Fair Work Act 2009

s.739 - Dispute resolution

Jasmin Groves; Brad Allgood; Jacob Folpp; Jacob Harman; Ian Bailey; Matthew Burgess

Application to deal with a dispute in accordance with a dispute procedure in an enterprise agreement - overlapping award coverage.

[1] Ms Jasmin Groves, Mr Brad Allgood, Mr Jacob Folpp, Mr Jacob Harman, Mr Ian Bailey and Mr Matthew Burgess (Applicants) are in dispute with Kal Tire (Australia) Pty Ltd (Kal Tire) in relation to the modern award that covered and applied to them during their employment with Kal Tire.

[2] The Applicants contend that they were covered by the Black Coal Mining Industry Award 2010 (Black Coal Award) during their employment with Kal Tire. It is contended by Kal Tire that the Applicants were covered by the Vehicle Manufacturing, Repair, Services and Retail Award 2010 (Vehicle Award), or alternatively in the case of Ms Groves, the Clerks - Private Sector Award 2010 (Clerks Award). Where I refer below to clauses of the various awards, I refer to the version of the award which applied at the time the Applicants' employment with Kal Tire came to an end.

[3] On 22 November 2019, the CFMMEU filed an application on behalf of the Applicants, all of whom are members of the CFMMEU, in the Commission for it to deal with the dispute pursuant to the dispute resolution procedure in the Black Coal Award. The application was filed while the Applicants were still employed by Kal Tire. Their employment with Kal Tire came to an end on approximately 28 November 2019 on the grounds of redundancy.

[4] There is no dispute between the parties that the Commission has jurisdiction to deal with the dispute pursuant to s 739 of the Fair Work Act 2009 (Cth) (Act) and the dispute resolution procedure in clause 9 of the Black Coal Award.

[5] Following an unsuccessful conciliation of the dispute, the parties consented to the Commission arbitrating the dispute. The arbitration took place on 11 March, 6 May and 14 May 2020. Evidence was given by Mr Folpp, Ms Groves and Mr Allgood on behalf of the Applicants. Kal Tire adduced evidence from Mr David Crew, Financial Controller, Mr Dean O'Connell, Area Manager, and Mr Peter Lovell, Site Supervisor.

Potentially overlapping coverage between the Black Coal Award and the Vehicle Award

[6] Kal Tire contends that the Applicants were not covered by the Black Coal Award, but even if they fell within the coverage of both the Black Coal Award and the Vehicle Award, then the Vehicle Award prevailed and that is the award that covered and applied to the Applicants during their employment with Kal Tire. In support of this contention, Kal Tire relies on the following parts of the Vehicle Award [emphasis added]:

4.1 This award covers employers throughout Australia of employees engaged in vehicle manufacturing and/or vehicle industry repair, services and retail, as defined in this clause, to the exclusion of any other modern award and where the employer's establishment, plant or undertaking is principally connected or concerned with ...

(b) Where an employer is covered by more than one award, an employee of that employer is covered by the award classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work.

4.6 The award does not cover an employee excluded from award coverage by the Act.

NOTE: Where there is no classification for a particular employee in this award it is possible that the employer and that employee are covered by an award with occupational coverage."

[7] Unlike the Vehicle Award, the Black Coal Award does not state that it covers or applies "to the exclusion of any other modern award". The relevant provisions of the Black Coal Award are as follows:

(a) employers of coal mining employees as defined in clause 4.1(b); and

4.8 Subject to clauses 4.1 and 4.2, where an employer is covered by more than one award, an employee of that employer is covered by the award classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work.

NOTE: Where there is no classification for a particular employee in this award it is possible that the employer and that employee are covered by an award with occupational coverage."

[8] A Full Bench of the Commission considered a similar issue in CFMMEU v Spotless Facility Services Pty Ltd[1] (Spotless), where there was a contest as to whether employees were covered by the Black Coal Award or the Cleaning Services Award 2010 (Cleaning Award):

"[13] The CFMMEU did not dispute the proposition that the work performed by the heavy industrial cleaners at the Callide Mine fell with the coverage of the Cleaning Award. Clauses 4.1, 4.2 and 4.8 of the Cleaning Award are relevant in this connection and provide:

4.1 This industry award covers employers throughout Australia in the contract cleaning services industry and their employees in the classifications listed in Schedule D - Classifications to the exclusion of any other modern award.

4.2 The contract cleaning services industry means the business of providing cleaning services under a contract and includes:

(a) cleaning (including event cleaning, trolley collection and hygiene and pollution control but excluding trolley collection covered by the General Retail Industry Award 2010); and

(b) minor property maintenance which is incidental or peripheral to cleaning.

4.9 To avoid doubt this award does not apply to an employer merely because that employer, as an incidental part of a business that is covered by another award has employees who perform functions referred to in clause 4.2 or in the classification descriptions referred to in Schedule D.

NOTE: Where an employer is covered by more than one award, an employee of that employer is covered by the classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work."

[9] The reasoning of the Full Bench in Spotless was as follows:

"[22] We consider that permission to appeal should be refused because it is clear that the Cleaning Award and not the BCMI Award covers the work of the heavy industrial cleaners in question. The CFMMEU's appeal submissions, and the Deputy President's reasons, attempt to resolve the question of award coverage by reference to the coverage provisions of the BCMI Award. That is, with respect, the wrong starting point.

