Fair Work Act 2009

s.739 - Application to deal with a dispute

Construction, Forestry, Maritime, Mining and Energy Union

Peabody Energy Australia PCI Mine Management Pty Ltd

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] - Construction of enterprise agreement - Distinction between work and activities prior to commencing work - Distinction between travel to work and travel within workplace - Employees required to attend work at particular times and to be available to provide service is working - Finding that employees entitled to payment for disputed period.

[1] This Decision concerns an application by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) seeking that the Fair Work Commission (the Commission) deal with a dispute pursuant to s.739 of the Fair Work Act 2009 (the Act) under the Dispute Resolution Procedure in clause 24 of the Peabody Energy Australia Coppabella Enterprise Agreement 2013 (the 2013 Agreement). The Respondent in this matter is Peabody Energy Australia PCI Mine Management Pty Ltd (Peabody/the Company). The dispute was lodged with the Commission on 28 May 2018. On 13 June 2018 the Peabody Australia Coppabella Enterprise Agreement 2018 (the 2018 Agreement) commenced operation. No jurisdictional objection was raised in relation to the Commission continuing to deal with the dispute and there is no material difference between the Agreements for the purposes of the resolution of the dispute. A number of conferences of the parties were held and the matter was not resolved.

[2] The dispute concerns the point at which employees commence work and are entitled to payment. The background to the dispute can be briefly stated. Employees are rostered to work ten hour shifts with day shift commencing at 6.00 am and night shift at 6.00 pm. Employees are also offered two hours of rostered overtime at the end of each shift. Employees undertake various activities preparatory to commencing operational duties at the Mine including: obtaining personal protective equipment (PPE); fitness for work testing via a computer system known as OSTE; logging attendance on a computer system referred to as Kronos; reviewing an electronic board to ascertain where they are working and what machine they are operating; and attending a pre-start meeting. Prior to January 2016 pre-start meetings were held in the main administration building at the Mine. Employees arrived at work, entered the main administration building, undertook preparatory tasks and attended the pre-start meeting. Employees were paid from the commencement of the pre-start meeting.

[3] In 2015 Peabody changed the rosters worked by employees at the Mine from 12.5 hour shifts to ten hour shifts with two additional hours of voluntary overtime. In or around January 2016, Peabody changed the location at which pre-start meetings are held from the main administration building to designated "in-pit" crib huts - ie crib huts located near operational areas on the Mine lease. As a result employees now attend the administration building to undertake activities other than the pre-start meeting and then travel in vehicles provided by Peabody from the main administration building to designated in-pit crib huts to attend pre-start meetings. Employees cannot take their private vehicles onto the Mine lease. The vehicles provided by Peabody operate 15 minutes prior to the commencement of the pre-start meetings. Peabody has notified employees by way of a written information brief which states that employees arrive at site at 5.45 am/pm and board vehicles provided by Peabody at around 5.50 am/pm. Employees are paid from the commencement of the pre-start meetings.

[4] In a decision issued on 13 October 2016[1], the Commission as presently constituted determined a dispute arising under the 2013 Agreement about the formula for calculating the roster allowance that should be paid to employees as a result of the reduction in working hours from 12.5 to 10 hours on each shift. The dispute did not concern the issues which are the subject of the present dispute. The CFMMEU asserts in the present dispute that employees should be paid from the time they are required to attend at the administration building including time spent being transported to the designated crib huts to attend pre-start meetings. Peabody asserts that employees are not entitled to payment until they attend pre-start meetings or are given a clear direction from supervisors to commence work before that time. According to Peabody, prior to attending pre-start meetings, employees are undertaking "pre-work activities" or travelling and are not working.

[5] The Commission's powers to deal with disputes derive, in the case of an enterprise agreement, from the terms of the disputes settlement procedure contained in the agreement. As a Full Bench of the Commission concisely observed in CFMEU v North Goonyella Coal Mines Pty Ltd[2]: the Commission may deal with a dispute only on application of a party to the dispute (s.739(6)); is prohibited from exercising any powers limited by the dispute settlement procedure (s.739(3)); may arbitrate only if the agreed dispute settlement procedure permits it to do so (s.739(4)); and must not make a decision that is inconsistent with the Act, the enterprise agreement and any other applicable fair work instrument (s.739(5)).

[6] It is common ground that the dispute has not been resolved after local discussions and conciliation by the Commission and that the Commission has jurisdiction to arbitrate the dispute. The questions for arbitration agreed between the parties are as follows:

"Since approximately February 2016 employees are required to attend site 15 minutes prior to the commencement of their rostered shift in order to access employer-provided transport to travel to a point at the mine, designated as a "start point" in order to commence their "shift" at 6am or 6pm.

In respect of each relevant enterprise agreement that has applied at the mine since February 2016 (i.e. the Peabody Energy Australia Coppabella Enterprise Agreement 2013 and the Peabody Australia Coppabella Enterprise Agreement 2018):

Question 1: Should this 15 minute period be classified as 'work' time under the relevant enterprise agreement?

Question 2: If the answer to Question 1 is 'yes', should employees be remunerated for this time under the relevant enterprise agreement?

Question 3: If the answer to Question 2 is 'yes', on what basis should employees be remunerated for this time under the relevant enterprise agreement?"

[7] On 18 October 2018, Directions were issued requiring the parties to file and serve material upon which they intended to rely and a hearing was conducted. Following that Hearing, further Directions were issued in relation to the discrete issue of the manner in which work was allocated, and whether this work was allocated either prior to, during, or after the prestart meeting, under the previous arrangements. A further Hearing was conducted in relation to this issue and additional evidence was placed before the Commission.

[8] The following persons provided witness statements on behalf of the CFMMEU:

• Daniel Smythe, Operator at the Coppabella mine;[3]

• Stephen Thomson, Operator at the Coppabella mine;[4]

• Ross Curd, Operator at the Coppabella Mine;[5] and

• Travor Lesleighter, Operator at the Coppabella mine.[6]

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

• Brandon Risner, General Manager of the Coppabella mine; [7]

• Bernard Panton, Pit Supervisor at the Coppabella mine;[8] and

• Christopher Sorensen, Relief Superintendent at Coppabella mine.[9]

[10] Mr Smythe, Mr Risner, Mr Panton and Mr Sorenson were required for cross-examination and attended the hearings to give their evidence. Statements of other witnesses were tendered without objection save that parts of the statements expressing the opinions of witnesses about the proper construction of the Agreement were not pressed and have not been taken into account.

PROVISIONS OF THE AGREEMENT RELEVANT TO THE DISPUTE

[11] The dispute involves a period of time spanning the operation of two agreements. The 2013 Agreement operated from 20 December 2013 and nominally expired on 13 December 2016.[10] The 2018 Agreement commenced operation on 14 June 2018 and will nominally expire on 13 June 2021.[11] As previously stated, the 2013 Agreement and the 2018 Agreement are in substantially similar terms insofar as the relevant provisions.

[12] The "Parties" to the 2013 Agreement are expressed to be Peabody Energy Australia PCI Mine Management Pty Ltd (the Respondent in these proceedings) and the employees of the Company "to whom the Agreement applies"[12]. The "Scope and Coverage" of the 2013 Agreement extends to Peabody and employees employed in production and maintenance roles as set out in Appendix 1 to the 2013 Agreement. The 2018 Agreement is expressed in identical terms. In the Decision to approve the 2013 Agreement and the Decision to approve the 2018 Agreement the Commission noted that the Agreements covered the CFMMEU.[13]

[13] The "parties" have agreed that for the term of the 2013 Agreement and the 2018 Agreement they "shall make no extra claims" and that each agreement provides for the terms and conditions of employment for all employees "covered" by the Agreement. Each Agreement supersedes and replaces all current and past practices, informal arrangements and agreements, either written or verbal. The Black Coal Mining Industry Award 2010 (the Award) only applies in relation to matters which the Agreements "specifically states" are to be determined according to the Award as per clause 7. Company procedures do not form part of the Agreements although employees are required to comply with them.

[14] Clause 9.3 of both Agreements provides:

Notwithstanding any other provision of this Agreement, the Company may require an employee to carry out any work that is within their competence and authorisation, subject to safety and statutory requirements. Employees will also be required to undertake training.

Employees who do not attend for work when required, or who do not perform the work the Company directs them to do, will not be paid for the time that they did not attend or did not perform that work."

[15] Clause 10 of both Agreements deals with Remuneration. So far as applies to full time employees, the clause states:

"Employees will be paid an annualised salary ("Total Fixed Remuneration" or "TFR").

The Total Fixed Remuneration is comprised of a Base Salary, Superannuation and the applicable Roster Allowance. Appendix 1 sets out the Remuneration Structure.

The Total Fixed Remuneration includes compensation for all hours worked and provides for all rostered overtime, weekend, public holiday and shift work, and all other payments or allowances excluding the additional allowances outlined in Appendix 1.

The Total Fixed Remuneration also includes compensation for participating in up to 2 additional training days per annum. These training days will be published with the site roster in January of each year. Scheduled training days will not be rescheduled unless agreement has been reached by the majority of the affected employees. Consideration will be given not to schedule training days during school holidays.

Normal annual and sick leave provisions apply if an employee cannot attend the scheduled training day."

[16] Clause 10.10 of the 2013 Agreement is headed "Hours of Work" and provides:

"Employees are required to work 35 ordinary hours plus rostered overtime per week

averaged over the roster cycle. Shifts are up to 12.5 hours duration, which includes shift length of 12 hours and a shift changeover / hot seat of 30 minutes..."

[17] Clause 10.10 of the 2018 Agreement is also headed "Hours of Work" but provides:

"Employees are required to work 35 ordinary hours plus rostered overtime per week averaged over the roster cycle. Shifts may be up to 12.5 hours in duration."

[18] Clause 10.11 of the 2013 Agreement is headed "Non-rostered Overtime" and provides as follows:

"All time worked in excess of or outside the rostered hours of any shift will be paid at non-rostered overtime rates as per the table in Appendix 1. Employees that are called back outside their normal rostered hours for investigations will be paid non-rostered overtime rates.

Non-rostered overtime will only be paid if the non-rostered hours are worked at the prior request of the employee's supervisor."

[19] Clause 10.11 of the 2018 Agreement is also headed "Non-rostered Overtime" but provides:

"Employees are not expected to work excess hours and it is the Company's intention to monitor and manage its workforce through its fatigue management principles.

Where an employee is requested by their supervisor, and accepts, to work non-rostered hours prior to commencing the non-rostered hours the employee will advise their supervisor as to whether they wish to receive payment or time off in lieu for non-rostered hours worked.

