive use of autonomy aware technology systems. The Job Description also reinforces that the position is a key enabler of the autonomous systems through utilising data in the AHS to manage dynamic mine plans.

[81] Mr Hansen said that the AHS Controller is a member of the Mine Control team with assigned responsibilities to ensure the mine meets its production plan. The Mine Control team is responsible for execution of the weekly mine plan and the 24 hour mine plan. The AHS Controllers are responsible for delivering the 24 hour Plan that is provided to them. The 24 hour Plan needs to be adjusted for things occurring each day and adjustments need to be made to the AHT fleet to meet the daily and overall weekly plan as the week progresses. The Controller is critical to adjusting AHT allocations within this plan to ensure the weekly plan is met.

[82] At the commencement of the shift, the Controller will:

verify the 24 hour Plan, and make any necessary adjustments;

verify with the Field Officer the virtual plan against the actual plan;

verify all locations and road surveys; and

verify or create dumping courses and circuit routes.

[83] The Controller is then responsible for the optimisation and management of the AHT fleets in order to meet the daily production plan. The Controller must optimise the AHS and make changes as necessary to safely achieve production goals according to the 24 hour Plan (in coordination with Field Officers and Supervisors in the field).

[84] During the course of their shift, Controllers may need to make changes to the production schedule in response to real-time planned and unplanned events. This may necessitate changes being made to the AHT fleet to allocate them to another pit or make changes to the schedule delay events (e.g. bringing forward refuelling stops, or coordinating with Maintenance). Planned events may be a change in production determined by the mine control team, and as described in the daily or weekly plans. These events may include planned maintenance, refuelling, equipment operator changes and other known delay events. Also, throughout the plan there are likely to be changes in priorities due to coal production requirements that necessitate the controller to modify the allocation of trucks to different dig units. Unplanned events may be:

environmental factors such as weather;

breakdowns;

physical changes to haul circuits;

other vehicle movements; and

objects detected in its path.

[85] In order to perform their tasks and achieve the 24 hour Plan, the Controller will use the AHS application software running on dual or multiple monitor computers to monitor and adjust:

performance of the allocated AHS fleet against the mine plan;

the road network, dump areas position and status of all vehicles on the zone;

AHT loading and dumping;

grading and dozer work; and

exceptions in the zone.

[86] Mr Hansen referred to the following information which was provided to employees and Unions about the Controller position:

• Day in the life of a Controller;[31]

• Success Profile for a Controller AH Systems;[32]

• Job description for a Controller AH Systems;[33]

• Pamphlet for a Controller AH Systems.[34]

[87] The Success Profile for the AHS Controller summarises the "main game_"_ of the position as:

maintain a safe, sustainable and productive autonomous mining operation;

manage the correct and accurate collection of data;

optimise interface between the systems and technology on the AHT fleet and manned equipment safely to achieve the shift plan;

managing AHT recoveries including obstacle detection;

monitor network stability metrics used to measure against AHS performance impacts; and

manage technology and server software systems to monitor and control AHTs for weather conditions and drill and blast activities.

[88] The Success Profile reinforces the data collection and data management skills, and establishes a pivotal purpose of using data to inform solutions through the application of skills in technology and software systems. Mr Hansen said that the Job Description reinforces that the characterisation of the position is to use AHS applications and networks at their optimum to maximise AHT usage while collecting data and analytics to improve safety efficiency and productivity through the 24 hour daily mine plan. The Job Description set out the core activities as:

managing the correct and accurate collection of mining data;

monitoring network stability metrics used to measure AHS performance;

optimising the interface between the systems and technology on the AHT fleet and manned equipment to safely achieve the mine plan;

adding and removing obstacles in the virtual mine to align with the actual state; managing deviations and assisting in general recovery paths in the AHS; and

in addition, AHS Controllers will:

send AHTs for refuelling and maintenance without compromising production targets;

manage emergency stops; and

focus on continuous improvement in safety and efficiency performance.

[89] In response to Mr Watts' evidence, while acknowledging widespread use of control systems in the mining industry, Mr Hansen said that the positions referred to by Mr Watts operate autonomous or semi-autonomous control systems within defined tolerances. While the use of computerised tools can allow personnel to record data more accurately, the use of systems by shot firing crews in the example given by Mr Watts, does not give the personnel the accountability of optimising the outcome. Rather, responsibility is held by mining engineers who work with blasting teams and other production teams. Mr Hansen also disputed Mr Pierce's assertion that the Company did not answer safety related questions during the consultation process and said that information about the safety and health benefits arising from the introduction of AHTs was provided and that it was a specific topic. Mr Hansen said that he spoke to PowerPoint slides at the first consultation meeting, which included information regarding the expected reduction of truck events and injuries and illness in load and haul along and information about the key safety features within the Komatsu FrontRunner safety system.

[90] Under cross-examination, Mr Hansen said that the project team conducting a study on the potential introduction of AH was originally not specific to GRM and became so as the study phase advanced. GRM became the focal point for the introduction based on the study outcomes. Mr Hansen said that the study phase of the project ran from January 2018 up until the point of time when the decision to implement at GRM occurred. Mr Hansen said that he had not previously had experience in AH but had travelled to the Jimblebar Mine in Western Australia to observe operations. Mr Hansen agreed that BHP has put to employees that the experience at Jimblebar is a key driver in terms of the implementation of AH at GRM and that the safety performance at Jimblebar has been used by the Company to promote AH at GRM.

[91] In relation to his evidence about how AHTs operate, Mr Hansen said that the AH system controls the operation of the truck and the controller manages the system and its performance. Mr Hansen was also asked about the duties of the Controller with respect to the 24 hour plan at the Mine. Mr Hansen said that the mining and scheduling engineers on the site undertake a weekly planning cycle which is distilled into a 24 hour plan. In cross-examination, Mr Hansen had the following exchange with Mr Bukarica for the CFMMEU:

[91]

[92] Mr Hansen agreed that if the FrontRunner system was operating well there would be no reason to input information to change the direction or speed of AHTs and that these would be changed when the virtual mine did not match the physical mine due to an unforeseen event such as a rockfall, an obstruction on the haul road, a mechanical breakdown or a wi-fi outage. Mr Hansen also agreed that unplanned events would be a significant aspect of when the controller intervenes in the autonomous operation of the FrontRunner system. In contrast, the role of the Field Officer is to examine and survey the physical mine and make sure that what he or she has seen in a live sense, correlates with what the Controller has on the screen.

[93] In relation to the Field Officer role Mr Hansen agreed that:

The majority of working time will be spent in the autonomous zone and primarily in a light vehicle;

The work will be undertaken using a touchscreen tablet device allowing the inputting of information and interaction with the system to access the software;

The software has a drop down box or menu which allows Field Officers to create a different route for trucks to travel by marking out a virtual obstacle or an actual obstacle;

Field Officers are not involved in the development of the software and do not code or program tablets;

If a truck stops a field Officer may be required to board the truck to restart it; and

Trucks may be turned into manual mode and escorted out of the autonomous area if the AH systems fails.

[94] In response to the proposition that the Field Officer role involves punching keys in a pop-up screen, Mr Hansen said that - as an example - a rock on the road may stop an AHT because it has sensors and lasers that would detect the rock and stop the vehicle. Part of the Field Officer's role would be to identify the performance gap and get the vehicle moving again using problem solving and analytics. This would also be the case if the AHT was behaving in an unusual way because the angle the road or the radius of a corner is too sharp, the Field Office can adjust the haulage and the virtual mine so that the trucks can get back to their optimal plan. In response to a question as to whether competence to operate a haul truck is a pre-requisite for a Field Officer, Mr Hansen said: "I wouldn't say that it's 100 per cent prerequisite. It would be ideal".[36] Mr Hansen also agreed that it would be desirable for Field Officers to understand a little bit about open cut coal mining in a practical sense, including hazards, safety and health systems and other basic information.

[95] In relation to the qualifications for the Controller and Field Officer roles, Mr Hansen said it is his understanding that no university qualifications are required and there are no other educational prerequisites. Mr Hansen did not know whether they are required to supervise other employees and said that base level controllers would not have direct reports but may be appointed as supervisors at some point. Mr Hansen played no role in the process of reviewing the site SHMS but attended some meetings of focus groups and said that they were given information about reductions in safety events at Jimblebar. Mr Hansen was asked about safety incidents at Jimblebar and agreed that they are relevant in a number of ways to the implementation of AH at GRM and said that this type of information is discussed as part of the SHMS changes.

[96] Mr Hansen also agreed that BHP intends to implement AH at GRM in a staged manner over approximately two years. AH is a significant undertaking to get up and running. Trucks are required to be converted and at the point Mr Hansen gave his evidence, six or seven had been converted out of a total of 86 which are planned. The Mine is broken up into ramps and the AH process will commence at ramp 25. In response to the proposition that the implementation of AH would be a process of continuous improvement, Mr Hansen agreed that the entire fleet will not be deployed on day 1 and issues would be addressed as the implementation evolved. Mr Hansen did not agree that the first deployment would be a trial and maintained that the Company is buying something that has been in operation for a decade. There is no requirement to prove that the system works and at other mines it is just being turned on, although those sites have been designed specifically for AH.

[97] In re-examination, Mr Hansen said that the trucks are like a conveyor belt and the objective is to prevent interruption to that system or deviation from performance. The Controller can make changes to ensure that this objective is achieved. The job of Field Officers is to work with the controller by noting that something is not working and coming up with a plan to address it. This is less about pushing buttons and more about how they think and what changes can be made to get the outcome.

[92]

[98] It is not in dispute between the parties that the introduction of AHTs at the GRM engages the obligations contained in clause 15 of the Agreement and the Model Consultation Term. However, the CFMMEU contends that in addition to the obligations arising under the Model Consultation Term, there are additional obligations that arise under clause 14 in circumstances where BHP continues to press for the introduction of AHTs but has not attained the consent of a majority of affected employees.

[99] The CFMMEU submits that the dispute primarily concerns the proper construction of clause of 14 of the Agreement and its interaction, if any, with the Model Consultation Term. In its written submissions, the CFMMEU contended that when the principles established in Berri are applied, and in particular when the ordinary meaning of the words is considered, it is clear that clause 14 applies whenever the Company proposes to introduce any changes to the way work is ordinarily or customarily performed.

[100] The CFMMEU states that the ordinary meaning of the words in clause 14 is reinforced by a contextual reading of the clause. In relation to context, the CFMMEU submits that Clause 14 of the Agreement is a term of an enterprise agreement made under Part 2-4 of the Act. This, the CFMMEU states, is significant because it can be inferred from this fact that those who made the Agreement intended to establish binding obligations. The CFMMEU also submits that clause 14 forms part of a comprehensive and self-contained Agreement. In this regard, the CFMMEU submits that clause 1.5 of the Agreement indicates that the objective intention of those who made the Agreement was to insulate it from the operation of extrinsic sources of obligations, such as Awards or informal industrial agreements or practise. This point is said to be of particular significance, when considering any position put by BHP in reliance on general principles of managerial prerogative in order to colour the ordinary meaning of Clause 14. In pressing this point, the CFMMEU stated that it should be accepted that "when a large and sophisticated employer, with the capacity and resources of BHP has agreed to a term that impinges upon managerial prerogative, it has done so diligently and with a full understanding of the effect of such a term".

[101] The placement of Clause 14 in the Agreement was also said by the CFMMEU to be relevant. In this regard, it was submitted that clause 14 is located with other provisions relating to the way work is organised or performed, as well as how changes to work methods and organisation are to be implemented. The CFMMEU submitted that the clauses which most relate to the subject matter of Clause 14 are Clause 11 - Hours of Work and Rosters, Clause 12 - Starting and Finishing times, and Clause 13 - Overtime. Unlike these clauses, the CFMMEU submitted that Clause 14 is not qualified or restricted by reference to any particular type of work practice or arrangement. Had it been the intention of those making the Agreement to restrict the operation of Clause 14, the CFMMEU submitted that such a limitation could have easily been included.