[23] As we have earlier stated, there was no dispute before the Deputy President, or before us, that the work of the heavy industrial cleaners fell within the coverage of the Cleaning Award. That agreed position was undoubtedly correct. Spotless is in the business of, among other things, providing cleaning services under contract to other businesses, and the duties of the Level 2 - Heavy Industrial classification under the Agreement as well as the actual duties of the heavy industrial cleaners at the Callide Mine involve employment within that aspect of Spotless' business. The work of the cleaners also falls within the plain words of the definition of the classification of CSE 2 in Schedule 2 of the Cleaning Award, which we have earlier set out. That means that the work of the employees in question comfortably fits within the coverage delineated by clause 4.2 of the Cleaning Award.

[24] Beyond that point, there is no need to consider whether the work in question falls within the coverage provisions in clause 4 of the BCMI Award, or whether pursuant to the note to clause 4.9 of the Cleaning Award or clause 4.8 of the BCMI Award the former or the latter award provides the most appropriate classification for the work. That is because clause 4.1 of the Cleaning Award provides that its coverage operates "to the exclusion of any other modern award". To the extent that there is any possibility of overlapping coverage by the Cleaning Award and the BCMI Award, these words resolve this in favour of sole coverage by the Cleaning Award. By contrast, the coverage provisions in clause 4 of the BCMI Award contain no provisions excluding the coverage of the Cleaning Award."

[10] The Applicants contend that Spotless can be distinguished on the basis that the "note" beneath clause 4.9 of the Cleaning Award to the effect that where an employer is covered by more than one award, an employee of that employer is covered by the award classification which is most appropriate to the work performed by the employee and the environment in which the employee normally performs the work is a substantive provision in the Vehicle Award (clause 4.3(b)), rather than a "note". I do not accept this argument. As the Full Bench made clear in Spotless (at [24]), where an award provides that its "coverage operates 'to the exclusion of any other modern award'", there is "no need to consider whether the work in question falls within the coverage provisions in clause 4 of the BCMI Award, or whether pursuant to the note to clause 4.9 of the Cleaning Award or clause 4.8 of the BCMI Award the former or the latter award provides the most appropriate classification for the work". On the reasoning of the Full Bench in Spotless, one does not get to the "note" or substantive provision concerning the most appropriate classification in the work environment if one of the awards expressly operates "to the exclusion of any other modern award".

[11] I have reservations as to whether Spotless is correct, for the following reasons, which do not seem to have been brought to the attention of the Full Bench in Spotless. First, the "note" beneath clause 4.9 of the Cleaning Award and clause 4.3(b) of the Vehicle Award, both of which provide that where an employer is covered by more than one award, an employee of that employer is covered by the award classification which is most appropriate to the work performed by the employee and the environment in which the employee normally performs the work, can never have any work to do if the effect of the earlier provision is that the coverage of the award operates "to the exclusion of any other modern award". In interpreting an industrial instrument one should strive to give meaning and effect to each of its terms; all words must prima facie be given some meaning and effect.[2]

[12] Secondly, 105 of the 121 modern awards contain a provision to the effect that the award operates "to the exclusion of any other modern award". What happens, then, when the work undertaken by an employee falls within the coverage provision of two awards, both of which state that the award operates "to the exclusion of any other modern award"? One becomes entrapped in a circular argument from which there is no sensible escape.

[13] Thirdly, many awards contain both a provision to the effect that the award operates "to the exclusion of any other modern award" and a specific provision that addresses the question of overlapping coverage with particular awards. For example, there is potential for overlapping coverage between the Dredging Industry Award 2010 and the Marine Towage Award 2010. Those awards deal with the question of overlapping coverage as follows:

4.1 This industry award covers employers throughout Australia in the Dredging industry and their employees in the classifications within clause 14 - Minimum wages to the exclusion of any other modern award.

4.2 The award does not cover employers covered by the following awards:

4.1 This industry award covers employers throughout Australia in respect of their operations in the marine towage industry and their employees in the classifications listed in clause 13.1 to the exclusion of any other modern award...

4.3 This award does not cover employers and employees wholly or substantially covered by the following awards:

[14] If the words "to the exclusion of any other modern award" in clause 4.1 of each of the Dredging Industry Award and the Marine Towage Award were themselves sufficient to resolve any issue of overlapping award coverage, then the specific exclusionary provisions in each award would have no work to do and there would be no sensible way of resolving a question of overlapping award coverage.

[15] Fourthly, the history of the making of modern awards calls into question whether the words "to the exclusion of any other modern award" were intended to address issues of overlapping award coverage. A seven member Full Bench of the Australian Industrial Relations Commission dealt with the award modernisation process and in particular the making of priority modern awards in Award Modernisation.[3] In that case, the Full Bench made the following observations in relation to the issue of award coverage:

[12] We received a range of suggestions and proposals concerning the manner in which the area of operation of modern awards should be defined. The terms of the statutory scheme which will govern the way in which modern awards will operate are of paramount importance and we deal with that consideration first. The Minister's submission on behalf of the Australian Government contained the following passage:

"60. Rather than using a concept of parties being 'bound' to awards and other terminology associated with the conciliation and arbitration system, the substantive workplace relations bill will adopt two new key concepts which better reflect the new modern workplace relations system.

• that an instrument covers an employer and employee or organisation (that is they fall within the scope of the instrument); and

• the instrument applies to the employer and employee (that is the instrument actually regulates rights and obligations).