All time worked in excess of or outside the rostered hours of any shift will be paid at non- rostered overtime rates as per the table in Appendix 1. Employees that are called back outside their normal rostered hours for investigations will be paid non-rostered overtime rates..."

[20] Clause 10.12 of the 2013 Agreement deals with rosters and provides:

"The Company may carry out all operations 24 hours per day on any day of the week and implement roster systems that meet the needs of the site and takes into account health and safety needs of employees. Prior to the introduction of any new roster system the Company will consult with affected employees or their nominated representatives and provide employees with reasonable notice, being a minimum of 7 days' notice or payment in lieu.

Where employees are required to change to a non-continuous shift roster, 4 weeks' notice of any change will be given to employees, or a lesser period of notice as agreed to by the Company and the majority of the affected employees.

Consideration of any other roster types by an employee or a work group can be progressed to the General Manager for the Company's genuine consideration.

Where employees believe the roster is harsh, unjust or unreasonable, the matter can be dealt with under the dispute resolution procedure.

Employees are required to attend to shift change responsibilities for communication and work continuity. Recognition for this requirement is included in the Total Fixed Remuneration.

The Company may require an employee to change shifts within a roster. These employees will be given as much notice as reasonably possible. Where the Company requires the employee to change from one existing roster arrangement to another, they will be given a minimum of 7 days' notice or payment in lieu."

[21] Clause 10.12 of the 2018 Agreement is in different terms and provides:

"The Company may carry out all operations 24 hours per day on any day of the week and implement roster systems that meet the needs of the site and takes into account health and safety needs of employees. Prior to the introduction of any new roster system the Company will consult with affected employees or their nominated representatives and provide employees with reasonable notice, being a minimum of 7 days' notice or payment in lieu.

Where employees are required to change to a non-continuous shift roster, four (4) weeks' notice of any change will be given to employees, or a lesser period of notice as agreed to by the Company and the majority of the affected employees.

Consideration of any other roster types by an employee or a work group can be progressed to the General Manager for the Company's genuine consideration.

Where employees believe the roster is harsh, unjust or unreasonable, the matter can be dealt with under the Dispute Resolution Procedure.

The Company may require an employee to attend to shift change responsibilities for communication and work continuity. If this occurs, the employee will be paid the relevant shift change responsibilities payment identified for their classification in Appendix 1. No other payment will be made in relation to this responsibility.

The Company may require an employee to change shifts within a roster. These employees will be given as much notice as reasonably possible. Where the Company requires the employee to change from one existing roster arrangement to another, they will be given a minimum of 7 days' notice or payment in lieu.

If a roster and/or shift change occurs, Annual Leave and Personal Leave values up to the date of the change will remain unchanged. The Company will adjusts the hours to maintain the dollar value of employee Annual leave and Personal Leave balances up to the date of the new roster and/or shift change. Any Annual Leave and Personal Leave accrued after the roster and/ or shift length change is accrued at the new rate."

[22] Appendix 1 of both Agreements deals with the remuneration structure. After setting out the remuneration structure for the "Day Shift Roster", "Day/Night Shift Roster", "Non-Rostered Overtime Rate per hour" and "On Call rates per hour", Appendix 1 of the 2013 Agreement states:

"The Total Fixed Remuneration is based on working a continuous even-time (i.e. 5 days on then 5 days off) roster which will be used as the basis for calculating any alternative rosters.

The Roster Allowance is paid in recognition for all social disruption factors with the requirements of the role and all disabilities associated with the working environment. This also includes work on any rostered shifts, weekends or public holidays"

[23] The 2018 Agreement provides for different rosters to the 2013 Agreement. The remuneration structure in Appendix 1 of the 2018 Agreement provides for "CURRENT DAY SHIFT 10HR ROSTER", "CURRENT DAY/NIGHT SHIFT 10HR ROSTER" and "CURRENT DAY/NIGHT SHIFT 7 on/7 off 12 HR ROSTER". Appendix 1 of the 2018 Agreement goes on to say:

"The Total Fixed Remuneration is based on working a continuous even-time (i.e. 7 days on then 7 days off) roster which will be used as the basis for calculating any alternative rosters.

The Roster Allowance is paid in recognition for all social disruption factors with the requirements of the role and all disabilities associated with the working environment. This also includes work on any rostered shifts, weekends or public holidays.

The Company may require an employee to attend to shift change responsibilities for communication and work continuity. If this occurs, the employee will be paid the relevant shift change responsibilities payment identified for their classification in Appendix 1 below. No other payment will be made in relation to this responsibility."

[24] The crux of the CFMMEU's position is that the tasks undertaken by relevant employees prior to the commencement of their shifts (that is prior to 6.00 am/pm) are "work" and that employees should be remunerated for that "work". The CFMMEU submits that the "starting point" of work is the point where an employee is directed to be at the commencement of the shift to receive directions about the performance of work on that shift. The receipt of directions, as well as other tasks completed prior to the commencement of operational activities is work and is done in order to be able to operate the mining equipment.

[25] The CFMMEU submits that other tasks completed prior to the commencement of operational activities include:

• Drug and alcohol testing;

• Reviewing an electronic board to receive directions about where employees are performing work and the specific equipment they are operating for the shift and how that is to be done;

• Travelling to the work areas; and

• Pre-start meetings.

[26] According to the CFMMEU, what has occurred in the past is that "work" would commence with the pre-start meeting, which would then be followed by the other activities. In 2016 the Respondent moved the physical location of the pre-start meeting from the administration block to the "in-pit" crib hut, although the time of the meeting remained the same (6am or 6pm as the case may be) and reversed the order of these pre-operation activities, such that the other activities occurred in the 15 minutes prior to the pre-start meeting, with the pre-start meeting being the end of pre-operation activities and, according to the Respondent, the commencement of "work".

[27] The CFMMEU submits that the physical change in location of the pre-start meeting and the reversing of the order in which it occurs does not alter the fact that employees are engaging in work from their arrival at the administration block in the 15 minutes prior to the pre-start meeting at the crib hut. Those activities are where employees first receive their direction and tasks for the day and are therefore, "work". The effect has been to change the start time from 6am or 6pm to 5:45am or 5:45pm, but not the starting point.

[28] Accordingly, the CFMMEU submits that the answer to the first question should be: "Yes". As to payment for this work, the CFMMEU submits that clause 10.1 of the 2013 Agreement provides for the total fixed remuneration which includes compensation for all hours worked, including rostered overtime and various other penalties and allowances. However, total fixed remuneration does not include non-rostered overtime, which, in accordance with clause 10.11 of the 2013 Agreement, is all time worked in excess of, or outside, the rostered hours.

[29] The CFMMEU submits that the evidence establishes that discussions were engaged in between the relevant industrial players in 2015 to effect a roster change. As a part of those discussions, Peabody provided a breakdown of the calculation of the total fixed remuneration. That calculation included an additional half hour of overtime per shift which was attributed to a "hot seat" change. The CFMMEU submits that this half an hour of overtime allows for "shift change responsibilities for communication and work continuity" referred to in clause 10.12 of the 2013 Agreement. That is, that half hour was built into the total fixed remuneration in recognition of the requirement that employees attend to shift change responsibilities.

[30] The roster changes in 2015 reduced the roster from 12 hours to 10 hours, and the accompanying amendment to total fixed remuneration removed the half hour overtime that was included in the calculation. That amendment was the subject of proceedings before the Commission as presently constituted and a determination about the formula for reducing the total fixed remuneration as a result of the removal of the half hour payment for a hot seat change was made.[14] From January 2016, "most employees"[15] resumed working 12 hour shifts by working 10 hours ordinary time plus 2 hours non-rostered overtime. According to the CFMMEU, this amendment to rosters also involved the reshuffle of pre-operations tasks, discussed above. The CFMMEU submits that the changes mean that employees are again attending to shift change responsibilities for communication and work continuity. However, the additional half hour that was built into the total fixed remuneration previously and which was removed as part of those roster changes, was not reintroduced so that the total fixed remuneration does not compensate employees for shift change responsibilities.

[31] The CFMMEU submits that under the 2013 Agreement this means that the 15 minutes prior to the shift spent on tasks prior to commencing operations needs to accounted for as non-rostered overtime and so should be paid in accordance with clause 10.11. The CFMMEU further submits that since the introduction of the 2018 Agreement clause 10.12 operates differently. The argument that the relevant time is work is still maintained but the work being undertaken is "shift change responsibilities" and employees should be paid the allowance in Appendix 1 of the Agreement designated "Shift Change Calculations", for performing such work. The evidence in support of the CFMMEU's contentions can be summarised as follows.

[32] Mr Stephen Thomson has been employed at the Mine since 2010. Mr Thomson says that at the beginning of 2016 Peabody implemented a change to the start of shift process whereby the pre-start meeting would now be conducted at the crib hut rather than, as had previously been the case[16], the administration block. Mr Thomson says that this has meant that employees were required to attend at work 15-20 minutes prior to the start of shift, in order to "sign on, find out their tasks for the shift and undertake travel to their designated crib huts"[17] to be ready to commence the pre start meeting at 6.00 am/pm. Mr Thomson attached to his statement an information brief dated 20 February 2016 and titled "Start of shift/End of shift sign on/off process", which states as follows:

Please be advised that the new process for Start of Shift / End of Shift signing on and signing off at the crib huts will commence as planned on the 11th February 2016.

Due to the [Site Senior Executive] communication sessions with respect to the wages dispute on Wednesday 10th February and the employee meetings for union and non-union representatives on Thursday 11th February the sign on process will be carried out as cold starts with prestart at the front prestart room.

The sign off process on both of these days will occur as expected at the crib hut.

Any queries should be to your supervisor in the first instance."

[33] The information brief includes a flow chart of the Start of shift/End of shift sign on/off process for "All crews". The process set out in the flow chart is that a bus departs camp accommodation at which some employees reside at 5.30 am/pm and arrives at the Mine at 5.45 am/pm. Employees have five minutes to access their personal lockers before undertaking the following:

• Raptor drivers read crew allocation sheet;

• Crew check allocation sheet;

• Sign crew sheet;

• Board correct raptor;

• Raptor departs from 5.50 am/pm;

• Swipe on to Kronos/OSTE machine and breathalyse;

• Prestart meetings at crib hut 6.00 am/pm;

• Prestart equipment;

• First load 6.20 pm.

[34] Raptors are light vehicles which are used to transport employees to in-pit crib huts or operational areas on the Mine lease. Mr Thomson states that since the new process commenced, they have been undertaking the start of shift procedure consistently with the flow chart, except that Kronos log on and drug and alcohol tests are completed at the administration block, prior to the raptor departing the administration block.