[102] In addition to the ordinary meaning of the words in clause 14, the CFMMEU submitted that the heading of the clause "Continuous improvement" provides a meaning that is more particular to industrial relations and business management. The CFMMEU referred to the definition of the term "Continuous Improvement" as contained in the Oxford Dictionary of Business and Management[37] as follows:

[94]

[103] The CFMMEU submitted that in a business management sense, "continuous improvement" is a term that is concerned with improving the productivity and efficiency of an enterprise. In applying Clause 14 to the matter subject of this dispute, the CFMMEU submitted that the AHT proposal involves the introduction of new technology, methods of work, and the reorganisation of work in such a way as to radically transform the coal haulage operations at GRM. The CFMMEU referred to BHP's material that outlined the objectives of the introduction of AHT in relation to safety, performance, productivity, cost improvements and sustainability associated with investing in technology[38] as an indication that the AHT proposal falls within the ambit of continuous improvement.

[104] The CFMMEU also submitted that the substance of clause 14 of the Agreement is intended to provide a pathway for the introduction of a change to work practices and/or arrangements, where the majority consent of affected employees cannot immediately be obtained. In doing so, clause 14 balances the productivity and efficiency objectives of the Company against the impact of proposed changes upon employees. It does so by providing a trial process, during which employees or their representatives are able to raise concerns about the impact or effect of the trial, and to have such disputes dealt with by the Commission via a "fast tracked" disputes procedure. The CFMMEU submitted that the purpose of Clause 14, when viewed this way, might be described as "promoting the introduction of continuous improvement measures, whilst at the same time protecting employees from potentially "harsh, unreasonable or unjust" outcomes".[39]

[105] The CFMMEU submitted that given such a purpose, confining the operation of Clause 14 in a way that prevented its application to major or significant workplace changes is "logically inconsistent".[40] The CFMMEU also submitted that clause 14 and the Model Consultation Term in clause 15 are fundamentally different in content and serve different purposes. Clause 15 is concerned with "consultation" with employees over the types of changes proposed by an employer falling within the ambit of the Model Consultation Term. The Model Consultation Term does not oblige an employer to do anything other than "consult" in the manner prescribed. The CFMMEU submitted that whilst the notion of consultation adopted is broad and beneficial to employees, it does not provide for any specific rights or protections for employees other than those related to the delivery of a proper consultation process.

[106] The CFMMEU further submitted that the specific consultation requirements in the Model Consultation Term do not apply in circumstances where an enterprise agreement has a term that "provides for a major change to production, program, organisation, structure or technology in relation to the enterprise of the employer". In this regard, clause 11.5 deals with the right of the employer to implement new rosters or roster arrangements and the CFMMEU submits that in circumstances where proposed new roster changes constituted a major change, clause 11.5 would displace the Model Consultation Term. Similarly, clause 32 of the 2018 Agreement would displace the Model Consultation Term provided that the scale or nature of the redundancies constituted a major change. In oral submissions in reply it was further clarified that if a mine was to be closed and this would result in redundancies, clause 32 of the Agreement comprehensively deals with that subject so that clause 14 also would not apply.

[107] Accordingly, the CFMMEU submitted that in the present matter, a harmonious reading of clause 14 and the Model Consultation Term would see clause 15 invoked at the first instance, followed by the process provided in clause 14. Such a reading is subject to the assumption that the Company was not able to obtain the consent of a majority of affected employees to the introduction of AHT and wished to continue to implement the proposal.

[108] The CFMMEU submitted that this is the proper interaction between the two clauses on the basis that the AHT proposal encompasses a broad range of measures beyond simply rosters or hours of work. The AHT proposal involves "major change" that would have significant impacts on affected employees. Therefore, the current consultation exercise undertaken by BHP is appropriate but forms only part of the obligation that needs to be met in relation to the proposed implementation of AHT, as Clause 14 also applies in the particular circumstances.

[109] The CFMMEU noted that this does not mean that BHP is in an "endless loop" in respect to its obligations to consult with employees over the AHT proposal, submitting that properly construed, clause 14 is not a consultation provision as it does not require the consultation processes envisaged in the Model Consultation Term. The only reference to consultation is in subclause 14(a) in relation to the employer being required to provide employees with the "business reasons supporting the proposals". However, the term "business reasons" is later clarified in subclause 14(j) to mean "an overview of the key financial and/or efficiency benefits that will accrue to the mine from the proposal" and not a detailed business case.

[110] The CFMMEU submitted that accordingly, clause 14 is principally concerned with providing the employer with a path to introduce a change to work practices and arrangements in circumstances where a majority of affected employees do not consent to the proposal. Because of this character, the CFMMEU submitted that Clause 14 would not interfere with the operation of clause 15.2 which states that "(i)n all circumstances, only a single consultation process will apply".

[111] The CFMMEU submitted that, for the reasons described above, Clause 14 does not contain a consultation process, and therefore, cannot operate as an alternative to the Model Consultation Term in clause 15. In oral submissions, Mr Bukarica for the CFMMEU highlighted that clause 14 exists in a legally binding document - the 2018 Agreement - indicating that the parties intended that it have a binding effect. Accordingly, the fact that it is rarely used, does not meant that clause 14 can be ignored. The introduction of AHTs was also submitted to be a matter relating to continuous improvement as that term is commonly understood. In relation to the interaction of clauses 14 and the Model Consultation Term, Mr Bukarica submitted that they operate on different subjects and have different purposes. The clauses can operate independently and in accordance with their own terms. The Model Consultation Term is primarily concerned with consultation over major change, with a subcategory of hours of work or roster changes, affecting an individual employee. Clause 14 does not require a detailed and specific consultation beyond the employer making a basic business case and is an implementation or trial provision rather than being concerned with consultation.

[112] BHP's submissions in relation to this question were said to comprise three propositions. The first is that clause 14 applies to minor or incremental change. This would require words to be read into clause 14. The second is that the CFMMEU's construction leads to an industrially absurd outcome, which is not the case. The third is that the Model Consultation Term displaces obligations under clause 14. In relation to the third proposition, the CFMMEU referred to the Full Bench decision in Auld and Ors v Teekay Shipping (Australia) Pty Ltd[41] as authority for the proposition that the model consultation term does not trump other clauses in an enterprise agreement which also deal with similar subject matter, and that those other clauses must be given some work to do.

[113] On the construction of the clauses advanced by the CFMMEU, clause 14 would require BHP to go to the affected employees and put the case about the AH system. If they agreed with the proposal via a vote or some other mechanism, that would be the end of the operation of clause 14. If the employees did not agree, the Company could conduct a trial. This would be consistent with the timing and the way in which AH is being introduced at the Mine in any event given the limited roll out and the staged approach and there is no practical reason why clause 14 could not be complied with. This is also an answer to the assertion by BHP that the CFMMEU's construction of the clauses would lead to an industrially absurd outcome. It was submitted that the only additional element that clause 14 puts into the process is that employees have input into the trial and some protections in relation to what may fall out of it. While the Company may not like this outcome, it signed up to an Agreement that provides for it.

[95]

[114] The CFMMEU contends that BHP has failed its obligations under Clause 15 to provide specifically requested material to the CFMMEU in its capacity as a representative of employees affected by the AHT proposal on two grounds. The first being that the Company has adopted a stance that impermissibly narrows the notion of consultation in Clause 15 so as to exclude any consideration of the safety and health effects associated with the introduction of AHT. The second is that the Company has conflated the existence of relevant material that was created prior to the introduction of the AHT, with material going to the "reasons for" the introduction of the AHT.

[115] The CFMMEU referred to the Model Consultation Term in clause 15 of the Agreement, noting that it requires the Company to provide "all relevant information about the change including the nature of the change proposed; and information about the expected effects of the change on the employees; and any other matters likely to affect the employees". The Model Consultation Term excludes material from the consultation process if the material falls into the definition of "confidential or commercially sensitive material". Accordingly, the CFMMEU submitted that the information sought in its letters of 26 November 2019 and in the context of formal meetings should not be problematic for the Company.

[116] In relation to the second ground, the CFMMEU conceded that the operation of clause 15 proceeds on the basis that a definite decision to implement the major change has been made. However, the CFMMEU submitted that the acceptance of that proposition does not mean that any relevant information in the possession of the Company that existed, or was generated, prior to the definite decision being made is excluded from the operation of Clause 15.

[117] The Union submitted that it sought material that existed prior to the definite decision to implement AHT in respect to safety and health issues, and in respect to the prior trial of AHT operations conducted by the Company on other mines sites. The CFMMEU stated that it sought this information to understand the impacts and challenges that the roll out of the AHT at GRM will entail.

[118] In oral submissions it was contended that the evidence including exchanges of correspondence between Mr Smyth and Ms Ryan, indicate that there was a consistent and explicit refusal by the Company to provide relevant safety information at various points. It was also submitted that Ms Ryan had provided a range of reasons for the non-provision of the information including that there is a distinction between the provision of safety information generally and material relating to SHMS.

[119] It was submitted that this position was inconsistent with the employer's own presentations to employees on 12 and 14 September 2019. Those presentations dealt to some extent, with changes to the SHMS on site and it appeared that where the Company saw fit to produce material it was ok, but the Union requesting such material was outside the Company's obligations. The CFMMEU also pointed to the position adopted by Ms Ryan that information about the Company's reasons for implementing AH, as distinct from the effect on employees of AH, was outside the purview or scope of the Model Consultation Term. This was said to be a further shift in position on the issue of the provision of safety information.

[96]

[120] It is the position of the CFMMEU that the new roles, Mine Controller (AH System) (Controller) and Field Officer (AH System) (Field Officer) fall within the scope of the Agreement. The CFMMEU submitted that the response received from BHP to its correspondence in relation to this matter did not particularise the reason why the Company contends that the work to be performed by the new roles falls outside of Schedule A of the Award.

[121] The CFMMEU referred to clause 1.1 of the Agreement and submitted that it provides for five criteria that determine whether an employee is covered by the Agreement, being: the person must be an employee of BHP; the employee must be employed at one of the listed coal mines covered by the Agreement; the "work" of the employee must be covered by Schedule A of the Award; the employee must be engaged in a 'classification' prescribed by the Agreement; and the employee must be a member, or eligible to be a member, of any of the listed Unions.

[122] The CFMMEU stated that the first two of the five criteria are satisfied in respect of the new roles of Controller and Field Officer on the basis that the proposed positions are located at the Goonyella Riverside Mine and BHP has already invited existing employees to apply for these positions. Further, the CFMMEU noted that there has been no suggestion that the proposed roles will be employed by any other corporate entity other than BHP.

[123] With regards to the third criteria identified by the CFMMEU, that being the "work" of the employee must be covered by Schedule A of the Award, the CFMMEU considered the term "perform work covered by Schedule A of the Award..." in the context of Clause 1.1 of the Agreement. The CFMMEU submitted that the ordinary meaning of the word "work" is the bundle of tasks or duties that the employee performs for BHP whilst employed on its mine sites. In advancing its arguments, the CFMMEU submitted that those who made the Agreement clearly intended that the "work" performed by employees under the Agreement should be entirely contiguous with the scope of "work" covered by Schedule A of the Award.

[124] The CFMMEU considered the content and history of Schedule A in its submissions, noting that during the Award Modernisation process in 2008, the new classification structure now known as Schedule A of the Award was inserted, as well as a separate structure applicable to "Staff" employees inserted into the Award as Schedule B. The CFMMEU submitted the Schedule B, in contrast to the type of classification structure contained in Schedule A, "reflects a much more traditional approach in which there are relatively narrow, fixed classifications such as "laboratory technician", "mine surveyor", "metallurgist" and "under-manager (in charge)". The CFMMEU submitted that the notion of classification contained in Schedule A of the Award is completely different to Schedule B of the Award and is intended to take into account emergence of new agglomerations of skills and competencies, including those deriving from the introduction of new technology.