62. An example of how the distinction operates is that an award will continue to cover employees/employers where an enterprise agreement is in operation, but during this time it is the agreement rather than the award that will regulate their conditions.

63. The provisions of the WR Act which relate to modern awards 'binding' parties (for example, section 576V(1)) will reflect the new concepts.

64. Under the new workplace relations system, an organisation will have standing to enforce an employee's entitlements under a modern award where the organisation is entitled to represent the industrial interests of an employee covered by a modern award.

65. Right of entry for discussion purposes will be linked to coverage of an employer and employee by a relevant modern award. Entry to investigate a breach of an award will be allowed where the award applies to the union.

66. For this reason, the Government requests that modern awards use the terminology of 'covering' rather than 'bound' in relation to employers, employees, organisations and eligible entities."

[13] The Minister has indicated that it is the Government's intention that the binding effect of modern awards should be based on the notion of coverage. It is appropriate that we act on that statement of intention. Should that intention not be reflected in the legislation in due course it may be necessary to revisit the matter. We have adopted the terminology of "covering" in the title and substantive provisions in the relevant clause in each of the priority awards.

[14] A number of parties suggested that the area of operation of modern awards could be clarified if the coverage provisions had an exclusionary as well as an inclusionary element. In general we agree with that approach and where practical we have adopted it...

[23] While the coverage clauses will contain a common approach and concepts they must be adapted to the needs of the industries or occupations under consideration and the "model" will necessarily be subject to modification in some areas. It is also necessary that coverage clauses in some awards deal with the interaction between industry awards and occupational awards. As a general rule awards with occupational coverage will be expressed not to cover employees covered by an industry award with relevant classifications. There will also be a note at the end of the coverage clause in most industry awards and in awards with both industry and occupational coverage indicating that, where there is no classification for a particular employee in the award, another award with occupational coverage might cover that employee.

[28] Turning now to the question of overlapping coverage, the exposure drafts contained a provision which was intended to provide a basis for deciding which award applies in the case of overlap. The provision is:

"Where an employer is engaged in more than one industry to which an industry award applies an employee of that employer will be deemed to be in the classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work, regardless of the industry award in which the classification appears."

[29] While that provision seemed to be generally acceptable, there were a number of strong submissions urging us to adopt a clause in different terms. One alternative proposed is as follows:

1. In the event that more than one award applies to work carried out by an employee, prima facie an employer is entitled to apply the award:

(a) which it has legitimately and appropriately been applying to the work; or

(b) which has superseded the award which it has legitimately and appropriately been applying.

2. In the event of a dispute about which award will apply, the parties may jointly or individually refer the matter to the Australian Industrial Relations Commission for assistance in resolving the matter."

[30] There are at least two difficulties with this alternative proposal. The first is that it does not purport to deal definitively with overlap issues, but only sets up a prima facie position. A prima facie position can of course be rebutted. Secondly, the test could not be of any assistance to new employers, but deals only with employers in existence immediately prior to the commencement of the modern awards. As time passes, the provision would have decreasing utility. For these reasons we think that the exposure draft provision is preferable. While it is true that the provision involves the application of judgment in relation to the adjective "appropriate" and the phrase "the environment in which the work is performed", the alternative proposal has the same characteristic. We have made some minor alterations but for the most part we have retained the draft provision. It will read:

"Where an employer is covered by more than one award, an employee of that employer is covered by the award classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work."

[31] Before leaving the question of potentially overlapping coverage, it should be understood from what we have already said that the coverage clause of each of the modern awards may be subject to variation as the process continues and the scope of the various awards is defined. Before the end of the process it will be necessary to conduct a review to ensure that any significant gaps or areas of overlap are identified and dealt with."

[16] It is apparent from the Award Modernisation decision that the Full Bench intended for the question of overlapping coverage between awards to be determined by either an express provision in an award excluding coverage of other particular awards or the general provision concerning the appropriateness of the award classification and the environment in which work is performed. The Full Bench did not make any mention of the question of overlapping award coverage being determined by words to the effect that the award operates "to the exclusion of any other modern award". I am not aware of any decision which discusses the purpose behind the inclusion of those words in most modern awards.

[17] The award modernisation process included establishing "a list of priority industries or occupations" to be dealt with before all other industries and occupations. The table below sets out the list of priority modern awards and whether the award contained a provision to the effect that its coverage operated to the exclusion of any other modern award:[4]

Higher Education Industry - Academic Staff - Award 2010

Higher Education Industry - General Staff - Award 2010

Manufacturing and Associated Industries and Occupations Award 2010

Textile, Clothing, Footwear and Associated Industries Award 2010

[18] The Applicants made submissions to the effect that the reason the Black Coal Award (like the Clerks Award, the Manufacturing and Associated Occupations and Industries Award 2010 and the Textile, Clothing, Footwear and Associated Industries Award 2010) did not have a clause to the effect that it covered employers and/or employees to the exclusion of all other modern awards was partly because it was a priority modern award which was not drafted using the standard template modern award used during the modernisation process. One issue with this submission however, which was not addressed by the Applicants, is that it does not explain why a further 12 modern awards which were not included in the priority tranche did not have those words included.[5] Nonetheless, the Applicants submitted that the Commission's apparent intent to have overlapping coverage resolved by considering the classification most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work should not be undermined by the unintended effect of deploying a standardised template.[6] In support of their argument the Applicants relied on the 'Guide to the format & structure of modern awards' and a template modern award which was used to assist in the modernisation of awards. Relevantly, the template provides a draft coverage clause including the following terms: "4.1 This industry award covers employers throughout Australia in the "insert industry name or description" and their employees in the classifications listed in clause "insert cross-reference to classifications clause" to the exclusion of any other modern award. The award does not cover employers in the following industries..." and "4.4 Where an employer is covered by more than one award, an employee of that employer is covered by the award classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work."[7] In my view, the submission has some merit and may explain why very few modern awards do not contain a term to the effect that its coverage clause operates to the exclusion of all other modern awards.