[35] Mr Thomson says that the run-down of a typical start of shift is as follows:

"a. Bus from camp arrives around 5:45am/pm but can be as late as 5 minutes due to a railway crossing between camp and the mine entrance;

b. Depending on delays, employees will have no more than 5 minutes to perform the following tasks:

i. Swipe onto Alcoholise test machine and follow the prompts (this may have a queue);

v. Read manning board/allocation and sometimes speak to supervisors to board the correct vehicle to assigned work location;

vi. Read OCE report (if driving onsite to assigned crib hut prestart)

c. Arrive at crib hut where we see our supervisor/leading hand. Usually, at this time, it is approximately 6am/6pm and we commence work for the shift."[18]

[36] Mr Thomson states that during the time taken to undertake these tasks employees have not received any additional pay, other than employees who are required to drive vehicles. Mr Thomson also states that employees are required to comply with company policies, procedures and directions during this time.

[37] Mr Ross Curd has been employed at Coppabella mine since approximately 2 November 2009. Mr Curd's evidence about activities before the start of shift is as follows:

"5.35am/pm - arrive at Coppabella mine/employee car park. Make your way to the swipe/access machines to do breath test etc.

5.40 - locate and check task/machine allocation board for the day's assigned machine/task. "You are assigned to a machine that is to be hotseated".

5.42 - Collect PPE from locker, then locate and read the OCE report.

5.45 - If in a truck you proceed to the front go line. If in a loader or excavator you need to locate an L.V. and travel to assigned machine location.

5.50 - When the machine is parked and the off going operator gets out a short changeover is conducted with them regards and changes/blends hazards stockpiles etc. If in a truck and it is loaded the pre start is conducted after the load is dumped.

5.55 - before proceeding to the machine a slam is to be conducted to comply with the Peabody isolation requirements.

5.58 - Tag and lock out machine to conduct a pre start inspection.

6.05 - Enter machine and log into the Leica system and you are ready to start operation."

[38] Mr Trevor Lesleighter has been employed at the Coppabella mine since 2010 and works in production as well as the washplant. The change to the location of prestart meetings in 2016 affected the washplant employees in that it meant they would attend work "around half an hour"[19] earlier than 6am/6pm. Mr Lesleighter's evidence about the start of shift process for the washplant is as follows:

d. I've had one of the leading hands or dispatch approach me at 5.40 and ask if I could go straight up to the washplant to help load a train.

e. I go out and pre-start a light vehicle and drive up to the washplant at 5.45.

f. On arrival at the washplant I do a slam and safe start for working on a coal stock pile. If the dozer is already on the stock pile I'll call the operator to come down and swap out. Do a visual inspection and start operating at 5.50.

g. If required I will stay at the washplant for the remainder of the day. If there is a train in the afternoon and no-one from B Crew are going up to the washplant that night, I have been still operating the dozer right up until 5.55pm and not returning to the front admin until 6.05pm."

[39] Mr Smythe has worked at Coppabella mine since approximately 2009. Mr Smythe is a member of the CFMMEU and performs representative duties on behalf of the CFMMEU at Coppabella. Mr Smythe states that the changes of which Mr Lesleighter, Mr Curd and Thomson have given evidence, affected employees in the Production, ROM and rehandle areas of the mine, but not the maintenance/workshop, pump crew or drill and blast work areas.

[40] The changes were summarised in an information brief, annexed to Mr Smythe's statement. The information brief states "date effective 120419", which is presumably 12 April 2019 and states:

Following our communication re-familiarizing (sic) personnel with the start point expectations on site, as requested, we are confirming the following:

• 5:45am/pm - Arrive to site as you normally do (car or bus)
• Self test function available prior to boarding bus (on-site or at camp)
• 5:45am/pm-5:50am/pm - Swipe on OSTE and Kronos
• For tracking of personnel on site prior to participating in the pre-start, OSTE must be completed
• OSTE units will be routinely monitored by shift Supervisors for defects.
• 5:50am/pm- Board the bus and depart for the crib hut for allocated dig unit
• This is still part of the commute to work for personnel
• Bus driver to contact dispatch to identify who is transiting persons to the crib huts.
• Swipe Kronos at crib hut (optional if not completed at front)
• Prestart meeting at crib hut - 6:00am/pm
• By complying with the above points you will be paid from 6:00am/pm.

This process has been in place since January/February 2016, following consultation in January 2016 and a subsequent Dispute Resolution Process, which was resolved at Superintendent level in February 2016.

We confirm that there are no restriction in the [2013 Agreement] regards Start and Finishing Points which prevents this arrangement being in place. The requirements are regarded as a reasonable direction and forms part of our employees commute to work.

The Black Coal Industry Award provisions do not apply here, as per clause 7 in the [2013 Agreement].

[Clause 7 of the 2013 Agreement is then extracted]

Any further issues can be submitted via the Dispute Resolution Process per clause 24 in the [2013 Agreement]."[20]

[41] Mr Smythe states that for as long as he can remember employees catch the bus or drive their own vehicles to site.[21] Once at site they log into the Kronos system when entering the site, perform drug and alcohol tests as required, access lockers, fill water bottles and access PPE. Employees would be present in the front crib hut room[22] at 6.15 am/pm for prestart meeting and reading of the OCE report. Employees would then proceed on buses to allocated work areas.

[42] The outgoing crew, coming off a 12.5 hour shift, would finish at 6:45am/pm. Mr Smythe says that "this half hour"[23] (presumably the time between 6:15 and 6:45 am/pm) was considered to be the "hot seat change". The oncoming crew would see the previous crew at the crib hut or pass them on the way out, depending on distance to the crib hut. The previous crew would finish at 6:45am/pm "at the front"[24]. Mr Smythe says that it was always his understanding that the total fixed remuneration included a half hour for the changeover at the start and end of the shift. [25]

[43] Prior to the 2016 changes subject of the present dispute, Mr Smythe recalls the 2015 roster changes. Those changes implemented a new 10 hour shift, working 7 on 7 off, and a 12 hour roster working 5/2/5/9. That roster change was also the subject of a dispute application before the Commission[26] and was resolved by arbitration[27]. As a part of that dispute process before the Commission, Mr Jason Economidis (then General Manager of the Mine) stated that the 30 minute hot seat change incorporated into the total fixed remuneration was no longer required and was removed. Mr Smythe also recalls Mr Economidis saying that the intention was that employees would only be required to work from 6am/pm each shift.[28]

[44] Following the shift change, the pre-start meeting was moved to 6am/pm. The 5/2/5/9 roster was removed due to employee disinterest. Employees all went to the 10 hour roster with two hours of voluntary overtime. Mr Smythe takes issue with whether the overtime is voluntary however that matter is not relevant to the present dispute and I make no finding in relation to it. According to Mr Smythe, in January 2016, Peabody changed what the Company described as the "start point"[29]. This change required employees to be at work at 5:45 am/pm to log on and perform a drug and alcohol test. Then, rather than conduct a pre-start meeting in the main administration building, employees would proceed to the front crib hut (near the front administration building) and be allocated a start point for the shift. Originally, this occurred on a white board, but was later undertaken using an electronic board. The board indicated to each employee what their tasks were for the shift, the equipment they would be working on and where they were to report for pre-start meetings. A photo of the electronic board was attached to Mr Smythe's statement as "DS-3".

[45] After being instructed on their work assignments for the shift, employees are bussed to the designated work areas and complete their pre-start meetings, including reading (or having read to them) the OCE Report for the shift. These duties were previously undertaken at the front crib hut. After completing these activities, employees commence work. This is usually at around 6.00 am/pm but this depends on how far away the work area is.[30] Mr Smythe states that some employees working close to the administration block, and who continue to have pre-start meetings at that location, commence work prior to 6am/pm.

[46] Mr Smythe states that regardless of when employees commence work the total fixed remuneration has not changed and is still paid according to the 10 hour 7/7 roster. Production employees are also expected to perform 2 hours overtime each shift. Mr Smythe states that this effectively means employees are performing a "hot seat change" as per the previous 12 hour roster without receiving additional payment. "On average" employees are not getting back to the "start point" until 6:10am/pm and the bus leaves site at 6:15 am/pm from the administration block to return to camp. This process has continued under the 2018 Agreement. Mr Smythe believes that the total fixed remuneration in the 2018 Agreement does not provide additional remuneration for this additional work.

[47] In his oral evidence, Mr Smythe said that it can take up to 20 minutes to get to some in-pit crib huts but on average it is a 12 minute journey.[31] The crib huts are also mobile and are moved around to different locations.[32] In relation to the use of the electronic board Mr Smythe said that when employees are looking at it there are supervisors, leading hands and a dispatch operator in the room giving instructions, which may include instructing a particular employee to get into a vehicle with the supervisor to be transported to a particular location. It is also the job of supervisors and leading hands to instruct workers about which cars and light vehicles to get into. Mr Smythe said that some employees will look at the whiteboard and work out which vehicles to get into for themselves. The supervisors and leading hands and OCE will spread out across the various locations where pre-start meetings are being held.[33]

[48] In relation to Mr Risner's evidence about hot seat changes, Mr Smythe said that machines have to be turned off at the start and finish of each shift but that the objective of the changeover in the present case is that the machine is turned off for as little time as possible. While a hot seat change involves getting into a machine while it is still running, the change in the present case is a "hot start".[34] Mr Smythe said that by changing the location of pre-start meetings the time that the machines are not operating is reduced from 30 to 40 minutes to 20 - 25 minutes and workplace continuity is promoted.[35]

[49] Mr Smythe was also asked about what was discussed with respect to starting points during negotiations for the 2018 Agreement and said that Company representatives would not discuss the issue and stated that it would be sorted out before the Commission in proceedings commenced under the 2013 Agreement in relation to a review of aggregate salaries resulting from removal of hot seat changes.[36]

[50] Under cross-examination, Mr Smythe agreed that when it takes longer than 10 minutes for employees to travel to in-pit crib huts for the purpose of attending pre-start meetings, they are paid from 6.00 am or 6.00 pm. Mr Smythe also agreed that supervisors who are present when workers are looking at the whiteboard in the main administration building are not giving direction to all employees but maintained that all employees were there in the event that supervisors wanted to give directions to them.[37] Further, Mr Smythe agreed that information given by supervisors to employees at this time was information about what they would do when they start work. There is also potential for some employees not to go to a pre-start meeting but to simply report directly to the work area they are allocated to, read the OCE Report and start work.