[125] With regards to the fourth criteria, that being "engaged at Mines in the classifications prescribed by the Agreement", the CFMMEU noted the various references to the term "classification" throughout the Agreement, and concluded that in order to understand the fourth criteria, the context of the Agreement must be considered as a whole. The CFMMEU referred to the usage of the term in clause 15 of Schedule 1 and subclause 32.8, that deals with Redundancy. The CFMMEU submitted that the term 'classification" has a determinative link with the rate of pay to which an employee is entitled, and that the classification prescribed by the Agreement also "prescribes" or determines the rate of pay applicable to an employee. This interpretation is supported by the mine specific Schedules which form part of the Agreement. In relation to the Goonyella Riverside Mine Schedule, there are two classifications- the "production" and "maintenance" classifications.

[126] The CFMMEU then turned to Schedule A of the Award, noting it contains five generic classification levels, two of which reflect new entrant classifications. The classifications are: Mineworker - Induction Level 1; Mineworker - Induction level 2/Mineworker - Training; Mineworker; Mineworker - Advanced; and Mineworker - Specialised. The CFMMEU submitted that the closest that Schedule A comes to the classification of Schedule B is where the Schedule refers to "indicative competencies" at clause A.5 of Schedule B. However, the CFMMEU contended that it is clear that "indicative competencies" referred to are not classifications, and rather the term refers to the type of skill or qualifications that determine advancement in the Schedule A classification structure.

[127] In interpreting the "classifications" in the Agreement and Schedule of the Award, the CFMMEU submitted that the necessary conclusion is that the parties to the Agreement have opted for a flat classification structure that has compressed all of the five levels in Schedule A into one or two levels within the Agreement. In the case of GRM, these two levels are the "production" and "maintenance" employees' classifications.

[128] The CFMMEU submitted that this means that the "classification rate" referred to at clause 32.8 referred above can be found in the Agreement mine Schedules as it is the classification prescribed by the Agreement. The CFMMEU noted that the "work" applicable to the employees engaged under the agreement can only be found by examining what an employee actually does and by assessing whether those duties fall within the scope of Schedule A of the Award. In this regard, the CFMMEU submitted that the main determining factor of whether the "work" of an employee falls within Schedule A of the Award, is an assessment of whether the work is "production" and/or "engineering" work.

[129] The CFMMEU referred to the Resources and Infrastructure Industry Training Package (RIITP) developed by the Coal Industry Reference Committee, which consists of comprehensive collective competencies that are applicable to the quarrying, civil construction, metalliferous mining and coal mining industries. The relevance of the RIITP to the classification in Schedule A of the Award, as noted by the CFMMEU, is that the Schedule envisages "...a list of mine site competencies to be developed. Each mine's indicative competencies will use as a guide the competency standards contained in the Coal Industry Training Package."[42]

[130] The CFMMEU also referred to subclause 5.1(b) Training of the Agreement, and noted that there appears to be a reference to the "list of minesite competencies" in subclause 5.1(b) "Training". The clause is as follows:

[98]

[131] The CFMMEU submitted that the list of skills and competencies maintained at GRM would be useful in understanding the relevant skills required to perform relevant "production" or maintenance work. However, the CFMMEU was unable to obtain the skills mix list. Nonetheless, the CFMMEU considered the work of a Controller and a Field Officer on the basis of the material provided and contends that the roles fall within the scope of the Agreement on the following bases:

The essential role or function of the Controller is to remotely operate the AHTs via a computer interface.

The Field Officer performs production work that is integral to mining operations on the site.

The Controller and Field Officer performs production work that falls within Schedule A of the Award, albeit that the work performed involves using computer or digital technology.

The Controller and Field Officer roles are not professional, administrative or supervisory and do not fall within the narrow classifications contained in Schedule B of the Award.

Confirmation of the nature of the work performed by Controllers and Field Officers can be found in the units of competency developed as part of the RIITP.

The work of Controllers and Field Officers has some similarity with other production roles currently performed on coal mines and falling within the scope of Schedule A of the Award.

In the context of the Agreement, Controllers and Field Officers would be properly classified as a "production" employees and would be entitled to the applicable rate of pay contained in Schedule 4 Goonyella Riverside Mine of the 2018 Agreement.

[132] The fifth criteria identified by the CFMMEU, that the employee must be a member, or eligible to be a member, of any of the listed Union, was also considered in determining the roles of Controller and Field Officer fell within the scope of the Agreement. The CFMMEU contended that its eligibility rules are more than sufficient to cover the proposed roles, and referred specifically to Rule 2(D):

[100]

[133] The CFMMEU submitted that the broad scope of its eligibility rule, that has been subject to judicial and arbitral consideration, means that the CFMMEU is entitled to recruit employees engaged in or in connection with the coal industry in diverse roles. Accordingly, the CFMMEU submitted that as new roles are established by BHP "in or in connection with coal or shale industries", the CFMMEU is entitled to recruit those employees.

[134] In its reply submissions, the CFMMEU contended that the assertion by BHP that the positions of Field Officer and Controller are new and entirely different positions and are qualitatively different from anything else at the Mine, is a factually incorrect premise, relying on outdated notions concerning the use of technology by blue collar workers in contexts such as the mining industry. It was also contended that this perspective posits a notional dividing line between "production employees" and "staff" based purely on the use of technology or equipment, rather than focusing on the nature of the work performed and the competency and qualifications. This approach is contrary to the manner in which the Black Coal Mining Industry Award applies.

[135] Applying the principal purpose test to the 2018 Agreement and the Award, the main determinative factor of whether the work of an employee falls within Schedule A of the Award, is an assessment of whether the work is production or engineering work - that is the work must be directly connected to the activity of mining or transporting coal, or to the maintenance of equipment essential for these purposes. The CFMMEU contends that this is the case with respect to the Controller and Field Officer positions.

[136] The CFMMEU also contends that the term "Controller" may be a misnomer, given the evidence of Mr Hansen to the effect that the FrontRunner system controls the operation of the AHTs and not the Controller, who simply interfaces with the system, and that this is an attempt to erect a defence to the CFMMEU's submissions that the Controllers "operate" the AHTs and have effectively replaced the roles of human haul drivers. It is the very nature of autonomous or semi-autonomous systems that they generally operate free from human interaction, and according to set parameters. It is critical that the operator of any such system can intervene to adjust set operating parameters or completely override them. Critically, the operator of any autonomous mining system, regardless of the level of sophistication, has the capacity to stop the system and thereby stop the operation of the system that is under its control. This is the case with respect to Controllers and Field Officers.

[137] According to the CFMMEU, it cannot be contended that the use of sophisticated software in the contexts described in Mr Watts' evidence, renders the human operators of those machines as something other than an operator. The better approach is to regard the use of computerised mining machinery in the coal mining industry as part of a continuum with some machinery at the low end of the technological spectrum and other machinery at the high end. The common denominator in each case is that they require human operators in order to successfully complete their core function of mining coal. A useful analogy is the sophisticated autopilot systems in passenger aircraft. Those systems do not mean that the pilot is not operating the aircraft. The CFMMEU contends that the position advanced by BHP involves employing an artificial distinction to obscure the fundamental purpose of the role of Controller, which is to operate AHTs for the purpose of mining coal.

[138] In relation to the Field Officer role, the CFMMEU pointed to the document "A Day in the Life of ... a Field Officer" produced by BHP[43] which evidences that the Field Officer spends most of the working day in a light vehicle in the autonomous zone. The Field Officer is supplied with an iPad and is charged with ensuring that the physical layout of the autonomous zone correlates with the virtual version on the computer screens viewed by the controller. The "data management" referred to by BHP is simply inputting information into the iPad concerning that actual physical conditions that exist in the autonomous zone. There is no programming or data analytic skills that are required to input this information and it involves a similar level of skill or responsibility to other production roles on site, involving the use of computers or digital devices. It is also clear that the Field Officer will need to have at least basic operator competencies because part of their responsibilities is to manually operate an AHT in certain circumstances. It is therefore likely that the Field Officer will be drawn largely from employees who have a background in the operation of haul trucks and other mining equipment.

[139] The CFMMEU also submitted that BHP has attempted to create a distinction as to why the roles of Controller and Field Officer are not covered by the Black Coal Mining Industry Award and therefore the Agreement, on the basis of the assertion that all of the work described in Schedule A of the Award is only concerned with the direct physical use, operation or maintenance of mining equipment and/or vehicles. In response the CFMMEU submitted that there is nothing in Schedule A of the Award to indicate that the work covered is only concerned with the direct physical operation of mining machinery or its maintenance. The only limitation can be implied from the title of the Schedule - it applies to production and engineering work in the coal mining industry.

[140] The types of work cited by BHP in its submission are indicative competencies and the list is not exhaustive. The CFMMEU submits that it is relevant that Schedule A of the Award was introduced in 2001 and it is not surprising that competencies that form part of the Resource and Infrastructure Industry Training Package relating to autonomous mining production processes are not cited. The CFMMEU also submits that the classification structure in Schedule A of the Black Coal Mining Industry Award is intended to be flexible and broad banded, allowing for new agglomerations of skills and competencies. This is to be contrasted with Schedule B which contains a relatively rigid and traditional classification structure. The CFMMEU agrees with BHP's assertion that Schedules A and B of the Award are mutually exclusive, but maintains that the managerial, supervisory or administrative classifications in Schedule B are not competency based and broad banded, so that BHP cannot suggest (as it appeared to do) that the Controller and Field Officer roles are "more aligned" to certain classifications in Schedule B.

[141] In oral submissions, the CFMMEU contended that there is no contest or factual issue in relation to coverage other than whether the work of Controllers and Field Officers perform work that is covered by the Black Coal Award and whether those roles fall within a classification in the Agreement. It was submitted that the Black Coal Award has a single stream, broad banded, flexible structure, which replaced the previous structure. The indicative competencies that are referenced in the Black Coal Award are not exhaustive. The fact that they do not refer to computerised technology is not something that indicates that such competencies do not exist and it does not indicate that they are inapplicable to progression through the classification structure in Schedule A.

[142] Notwithstanding any criticisms made by the Respondent about Mr Watts' level of understanding or appreciation of the documents appended to his witness statement, that does not detract from their essential value. The documents speak to the development of specific competencies relating to autonomous mining operations (albeit in the metalliferous mining sector) and indicate that those competencies are considered to be equivalent to AQF levels for Certificate II and III, with Certificate III reflecting a trade level qualification. There is also evidence that work has commenced on adapting competencies relating to autonomous operations relevant to metalliferous mining, for use in the to the coal mining industry. Reference was made to Mr Hansen's concession in cross-examination that there are no formal qualifications or educational prerequisites for the Controller and Field Officer roles, and to Mr West's evidence that to the best of his knowledge, there are two controllers whose prior employment was as haul truck operators at the Mine. Reference was also made to the evidence that neither of the roles involve direct supervision of other employees.

[143] The CFMMEU submitted that BHP has not engaged with its submissions and the detailed analysis of Schedule A of the Black Coal Award, other than to say the submissions lead to every employee on site being covered by the Award. That is not an accurate reflection of the CFMMEU submissions which are that the person must be directly engaged in production and engineering activities, that is, principally engaged in the function of mining coal or maintaining the equipment which mine coal. The mere sophistication of technology is not indicative of Award coverage and the fact that an employee is "interfacing" with technology does not mean that the employee is other than an operator or controller of the production method. Further, the fact that someone operates plant via an intermediary operating system does not make that person less an operator of that plant. Ultimately the Controller does control the haul trucks and the fact that there is an autonomous system between the Controller and the machine does not result in the Controller being something other than an operator.

[144] Both roles are integral to production work at GRM and will be directly engaged in mining coal. Neither role is administrative, professional or supervisory. There is also some similarity in terms of the nature of the work undertaken with that of other production workers at the Mine who use computer technology.

[101]

[145] BHP contends that the Agreement separately provides in Clause 14 and Clause 15 and the Model Consultation Term, for two different types of change and that a different set of preconditions, obligations and consequences attach to each. Clause 14 and the Model Consultation Term in clause 15 each apply only to the type of change for which it provides, and by definition, there is no overlap in the application and operation of the two clauses.