[19] Fifthly, there is another available construction of the words "to the exclusion of any other modern award" in the coverage provision of a modern award. In particular, it may be argued that on the proper construction of modern awards an issue of overlapping coverage between awards should be approached by first determining whether a particular award expressly states that it does not cover employers covered by particular awards (e.g. clause 4.2 of the Dredging Industry Award 2010 provides that it does not cover employers covered by seven particular awards, including the Marine Towage Award 2010, clause 4.6 of the Clerks Award provides that it does not cover employers covered by a whole range of industry awards, including the Black Coal Award). In the event that neither of the awards in question states that it does not cover employers covered by other awards, then the clause or note in each award to the effect that where an employer is covered by more than one award, an employee of that employer is covered by the award classification which is most appropriate to the work performed by the employee and the environment in which the employee normally performs the work will determine the question of overlapping coverage. Once the question of overlapping coverage is determined in one of these two ways, then the effect of the provision in the award which states that it operates "to the exclusion of any other modern award" is to ensure there is no double dipping by an employee. That is, an employee cannot claim an entitlement to, say, wages under one modern award and allowances or benefits under another modern award in relation to the same job with the same employer. The rationale for including such a provision in most of the modern awards is because, unlike the situation with enterprise agreements, where the Act specifically deals with overlapping coverage between enterprise agreements and expressly states that "only one enterprise agreement can apply to an employee at a particular time",[8] the Act does not address the question of overlapping coverage of modern awards, nor does it expressly state that only one modern award can apply to an employee at a particular time. Those questions are left to be dealt with in the modern awards themselves. Importantly, this construction would ensure that each subclause of the coverage clause is given some meaning and effect.

[20] Notwithstanding my reservations about Spotless, it is a recent Full Bench authority. It is not appropriate that I determine this matter in disregard of it. Any reconsideration of Spotless should take place at the Full Bench level. Therefore I will apply Spotless to determine the outcome of this case.

[21] Clause 4.1 of the Vehicle Award provides that its coverage operates "to the exclusion of any other modern award". If the Applicants fell within the coverage of the Vehicle Award, there will be no need to consider whether the work in question fell within the coverage provisions in clause 4 of the Black Coal Award, or whether pursuant to clause 4.3(b) of the Vehicle Award or clause 4.8 of the Black Coal Award the former or the latter award provided the most appropriate classification for the work. To the extent that there is any possibility of overlapping coverage by the Vehicle Award and the Black Coal Award, the words in clause 4.1 of the Vehicle Award resolve this in favour of sole coverage by the Vehicle Award. By contrast, the coverage provisions in clause 4 of the Black Coal Award contain no provisions excluding the coverage of the Vehicle Award. Accordingly, if the Applicants fell within the coverage of both the Black Coal Award and the Vehicle Award, then the Vehicle Award prevailed and that is the award that covered and applied to the Applicants during their employment with Kal Tire.

[22] In accordance with s 143(2) of the Act, the coverage provisions of modern awards describe coverage in terms of specified employers, and specified employees of those employers.[9] In order for a particular employee to be covered by a modern award, the employee must fit within the class of employees in respect of which the award is expressed to cover, and the employee's employer must also fit within the class of employers in respect of which the award is expressed to cover.[10]

[23] The test to be applied in determining whether an employee is covered by an award "is to discern the objective meaning of the words used [in the coverage clause] bearing in mind the context in which they appear and the purpose they are intended to serve".[11]

[24] Earlier authorities looked at the "substantial character" of an employer's business to determine whether an employee was covered by a particular award. However, as the Full Court of the Federal Court pointed out in TWU v Coles, the "substantial character" test is one which was developed and expressed by the High Court in relation to union eligibility rules.[12] The "substantial character" test will not be appropriate to determine "coverage of a modern industry award at least where the relevant industry is not defined in a way which operates by reference to a characterisation of the employer's business taken as a whole".[13]

[25] The "principal purpose test" is also relevant to whether an employee is covered by a modern award.[14] The test was summarised in Carpenter v Corona Manufacturing[15] as follows:

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

[26] A Full Bench of the Commission explained various features of the "principal purpose test" in Broadspectrum Limited v United Voice[16]:

"... the required analysis of the principal purpose is to be conducted by reference to the work performed by the employee. The test enunciated is primarily of utility where an employee performs a mixture of duties some of which fall, prima facie, within the coverage of the award or classification under consideration and some of which do not. However the test cannot be used to bring an employee within the coverage of an award or classification where the employee does not perform any of the prescribed work duties."