[51] Mr Smythe maintained that at other Mines where he has worked employees can make their way to the start point using their own vehicles. In the present case employees cannot take their own vehicles onto the Mine site. Mr Smythe agreed that regardless of the time at which work commences employees will get to work 5 minutes before that time to undertake activities to get ready for work but maintained that in the present case workers were directed to be at work 15 minutes early and that their start point continued to be the main administration building. Mr Smythe said that if the Company directed workers to start at 5.45 am or 5.45 pm workers were happy to do this but should be paid for that time.[38]

[52] In response to questions from the Commission, Mr Smythe said that under the previous arrangements employees started work at 6.15 am/pm and would generally arrive to work 5 minutes before this time to undertake pre-work activities. Employees would be paid from 6.15 am/pm when the pre-start meeting commenced. Under the new arrangements employees are required to be at work at 5.45 am/pm and to undertake pre-start activities before boarding vehicles to travel to in-mine crib huts to attend pre-start meetings. They are paid from 6.00 am/pm. Mr Smythe agreed that it was never the case when previous arrangements applied, that employees would get on to a machine while it was still running while the previous crew got off and that generally a hot seat change of this kind only occurs when an operator takes a crib break.[39]

[53] In his further statement Mr Smythe provided additional information about current and previous practices in relation to starting work. Prior to the change that led to the present dispute, a bus transporting employees from the camp would arrive at the Mine site at 5.30 am/pm - 15 minutes before the scheduled start time at 5.45 am/pm. Employees who live in neighbouring towns could arrive at 5.40 am/pm and perform pre-work activities such as filling water bottles, drug and alcohol testing and accessing PPE. Employees would then enter the administration building at roughly 5.40 am/pm to commence the pre-start meeting at 5.45 am/pm and would be paid from that time.

[54] According to Mr Smythe's evidence, pre-start meetings would commence with the OCE Report being read out to employees and then job allocations would be provided for all employees on shift. Pre-start meetings would finish at approximately 6.00 am/pm and employees would proceed to Company supplied vehicles and head out to assigned work areas. Incoming employees would often pass outgoing employees on their way to work areas. Employees tasked with working at areas closer to the administration building could speak to operators on the ground while machines were shutting down before completing a pre-start. This improved work continuity but was not technically a hot seat change as all machines needed to be shut down and isolated to do pre-start checks at the commencement of each shift.

[55] Mr Smythe said that the Company went through a difficult period and restructured workers' remuneration. In the restructure, Mr Economides the Site Senior Executive, stated that the hot seat change was not efficient and the Company did not want to pay for this time. New hours of work were established from 6.00 am/pm to 4.00 pm/am with the ability to work 2 hours overtime. During this roster the bus would arrive on site at 5.45 am/pm. If employees lived in neighbouring towns they could arrive as late as 5.55 am/pm and still be able to perform pre-work activities before attending the pre-start meeting. The pre-start meeting was conducted in the same manner with the OCE Report being read out followed by job allocations and individual discussions about specific tasks for the shift. During the pre-start the outgoing crew who had agreed to work overtime would be arriving at the administration building and preparing to leave the site.

[56] When the pre-start meeting was completed, employees would board Company supplied transport and proceed to the allocated work areas. When employees arrived at work areas, the machines had not been operating for an extended period compared to when the previous hot start arrangements were in place and were cold, with the result being that they took time to restart.

[57] The present dispute arose when the Company directed all employees - those who arrived by bus and their own vehicles - to be at work at 5.45 am/pm in order to be at the in-pit crib hut rooms at 6.00 am/pm as per the start schedule information brief. As a result, incoming crews are seeing employees on outgoing crews on the drive into the Mine and are getting on to the machinery while it is still hot. The workforce is doing the same under this arrangement as when the hours of work were 12.5 and the Company is only paying employees for 10 hours plus two hours overtime with no increase in remuneration for the hot seat change.

[58] In response to Mr Panton's evidence, Mr Smythe said that under the previous arrangements employees would access whiteboards at 6.00 am/pm and would be paid from that time. Further, the whiteboard was previously located in the same room as the pre-start meetings while the electronic boards that have replaced it are located in a building next door. The information on the electronic boards goes up at 5.45 am/pm and needs to be viewed before employees board transport to go to in-pit crib huts for pre-start meetings or to go directly to where they will start work. Mr Smythe said that this is usually done between 5.45 and 5.50 am/pm. Further, while employees are viewing the electronic board, some are instructed that they are required to report directly to a particular machine or area of the mine. Mr Smythe also said that Mr Sorenson had stated to employees that if they did not get into vehicles at the required time, they would be in breach of a reasonable management direction.

[59] Under cross-examination Mr Smythe agreed that when the previous procedures for starting work were in place, information was on the whiteboard before employees entered the room where the whiteboard was located and where the pre-start meeting was conducted. Mr Smythe maintained that the whiteboard was turned around so that it could not be viewed until the pre-start meeting commenced unless employees walked to the front of the room and around to the other side of the whiteboard. Mr Smythe also disputed that checking the board required a glance and said that it took approximately one minute. Mr Smythe maintained that the dispute was about the fact that previously the employees had been required to be in the administration building at 6.00 am/pm and could arrive in the pre-start room one minute prior to this time. Now they are required to be in the building beside the administration building at 5.45 am/pm and are not paid until 6.00 am/pm. Mr Smythe agreed that the only change was for employees who drive themselves to work as employees who arrive by bus had previously arrived at 5.40 am/pm.

[60] In oral submissions for the CFMMEU, Mr Newman said that it is clear that there is a direction for employees to attend at the Mine at 5.45 am/pm. According to the CFMMEU there is little doubt that the employees are being directed to perform work from that time onwards and that they are working in accordance with the established definition of work. Even if there is no specific direction, the evidence establishes that the employees are available to be given directions and some employees are given directions and expected to comply. It was submitted that the fact that some employees can be directed to read OCE reports and commence work on machines or at particular work areas, or drive vehicles and be paid for such time, is indicative that all employees can be given such direction and are working. In such circumstances there is no difference between the employee driving the light vehicle and the employees sitting in the vehicle being transported.

[61] In response to questions from the Commission, Mr Newman agreed that under previous arrangements activities such as filling water bottles, collecting PPE and logging on to Kronos and OSTE were undertaken prior to commencing pre-start meetings and were not paid. However Mr Newman maintained that the direction requiring employees to be at work at 5.45 am/pm meant that they actually had to be at work at 5.40 am/pm to undertake those activities and they should be paid for all such time. Mr Newman also agreed that the issue of payment for pre-work activities did not arise when the previous arrangements were in place but was an issue now because Peabody had split the locations at which the activities occur and added a period of time to get between locations not previously required.[40] Mr Newman further agreed with the proposition that the case was about "the thin edge of the wedge" and that the CFMMEU is concerned that the Company will continue to move the starting point further away from the main administration building requiring employees to travel for longer periods to start work, without payment.[41] The CFMMEU contends that at very least, employees are working when they look at the electronic board telling them what vehicle to get into or to operate in order to travel to the pre-start meeting or the point at which they are to start work, if they are not required to attend a pre-start meeting.

[62] Mr Newman said that the first question for arbitration should be answered in the affirmative. In relation to the questions 2 and 3, there are 2 discrete periods: January 2016 to 14 June 2018 when the 2013 Agreement was in effect and 14 June onwards when the 2018 Agreement came into effect. According to Mr Newman the 15 minutes was provided for in the total fixed remuneration under the 2013 Agreement by virtue of the hot seat change provided for in that remuneration. That hot seat change has been removed but has crept back in by virtue of the change to the location at which pre-start meetings are conducted. The 15 additional minutes of work arising from this change should, according to the CFMMEU, be paid for as shift change responsibilities or non-rostered overtime, in accordance with the terms of Agreements. Alternatively, the employer could rearrange the total fixed remuneration and include the 15 minute period within it.

[63] Peabody contends that employees are only entitled to payment for time "worked". "Work" does not commence until employees attend their pre-start meetings (6.00 am/6.00 pm), or they have been given a clear direction by their supervisor to commence work before that time[42]. Prior to this point, employees are travelling or undertaking pre-work activities, which include breathalyser testing and clocking on to the time system (Kronos). There is no provision in the 2013 Agreement or the 2018 Agreement for payment in respect of these pre-work activities.

[64] It is not unusual, in Peabody's submission, for employees to be required to undertake a small amount of unpaid pre-work organisation prior to commencing work. Employees are not usually paid for their travel to the place of commencement of work. That these activities are systemised and facilitated by Peabody does not change their character. [43] In its summary of the background to the dispute, Peabody accepts that as a result of the change to what it calls "the start/finish point", employees are "required" to arrive at site at 5:45am/pm in order to undertake the pre-work activities.[44]

[65] Peabody submits that the relevant Agreement clauses indicate that employees are compensated for time worked. The way that this occurs is either by the total fixed remuneration or non-rostered overtime. There is no provision in the Agreements prescribing the start/finish point for work purposes. Similarly, there is no provision that prevents Peabody from changing the start/finishing points, or designating the start time of shifts.

[66] Peabody submits that the requirement that employees be present at the mine 15 minutes prior to the rostered start of their shift is reasonable and necessary to ensure that they are present at the starting point when the rostered shift commences. The only expectation of employees in this time is that they establish their fitness for work by swiping on to OSTE and doing a drug and alcohol test and then sit on a bus to be transported to the in-pit start point.[45] For some employees there is no additional travel to the Mine as their pre-start meetings take place at the main administration area. Peabody submits that it has been established in previous cases that:

a) an employee is at 'work' when they attend "... at the place of employment pursuant to the employer's direction to be at the employer's premises for a period of time and be available to provide service at the premises as required by the employer"[46]. Here the requirement to be at the Mine by approximately 5.45am/pm is purely logistical to facilitate a further period of travel to a start point for some (not all) employees. There is no requirement for workers to be providing service to Peabody at that time;

1. in circumstances where an employer directs employees to present at an accommodation camp for employer provided travel to a designated pre-start location, this period of time is a period of travel, and does not constitute a direction from an employer to perform work; and

c) in circumstances where an enterprise agreement does not prescribe starting and finishing locations, the employer is entitled to nominate those locations, and it is not open to an employee to decide that they will commence work at another location.[47]

[67] Consequently, Peabody's position is that 'work' only commences when employees attend the pre-start meeting which is the point at which they receive directions about tasks to be performed over the course of the shift.[48] If there is a "specific direction" before this time to commence work then this is non-rostered overtime and is paid as such. An example of such a direction is an employee being told to read the OCE Report and then get into a vehicle and drive to an operational location or machine and get straight onto the machine or start work at that location.