[146] As to what clause applies to the matter in dispute, BHP submitted that reference is to be had to the type of change that is under consideration. It is BHP's position that the change effected by the implementation of AHT is the type of change identified in the Model Consultation Term in clause 15. The Model Consultation Term requires consultation in respect of "major workplace change". It applies when BHP has made a definite decision to introduce major change to the production, program, organisation, structure or technology of its enterprise and the decision is likely to have a significant effect on employees. The Model Consultation term, according to BHP, deals with revolutionary change. BHP also submitted that there is no dispute between the parties that the implementation of AHT at GRM is a major workplace changes that engages Clause 15 of the Agreement.

[147] BHP submitted that there are no additional obligations under Clause 14 of the Agreement. Clause 14 deals with change in the context of continuous improvement and applies when BHP proposes "a change to work practices and/or arrangements" in circumstances in which the majority of affected employees do not agree. BHP submitted that clause 14 provides a regime for evaluating by means of a trial, the impact on workers of proposed changes to work practices or arrangement and therefore, deals with evolutionary change.

[148] In response to the CFMMEU's contention that clause 14 applies to all changes, not just to work practices and/or arrangements, regardless of whether the change is considered a major workplace change, BHP submitted that this construction of Clause 14 is textually incorrect and also purposively and industrially nonsensical.

[149] In its written submissions, BHP emphasised the terms used in the clauses, and that clause 14 applies to "proposed changes to work practices and arrangements", whereas the Model Consultation Term applies to a "definite decision" to introduce "major changes" that are likely to have a significant effect. BHP submitted that the argument of the CFMMEU ignores the significant difference between the term "proposed" in Clause 14 and the term "definite" in Clause 15, and also depends on the premise that "work practices and/or arrangements" and "major changes that are likely to have a significant effect" have the same meaning.

[150] BHP submitted that the terms do not have the same meaning, are not interchangeable and apply to different things, and that the interpretation contended for by the CFMMEU would deprive one or the other term of its true meaning.[44] BHP also submitted that the consequence of the approach adopted by the CFMMEU is that BHP would be required to trial the implementation of AHTs for the sole purpose of determining the impact on employees in circumstance in which:

There is nothing that a trial is relevantly required to test or establish, as the impact on employees is already known after the application of Clause 15.

The parties already know that the role of haul truck operator will no longer exist, and that employees currently in that role will instead be either retrained to operate existing ancillary equipment or have the opportunity to apply for a new position created by the implementation of autonomous haulage. Those effects on employees have been the subject of detailed consultation.

• The trial could not occur without implementing the major change. If the introduction of AHS was a change to work practices within the meaning of clause 14, a trial could not be undertaken without actually implementing everything that has been definitely decided and addressed in the clause 15 process, such as Mobilisation of Komatsu to site, commitment of major capital expenditure (including major civil expenditure on GPS, radar hardware and technology, truck conversions, fitout expenditure), purchase of the software and data systems, recruitment, training and mobilisation of AHS Controllers, Field Officers, Service Technicians, and other specialist staff.[45]

[151] BHP submitted that the six month trial period (or significant parts of it) under Clause 14 could be over before the first AHT began operating. In this regard, Mr Hansen's evidence as to the status of implementation of AHT at GRM at the point Mr Hansen gave his evidence is that the first vehicle has still not been "turned on" and training of the first recruits has not commenced.[46]

[152] BHP submitted that in addition, according to CFMMEU's approach, clause 14 would have no effective work to do when the affected employees are not involved in the trial, the cost of trialling of autonomous haulage would be prohibitive and the Commission would have the power to decide whether autonomous haulage is introduced by BHP on the sole criteria of whether it was harsh, unreasonable or unjust on affected employees.

[153] If the CFMMEU's interpretation was applied to a change that comprised the closure of the mine, with the necessary redeployments, redundancies and terminations. it would be "absurd" to suggest that BHP would be required to trial a closure, redeployment, termination or redundancy.

[154] Accordingly, clause 14 cannot have the operation as claimed by the CFMMEU and BHP submitted that the consequences of the CFMMEU's interpretation are not just contrary to the text and context of the agreement, but also could not have been intended by the framers of the Agreement.[47]

[155] In response to CFMMEU's contention that a harmonious reading of Clause 14 and the Model Consultation Term would see the Model Consultation Term in Clause 15 invoked in the first instance followed by the process in Clause 14, BHP submitted that this construction of the Agreement is misconceived for the following reasons.

[156] First, BHP submitted that an examination of the text of Clause 14, having regard to context and purpose, makes clear that Clause 14 is concerned with minor and incremental changes to current practices or arrangements, not major workplace changes. BHP submitted that the words in the title of Clause 14, "continuous improvement", when considered together, are suggestive of a process of enhancing something that is already in existence in a gradual or incremental way.[48] The words "practice" and "arrangements", as submitted by BHP, refer to the way that work is performed, and in the context of Clause 14, must be read together with the words "continuous improvement". In contrast, clause 15 and the Model Consultation Term sets out obligations in relation to major workplace changes and as such, the two clauses have different subject matter and are engaged by change of two different and mutually exclusive characters.

[157] Second, with respect to the language of the clauses, the Model Consultation Term applies when BHP has made a "definite decision" to introduce major change, whereas clause 14 is engaged when a change is proposed by BHP. There is nothing in the language of clause 15 that requires compliance with clause 14 before BHP can make a definite decision to introduce workplace change, or the other way around.

[158] In response to the CFMMEU contention that the Model Consultation Term in clause 15 applies first, followed (once that process is complete) by the process in Clause 14, BHP submitted that if it was intended that Clause 14 was to act as a precursor to Clause 15 in respect to major workplace change, this would have been made explicit in the 2018 Agreement, which it is not.

[159] Third, BHP took issue with the CFMMEU's suggestion that clause 14 can apply before the Model Consultation Term in clause 15, submitting such an approach is an internal contradiction with respect to the clauses. In advancing its position, BHP submitted that clause 14 is not a consultation provision, and that it only requires that BHP provide to the affected employees the business reasons for the change, as well as the duration for the proposed trial. If there is no agreement and BHP wishes to proceed, BHP must then conduct the trial. This is the decision that enlivens employees' rights to complain to the Commission. BHP submitted that once the process set out in Clause 14 has been completed, there is no purpose or benefit to employees from the consultation process set out in Clause 15 as, having been subject to a trial, the employees would not require further information about the change and there would be no conceivable purpose to consult.

[160] Fourth, BHP submitted that the manifest purpose of clause 14 is to provide a mechanism for trialling changes proposed by the Company in the context of continuous improvement. For the clause to be engaged, there must first be something that is capable of being trialled, and some purpose to conducting the trial. These factors are often absent in relation to major workplace changes because of the very nature of such changes. BHP drew on the example of a closure of the mine and stated that there would be no operability in trialling a workplace change that resulted in the termination of the employment of an employee. Further, if a change is covered by the Model Consultation Term, the impact employees had already been assessed as one that is likely to be significant. As such, BHP submitted that there is nothing further to ascertain about the impact of the change under clause 14.

[161] The fifth reason advanced by BHP is in relation to the Agreement and the role of the Commission. BHP submitted that Clause 14 was never intended to apply to major workplace change, and that this is further demonstrated by the power provided to the Commission under clause 14. BHP noted that at two stages during the trial, the affected employees may progress a dispute to the Commission to seek to have the trial cease or amended or not proceed on the basis that the proposal is harsh, unreasonable or unjust on the employees in the context of continuous improvement. In determining whether the change proceeds or not, the Commission is not required to consider any other factors, such as the business case of the Company, and is only required to consider the effect of the proposed changes on the employees.

[162] BHP submitted that such a regime would never apply to a major workplace change and contended that the drafters of the Agreement would not have intended that the ultimate fate of whether a major change of the kind contemplated by the Model Consultation Term proceeds, would be finally determined by the Commission, on the sole criteria of the effect on employees.

[163] In oral submissions, Mr Coonan for BHP submitted that subclause (8) of the Model Consultation Term clause 15 provides that if a term of the 2018 Agreement provides for a major change the requirements in subclauses (2), (3) and (5) do not apply. If the CFMMEU's submission was accepted, and clause 14 does cover a major change in technology or organisation or structure, then BHP would not be required to notify the employees, consult with or recognise the Union, or provide any information. It was also submitted that the CFMMEU had failed to answer questions as to how clause 14 would operate in circumstances of redundancy or the closure of a mine. Further, the CFMMEU's submission to the effect that BHP does not have to use clause 14 for a roster change, is inconsistent with the position taken in a previous dispute subject of arbitration by the Commission as presently constituted.

[164] In relation to context, it was submitted that regard should be given to the uncontested evidence of Mr McKenzie about the operation of clause 14 and that it was rarely used, and that this was a common understanding. Further contextual matters were submitted to be that other clauses dealing with matters such as roster changes and redundancy, make clear that clause 14 is not intended to cover every change the employer wishes to make.

[102]

[165] BHP accepted the submission of the CFMMEU that the second question involves questions of fact and law but maintained that the question of law came first. That question is whether there is there an obligation to provide the material. In its written submissions, BHP noted that the CFMMEU sought additional information on the following:

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

The safety benefits of autonomous haul trucks relied upon by the Company in its decision to implement autonomous haul trucks at GRM coal mine;

The training program to be conducted as a result of the implementation of autonomous trucks at GRM.

[166] BHP summarised the elements established in Communications, Electrical, Electronic, Energy, Information, Postal, Pluming and Allied Services Union of Australia v QR Limited regarding the obligation to consult as follows:[49]

The party being consulted is given notice of the subject upon which their views are being sought before any final course of action is embarked upon.

The party being consulted is afforded the meaningful opportunity to present their views (and what will constitute such an opportunity will depend on the nature and circumstances of the case).

A right to be consulted is not a right of veto.

There is no specific right to documents, only information.

[167] BHP submitted that it does not have an obligation to seek or reach an agreement in respect of the decision to implement AHTs at GRM with employees, as consultation is not an exercise in collaborative decision making.[50] BHP submitted that it is required to provide affected employees with information that would describe the matter for consultation (i.e. implementation of AHTs at GRM) and is reasonably necessary in order to allow affected employees to make suggestions in respect of the implementation of AHTs at GRM.[51]

[168] BHP submitted that a contravention of a consultation obligation is not provided by a failure to provide each and every item of information requested. What is necessary, is an examination of the whole of the circumstances, including the nature and extent of the information provided and not provided, so as to determine, objectively, whether the requisite genuine opportunity has been extended to employees.[52]

[169] It is BHP's position that in this case, a genuine opportunity was provided, and the consultation obligation has been met by the Company. In advancing its position, BHP outlined the dates it met with employee representatives and Union Officials, and tendered evidence that was said to establish that it provided detailed explanation of the introduction of the change and its nature including safety features and levels of protection. Information was also provided on the effects of the change covering:

The expected effects on safety, PL4 incidents, injuries and illness, human interactions and expected overall improvements;

The new infrastructure and truck conversion program;

The new organisational structure; and

The new maintenance regime.

[170] Employees were provided with information on the impact of the introduction of AHT in relation to the new employment organisational structures; the reduction in operator roles in pre-strip and coal mining; the new skills matrix; and the fact that there would be no effect on rosters. With respect to measures to mitigate effects on employees, they were informed that there would be no redundancy; training and upskilling would be available for employees to operate alternative ancillary equipment for those who sought it (diggers, graders, dozers); the new positions available; and that there would be training available for all employees in relation to working safely in autonomous zones.

[171] In relation to CFMMEU's request for information pertaining to prior trials, BHP submitted that CFMMEU has not placed a limit on the request for information, and that it has not shown how the information given to employees on the nature and effects at GRM is deficient in its compliance or that the additional information sought is needed to describe the matter for consultation or reasonably necessary in order to allow affected employees to make suggestions in respect to the introduction of autonomous haulage systems at GRM.

[172] BHP, in response to the CFMMEU's claim for additional information on the safety benefits of AHT, submitted that it provided employees and the CFMMEU detailed information on those matters and on how the safety systems work in the consultation meeting on 14 November. On 20 November 2019, BHP provided further information in the meeting and this was confirmed in the meeting of 9 December 2019.