[27] The Vehicle Award is an industry award that covers:

4.1 This award covers employers throughout Australia of employees engaged in vehicle manufacturing and/or vehicle industry repair, services and retail, as defined in this clause, to the exclusion of any other modern award and where the employer's establishment, plant or undertaking is principally connected or concerned with:

(a) the selling, distributing, dismantling/wrecking/restoring, recycling, preparing for sale, storage, repairing, maintaining, towing, servicing, and/or parking of motor vehicles of all kinds, including caravans, trailers or the like and equipment or parts or components or accessories thereof including the establishments concerned for such vehicles and the like;

(b) operations or allied businesses concerned with selling, distributing or supplying running requirements for vehicles (including motor fuels, gas and oils);

(c) the selling and/or handling and/or retreading and/or storing/distribution and/or fitting and/or repairing of tyres or the like made of any material;

(d) the repair and servicing of motor vehicles in the establishment of an employer not falling within clauses 4.1(a), (b) and (c) but who is engaged in the motor vehicle rental business;

(e) the manufacturing, assembling or repairing of carriages, carts, wagons, trucks, motor cars, bodies, motorcycles, railway cars, tram cars, side-cars or other vehicles or parts or components or accessories in wood, metal and/or other materials;

(f) manufacturing, assembling, fabricating, installing, servicing, maintaining, reconditioning or repairing of engines or vehicle servicing equipment and agricultural machinery or implements or the like where such employer immediately prior to 31 December 2009 was bound by clause 1.5.4(a) of the Vehicle Industry Award 2000;

(g) any operation concerned with roadside/mobile service; or

4.2 For the purposes of coverage of this award:

(a) employees engaged in vehicle industry repair, services and retail means employees covered by the classifications at clause 33 and for whom Section 1 - Vehicle Industry RS&R Employees applies; and

(b) employees engaged in vehicle manufacturing means employees covered by the classifications at clause 45 and for whom Section 2, Section 3 and Section 4 applies.

(i) employees who are covered by a modern enterprise award, or an enterprise instrument (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to those employees;

(ii) employees who are covered by a State reference public sector modern award, or a State reference public sector transitional award (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to those employees;

(iii) an employer who, on 31 December 2009 was engaged in the manufacture and/or assembly of metal parts or accessories and was bound to observe the Metal, Engineering and Associated Industries Award 1998; or

(iv) an employee in a car park where the employee's undertaking does not provide repairs and service and/or servicing facilities of motor vehicles other than supplying petrol and oil.

(b) Where an employer is covered by more than one award, an employee of that employer is covered by the award classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work.

4.4 This award covers any employer which supplies labour on an on-hire basis in the industry set out in clause 4.1 in respect of on-hire employees in classifications covered by this award, and those on-hire employees, while engaged in the performance of work for a business in that industry. This subclause operates subject to the exclusions from coverage in this award.

4.5 This award covers employers which provide group training services for apprentices and/or trainees engaged in the industry and/or parts of industry set out at clause 4.1 and those apprentices and/or trainees engaged by a group training service hosted by a company to perform work at a location where the activities described herein are being performed. This subclause operates subject to the exclusions from coverage in this award.

4.6 The award does not cover an employee excluded from award coverage by the Act.

NOTE: Where there is no classification for a particular employee in this award it is possible that the employer and that employee are covered by an award with occupational coverage."

[28] Kal Tire contends that its business is, and was during its employment of the Applicants, principally concerned with the sale, handling, fitting and repairing of tyres, which falls within the vehicle manufacturing and/or vehicle industry repair, services and retail part of the Vehicle Award, as provided for in clause 4.1(c).[17]

[29] The Applicants contend that it is necessary to look at the particular undertaking in which they were engaged during their employment with Kal Tire, which they submit was principally concerned with tyre efficiency, mining productivity and coal mining, not "the selling and/or handling and/or retreading and/or storing/distribution and/or fitting and/or repairing of tyres".[18]

[30] I accept the largely unchallenged evidence given by Mr Crew in relation to the nature of Kal Tire's business.[19] The evidence given by Mr Crew pertains to the period including late 2019 (when the Applicants were employed by Kal Tire).

[31] Kal Tire is the Australian arm of a Canadian based company that undertakes tyre fitting and maintenance on mine sites via service contracts and at external depots of its own. Kal Tire provides various services across Australian and has five main revenue streams:

• Service contracts for the provision of tyre maintenance services on customer owned mining leases across Australia and in Papua New Guinea.

• Repairs in its Perth branch, a retail service branch where customers send their tyres for repair.

• Product sales, involving the sale of new tyres, wheel rims and associated hardware, tyre management systems, supply and facilitation of weight studies and tooling.

• Training as a Registered Training Organisation in connection with tyre servicing.

• Consulting, including site audits to identify gaps in processes and advise on the improvement of efficiency and safety, technical studies of tyre impacts to improve performance, establishment of tyre management systems and safe tyre-related working systems in tyre forecasting and risk management regarding supply.

[32] Kal Tire's revenue is derived from product sales (55.43%), service and repairs (44.16%), and training and consulting (0.41%). Kal Tire has about 178 employees in Australia.

[33] Kal Tire has four branch/warehouse locations in Australia:

• Brisbane - Kal Tire's Brisbane head office and warehouse deal predominantly with on - site service contracts, international product sales and consulting and training services. Kal Tire has 24 team members based in the Brisbane office. Industries serviced by the Brisbane office include mining of gold, copper, iron ore, coal, zinc, lead and aluminium, plant hire, and earthmoving contractors.