[68] Peabody also contends that the CFMMEU's evidence does not support the position set out in its submissions. In this regard, Peabody points to Mr Smythe's evidence that logging on to Kronos, performing drug or alcohol tests, accessing lockers, filling water bottles and accessing any PPE needed for the day, are activities that have historically been performed prior to the commencement of the pre-start meeting, which took place at 6.15 am/pm in the front crib hut room.[49] Mr Smythe does not suggest that he was entitled to receive any remuneration for those tasks prior to 6.15 am/pm which was the designated shift starting time. None of the CFMMEU witness suggest otherwise. Accordingly Peabody submits that the Commission should accept that these tasks have never been considered work and that the start of work is the pre-start meeting.

[69] Similarly, Peabody submits that review of the electronic board by employees to identify which area of the Mine they will be working in and in some cases, what machine they will be working on, has never been considered a work task. This task is undertaken simply to advise employees where to go and it would be no different if employees were sent this information by email prior to attending the Mine. With respect to travel to in-pit crib huts, Peabody submits that not all employees have their pre-start meetings at the front administration building under the current roster. Peabody acknowledges that when 12.5 hour shifts were being worked all employees had their pre-start meetings at the front administration building. According to Peabody, the CFMMEU's position does not address the fact that this is an extension of the travel arrangements put in place by Peabody. No "work" is performed during this time except by drivers of vehicles transporting employees to other parts of the Mine, who are directed to do this work by Peabody. Drivers are paid non-rostered overtime for performing this work. This is consistent with the wording in both Agreements which distinguish between rostered hours and requests by Peabody supervisors for employees to work non-rostered hours.

[70] Peabody also contends that there is no direction by the Company for employees to read OCE reports before their pre-start meetings unless they are directed to perform work before their rostered start time. Although an employee may choose to do this it is not directed by the Company. In any event, the Company's position is that supervisors should discuss the OCE report with their respective crews at pre-start meetings. Peabody accepts that under the 2013 Agreement rosters may have included a shift length of 12 hours and a shift changeover/hot seat of 30 minutes. However, this was only if the shifts were 12.5 hours long and there was a shift changeover/hot seat requirement on a shift. Once the rosters changed to 10 hours plus two hours of voluntary overtime, there was no longer any designated cross-over between the two shifts. Mr Smythe accepted that the electronic board indicates if a hot seat changeover is required for certain workers. Peabody's position is that a hot seat change is a particular event which occurs on certain machinery and not simply the overlap of time both crews are at work.

[71] If hot seating on a particular piece of machinery is required, Peabody's position is that this is paid but only once an employee has been directed to begin work. If this direction happened to be before 6.00 am/6.00 pm then this is fully paid for at the appropriate rate. However, this requires the employee and the supervisor to notify Peabody when this work commenced. With respect to shift change responsibilities, Peabody's position is that this is also specific work at the Mine which relates to reviewing Mine performance KPIs, writing shift handover notes, liaising with oncoming supervisors and preparation for pre-start delivery. Most production workers do not perform these tasks. This is a different concept to a hot seat change or a simple shift changeover in clause 10.10 of the 2013 Agreement which occurred when the Mine was operating 12.5 hour overlapping shifts.

[72] Peabody submits that none of the witnesses for the CFMMEU gave any evidence about the tasks they consider or believe to be shift change responsibilities. Further, Peabody contends that there is no evidence to support the CFMMEU's submission that anything done before the pre-start meetings falls into the character of being a shift change responsibility for which an additional payment is to be made.

[73] While not employed at the Mine at the time, Mr Risner is aware that around November/December 2015 the Company consulted employees about changing the starting point from the main administration hut at the front of the Mine to starting work in-pit from the crib huts for certain crews. Around January/February 2016 the Company implemented this change. Mr Risner tendered a diagram showing various distances to in-pit crib huts from the main administration building ranging from 3100 metres to 7600 metres. Mr Risner's evidence is that it takes 9 minutes at 50 km per hour to drive from the front administration building to one in-pit crib hut referred to as the East pit crib room.

[74] Mr Risner traversed the history of the dispute as raised by Mr Smythe. The Company took the position that the 2013 Agreement does not provide any direction regarding starting and finishing points; excludes the Black Coal Industry Mining Industry Award 2010; and Peabody consulted about changing starting points during November and December 2015. Mr Smythe contended that coal mining employees complying with a direction to arrive at the Mine at 5.45 am/pm so the mine could provide travel for them to commence work at 6.00 am/pm at crib huts should be paid from 5.45 am/pm. Mr Risner states that in November 2017 he wrote to Mr Smythe in relation to his dispute and informed him that the 2013 Agreement does not provide for a starting point and that the matter was being discussed in negotiations for the 2018 Agreement. According to Mr Risner, the matter of starting points was discussed in those negotiations but there was no relevant change to the 2018 Agreement and at the time it was approved the new process for starting at in-pit crib huts had been introduced.

[75] Mr Risner states that while he did not work at the Mine when the decision in relation to starting points was made, starting in the pit has been common at other Mines he has worked at in the United States as it is an efficient practice which maximises useful working time. There is also no overlap of shifts when employees start at 6.00 am/pm. Since Mr Risner commenced at Coppabella in January 2017, employees who work in Production, Run of Mine and Rehandle teams have been rostered to commence their shifts at 6.00 am/pm which is the time that pre-start meetings are scheduled. Some crews start at the main administration hut at the front of the mine and have their pre-start meetings there. Other crews have their pre-start meetings at an in-pit crib hut. All pre-start meetings commence at 6.00 am/pm. Production employees who work at the washplant work 10 hour shifts with 2 hours of voluntary overtime.

[76] Employees arrive at the Mine by bus from the camp or make their own way by private vehicle. The bus is scheduled to arrive at 5.45 am/pm but this can vary depending on the timing of trains which may hold up entry to the Mine. When employees arrive at the Mine they undertake the following pre-work activities which have always been required before the commencement of work:

• Swipe on to Kronos, which records how many people are on site and feeds into the pay system;

• Undertake a breath test for alcohol and for drugs if selected;

• Swipe onto OSTE after passing the breath test; and

• Fill water bottles, access personal lockers and collect PPE.

[77] Employees also check an electronic board which tells them what equipment they are on for the day. Employees are able to identify their work location from the equipment they will be operating. The board does not give any information about the work to be performed that day and employees are simply required to look at the board. All of these activities must be undertaken to ensure that employees are fit and ready to work. Employees could swipe into Kronos and undertake the breath test at the crib huts however this must be done before they commence work which includes the pre-start at 6.00 am/pm. Sometimes there are issues with the reliability of Kronos and the breathalysers at crib huts due to wireless connectivity issues so employees may simply log on to do their breath test at the main entry to the Mine.

[78] Mr Risner states that employees are expected to arrive at the Mine so they are ready to be transported to their start point at an in-pit crib hut (if required) to commence their pre-start at 6.00 am/pm. It is about an 8 minute journey to the crib huts by light vehicle from the front of the Mine and light vehicles transporting employees to those locations usually leave the front of the Mine at 5.50 - 5.55 am/pm. Peabody facilitates the final part of the journey to work for employees who will commence their pre-start at in-pit crib huts, because of logistical issues which prevent employees from being able to drive their private vehicles onto the Mine site. Employees who drive the vehicles are expected to read the OCE Report, conduct a pre-start check on the vehicle and drive it to the in-pit crib huts. Employees who carry out these activities are paid for them as they have been directed by their supervisors. Peabody considers this to be non-rostered overtime.

[79] According to Mr Risner, the start time for a shift is when the pre-start briefing commences at 6.00 am/pm depending on the shift. Supervisors deliver a pre-start briefing to crews at the relevant crib hut at 6.00 am/pm. At the pre-start briefing supervisors give instructions to employees about their tasks for the day and read out the OCE Report. There is no obligation or direction for workers to read the OCE Report themselves before the pre-start meetings unless they have been directed to perform work by a supervisor, such as driving a light vehicle to transport workers to the in-pit crib huts, which requires the employee to read the OCE Report and undertake a pre-start check on the light vehicle. Peabody does not expect employees to perform work prior to 6.00 am/pm unless they are given a clear direction from a supervisor, in which case they will be paid for the work they perform. Otherwise employees are not required to do anything other than arrive at the Mine, perform some simple pre-work activities - which would be required irrespective of the starting point - and utilise the transport to their start point if required.

[80] Mr Risner states that if Mr Lesleighter is performing work at 6.00 am/pm at the direction of a supervisor he should be paid for those tasks. If Mr Lesleighter is electing to perform those tasks at his own discretion this is not an activity that the Mine requires. Mr Risner also states that hot seat changeovers occur when there is a change of operators while a machine is idling so that they are not cold starting and provide an opportunity to keep Mine operations continuously running. This is only required on certain machinery at certain times and most employees relevant to the present dispute would not perform a hot seat changeover. Further, Mr Risner states the description in Mr Smythe's statement is not a hot seat changeover. Where a hot seat changeover is directed by a supervisor the start is at 6.00 am/pm when the shift has commenced or if employees are required to start early, they are paid for the work as non-rostered overtime. However, this is because there has been a direction to perform specific work.

[81] According to Mr Risner, a shift change responsibility includes activities such as reviewing Mine performance KPIs, writing shift handover notes, liaising with incoming supervisors and preparation for pre-start meetings. Such duties are not performed by every employee according to Mr Risner, most employees relevant to this dispute have not been directed by Peabody to perform any shift change responsibilities. In relation to shift length, Mr Risner states that the two hours of overtime at the end of shifts is voluntary and is paid at the non-rostered overtime rate. There is no obligation on employees to volunteer, and Mr Risner rejects any contention of Mr Smythe to the contrary.

[82] Under cross-examination Mr Risner agreed that the change in pre-start arrangements has improved productivity and continuity of machine operations at the Mine.[50] Mr Risner said that the OSTE system is used to determine which employees are fit and ready for work on the Mine site and if employees had not logged on to that system the Company would not know that they are on site. Mr Risner also said that there had been an attempt to have employees log on to the OSTE system at in-pit crib huts but this had been problematic because of poor internet reception. In relation to the electronic board, Mr Risner said that it shows each piece of equipment segregated by circuit and which employee is allocated to each piece of equipment. The electronic board also shows where each piece of equipment is located and the location of the crib hut at which employees will undertake their pre-start meetings.