[173] In relation to the training information sought by the CFMMEU, BHP submitted that detailed information was provided to employees and the CFMMEU in the first consultation meeting covering: all employees will receive 2-3 hours AHT awareness training; the new positions will receive a further 15 days of theory and practice training; the training approach; and the role of the Komatsu trainers and BHPC's plans to develop internal capacity. In addition, BHP submitted that on 3 December 2019, it provided a breakdown of the FrontRunner training modules, a breakdown of the roles required for each module; and a calculation of the expected training hours. BHP submitted that the correct response to question 2, is that it has no additional obligations.

[174] In oral submissions, BHP dealt with the distinction between the process under s. 10 of the Coal Mining Safety and Health Act with respect to the SHMS and the process under clause 15 of the Agreement. in relation to the s. 10 process, it was submitted that decisions are outside the hands of BHP and it is the SSE who determines the cross-section of workers to be involved. The Coal Mining Safety and Health Act and Regulations then requires that statutory nominated parties determine the effect of change on the SHMS, the principal hazard management plans and the standard operating procedures. There are also provisions for various persons including employees, OCEs and (Site Safety and Health Representatives) SSHRs to provide exceptions to the SSE. These are separate processes and cannot be undertaken as part of the consultation process under clause 15 of the Agreement and the Model Consultation Term. All that BHP did was tell employees that these matters would be dealt with under the review of the SHMS rather than the clause 15 consultation process.

[175] It was submitted that the CFMMEU's argument in relation to this question is to simply assert that if the Union asks for information it must be given so that the Union can work out if there are any effects. That is not the test under the model consultation clause.

[103]

[176] BHP submitted in determining whether the roles of Controller and Field Officer fall with the scope of the Agreement and whether the work performed in these roles is work that is covered by Schedule A of the Award, the test to be applied is the principal purpose test, as set out in Brand v APIR Systems Ltd.[53]

[177] That test requires an assessment of the principal purpose of the employee's employment, focusing on an examination 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 purposes for which the employee is employed. Once the principal purpose of employment has been identified, a factual analysis is required to determine whether the employee is covered by the 2018 Agreement and an award classification, with reference to the following matters:[54] the employee's tasks and responsibilities; the principal purpose of the employee's employment; and the terms of the particular award.

[178] Addressing the "nature of the work" element, BHP submitted the roles of Controller and Field Officer support the operation of AHT and therefore must be understood in that context. That context is:

AHS is an integrated system of hardware interfacing with software and technological infrastructure that operates the AHT fleets through applications such as interactive mine mapping and lasers, radar, and GPS technology.

The Komatsu FrontRunner system used at GRM operates as a complete technology solution that controls each AHT.

AHT operate automatically under the control of the FrontRunner system.

AHS Controllers and others operate the FrontRunner system from their work stations by applying data to systems technology.

Autonomous haulage is not remote control of trucks. It is the FrontRunner system that operates the AHT. The AHT operate automatically, under the control of the system. They are not operated by any person.

The AHS software program generates and communicates instructions to each AHT with details about a virtual mine model and the predicted path of each AHT.

The AHT then follows the instructions communicated by the program to automatically follow a predicted path, and to independently drive, accelerate, brake, steer, and indicate to automatically:

follow that predicted path or any new assigned predicted path to navigate haul roads and intersections;

maintain a pre-defined speed; and

arrive at and leave the loading and dumping destinations to which they are assigned.

The predicted paths are assigned by Controllers AH Systems (Controllers) from time to time to meet the daily mine plan and are surveyed and plotted by Field Officers as needed from time to time.

[179] In response to the CFMMEU's submissions regarding the role of the Controller, BHP submitted that Controllers do not "control" an AHT or the fleet of autonomous trucks. The software (AHS) is what controls the AHT, and Controllers interface with the AHS. Controllers do not "replace the previous role of human operators of Haul Trucks". It is the AHS that replaces those operators. It was also submitted that the major difference' between Controllers and "the previous Operators of Haul Trucks" is not the location at which they work, as submitted by the CFMMEU. The real difference is that the principal purpose of the Controllers' position is to manage the AHS, whereas the principal purpose of truck drivers' positions is to operate trucks.

[180] BHP submitted that the Controller is responsible for the optimisation and management of the AHT fleets. The AHS will be utilised by the Controllers to adjust the 24 hour mine plan, verify and create dumping courses and circuit routs and gather and apply data to manage performance of the allocation AHT fleet against the mine plan.

[181] In respect of the role of Field Officer, BHP submitted that the principal purpose of the position is to monitor, gather and manipulate data inputs for the AHS. It is the submission of BHP that this is what determines the question of coverage by Schedule A of the Award and contrary to the CFMMEU's submission, the question of whether that purpose is integral to production activities is an irrelevant distraction. BHP submitted that the Field Officer is accountable for ensuring that the virtual mine correlates with the physical mine.

[182] Turning to the Award, BHP noted that the Agreement covers specific positions as provided in the Schedules. BHP submitted that if an employee falls within that classification, they must also then fall within Schedule A of the Award to be covered by the Agreement.

[183] BHP submitted that the Award covers coal mine employees who are employed in the classification or class or work as set out in Schedule A "Production and Engineering Employees" or "Schedule B "Staff Employees". These terms are not defined in the Award, and as such coverage in the schedules is to be determined by reference to the work described in each Schedule. The Schedules are mutually exclusive - a position cannot be in both.

[184] In response to CFMMEU's argument that the governing factor that determines whether an employees falls within Schedule of the Award is whether the work is "production" and "engineering work", BHP rejected the CFMMEU's position on two grounds. The first being that for every practical purpose, all classifications in Schedule B have an engineering or production purpose. That cannot be the defining point of the difference between Schedules A and B. The second is that CFMMEU's argument ignores the principal purpose test.

[185] BHP submitted that the determinative factor is whether the work falls within the coverage of Schedule A of the Award, as these are the skills and duties that provide the parameters for the role of a mineworker for the purposes of Agreement coverage. In applying the CFMMEU's construction, BHP submitted that for practical purpose every worker employed by BHP, regardless of their role or work, would be covered by the Agreement. This is because, according to BHP, the work of everyone who works at a coal mine can be described as being "integral" to production and engineering.

[186] BHP submitted that the terms "production and/or engineering" are an historical and convenient adoption of the coverage of two previously existing awards. The competencies in Schedule A are stated as not exhaustive but are indicative of the types of competencies utilised in open cut mines.

[187] The duties of a Mineworker must align with the competencies identified in the schedule in order for the Award to cover that employee. A common feature of the work described in Schedule A is that all of it concerns the direct physical use, operation or maintenance of mining equipment and or vehicles - for example, "truck operation", "shovel operation", "pit dewatering", "drilling", "blasting", and "tyre fitting" according to assigned parameters intrinsic to the piece of equipment. By contrast, none of the work of Controllers or Field Officers has anything to do with the direct physical use, operation or maintenance of any mining equipment or vehicles.

[188] BHP submitted the roles monitor, gather, analyse, and input data in a computerised system to manage and where necessary adjust resources to meet a mine plan. That contrast, is what takes the work of both of roles out of Schedule A. Further, BHP submitted that the characterisation of the skills competencies, and duties in Part A are not indicative of the duties of the two positions. The competencies of the new positions are qualitatively different to those set out by Schedule A.

[189] Whilst BHP noted that whether Schedule B applies is not a matter for arbitration, it was submitted that it is instructive to review some of the functions in Schedule B. In this regard, BHP referred to the functions of Analyst and/or Programmer; Planning Officer; Surveyor's Assistant; Technical Assistant; Computer Operator; Draftsperson.

[190] BHP submitted that role of Controller and Field Officer are more aligned with the positions in Schedule B, in that the characterisation of the "work" revolves around using computer hardware and software systems and data management for coordination, and optimisation of the newly implemented AHS technology to assess and maintain and if necessary, adjust operations to meet the daily mine plan.

[191] In oral submissions Mr Coonan agreed that BHP does not contest that Controllers and Field Officers are employees of BHP Coal and employed at a Mine covered by the 2018 Agreement. However, BHP does not accept that the relevant roles are covered by the Black Coal Mining Industry Award or that they are employed in a classification under the Agreement. In this regard, it was submitted that Mr Hansen's evidence should be accepted, and that the Controller does not replace the truck driver. Rather, the Controller does a completely different job, by running the day to day mine plan, by interrogating, interpreting and applying the system to do so, none of which was done by truck drivers. Controllers do more than monitoring automated plant and using digital skills. OCEs are not an appropriate comparison on the basis that they do not optimise production with the truck fleet and do not undertake other tasks including using radar, manage a software system or make virtual site maps. They have an entirely different purpose to the Field Officer or Controller.

[192] BHP submits that there is also no comparison with blast controllers on the basis Field Controllers tag GPS plots and then prepare a clearance map or virtual mine map. This is more than a physical clearance undertaken by blast controllers. Once a Field Officer has done a physical clearance and put barriers in place, they then have to do a virtual clearance and erect a virtual barrier. While the blast controller takes the test pattern provided by others and checks it, the Field Officer takes the pattern, checks and uploads it and then in consultation with the Controller, determines the new paths for the AHTs. The blast controller does not use radar or lidar, GNSS or other survey systems or technology.

[193] It was also submitted that the roles of Controller and Field Officer have no similarity with that of underground mine operator. The underground mine operator role covers one machine in contrast with the multiple AHTs involved in the Controller and Field Officer roles. Further, it was submitted that the evidence of Mr Watts should not be accepted on the basis that he displayed little understanding about the contents of the documents appended to his witness statements. Mr Watts's evidence could not be relied on to establish that the competencies for the new positions are comprehended in both the training packages and the coal competencies, and therefore, the Black Coal Mining Industry Award.

[194] Reference was made to a document tendered by Mr Watts detailing a number of projects in relation to the Resource and Infrastructure Industry Training Package, acknowledging that there is a need to create new competency units:

[108]

[197] Question 1 concerns the proper construction of the 2018 Agreement in relation to the interaction, if any, between clause 14 and the Model Consultation Term in clause 15. Both parties accept that the implementation of AHTs at GRM is a major change within the meaning in the Model Consultation Term.

[198] Essentially this question centres on whether the Model Consultation Term operates in conjunction with clause 14 of the 2018 Agreement so that both are applicable in relation to the implementation of AHTs at GRM. The CFMMEU contends that clause 14 of the 2018 Agreement imposes additional obligations to those in the Model Consultation Term and that the proper approach is that the Modern Consultation Term applies first, followed by the process in clause 14. BHP contends that the Model Consultation Term in clause 15 operates to the exclusion of clause 14 in respect of a major change as defined in the Model Consultation Term. If the two clauses are mutually exclusive as contended by BHP then it follows that the answer to the question for arbitration is that there are no additional obligations under clause 14.

[199] Consistent with the approach set out by the Full Bench of the Commission in Berri the starting point is the ordinary meaning of the words of the disputed provisions. I turn first to consider the text of the provisions. There are a number of significant differences between the provisions which indicate that the do not operate in conjunction and are mutually exclusive. The first is that the provisions use different terms to describe the circumstances in which they apply. Sub-clause (1)(a) of the Model Consultation Term provides that the Term applies "if the Company has made a definite decision to introduce a major change to production, program, organisation, structure or technology in relation to its enterprise that is likely to have a significant effect on the employees". A definition of the term "significant effect" is set out in sub-clause (9).

[200] The Model Consultation Term makes clear that the obligation to notify is triggered when a definite decision to implement a major change has been made. The clause does not operate with respect to any of the steps, deliberations, rationale or consideration that BHP may have undertaken in reaching the definite decision. In contrast, clause 14 of the 2018 Agreement applies where BHP "proposes a change to work practices and/or arrangements". A change that the Company "proposes" is not a "definite decision" to implement a change. Accordingly, clause 14 operates before a decision to change work practices and/or arrangements has been made and when the change is at the stage of being a proposal.

[201] The second difference is in relation to the nature of the change the two provisions encompass. Clause 14 encompasses changes to work practices and/or arrangements. In contrast, a major change for the purposes of the Model Consultation Term is a change in relation to the enterprise. The matters which are the subject of change for the purposes of the Model Consultation term do not fit conformably within the meaning of the term "work practices and arrangements". That term speaks of a direct and immediate connection between the change and the work being done by employees.