• Perth - Kal Tire operates a tyre repair facility located near the Perth airport. In addition to maintenance and repairs, the Perth branch provides commercial product sales and services throughout Western Australia. Kal Tire has 13 team members based in the Perth branch. Industries serviced by the Perth branch include mining of gold, copper, iron ore, coal, zinc, lead and aluminium, plant hire, and earthmoving contractors.

• West Kalgoorlie - Kal Tire operates a commercial tyre shop in West Kalgoorlie, which sells and suppliers tyres, rooms, accessories and services in the goldfields region of Western Australia. Kal Tire has eight team members based in the West Kalgoorlie branch. Industries serviced by the West Kalgoorlie branch include mining of gold, copper and zinc, plant hire, transport and haulage, and earthmoving contractors.

• Muswellbrook - Kal Tire operates a tyre storage and repair facility in Muswellbrook with two team members. Industries serviced by the Muswellbrook branch include mining of coal, zinc, lead and silver, energy production, earthmoving, and plant hire.

[34] In addition to its branch operations, Kal Tire provides on-site services to particular clients. On-site services to coal mines represents about 16% of Kal Tire's total revenue in Australia. Tyre fitting and maintenance services are performed by 55 of Kal Tire's employees on seven coal mine sites, which represents approximately 30% of Kal Tire's workforce.

[35] Mr Crew accepted in his evidence that Kal Tire has a significant number of employees who work on or about coal mines, which is an important, though minor, part of its business.[20]

[36] In the period prior to late 2019, Kal Tire provided a range of services to the Mount Thorley Warkworth (MTW) coal mine (Mine), where the Applicants worked, pursuant to an umbrella supply contract services agreement with Rio Tinto (Service Agreement). Kal Tire did not supply tyres or rims to the Mine,[21] nor did it repair tyres or rims at the Mine.[22] The Mine supplied those products. The general scope of services provided by Kal Tire at the Mine pursuant to the Service Agreement was as follows:

"(a) The Service Provider [Kal Tire] must provide the earthmover tyre services and tyre management services at Relevant Company Sites [including the Mine], including but not limited to:

(i) removal, installation and maintenance of tyres and rims;

(ii) handling, preparation and coordination of tyres and rims for collection, repair and return by third-party repairers;

(iii) provide technical assistance to all improvement projects as nominated by the Relevant Company;

(iv) equipment Hire as defined in Special Condition 3; and

(v) provide detailed reporting and analysis,

as and when instructed by the Relevant Company in accordance with the provisions of the Contract, (collectively, the Services).

(b) In the performance of the Services, the Service Provider [Kal Tire] must:

(i) maintain the "best practice" safety standards in tyre fitment, handling and operation;

(iii) minimise the costs associated with tyre services and time management;

(v) focus on continuous improvement and innovative approaches to tyre services and management."

[37] The detailed scope of services provided by Kal Tire at the Mine pursuant to the Service Agreement included the following service fitter responsibilities:

• remove and refit tyres, tyre assemblies, planned and unplanned, from vehicles for tyre maintenance;

• disassemble and reassemble tyre/rim combinations on site;

• fit up spare common sizes to minimise downtime on site;

• re-torque wheel fasteners, as prioritised and scheduled;

• remove and refit tyres and assemblies for machine maintenance activities;

• remove and replace wheel studs;

• complete other minor repairs on tyre/wheel/hub/rim components as requested;

• conduct tyre pressure checks and tyre and rim condition checks, as required;

• record tyre tread wear measurements when changing tyres;

• conduct tyre pressure and condition checks and adjustments when changing tyres;

• inspect and report tyre rock ejectors defects;

• conduct wheel alignment checks on haul trucks upon request; and

• provide emergency response for suspected tyre fires by Kal Tire's shift leading hand when no other suitable authorised site personnel are available, attending as soon as practicably possible and in accordance with the site specific emergency response procedures.

[38] The Service Agreement contributed 7.55% of the total revenue of Kal Tire's service business and 3.1% of Kal Tire's total business revenue in the period from 30 November 2018 to 30 November 2019. In that period the team deployed by Kal Tire to work at the Mine comprised 5.8% of Kal Tire's employees.

[39] By way of example, the Tyre Report provided by Kal Tire to the Mine in respect of the month of September 2019 explained that:[23]

• 146 tyre changes were made during the month;

• of the 146 tyre changes, 26 tyres were scrapped;

• scrap tyre analysis identified that 17 of the 26 scrapped tyres could be directly attributed to operator tyre damage, and a further two tyres possibly attributed to poor road conditions;

• further to the tyre changes made during the month, Kal Tire personnel conducted the following:

  • 45 maintenance workshop scheduled tyre related tasks;

  • 31 unscheduled maintenance workshop tyre related tasks;

  • 20 light vehicle tyre changes outside normal hours;

  • received 49 new tyres and rims/repaired tyres and rims; and

  • dispatched 37 tyres and rims for repair or scheduled crack testing.

[40] Kal Tire's website includes the following relevant information in relation to its business and the services it provides to its clients:[24]

• "The Kal Tire mining tyre group delivers innovative solutions to maximise tyre life and increase productivity."

• "Performance & Productivity Services - In the mining industry, every decision must be carefully calibrated to fluctuations in the market. Our innovative analysis, technical systems, proactive maintenance and team member training will ensure your operation performs at is peak, 24 hours a day, 365 days a year."