[83] Mr Risner agreed that certain pieces of equipment on the whiteboard are designated "HS please" and that this means hot seat. However Mr Risner said that the arrangement in place at the Mine is not what he would refer to as a standard hot seat where equipment continues to run without being parked up, while operators change over. The terminology "hot seat" is used at the Mine for a number of different activities. Mr Risner is not aware of the term "hot start" whereby operators will change over within 15 minutes but agreed that where there is a change over within 15 minutes machinery is still warm even though it is turned off.

[84] Mr Risner had the following exchange with me in relation to starting time:

"THE DEPUTY PRESIDENT: Thank you. Can I just understand, Mr Risner, what happens if employees aren't there at quarter to? What happens if they don't report to work at quarter to?---Are you speaking about the employees that would be headed to a crib room?

Yes?---I would guess that their mode of transportation would have to wait on them. I know that is what has occurred in the past.

And what action would the company take if there was persistent lateness?---I'm not sure. It's a good question. I think it would - you know, there's an obligation to be at that mode of transportation to get to the crib hut on time, and it would be handled no different than if an employee was missing the bus from camp to the mine. I think it would be handled similarly."[51]

[85] Mr Sorenson's evidence is that job allocations for upcoming shifts at the Mine are generally prepared by leading hands for the oncoming crew and are finalised before crew members arrive at the Mine for the start of their shifts. The job allocations were previously set out on a spread sheet which was projected onto a whiteboard at the main administration building. More recently the job allocations are in electronic format and are on electronic screens. In either format the allocations include a worker's name, which "go line" they will be at and which machine they might be operating. The incoming crew could look at the allocations after they arrive at the mine and before the pre-start meetings take place, regardless of where the pre-start meetings take place.

[86] For a period before the start of 2016, the pre-start meetings took place in the main administration building at the front of the Mine and would generally involve the reading of the OCE Report followed by a discussion about the work to be performed on each circuit for that shift. There might also be a discussion about the overall production at the Mine and between supervisors and individual employees about tasks to be done on that shift. Once the pre-start was over, crews would go to their respective cribs and start their shifts.

[87] The location of pre-start meetings changed in early 2016 and for some crews they now take place at different in-pit crib huts. The pre-starts follow the same format as before but the discussion about work to be performed on the shift is targeted at the work area. There may also be specific discussions with individual workers about how specific tasks are to be done on that shift. Once the pre-start meeting is completed the crew starts work. Mr Sorenson said that there have been occasions when he speaks to individual workers before the pre-start meeting but only if he happens to see the particular worker. Such discussions may also be about well-being issues. Otherwise Mr Sorenson conducts individual discussions of this kind at the pre-start meeting and specific directions about work are not discussed until the pre-start meetings.

[88] In oral evidence Mr Sorenson said that he would have information about work allocation for a shift up on the screen or whiteboard approximately 15 minutes before employees came into the pre-start meeting. Under cross-examination Mr Sorenson agreed that he could not vouch that this was the case with respect to other crews. Mr Sorenson also agreed that previously there was no requirement for employees to be in the pre-start room prior to 6.00 am/pm. Further, Mr Sorenson said that the vehicle numbers for employees to be transported onto the Mine site are usually on the allocation sheet. Mr Sorenson maintained that if employees were given a direction to perform a task before 6.00 am/pm and refused to comply, he would find another employee to do that task and would not accept that employees were refusing a reasonable direction if it was given before 6.00 am/pm as it is the employee's decision whether or not to work overtime.[52] Mr Sorenson also maintained that he would not view a late arrival where an employee missed transport onto the Mine site as a disciplinary issue and that there was no direction given to employees prior to 6.00 am/pm. Mr Sorenson accepted that the change to the starting arrangements had resulted in more consistent production at the Mine but did not accept that it had increased efficiency between shift changeovers.

[89] Mr Panton has been employed at the Mine since 2007 and a Supervisor since 2011. Mr Panton states that during his time at the Mine pre-starts historically took place at in-pit crib huts for crews on the circuits at the Mine. There was also a period where pre-starts took place at the front administration building before changing again in 2016 to in-pit crib huts. Job allocations for coming shifts have been prepared and made available prior to the arrival of oncoming crew to the Mine. They are usually prepared by leading hands and reviewed by a Supervisor. Once completed the job allocations are displayed in various ways at the front administration building at the Mine.

[90] Initially job allocation was done on a magnetic whiteboard. In or around 2012 or 2013 the whiteboard allocation was later replaced by a spreadsheet displayed on electronic boards which included names, relevant crib hut for the shift and what machinery employees would be using. More recently the information is set out in a different format and is displayed on electronic boards around the main administration building at the Mine. Although the allocation document looks different it displays the same information.

[91] This process has always taken place prior to pre-start meetings (whether at the front administration building or crib huts) and there has been no change in this practice since Mr Panton was at the Mine. On occasion an individual worker may approach Mr Panton when he is near the job allocation boards prior to the crew proceeding to in-pit crib huts but this does not happen regularly. Queries may be discussed at this time but would also usually be discussed at pre-start meetings. The pre-start meeting format is essentially the same when pre-starts take place in in-pit crib huts as it was in the front administration building. The OCE Report is read out and work to be performed is discussed as well as particular tasks on a shift. The circuit that is discussed is the one relevant to the workers in the in-pit crib hut rather than all circuits as was previously the case when the pre-start meeting was conducted at the front administration building.

[92] In oral evidence Mr Panton said that the information on the electronic boards has always been available to employees before pre-start meetings and was displayed 15 minutes before the start of the shift. Employees had access to that information before pre-start meetings in the front administration building commenced. Under cross-examination, Mr Panton maintained that he made information available on white boards 15 minutes prior to pre-start meetings but accepted that other Supervisors could put up information at a later time. Mr Panton also said that it is his expectation as a Supervisor that employees know what they will be doing for the shift prior to the commencement of the pre-start meeting but agreed that employees were previously not required to view the information on the whiteboard or electronic board until they were in the room where the pre-start meeting was to be conducted. In relation to the time at which employees are required to be at work Mr Panton had the following exchange with Mr Newman and the Commission:

"But the direction is that they've got to be - yes, I understand that they might be late but the direction is that you've got to be there at quarter to, to find your allocation and then be - find your allocated task and then work out what bus you've got to - or what transport you're getting out to wherever you're supposed to be - - -?---Yes.

In order to get yourself out into the pit, and what is now being designated by Peabody as the pre-start meeting - - -?---Yes.

So the direction is that they have to be there at quarter to, is that correct?---Well, that's when everybody gets there. It's when the bus arrives, yes.

That is the direction, is that they've got to be there at quarter to?---So to speak, yes.

THE DEPUTY PRESIDENT: Do you agree with that proposition, Mr Panton? Are they directed to be there at quarter to six?---Well, I guess they have to be there because the cars meet at the front at ten to. It just depends how rushed they want to be. People walk in through the gate that drive from Nebo after quarter to, but as long as they're sort of ready to rock'n roll by around about when the buses or the vehicles leaving the front go to the pre-start in the pit at ten to six, so - - -

MR NEWMAN: Mr Panton, are you aware of an information brief that went to all employees in, I believe it was January in 2016?---Yes, roughly.

Are you aware that the information brief says that employees are now required to be at site by 5.45 a.m., and p.m., do you agree with that?---It does say something similar to that, yes."[53]

[93] Mr Panton agreed that by requiring employees to travel onto the Mine site and commence pre-starts in-pit at 6.00 am/pm, Peabody has increased productivity at the Mine.

[94] In oral submissions for Peabody, Mr Williams stated that the Company's position is very simple - if there is an amount to be paid it will be paid and if there is no such amount then it won't. The Company accepts that the evidence of Mr Lesleighter and Mr Curd in these proceedings raises issues of whether some employees are carrying out work prior to shift commencement and outside the scope of this dispute. These matters, with the agreement of the CFMMEU have been taken off-line and will be resolved outside the present proceedings which relate only to the 15 minute period prior to 6.00 am/pm and the additional commute within that period.

[95] Peabody submits that it is clear from the evidence that work has always commenced at the pre-start meeting and the reading of the OCE Report. Other activities which are pre-work activities were done before the pre-start and before the OCE Report was required to be read. Prior to the change that gave rise to the present dispute, pre-start meetings were conducted at the main administration building and employees were paid for those meetings and for the time that they spent travelling to work locations. Employees would be paid for the pre-start meeting and for subsequent travel although they were not working, because the Company had designated a start point where the pre-start meeting was conducted and the OCE Report was read. That is the point at which the clock was turned on even though commuting was not a work activity.

[96] In 2015 and 2016, it was decided that it would be more efficient to conduct pre-start meetings closer to actual work areas where work commenced. That point differs depending on matters such as the function of the employee, the allocation to different work streams and changing operational requirements. Some employees attend pre-starts in the main administration building. Other employees attend pre-start meetings in the wash plant or in crib rooms on the mining lease. According to Peabody, all that the evidence establishes is that the Company has changed the starting point for work from the administration building to a location adjacent to where the work is actually performed. Mr Williams agreed with the proposition that the effect of this change was to require employees to be at work earlier to be transported to the area where they were required to attend pre-start meetings. In response to the proposition that employees are not paid for this additional time Mr Williams said that they were not previously paid for time during which they conducted their pre-start activities.

[97] Mr Williams maintained that there was no evidence of employees being disciplined for not being present at 5.45 am/pm but agreed that employees had no option to transport themselves to the starting point required by the Company without getting into a designated vehicle. Mr Williams submitted that:

"It may be that from time to time employees leave their run a little bit late and they have to crib a ride with somebody else or borrow a vehicle, who knows what. But the company's requirement is that they are at the starting point by 6 am or 6 pm, and it facilitates an arrangement by which they can be guaranteed to do that. And on the evidence it appears that sometimes it may be that they arrive a little bit after 6.00, but the company doesn't obviously take any point about that, nor could it."[54]

[98] Peabody further submits that the fact that the commute to the designated starting point is organised by the employer does not change its character so that it is considered work. In a practical sense employees are given some indication of when they have to be available and that there is a schedule for when those transports leave the administration block. It also has a consequence that employees are required (or at least it is strongly suggested) to be at the administration building at a time which enables them to be transported to pre-start locations or work areas. The fact that some employees have to get to the administration building a few minutes earlier than they previously did does not otherwise change the character of what is happening. The employer has not surrendered its ability to set the start point to ensure maximum operational efficiency. Further, the fact that some employees are looking at an electronic whiteboard and that supervisors are located in the same area as the whiteboard does not constitute employees being directed to do work. The process of looking at the whiteboard is not a direction and is simply a means of conveying information that could be conveyed in any number of ways.