[202] The matters in sub-clause (9) of the Model Consultation Term do not aptly describe changes to "work practices and arrangements", with the exception of changes to hours of work, which are specifically dealt with in other provisions of the 2018 Agreement. While the changes encompassed in the Model Consultation Term may impact work practices or arrangements, they are not changes directed to work practices or arrangements. For example, a decision to purchase new technology is not directed to changing work practices or arrangements although it may have that effect.

[203] The third difference is that changes involving production, program, organisation, structure or technology, are generally changes of the kind that management of a Company has a right to implement, without agreement from employees in relation to the substance of the change. In the present case, BHP has a right to implement new technology in the form of an automated haulage system at GRM. The Model Consultation Term provides for a consultation process in relation to the effects of that change. It does not provide a process directed at reaching agreement with employees to allow autonomous haulage to be introduced.

[204] In contrast, the text of clause 14 suggests that the changes encompassed by the clause are changes which require agreement or acceptance by employees. This is reflected in the fact that clause 14 contains a provision for establishing whether a majority of employees concerned support the proposed change. Clause 14 is directed to agreement being reached between the Company and the relevant employees about the substance of the proposed change to work practices and arrangements, and that provisions allowing the Company to proceed to implement the change in circumstances where employees do not agree, are only triggered where a process of attempting to reach agreement has been followed. The proposition that the support of a majority of employees would be required in order for a change of the kind contemplated by the Model Consultation Term to be implemented, is at odds with the plain meaning of that Term.

[205] Fourth, there is a distinction between the provisions in relation to the impact of the relevant change. For the Model Consultation Term to apply, the change must be one that is likely to have a significant effect on employees in the manner set out in sub-clause (9). In contrast, there is no requirement or prerequisite in clause 14 for the change to have a significant effect, indicating that the changes caught by that clause are minor or incremental. The nature of the changes contemplated by clause 14 is also evident from the heading of the clause - "Continuous improvement". The term "continuous improvement" is commonly known as a management process by which incremental improvements are made to existing work practices to bring about increased productivity and efficiency. In contrast, the major change which is the subject of the Model Consultation Term generally refers to change which goes beyond work practices and the way in which work is arranged, to incorporate technological and structural change.

[206] The fifth distinction is temporal. The provisions of the Model Consultation Term in sub-clause (9) which define when change is "likely to have a significant effect" also indicate that there may be a structural and/or temporal separation between the change and its effect. It is not necessary that there be an immediate effect and the Model Consultation Term will be triggered by a major change with a future effect provided that the effect is "likely" and is significant as defined. It is also not necessary that the change be directly linked to its effect. Rather the effect is a consequence of the change rather than an aspect of the change itself.

[207] The present dispute is a case in point. The definite decision is to implement autonomous haulage at the GRM. That decision involves: the purchase and mobilisation of plant, equipment, hardware and software; conversion of existing trucks; construction of civil and building infrastructure; and recruitment and training of employees for the new roles, who may or may not be existing employees. The likely effect of the change on existing employees is a consequence of the decision and not an integral part of it and the full extent of the change is unknown. There is no evidence that the definite decision to implement autonomous haulage will have an immediate effect on any current employee of BHP at GRM. Rather there are likely effects in the longer term which may include some or all of the matters in clause (9) of the Model Consultation Term.

[208] In contrast, the text of clause 14 indicates that the change to "work practices and arrangements" is change that is directly linked to the effects. Such change immediately affects employees in the performance of their work. This is evidenced by the fact that the clause provides for a trial of the proposed change, following a process of notification, the provision of supporting reasons and an attempt to reach agreement. The change continues to be a "proposed" change throughout the trial and at the conclusion of the trial the Company may decide not to proceed with the proposal or to proceed to full implementation. The immediacy of the proposed change and its effect on employees concerned, is also apparent from the provisions of clause 14 which allow employees who are of the view that the trial is having an unreasonable or unfair effect on them, to progress a dispute to the Commission, at two stages of the trial. It is axiomatic that the employees directly and immediately affected by the proposal are the employees who will be involved in trial of the proposal.

[209] The sixth difference between the Model Consultation Term and clause 14 of the 2018 Agreement is the scope of disputes arising under each term. In relation to clause 14 of the 2018 Agreement, sub-clauses (f) and (g) allows employees or their representatives to refer a dispute about the effects of a trial of the change or an issue connected to the trial to the Commission under the Dispute Settlement Procedure. That Procedure deals with disputes including those arising under the 2018 Agreement or arising in the course of employment.

[210] A dispute about the operation of clause 14 is a dispute about the work practice or arrangement being trialled or the trial. The effect is that the Commission is empowered to determine a range of matters including whether the trial should continue, or the proposed change should proceed. While a dispute arising under the Model Consultation Term may also be referred to the Commission, the distinction is that a dispute in relation to the Model Consultation Term is a dispute about the consultation process or the effect of the change and measures to mitigate or avert those effects, if they are adverse. It is not a dispute about whether the decision in relation to the change should have been taken or whether the change is permitted to proceed or continue.

[211] The related issue of the role of the Commission in dispute settlement in relation to the provisions is a further matter that weighs against a construction of the Agreement requiring that the terms of both clauses apply to a particular change. If a dispute arises in relation to the Model Consultation Term, the role of the Commission is to deal with matters such as whether the clause applies to a change, or whether there has been compliance with one or more of the requirements, such as the recognition of a representative or the provision of information. The Commission can also deal with dispute in relation to whether BHP has given genuine consideration to a matter raised by employees or whether there has been genuine consultation as defined in clause 47.1 of the Agreement. The Commission is not empowered to deal with a dispute about whether the decision should have been made in the first place, much less to determine that the decision should not be implemented.

[212] This can be contrasted with clause 14 which empowers the Commission to determine that a trial of a change to work practices and/or arrangements should cease or should be amended or not proceed, because it is having or may have an effect on the employees concerned that is unreasonable or unjust. If clause 14 operated with respect to major change of the kind dealt with in the Model Consultation Term, the Commission would be empowered to order that the implementation of change, such as the introduction of autonomous haulage at GRM, cease. This outcome is inconsistent with the terms of the Model Consultation Clause which recognises the prerogative of BHP to implement a major change to production, program, organisation, structure or technology, while establishing rights for employees to be consulted about the effects of such a change.

[213] Sixth, there is a distinction in the processes set out in the provisions. The Model Consultation Term is directed at discussion and consultation for the purposes of employees having input about the effects of change, including in relation to measures proposed by the Company to mitigate or avert any adverse effect on employees. The process for consultation in the Model Term does not require discussion and agreement about the substantive change.

[214] The process in clause 14 involves an attempt to reach agreement with employees and a trial of the proposed change if BHP wishes to proceed with it. Unlike the Model Consultation Term, clause 14 is directed at reaching agreement about the proposed change and provides that absent the Agreement of the majority of affected employees, the Company must trial the change before proceeding to implement it.

[215] It is also the case that changes contemplated by clause 14 to work practices and arrangements, are changes of a kind that are amenable to a trial. In contrast a decision by BHP to invest significant capital (to date some $50 million) in the implementation of autonomous haulage, is not a decision that is amenable to a trial. There is a real question about what would be trialled and who would be involved in the trial. To construe clause 14 so that BHP is first required to trial the purchase of substantial plant and equipment and the construction of infrastructure at the Mine, after having undertaken the process in the Model Consultation Term, would strain both the language of clause 14 and logic. To require a trial with respect to the effects of such a decision on employees who will not be operating the plant or equipment unless they apply for a role which requires them to do so, and in circumstances where employees who may have already been employed to work in the new roles are not in dispute with BHP, would similarly defy logic.

[216] Further, it strains the ordinary language of the provisions for a definite decision to implement a major change as defined in the Model Consultation Term to become a proposal to change work practices and arrangements for the purposes of later process under clause 14 of the 2018 Agreement. As BHP points out, in my view correctly, it is illogical that the Company would be required to trial something in relation to which it has already made a definite decision, simply to determine the impact on employees. That impact would be known after the processes in the Model Consultation Term had been followed.

[217] A further relevant textual matter is the carve-out or exclusion provision of the Model

Consultation term in sub-clause (8). Sub-clause (8) operates so that if a term of the 2018 Agreement provides for a major change to production, program, organisation, structure or technology in relation to the enterprise of the Company, sub-clauses dealing with certain matters do not apply. The excluded subclauses are:

(2)(b) notification of employees of the decision;

(3) the appointment by employees of a representative; and

(5) requirements in relation to discussions and provision of information to employees and their representatives in relation to major change.

[218] The preamble to the Model Consultation Term in clause 15.2 also emphasises the effect of sub-clause (8) of the Model Term, stating that the Term does not apply to any major workplace changes implemented under the 2018 Agreement for which other consultation obligations are prescribed in the Agreement, and that in all circumstances, only a single consultation process will apply.

[219] The parties agree, and I accept, that clause14 is not a consultation term. The notification to employees of the change to work/practices or arrangements is not for the purpose of consultation, but rather to inform employees of the change that the Company proposes. The Company is then required to provide the reasons for the proposal and to seek the approval of employees for the proposal. If employees do not approve the proposal the Company may decide to withdraw it or conduct a trial. The term "consultation" or "consult" is not used in clause 14 and there is no process in clause 14 that meets the definition of consultation in clause 47 of the 2018 Agreement.

[220] However, it does not follow, as submitted by the CFMMEU, that this means that the clause is read in conjunction with the Model Consultation Term so that both provisions apply to a major change such as the decision to implement autonomous haulage. While the Decision of the Full Bench in Teekay establishes that two consultation terms may operate in conjunction. That Decision does not require that two terms that are mutually exclusive and contain significant inconsistencies, must be forced into a conjunctive operation that is clearly not intended. I accept the submission of BHP that once the process in clause 14 has been completed, there is no purpose for consultation. Further, once the consultation process has been completed, there is no utility in conducting a trial in respect of a decision that was already made at the point the consultation commenced. This is a further matter that weighs against a construction of the Agreement that provides for both the Model Consultation Term and clause 14 to apply to a change.

[221] BHP also points out that the CFMMEU left open the possibility that clause 14 of the 2018 Agreement may be applied before the Model Consultation Term. As BHP submits, this makes no sense as a matter of practice or logic, as the application of clause 14 can lead to full implementation. I accept that submission. I am also of the view that in my view, there is an additional concern that as clause 14 is not a consultation term, for the Company to apply clause 14 before it took the steps set out in the Model Consultation Term, would result in the real prospect of the Company breaching the consultation obligations in the Model Consultation Term, while conducting a trial.

[222] For these reasons I have concluded that clause 14 and the Model Consultation Term do not operate together or in the same circumstances and are mutually exclusive. It follows that BHP had no additional obligation under clause 14 in respect of the implementation of AH at GRM.

[122]

[229] His Honour further observed that the fact that a party subject to a consultation obligation does not accept the assertions of the party being consulted, does not result in a failure to meet that obligation, stating that: "Acceptance of a proffered proposition is no part of a consultation obligation."[66]

[230] When BHP made a definite decision to implement autonomous handling at GRM the relevant obligations of the Company under the Model Consultation Term were as follows. Firstly, the Company was required to notify relevant employees of the decision to implement the change. The Model Consultation Term makes clear that what is being notified is a definite decision to implement a change. In my view, the obligation is to notify employees of a relevant change in sufficient detail, to enable them to consider the likely effects it would have on them, for the purpose of their participation in the consultation process. BHP was also required to discuss the introduction of the change including matters such as:

Timing;

Actions the Company would take in connection with the introduction of the change that would likely have an effect on employees;

Actions the affected employees would be expected to take in order to participate in the change;

Requirements as to training the affected employees would be expected to undertake;

Opportunities arising from the change for affected employees; and

Anticipated adverse impacts on affected employees.

[231] Further, BHP was required to discuss measures it was taking or proposed to take to avert or mitigate any adverse effects of the change on employees. BHP was also required to provide in writing to employees all relevant information for the purposes of the discussion. In my view, the scope of the information required to be provided is governed by the purpose of the discussions. That purpose is to enable employees to identify possible effects that the change may have on them, which may, or may not, be the same effects as the employer has identified, and to be in a position to make suggestions about measures to mitigate any adverse effects or to comment on suggestions in this regard made by the employer.