• "With hundreds of thousands of dollars invested in the tyres that move your vehicle fleet, you can't afford to replace them at the first sign of wear. That's why we've designed preventative maintenance routines that keep your fleet moving. Maintenance is strategically scheduled in conjunction with mine site management to prevent safety hazards and avoid vehicle downtime."

[41] I accept Mr Crew's evidence that Kal Tire's objective at the Mine was to maintain tyres and to work with the Mine to achieve the maximum useful life out of the tyres used at the Mine.[25] Mr Crew also gave oral evidence to the following effect, which I accept, about Kal Tire's business generally and its undertaking at the Mine:

• The innovative solutions that Kal Tire provides increase the efficiency of its work in changing tyres which reduces downtime and thereby increases productivity.[26]

• The role Kal Tire plays at a coal mine is to maintain and change tyres efficiently.[27]

• Kal Tire's principal purpose at the Mine was to ensure that the mining operation performed at its peak and it sought to achieve that objective by maximising the efficiency of its tyre maintenance activities at the Mine.[28]

• Kal Tire was directly involved in proactive maintenance with respect to the tyres used at the Mine, so that the Mine could run its fleet of vehicles 24 hours a day. That is one of the principal purposes that Kal Tire was undertaking at the Mine.[29]

• The principal thing Kal Tire did at the Mine was breakdowns involving flat tyres. Kal Tire also worked with the Mine to line up maintenance schedules so that when a truck went in for its routine maintenance, that would be an ideal time for Kal Tire to undertake its maintenance activities on the tyres, such as checking tyre pressure or conducting a tyre rotation while the machine was down. In doing so, Kal Tire took advantage of downtime and did not contribute to it.[30]

• Kal Tire used Total Tyre Control software at the Mine as the data management system to manage the data that informs environmental reports, monthly tyre reports and weekly tyre schedules in relation to Kal Tire's operations at the Mine.[31]

• Kal Tire provides different services at different locations and undertakings, but at the coal mines at which it operates it is involved in tyre management.[32]

[42] Having regard to all the evidence concerning the services provided by Kal Tire at the Mine, I find that Kal Tire's undertaking at the Mine was principally connected or concerned with the handling and fitting of tyres. I do not accept the Applicant's contention that Kal Tire's undertaking at the Mine was principally concerned with tyre efficiency, mining productivity and coal mining. The consequence of Kal Tire providing its services at the Mine in an efficient manner was a reduction in the amount of downtime of vehicles used at the Mine, an increase in tyre efficiency, and a resultant increase in productivity at the Mine. It follows that Kal Tire's undertaking at the Mine fell within the coverage of clause 4.1(c) of the Vehicle Award.

[43] Kal Tire contends that Ms Groves' role at the Mine fell within the "service receptionist" classification in B.3 of Schedule B to the Vehicle Award.

[44] Ms Groves contends she was not covered by any classification in the Vehicle Award during her employment with Kal Tire.

[45] Clause 4.1 of the Vehicle Award provides that it covers "employees engaged in vehicle manufacturing and/or vehicle industry repair, services and retail, as defined in this clause". There is no dispute that Ms Groves was not engaged in vehicle manufacturing. The issue in contest is whether she was engaged in vehicle industry repair, services and retail, which is defined by clause 4.2(a) of the Vehicle Award to mean "employees covered by the classifications at clause 33 and for whom Section 1 - Vehicle Industry RS&R Employees applies". The expression "vehicle industry RS&R employee" is defined in clause 3 of the Vehicle Award to mean "an employee classified appropriate to the employee's skills, the duties required by the employer to be performed and the skill level definitions detailed at Schedule B".

[46] Clause 33.1 of the Vehicle Award states:

"All adult employees (other than adult apprentices) covered by this section must be classified according to the structure set out in clause 33.4 according to the skill levels and duties required to be exercised by the employee in order to carry out the principal function of the employment as determined by the employer. The skill level definitions, according to which employees are to be classified, are set out in Schedule B - Vehicle Industry RS&R - Skill Level Definitions."

[47] The classifications in clause 33.4 range from Level 1 to Level 5 Vehicle Industry RS&R employee and tradesperson or equivalent Level 1 and tradesperson or equivalent Level II Vehicle Industry RS&R employee.

[48] The skill level definition for a B.3 Vehicle industry RS&R employee Level 3 R3 is as follows [emphasis added]:

"An employee at this level has completed 8 modules of a nationally accredited RS&R Certificate or equivalent training and uses skills above that of an employee at Level R2.

A Level R3 employee would be expected to have the job skills relevant to the tasks performed and would work with only general supervision of daily duties and to the level of their training:

• where appropriate use a variety of power and hand tools and/or other equipment necessary to carry out the relevant tasks;
• possesses good oral and/or written communication skills;
• is responsible for quality of own work subject to routine supervision;
• plans own work in consultation with supervisor;
• requires only general job instruction;
• possesses customer service skills;
• performs basic maintenance tasks;
• acquires multiple manual skills;
• may use various materials handling equipment;
• has fault finding skills;
• maintains simple numerical records from computer equipment;
• can assist with on-the-job instruction in conjunction with general supervision;
• uses some basic negotiation skills in service areas;
• basic inventory controls; and
• receiving, despatching, distributing, sorting, checking, packing, (other than repetitive packing in a standard container or containers in which such goods are customarily sold), documenting and recording of goods, materials and components.