[99] Peabody accepts that if it has changed the starting point and maintains that if it directs work to be carried out before employees arrive at the starting point, then such work would be required to be paid. It is for this reason that the drivers of vehicles are paid as they are required to read the OCE Report and conduct pre-start checks on vehicles before operating them. Peabody also agrees that if employees are being directed to carry out work prior to 6.00 am/pm then it is non-rostered overtime and should be paid for accordingly.

[100] Peabody maintains that the other activities outlined by witnesses for the CFMMEU carried out before 6.00 am/pm are not work for the purposes of the enterprise agreement. The shift handover duties provisions in the 2018 Agreement are undertaken by leading hands and supervisors and have no relevance to the present dispute.

THE APPROACH TO CONSTRUCTION OF ENTERPRISE AGREEMENTS

[101] The approach to construing enterprise agreements was set out in a Decision of a Full Bench of the Commission in "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Berri Pty Ltd (Berri)[55] as follows:

"1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:

(ii) the disputed provision's place and arrangement in the agreement;

(iii) the legislative context under which the agreement was made and in which it operates.

2. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.

3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.

4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.

5. The FW Act does not speak in terms of the 'parties' to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are 'covered by' such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement 'with the employees who are employed at the time the agreement is made and who will be covered by the agreement'. Section 182(1) provides that an agreement is 'made' if the employees to be covered by the agreement 'have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement'. This is so because an enterprise agreement is 'made' when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.

6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.

7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.

8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.

9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.

10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.

11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.

12. Evidence of objective background facts will include:

(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;

(ii) notorious facts of which knowledge is to be presumed; and

(iii) evidence of matters in common contemplation and constituting a common assumption.

13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.

14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties' intention or purpose was.

15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding."

[102] It is common ground that the answers to the questions for determination in the present case centre on whether, during the 15 minute period prior to the commencement of the pre-start meeting at 6.00 am/pm, employees are working, for the purposes of the 2013 and/or the 2018 Agreement. If during this period employees are working, Peabody accepts that they are entitled to be paid for such work and that they are not currently being paid for this disputed period. Preliminary issues which arise in the present case are the point at which work commences and whether a range of activities undertaken by employees prior to the time at which payment commences are "work" for the purposes of the Agreement. The questions for arbitration have been framed in way that requires the Commission to determine whether all of the 15 minute period in question is work and do not allow the Commission to determine whether only some of the period is work.

[103] The approach to construing enterprise agreements was set out by a Full Bench of the Commission in Berri.[56] I turn now to apply those principles in the present case. The Agreements variously provide payments for "work" or time "worked". The Agreements do not define those terms. In Construction, Forestry, Mining and Energy Union v Broadspectrum Australia Pty Ltd[57], a Full Bench of the Commission was considering an appeal against a Decision finding that compulsory training attended by an employee in what would have otherwise have been overtime hours, was not "work" for the purposes of the relevant enterprise agreement. As in the present case that enterprise agreement did not define "work" and neither did it define the term "training". The Full Bench said in relation to the approach to construing the agreement:

"[97] In relation to principles 2 - 4 espoused in Golden Cockerel, we are of the view that an ambiguity exists in clause 19 of the Agreement, that is, whether for the purposes of that section, compulsory training is captured by the use of the term "work". Pursuant to principle 7 espoused in Golden Cockerel, we have considered the context and purpose of the Agreement. The text of the Agreement, read as a whole, does not, in our view, resolve the ambiguity triggered by clause 19. While other clauses of the Agreement focus variously on time worked, all work performed, overtime hours worked and overtime worked, they do not provide a resolution to the issue of whether "work" captures compulsory training for the purposes of clause 19 of the Agreement.

[98] It is necessary, then, to turn to principle 9 espoused in Golden Cockerel. This principle provides that the common intention of the parties can be identified by reference to that which a reasonable person would understand by the language the parties have used to express their agreement. If Broadspectrum's submissions are accepted, employees can be forced to attend training outside of ordinary hours without overtime remuneration, even though the Agreement does not provide that training is excluded from the overtime provision. Broadspectrum acknowledged in oral submissions that on this interpretation of the Agreement, Broadspectrum could have required an employee to undertake training and not pay them at all, since training is not "work" for the purposes of clause 16. 36 We are not persuaded that a reasonable person would identify this to be the common intention of the parties.

[99] The training that Mr Crawford engaged in was critical to the operations of Broadspectrum. In circumstances such as this, and where the relevant Agreement does not explicitly distinguish work from training, we are of the view that a reasonable person would understand the common intention of the parties to be to entitle an employee who attends compulsory training in overtime hours to be entitled to overtime remuneration.

[100] In this regard, we are of the view that a reasonable person would understand the common intention of the parties in relation to clause 19 was to adopt a wider scope of "work" than that which is asserted by Broadspectrum. A wider interpretation of "work" than that which is asserted by Broadspectrum is consistent with previous cases. In Warramunda Village Inc v Pryde, for example, a Full Court of the Federal Court observed that:

"An employee who attends at the place of employment pursuant to the employer's direction to be at the employer's premises for a period of time and be available to provide service at the premises as required by the employer, is not carrying on private activities but is providing service to the employer. Such an employee is at "work"..."

[101] In the circumstances of the case before us, and having had regard to the principles espoused in Golden Cockerel and the other relevant authorities, we are of the view that an employee who attends training at the direction of his or her employer outside of ordinary hours is carrying out "work" for the purposes of clause 19 of the Agreement, and is, therefore, entitled to overtime remuneration. We are of the view that a reasonable person would understand this to be the common intention of the parties based on the text of the Agreement.

[104] In Australian Meat Industry Employees Union v Golden Cockerel[58] referred to in the extract from Broadspectrum set out above, a Full Bench of the Commission established principles for the construction of enterprise agreements. Those principles were refined and restated in the later Full Bench Decision in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Berri Pty Ltd (Berri)[59]. Principle 3 of Golden Cockerel is in identical terms to principle 9 in Berri.

[105] The facts in Warramunda Village v Pryde[60] (referred to by the Full Bench in the extract from the Broadspectrum case quoted above) were that some employees were occasionally rostered on a "sleepover shift" whereby they were required to be present in a flat at a hostel and to be on call between certain hours. Unless called on employees were free to sleep or pursue other activities. The question in that case was whether such employees were working while undertaking sleepover shifts. It was held by the Court that employees in such circumstances were engaged in work. Warramunda establishes that employees do not have to be performing operational work to be working. The key requirements are that they are directed to be at the employer's premises for a period of time and be available to provide service.

[106] In the present case - consistent with the approach set out by the Full Bench in Broadspectrum - I am of the view that there is an ambiguity in the terms of the Agreements in respect of the activities that are caught by the term "work" and its derivatives for the purposes of the entitlement of employees to payment for the disputed 15 minute period. The text of the Agreements read as a whole, does not resolve the ambiguity. Other clauses in the Agreements deal variously with "work", time "worked", "overtime" and "ordinary time", but do not provide a resolution to the issue of whether the activities carried out by employees during the disputed 15 minutes constitute work.

[107] As I have noted, the relevant principle in such circumstances is principle 9 as set out by the Full Bench in Berri (formerly principle 3 in Australian Meat Industry Employees Union v Golden Cockerel[61]) to the effect that the common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties. I have adopted an approach to determining whether the employees in the present case are working before 6.00 am/pm which is consistent with observations of the Full Court of the Federal Court in Warramunda, which provides guidance as to what a reasonable person would consider to be work.

[108] The period of time subject of the dispute is the 15 minute period prior to the commencement of pre-start meetings at in-pit crib huts on the Mine lease. The dispute relates to certain employees who undertake activities during the period from 5.45 am/pm including being transported via Company vehicles from an administration building at the front of the Mine to in-pit crib rooms to attend a pre-start meeting, with payment for employees commencing at 6.00 am/pm, which is the time that pre-start meetings are scheduled to commence. For the reasons which follow, I have concluded on the basis of the evidence before me that employees are working during the fifteen minute period from 5.45 am/pm to 6.00 am/pm and should be paid for that period.

[109] Since January 2016 when the changes to arrangements for starting work were made, Peabody has effectively required all employees rostered on a shift to be at the main administration building at 5.45 am/pm. This requirement was confirmed in an information bulletin issued to employees on 12 April 2019 which set out Peabody's "start point expectations on site". The bulletin states that employees are to arrive to site at 5.45 am/pm by their usual means - either by private vehicle or by bus provided by Peabody from the accommodation camp. The bulletin goes on to state that between 5.45 am/pm and 5.50 am/pm employees will swipe on to OSTE and Kronos. These systems test employees' fitness for work and record the presence of particular employees on the Mine lease. While employees may self-test for fitness for work at the camp (as referred to in the bulletin) it is also stated that OSTE must be completed "for tracking of personnel on site". The information bulletin was tendered by Mr Smythe but there was no evidence from any witness for the Company that it does not represent its position. As previously stated, those expectations include that employees will arrive at the site by means of their normal transportation at 5.45 am/pm.

[110] When employees arrive at the main administration office at 5.45 am/pm as required by Peabody, they complete other tasks preparatory to commencing operational work such as filling water bottles, accessing lockers and collecting PPE. Employees also receive directions by a number of means in relation to the work they will be performing on the shift, via means which can be broadly categorised as follows. The first category of employee is approached by supervisors and told to travel with the supervisor to a particular area to start work. These employees read the OCE Report and perform pre-start checks on machinery or equipment before commencing work. They do not attend a pre-start meeting. A second category is employees who are directed by supervisors to drive vehicles transporting other employees to in-pit crib huts to attend pre-start meetings. These employees are also required to read the OCE Report and to perform pre-start checks on the vehicles they are required to drive. A third category of employee receives directions for shifts by virtue of reading electronic boards which detail matters such as where the employee will be working on the shift, the machine that the employee will be required to operate and the Company provided vehicle which the employee is required to board in order to be transported to an in-pit crib hut located near the area the employee will be working for a pre-start meeting. The information on the electronic board is placed there by supervisors who are located in the vicinity of the boards when employees read the information.