[232] BHP was not required to provide information to inform a discussion about whether it should have taken the decision to implement autonomous haulage. While there is a narrow line between, on the one hand, information necessary to allow employees to discuss and make suggestions about the likely effect of a change and on the other hand, information about why the decision was made at all, it is an important line.

[233] In considering whether the obligation has been met in the present case, I have considered the fact that BHP has engaged extensively with employees and their representatives, including the CFMMEU since July 2019. That engagement commenced before the definite decision to implement autonomous haulage at the mine was taken and continued after the definite decision was announced on 12 November 2019. The evidence of Ms Ryan and Mr Hansen establishes the breadth and range of material that BHP provided to employees and their representatives and the detailed consultation process that the Company undertook.

[234] I turn now to consider each of the categories of information sought by the CFMMEU and which it alleges was not provided by BHP and whether that information was required to be provided for BHP to fulfil its obligations under the Model Consultation Term. In relation to the information which the CFMMEU asserts should have been, and was not provided, I have reached the following conclusions. The first category of material sought by the CFMMEU is information about prior trials of AHT operations conducted by the Company (or related corporate entities) at other Mine sites. The relevance of such information to consultation about the effect of the implementation of autonomous haulage at GRM, is not immediately apparent.

[235] In response to contentions about the relevance of the material sought, the CFMMEU submits that BHP has not asserted that the material is confidential or commercially sensitive and that it "should not be problematic" for BHP to provide the material. That assertion is not sufficient as a basis for the Commission to determine that BHP was required to provide the material. The CFMMEU has not explained how material in this category is relevant to consultation about the effect of the introduction of autonomous haulage on employees or its relevance to averting or mitigating any adverse effects. Absent such explanation, I accept the submission of BHP that this material is relevant to the reasons for the decision, which are not the subject of consultation under the Model Consultation term.

[236] The second category of information that the CFMMEU asserts BHP was obligated to provide, and did not provide, is information about the safety benefits of AHTs relied on by the Company in its decision to implement such trucks at the GRM. It is clear from the evidence that during the discussions and correspondence about the provision of this information, that BHP representatives conflated this request with a further request made by the CFMMEU for information about a review of the Mine Safety Health Management System being undertaken by the Site Senior Executive pursuant to the Coal Mining Safety and Health Act 1999 and Regulations.

[237] I generally accept BHP's submission that it is not required to consult for the purposes of the Model Consultation Term, about the review of the Mine Safety and Health Management System being undertaken by the Site Senior Executive (SSE). The Coal Mining Safety and Health Act 1999 reposes responsibility for the development, implementation and maintenance of a comprehensive management system to ensure the health and safety of persons who may be affected by coal mining operations. Such a system is referred to as a Safety and Health Management System (SHMS). The Coal Mining Safety and Health Act 1999 and the Regulations require that the SHMS provides for a review process, and that if there is a significant change at a mine there must be a review of the mine's SHMS. The legislation also requires that the review be conducted in consultation with coal mine workers before the change happens. The conduct of the review is a matter for the SSE who has statutory responsibility to ensure that it is undertaken.

[238] It is apparent from the evidence that the SSE was conducting such a review in accordance with the Coal Mining Safety and Health Act 1999 and regulations and that a cross-section of coal mine workers had been selected on the basis of a process whereby expressions of interest had been called for. The CFMMEU made a request for certain information about the SHMS review process. In my view, it was sufficient for BHP to inform the CFMMEU of this process and that the Review was being conducted, to meet its obligations under the Model Consultation Term. I also note that records of consultation meetings indicate that BHP representatives answered questions and provided information about process issues related to the SHMS review such as selection of employees to participate in the cross-section of coal mine workers for the purposes of the review, the timing of the selection process, the criteria that would be used and other related matters.

[239] I do not accept that the Model Consultation Term required that BHP provide information about the deliberations of the SHMS review or the material that was being considered by the participants in that review. The provision of this information would result in the CFMMEU and employee representatives essentially reviewing the SHMS review being undertaken by the SSE pursuant to statutory obligations under the Coal Mining Safety and Health Act 1999 and Regulations. I also note that safety issues relevant to the SHMS review that arose during the consultation meetings pursuant to clause 15 of the 2018 Agreement, were noted by BHP representatives who undertook to refer them to the SSE for consideration in the SHMS review. I consider that it was sufficient to meet its obligations under the Model Consultation Term for BHP to advise the CFMMEU and employee representatives that the SHMS review was being undertaken. This is a statutory mechanism directed at averting or minimising any adverse effects in the area of safety. I assume, because of the statutory provisions governing the SHMS review, that all employees at GRM will be informed of the outcome and provided with any necessary training in relation to it.

[240] The other category of safety information sought by the CFMMEU, and which is the subject of the question for arbitration in the present matter, is information about the safety benefits of AHTs referred to in briefings to employees and relied on by the Company to implement AHTs at GRM. As I have previously noted, the information that BHP is obligated to provide is information about the likely effects of the implementation on employees and which is sufficient to enable the CFMMEU and employee representatives to discuss and have input on measures to avert or mitigate any adverse safety effects on employees. In circumstances where BHP claimed that the implementation of AHTs would improve safety and that this was a key driver in the implementation, it is my view that the Company had an obligation to provide information upon which it based that assertion.

[241] After considering the information that was provided by BHP, I am satisfied that, on balance, the Company has met its obligations in this regard. In reaching this conclusion I have had regard to the fact that BHP representatives did conflate this request for information with the request in relation to the SHMS review. Ms Ryan conceded in cross-examination that this is a different category of information. However, I am also of the view that BHP went to some effort to provide safety related information about the effects of the implementation of AHTs and that this was sufficient to meet its consultation obligation. In this regard, the Company provided information about safety features of AHTs and their operating system, data that would be available to manage safety and the arrangements that would be put in place in relation to the zones in which the AHTs would operate. The Company also provided information about training that would be provided to employees working directly with AHTs and general training for employees all employees in relation to accessing the autonomous zone.

[242] The records of consultation meetings indicate that at the meeting on 14 November 2019, the Company noted safety issues which it maintained were properly to be considered as part of the SHMS review and indicated that these matters would be referred to the SSE to ensure that they were covered by the review process. The 14 November record also indicates that the CFMMEU requested further information about haul truck incidents at Jimblebar and this request was documented and BHP indicated that it would be responded to at the next meeting.

[243] The record of the meeting on 20 November indicates that Mr Hansen was present. His evidence and that of Ms Ryan is that the presentation about the Jimblebar incidents went for approximately 30 minutes while the CFMMEU witnesses state that it was 2 minutes. Mr West ultimately conceded that the presentation may have extended to thirty minutes. It is common ground that Mr Hansen used PowerPoint slides during his presentation. While those are not in evidence, there is no record of any request for copies of those slides being made by the CFMMEU at or subsequent to the meeting or a refusal to provide the slides. Further, the record of the next meeting held on 27 November 2019, does not indicate any outstanding issues following the meeting of 20 November and the only issue referred to in relation to Jimblebar is a new question about how often AHTs are refuelled.

[244] The CFMMEU submission in relation to why this material should have been provided, focuses on the requirement in the Model Consultation Term for the provision of "all relevant information about the change". The CFMMEU submission does not consider that the relevance of material required to be provided is governed by the purpose of the material. While the CFMMEU is acting in its role as a representative of its members in the consultation process under the Model Consultation Term, the CFMMEU does not have a right to be provided with every piece of information it requests, simply because it is available and is not confidential or commercially sensitive.

[245] I do not accept the CFMMEU submission that only confidential or commercially sensitive material is excluded from the requirements as to provision. The Model Consultation Term does not require BHP to provide all information about safety matters requested by the Union. What the Company is required to provide is information about the likely effects of the change and steps to mitigate adverse effects that is sufficient for the CFMMEU to discuss those matters and have input to them. Information about safety is relevant to the extent that it informs such a discussion. I am satisfied that the information that was provided was sufficient to meet this requirement and BHP's consultation obligation.

[246] In relation to the third category of information requested by the CFMMEU - the training program to be conducted as a result of the implementation of AHTs at the Mine - I am also satisfied that BHP has provided sufficient information to meet the requirements of the Model Consultation Term. The submissions of BHP set out in detail the information about the training that was provided. That information is also found in the agreed bundle of documents tendered as Exhibit A. In summary, the evidence establishes that BHP provided the following information:

Details of training plans for all employees and for the new positions;

The role of external trainers and the Company's plan to develop internal capacity;

A breakdown of the FrontRunner system training modules;

A breakdown of the roles required to undertake each module; and

A calculation of expected training hours.

[247] The CFMMEU requested "full detail of the training programs to be conducted to train up each of the new roles" in correspondence dated 26 November 2019. The record of the consultation meeting on 27 November 2019 does not indicate that this request was discussed. It was repeated in a letter of 28 November 2019. In an email and letter sent on 3 December 2019, Ms Ryan provided information including job advertisements for the new positions, links to videos regarding the positions, Komatsu FrontRunner System Training Modules and an indicative recruitment timeline for the first intake of the new positions.

[248] In relation to the request for full details of training programs the Company indicated that it had already provided detailed information in this regard and provided further information in the form of a break-down of the FrontRunner system training modules and an explanation of the roles required to complete each module. The record of the next consultation meeting does not indicate that any further request in this regard was made.

[249] In all of the circumstances of this case, I am satisfied that the requisite information necessary for the employees and their representatives to be given an opportunity to present their views about the relevant matters, has been provided. I am also of the view that BHP has provided sufficiently detailed information in relation to these matters to meet its obligations under the Model Consultation Term. I also note that the information provided by BHP has been sufficient for the CFMMEU to conduct its case in these proceedings in relation to whether the roles associated with the introduction of autonomous haulage are covered by the 2018 Agreement.

[148]

[258] There is a distinction between the Award definition of coal mining employees in the two limbs of the definition in clause 4.1(b)(i) and (ii), on the basis of whether or not the duties are carried out at or about a place where black coal is mined. Otherwise, both limbs of the definition provide that: the employer is engaged in the black coal mining industry; and the duties of the employee are directly connected to the operation of a black coal mine.

[259] In the present case, I am satisfied that, as provided in clause 4.1(b)(ii) of the Award, the Controllers and 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. I am also satisfied that the Controllers and Field Officers are directly connected with the day to day operation of a black coal mine. On BHP's case, the Controller interfaces with an autonomous haulage system which controls a fleet of AHTs. Those AHTs replace driver operated haul trucks and are intended to operate in the Pre-strip and Coal Mining departments at the Mine.

[260] The work is directly connected with the day to day operation of a black coal mine and is integral to the mining of coal. The Field Officer works in conjunction with the Controller and performs tasks including surveys for the virtual mine, monitoring the physical mine, and spends the majority of a shift in a light vehicle on the Mine site. The Field Officer may also be required to operate AHTs to remove them from the autonomous zone in the event they malfunction. I do not accept that because an automated system is interposed between the Controller and the Field Officer on the one hand and the AHTs on the other hand, that the work ceases to be directly related to the mining of coal.

[261] However, that is not sufficient for the roles to be covered by the Award. It is also necessary that the employees in those roles are "employed in a classification or class of work in Schedule A" of the Award. Schedule A of the Award covers "production and engineering employees". Preambles and principles are found in A.1 as follows:

[183]

[265] The Award is industry based and has a broad-banded classification structure. The previous classifications which were broad-banded are not set out in the classification definitions. Instead, the tasks performed by employees in classifications prior to the broad banding exercise are listed as "Indicative Competencies' - that is instead of the classification of Dragline Operator being listed in a broad banded classification level to indicate the level of that previous classification, the Award refers to "Dragline operation" as an indicative competency. Movement between classification levels is based on acquiring competency including those listed as indicative competencies.

[266] The indicative competencies in Schedule A are concerned with advancement between levels rather than limiting the types of employees who are covered by the Schedule. The indicative competencies also reflect the transition from a task and position-based classification structure to one based on skills and competence. Further, progression to Mineworker Advanced may be through advancement competencies or by virtue of A.2.3, assessment against available criteria or by undertaking post trade modules or an equivalent level of skills in non-trade or cross-trade work.

[267] I also note that progression to the classification levels of Mineworker - Advanced and Mineworker - Specialised does not require attainment of indicative competencies. Both of those classification levels provide for advancement on the basis of assessment by the employer against the employer's available criteria which indicates considerable flexibility in terms of the competencies that an employer may require an employee under the Award to exercise. The Mineworker - Specialised classification refers to an employee exercising competency above a Mineworker Advanced including exercising independent discretion in undertaking functions within the bounds set by the employer. An employee may also be appointed to the classification of Mineworker - Specialised, where assessed by the employer as a specialist.

[268] In short, the Award contemplates that employers can designate competencies relevant to their enterprises as required for advancement to the Mineworker - Advanced or Mineworker - Specialised. The generic references to competencies in the Award does not exclude thoswe related to digital or automated equipment. The quid pro quo of a broad based classification structure which limits demarcation, is that the Award covers employees exercising a wide range of skills and competencies provided that those employees are carrying out duties at, or directly connected with, the day to day operations of a black coal mine.

[269] I therefore do not accept BHP's submission 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. There is also reference to competencies equivalent to post trade modules of training or an equivalent level of skills in non-trade or cross-trade work, as a basis for classification under the Award.

[270] I first consider the Field Officer role and the principal purpose for which the employees undertaking that role are employed. In relation to the Field Officer, the document termed "Success Profile" states that the "main game" is coordination of all operational variables impacting use of AHTs in mining operations in the autonomous zone. It is apparent from this and other documents in the agreed bundle that the Field Officer surveys the autonomous zone to ensure that it matches the virtual mine model which governs the operation of the AHTs. The accountabilities with the biggest impact are said to be the prompt co-ordination of the removal of obstacles and recovery of autonomous trucks and escorting non-site aware vehicles. The Field Officer is also the first responder to autonomous stoppage events to conduct a root cause analysis of vehicles and systems and to coordinate relevant maintenance staff for rectification. The role also acts as a "change advocate" working with the operation and evaluation teams to continually improve safety and efficiency performance.

[271] Key competencies are effective communication, data management, problem solving, digital literacy and "influencing" which encompasses team-work skills. The pivotal experience for the position is utilisation of data management, system mine equipment operator experience and understanding of mine production operations. Skills, accreditation and qualifications are listed as: comprehensive understanding of SHMS; comprehensive understanding and use of autonomy aware technology systems; and operating light vehicles on a mine site. The Field Officer may also be required to switch an AHT to manual and operate it like a normal truck to remove it from the autonomous zone.

[272] There is a distinction between a competency and its application. There is nothing apparently unique about the competencies specified for the Field Officer position. A number of those competencies are commonly held by coal mine workers who are increasingly called on to apply a wide range of competencies including working in teams, utilising technology to carry out their roles, and understanding an SHMS system and the plethora of other systems and processes that are used in the day to day operations of a black coal mine. It is difficult to comprehend that any coal mine worker would not have the competency to operate a light vehicle and a range of other mine equipment including automated or computerised equipment.

[273] The majority of the Field Officer's working day is spent in a vehicle on the mine site identifying ways to make AHTs operate to their optimum efficiency by reporting impediments to Controllers and inputting instructions into the system. The Field Officer operates within the parameters of the system and does not code or program the system. In that sense, the Field Officer is operating within bounds set by the employer via the autonomous haulage system.

[274] The reporting of impediments and arranging for their rectification is part and parcel of the work of an operator of a haul truck. It would be expected that a haul truck operator would report matters such as erosion or damage to a corner on a haul road or to a bund or effects of inclement weather so that adjustments could be made to the operation of trucks and repairs or maintenance can be performed. The fact that this is done by a Field Officer using technology does not alter the fact that the Field Officer is undertaking work at a place where black coal is mined, that is integral to the production of coal and which has always been performed. The only change is the manner of performing the same work.

[275] The fact that a coal mine worker undertaking work covered by the Award, is using technology, where previously the same or similar work was undertaken without the assistance of technology, does not mean that the coal mine worker ceases to be covered by the Award. I have concluded that the principle purpose of the Field Officer role is to ensure the efficient and optimal operation of the autonomous system, including AHTs, and in doing so they are performing production work within the coverage of the Award. The fact that the purpose is achieved using technology and via an automated system, does not remove the Field Officer from the coverage of the Award.

[276] The fact that an automated operating system is interposed between the Field Officer and the AHTs is not determinative. The Field Officer is integral to the operation or the AHTs and the automated system could not operate without that role being performed. The use of trucks to haul overburden and coal is a production activity and the Field Officer is playing an integral role in carrying out that activity.

[277] I do not accept that the novelty of the AH technology or its sophistication, is a basis for finding that Field Officers are not covered by the Award. The persons who are being recruited for the role are not computer or information technology specialists. Data management and autonomy aware technology systems competencies may be held by virtue of non-work related training or interests and the propensity of employees to hold such competencies is increasing as was pointed out by Mr Watts. What is unique in the present case, is not the competencies used by Field Officers, but rather, the application of those competencies in a way that they have not previously been applied at GRM- to autonomous haulage.

[278] The Job Description also tendered in the agreed bundle indicates that BHP does not expect Field Officers to have pre-existing experience in the role and that candidates will be trained. Mr Hansen's evidence is that the training program is 15 days of theoretical and practical training. The training package for Field Officers is significantly less than the training undertaken by tradespersons and other classifications of employee who are covered by Part A of the Award. This is a further indication that the role sits within the parameters set by the Award in terms of qualifications and training.

[279] The Award provides employers with significant discretion to assign employees to classification levels based on required competencies selected by the employer. It does not specify particular competencies and I see no reason why competencies of the kind discussed in the material tendered by Mr Watts could not be encompassed within the Award classification structure. The fact that Mr Watts did not have a detailed knowledge or understanding of the material appended to his statement does not detract from its relevance as an indication that the coal industry is in the process of developing a range of competencies related to autonomous systems which would fit conformably into the classification structure in the Award on the basis of AQF levels. The material speaks for itself.

[280] I have also had regard to the organisational structure tendered by the parties in the agreed bundle.[73] In that structure the Field Officer is placed between a Mine Employee (Operator) and the Supervisor. Both the Mine Employee (Operator) role and the Field Officer role report to the Supervisor Pre-strip and the Supervisor Coal respectively. The structure does not indicate that Field Officers are at a managerial level or at a level that would generally be considered as not being covered by the Award.

[281] The Award is industry-based with a broad-based classification structure and in my view the role of Field Officer is covered by the classifications in Schedule A either for Advanced or Specialist Mineworker. In reaching this conclusion, I do not accept that the work performed by a Field Officer is closer to the kind of work covered by Schedule B of the Award. The classifications in that Schedule are narrow and occupationally based. The Field Officer role is not a computer or information technology specialist and no formal qualifications in this regard are required. While Field Officers may undertake some surveying work that is not the principal purpose for which they are employed.

[282] Given my finding that Field Officers are covered by the Award it necessary to consider whether they are covered by the 2018 Agreement by virtue of being engaged in a classification in the Agreement. The Agreement does not contain a classification structure of the kind provided for in the Award. The relevant classification structure for employees at the GRM is found in Schedule 4 Goonyella Riverside Mine. There are two classifications provided in the Schedule: Goonyella Production Employees and Goonyella Engineering Employees. There are no definitions for the classifications in the Agreement other than the employees are employed in "production" or "engineering" at the Mine. Salaries for the classifications are determined by reference to the roster being worked. 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.

[283] Given the reference to the Award in clause 1.1 of the 2018 Agreement, it is sufficient for an employee to perform work covered by Schedule A of the Award and to be directly engaged on production work in the capacity of production or engineering employee, for them to be covered by the Agreement. For the reasons set out above, I find that employees who are engaged as Field Officers are covered by the 2018 Agreement.

[284] I turn now to consider the role of Controller. The material in the agreed bundle also includes the success profile for a Controller. That document indicates that "the main game" for a controller is 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. The Controller does not establish the mine plan. The accountabilities with the biggest impact are said to be:

Maintain a safe, sustainable and productive autonomous mining system;

Manage the correct and accurate collection of data;

Optimise interface between the systems and technology on the AHT fleet and manned equipment safety to achieve the shift plan;

Managing AHT recoveries including obstacle detection;

Support mining and process operations;

Monitor network stability metrics used to measure against AHS performance impacts; and

Manage technology and server software systems to monitor and control AHTS for weather conditions and drill and blast activities.

[285] Critical skills, accreditation and qualifications are: digital literacy; application of technology and server software systems; comprehensive understanding of safety processes and systems at the mine site; and macro thinking involving balancing of safety, production and maintenance priorities. There are no formal qualifications indicated for the role. The document entitled "A day in the life of a controller in an autonomous operation" states that desired experience includes understanding of / experience in equipment operations in a mining production environment.

[286] The documentation also indicates that Controllers work in a control room and are part of the "Mine Control Team". The organisational structure in the agreed bundle of documents indicates that the Controller reports to a position entitled "Supervisor Control". There is no evidence that the Controller is a manager or that persons in the role exercise any managerial or supervisory authority. Mr Hansen's evidence was that Controllers do not have a supervisory role. It is clear that the role of Controller has a direct connection to the production of coal regardless of being located in a control room. The fact that there is technology interposed between the controller and the AHTs does not change the fact that the controller is an integral part of their operation. At the risk of stating the obvious, if AHTs could be operated entirely by an automated system, there would be no requirement to employ Controllers. The principal purpose for which Controllers are employed is to operate an automated haulage system in connection with the production of coal. The interposing of that system between the Controllers and the AHTs does not alter that fact.

[287] I do not accept BHP's submission that the role is more akin to the functions covered by Part B of the Award. Part B classifications are not expressed as functions but rather as occupations. The Controller role does not require any formal qualifications of the kind held by employees in the occupations covered by Part B of the Award. The formal qualifications attaching to positions covered by Part B of the Award bear no resemblance to the training that will be undertaken by controllers in order for them to be deemed competent to undertake their role. As previously noted, the classifications in Part B are occupationally based and the role of the Controller is not undertaken by employees in any of the occupations covered by Part B.

[288] For these reasons and for the reasons in relation to Field Officers, the role of Controller is covered by Part A. The fact that the Controller works in a control room does not alter that coverage. The control room is located at the Mine. Even if the control room was located off the Mine lease, it is well established that the coverage of the Award (and by extension the Agreement) can extend to other locations where employees use computers to undertake work that has the requisite connection to the production of coal.

[289] The breadth of coverage of the 2018 Agreement to production and engineering employees of all kinds, is emphasised by clause 4 which provides that employees are required to perform tasks as reasonably required by the Company and that the Company can require the performance of a range of tasks including technical tasks. I also note that clause 6 of the 2018 Agreement provides BHP with Flexibility of Operations and that the Company may direct employees to perform production and engineering tasks where they are skilled, competent and trained and required or authorised to do so. Further, clause 5 of the 2018 Agreement provides that the Company may require employees to undertake training as determined by the Company to meet its business needs.

[290] The classifications in the Award are sufficiently broad to cover Controllers and given the principal purpose of their employment, I have concluded that they are covered by the classifications in Part A - either Mineworker - Advanced or Mineworker - Specialised. It follows, again for the reasons set out above, that Controllers are covered by the Agreement.

[291] I do not accept the submission of BHP to the effect that if the CFMMEU's argument is accepted, any position on the Mine connected in any way to the production of coal, would be covered by the Agreement. The Agreement applies only employees who perform work covered by Part A of the Award and does not extend to Part B occupations.

At a glance

Court

Decision date

Source

Judgment (224 paragraphs)

Construction, Forestry, Maritime, Mining and Energy Union v BHP Coal Pty Ltd [2020] FWC 4322 (20 August 2020)

Parties

Legislation Cited (4)

Cases Cited (8)