[111] Peabody pays employees in the first and second categories on the basis of its view that they are specifically directed by a supervisor to start work before 6.00 am/pm. Peabody does not pay employees in the third category for any activities undertaken before 6.00 am/pm. In my view there is no relevant distinction between the three categories of employees. All employees are required to be at the workplace at 5.45 am/pm. Employees in all three categories are available to undertake tasks which Peabody recognises as work, such as driving transport vehicles or starting at a particular machine. Employees in the third category are required to view the electronic board in order to ascertain where they will be working and the location of the relevant pre-start meetings they are required to attend. This is no less a direction or requirement placed on employees by supervisors. Employees in the third category have no option but to board the nominated vehicle in order to attend a pre-start meeting which is considered by Peabody to be "work". Those employees are not free to drive their own vehicles from the main administration building to in-pit crib huts or to decide that they will board a different vehicle to the one they are directed to board or that they will not board a vehicle at all. They are registered in the timekeeping system at the Mine as being on-site and presumably in the event of an emergency they could be diverted to provide assistance.

[112] I accept that under the present arrangements, upon arriving at work at the required time, employees undertake tasks such as logging on to OSTE and Kronos, accessing lockers, collecting PPE and filling water bottles, which were previously undertaken in their own time. However the evidence establishes that these tasks were previously undertaken in close proximity to the room in which the pre-start meeting was held and employees were not required to be at the workplace at a particular time so that they could complete these tasks before the pre-start meeting commenced. It is also the case that under the present arrangements employees are required to look at the electronic board before they board vehicles at 5.50 am/pm in accordance with Peabody's expectations as set out in the information bulletin.

[113] There was some evidence from Company witnesses to the effect that employees can choose to log on to Kronos and OSTE at in-pit crib huts before the pre-start commences. There was also evidence that this can be difficult due to poor internet connectivity in the in-pit crib huts. The evidence that logging on can be undertaken at in-pit crib huts is not consistent with the information brief issued by Peabody and tendered by Mr Smythe, which states that logging on is to be undertaken between 5.45 am/pm and 5,50 am/pm - ie. before employees board vehicles to be transported to in-pit crib huts, and that for tracking of personnel on-site prior to pre-start, OSTE must be completed. It would be inconsistent with workplace health and safety requirements at a coal mine if employees were being transported on the Mine lease without their presence of the Mine lease being able to be verified by the Company in control of the lease. In short, employees cannot board the vehicles to be transported from the administration building to the in-pit crib huts to attend pre-start meetings, unless and until they have logged on to a system recording their presence on the mine lease. Employees cannot board vehicles unless and until they have accessed their lockers and obtained their PPE.

[114] The issue of whether or not employees have read the OCE Report at the point they board Company provided vehicles in accordance with directions given to them by Peabody, is not determinative of whether or not they are working. The evidence is that employees must read the OCE Report or have it read to them before starting operational work. Employees who are directed to board a particular vehicle at a particular time to be transported from one part of the mine to another for the purpose of attending a pre-start meeting, have in my view started work - albeit non-operational work - regardless of whether or not they have read the OCE Report. That Report is read to employees at pre-start meetings before they start operational work.

[115] The starting time arrangements, as evidenced by Peabody's expectations, have been structured in such a way that activities previously undertaken in non-working time have been subsumed into other activities whereby employees are directed or required by supervisors to commence work. Once employees are directed to board a particular vehicle to travel from one part of the Mine lease to another, they are working. The point at which the direction to board a particular vehicle is given to employees cannot be separated from the other pre-start activities being undertaken.

[116] I accept that employees have a duty to be at work in sufficient time to undertake activities so that they are ready to start work at the specified start time. In very many industries it is common for employees to arrive at work before the specified start time and undertake activities such as signing on or registering their presence in the workplace, storing their personal effects in lockers, putting on uniforms or PPE, storing or consuming food and otherwise interacting with work colleagues, prior to commencing operational duties. The line between these activities and the commencement of work can sometimes be blurred. However, where the employer requires an employee to be at work at a specified time and the activity that the employee is undertaking before the commencement of operational duties is not a private activity but provides a benefit to the employer, the activity will be more likely to be found to be work. For example, employees who are required to be at work at a particular time to engage in briefings, training or similar activities, are working. Where such activities are voluntary, it may be that employees engaging in them are not working.

[117] The line in the present case is in my view, a clear one. The employees subject of this dispute are required to be at the workplace at a particular time so that they can be required or directed to board employer provided vehicles and be transported from one part of the workplace to another at a particular time. Employees are required to be on board a vehicle by 5.50 am/pm ready to commence operational duties, having read a direction on an electronic board at some point between 5.45 am/pm and 5.50 am/pm. Those employees are required by Peabody to be at the administration building at 5.45 am/pm to receive the direction as to which vehicle to board. If the direction was conveyed to employees prior to their arrival at the Mine site by text message or email, it would not alter the fact that employees are required to be at the Mine at a particular time to board a vehicle to be transported from one point on the Mine lease to another. As previously stated, a requirement or direction communicated by a supervisor does not cease to be so because it is delivered electronically. In such circumstances the employees following the direction are working.

[118] In my view, the change brought about by Peabody in January 2016, was a change to the location of the pre-start briefing and not a change to the location at which work commences. When employees are directed to board particular vehicles, and to do so by 5.50 am/pm, they have commenced work. This is consistent with the uncontested evidence that as a result of this arrangement, Peabody has obtained an additional period of approximately 10 minutes per shift during which machines are operational. While this is not a hot seat start as commonly understood (ie. one operator getting off a machine while another operator gets on without the machine stopping) it is a mechanism whereby machine downtime is minimised and this occurs because employees are directed to travel in particular vehicles at particular times to undertake a pre-start meeting at an in-pit crib hut which is adjacent to the machines on which they will be working, which enables them to board those machines at an earlier time than if pre-start meetings were conducted in the main administration building. The employees are not engaging in the private activity of travelling to work. They have commenced work at the main administration building and are being transported to the site for a pre-start meeting and then commence operational duties ten minutes earlier than they would if the pre-start meetings were conducted in the main administration building. In order to obtain that additional machine operating time, the employer requires employees to be at the main administration building at 5.45 am/pm and it should pay them from that point.

[119] The present case can be contrasted with cases about travel from an employee's accommodation or residence to work. Regardless of whether the employer has facilitated such travel it is not work. The present case involves employees being transported within the workplace after they have commenced work. The fact that Peabody provides buses to transport employees from the camp to the Mine site prior to 5.45 am/pm does not result in employees who utilise those services being at work in the sense that they are working, if they arrive before the time at which they are directed to board vehicles to travel from the main administration building to the in-pit crib huts. While being transported from the camp to the mine site, employees are travelling and not working. The buses are simply a means to transport employees to the point at which they can be directed to work. Employees are not required to utilise bus services. They may choose to travel from the camp to the Mine in private vehicles or in the vehicles of work colleagues who have either private vehicles or work allocated vehicles at the camp. Employees who live permanently in locations near the Mine travel in their own vehicles. The fact that they arrive at the Mine before the time at which they are required to attend for the purposes of receiving direction, does not mean they are working before such a direction is given.

[120] When all of the circumstances are considered, I am of the view that a reasonable person would understand that the intention of the parties was that employees would be remunerated under the Agreement for work. I am satisfied and find that employees subject of the present dispute commence work at 5.45 am/pm and that they are not being paid for work performed between 5.45 am/pm and 6.00 am/pm. I do not accept that the employees are undertaking shift change responsibilities. The employees on the incoming crew are not communicating with the employees on an outgoing crew other than they see each other as they are transported to and from the main administration building. The employees are performing work which is outside the rostered hours of shifts. In my view they should be paid for such work up to 14 June 2018 at the rate for non-rostered overtime under the 2013 Agreement and thereafter at the rate for non-rostered overtime under the 2018 Agreements.

[121] For these reasons, I answer the Questions for Arbitration as follows:

Should the 15 minute period be classified as "work" time under the relevant enterprise agreement?

If the answer to Question 1 is 'yes', should employees be remunerated for this time under the relevant enterprise agreement?

If the answer to Question 2 is 'yes', on what basis should employees be remunerated for this time under the relevant enterprise agreement?"

Answer: Employees should be remunerated on the basis of non-rostered overtime rates in accordance with clause 10.11 and Appendix 1 of the 2013 and 2018 Agreements.

Mr D Williams of Minter Ellison on behalf of the Respondent.

[1] [2016] FWC 7428.

[2] [2015] FWCFB 5619

[3] Witness Statement of Daniel Smythe dated 8 November 2018 - Exhibit A4; Additional Witness Statement of Daniel Smythe dated 23 January 2019 - Exhibit A5

[4] Witness Statement of Stephen Thomson dated 30 October 2018 - Exhibit A1.

[5] Witness Statement of Ross Curd dated 7 November 2018- Exhibit A2.

[6] Witness Statement of Trevor Lesleighter dated 8 November 2018 - Exhibit A3.

[7] Witness statement of Brandon Risner filed on behalf of the Respondent dated 3 December 2018 - Exhibit R1.

[8] Witness statement of Bernard Panton filed on behalf of the Respondent dated 1 February 2019 - Exhibit R2.

[9] Witness Statement of Christopher Sorensen filed on behalf of the Respondent dated 4 March 2019 - Exhibit R3.

[10] Application by Peabody Energy Australia PCI Mine Management Pty Ltd [2013] FWCA 9837 at [5]; see Fair Work Act 2009 (Cth) s.54.

[11] Application by Peabody Energy Australia PCI Mine Management Pty Ltd [2018] FWCA 3344 at [6].

[12] Peabody Energy Australia Coppabella Enterprise Agreement 2013 at clause 2(b).

[13] Application by Peabody Energy Australia PCI Mine Management Pty Ltd [2013] FWCA 9837 at [3]; Application by Peabody Energy Australia PCI Mine Management Pty Ltd [2018] FWCA 3344 at [5].

[14] [2016] FWC 7248.

[27] Peabody Energy Australia Coal Pty Limited v Construction, Forestry, Maritime, Mining and Energy Union [2016] FWC 7428; permission to appeal was refused by the Full Bench in Construction, Forestry, Mining and Energy Union v Peabody Energy Australia Coal Pty Limited [2017] FWCFB 338.

[36] Ibid at PN130-131 referring to the Decision of the Commission as presently constituted in [2016] FWC 7428.

[42] Submissions on behalf of the Respondent dated 3 December 2018 at paragraph 2.

[46] Construction, Forestry, Mining and Energy Union v Broadspectrum Australia Pty Ltd [2017] FWCFB 269 at [100] citing Warramunda Village Inc v Pryde [2002] FCR 58 at [17].

[47] Submissions on behalf of the Respondent dated 3 December 2018 at paragraph 20.

[55] [2017] FWCFB 3005.

[56] [2017] FWCFB 3005.

[57] [2017] FWCFB 269

[58] [2014] FWCFB 7447.

[59] [2017] FWCFB 3005.

[61] [2014] FWCFB

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