• Assembler - accessories
• Assembler - body shop
• Detailer (as defined)
• Machinist (metal) - 2nd class
• Operator in charge of extruder
• Operator mainly engaged examining tyres prior to repairing, retreading, recapping or lugging
• Operator repairing and/or building up and/or retreading and/or recapping used in:
  • aeroplane tyres (for re-use on aeroplanes); and
  • tyres other than as referred to above
• Operator relugging earth mover and/or grader and/or tractor tyres by hand
• Operator engaged in moulding or curing of retreaded, rebuilt, recapped or relugged tyres in:
  • unit heaters
  • autoclaves
• Painter - brush and/or spray on mechanical chassis components
• Paint shop assistant
• Polisher/cutter using buff or wet and dry rubber
• Service receptionist - not being a tradesperson
• Steam cleaner and/or proof coater
• Storeperson - first 12 months
• Wheel aligner - not being a tradesperson but having up to 6 months experience
• Wheel builder and/or repairer - not being a tradesperson - first 6 months' experience
• Wrecker - automotive"

[49] When the Vehicle Award was first made, a Full Bench of the Australian Industrial Relations Commission gave consideration to the question of whether administrative employees should be covered by it. The Full Bench made the following observations [emphasis added]:[33]

"[224] We publish a draft Vehicle Manufacturing, Repair, Services and Retail Award 2010. The proposed award is intended to deal comprehensively with the vehicle manufacturing sector and the repair, services and retail sector...

[225] The draft award does not markedly depart from the provisions of the existing pre-reform awards and existing conditions for employees involved in the sale of fuel and other vehicle related retailing have adopted [sic]. We have decided not to include the pay and classification provisions from the Clerks Modern Award or from any other award. It is our view at this stage that clerks should not be covered by the vehicle industry award.

[226] Submissions were put seeking that the pay and conditions of sales staff in the car rental industry be aligned with those of console operators. We have not accepted this proposal. To do so would segment the sales office staff from the purely administrative/clerical staff of the car rental companies who, with the car rental employers' call-centre staff, will also be covered by the Clerks Modern Award. At this stage it is our view that the sales staff should also be covered by that award."

[50] After seeking and obtaining feedback on the exposure draft of the Vehicle Award, a Full Bench of the Australian Industrial Relations Commission published a further decision in which the following statements were made concerning coverage of the Vehicle Award for clerical employees:

"[273] Further submissions were made as to the existing record keeper classifications and as to the specialised skills and industry specific functions required of employees so classified. As it remains our view that such employment comes within the scope of the Clerks Modern Award these classifications have been removed from the award."

[51] In Putlands v Royans Wagga Pty Ltd,[34] Justice Bromwich considered the service receptionist classification in the Vehicle Award. His Honour observed that the relevant consideration for coverage under the Vehicle Award is the work undertaken by the employee.[35] His Honour also made the following observations about the service receptionist classification:

"[298] It is quite clear that the Vehicle Award and the job classifications therein are intended to have a direct connection with vehicle manufacturing, repair, services and sales...

[299] The service receptionist classification appears to involve some kind of nexus to the service area in which the relevant vehicle manufacture, repair, services and sales are performed, even if the nexus does not necessarily entail immediate physical proximity. This nexus cannot be said to properly exist in the work performed by the Putlands. They are at least one step removed from any work done in actual repair and directly related activities."

[52] In late 2019, Ms Groves was 23 years of age. Ms Groves commenced employment with Kal Tire on 15 January 2018. Prior to that time and from December 2015, she was employed by a labour hire company, Programmed, to work at the Mine in administration. In particular, Ms Groves worked in the Training Department of the Mine. Ms Groves initially undertook a traineeship while she was working for Programmed at the Mine, at which time she completed a Certificate III in Business Administration. At the conclusion of her traineeship, Ms Groves was retained through Programmed to work at the Mine.

[53] Ms Groves was terminated on the ground of redundancy by Kal Tire on 29 November 2019. Ms Groves worked at the Mine throughout the whole duration of her employment with Kal Tire. Ms Groves was employed by Kal Tire as an Administration Assistant.[36] She performed all of the administrative work in relation to the tyre services provided by Kal Tire at the Mine.[37]

[54] Ms Groves' place of work was in an office in the tyre bay area on the Mine site. The tyre bay area also has a workshop. The office facility in which Ms Groves worked was owned and maintained by the Mine.[38]

[55] Ms Groves worked Monday to Friday, eight hours a day, together with additional hours where required, at the Mine throughout her employment with Kal Tire.

[56] The 'role profile' for Ms Grove's role at the Mine stated that the purpose, core responsibilities and key performance indicators for the role were as follows:[39]

Site Administration Support is responsible for ensuring the timely provision of administrative support services required for the Kal Tire tyre maintenance service provision to achieve the site contractual Scope of Works and KPI's.

• Conducts reception duties, manages telephone and is the first point of contact in the office.

• Enters work record sheets, follows up missing documentation with site Team Leader and faxes to Spring Hill Support Office.

• Completes contractor consumable forms and organise order numbers where required and documents/tracks usage of consumables.

• Organizes quotes for consumables and tyres from suppliers.

• Coordinates the logistics for site access for Visitors using Client booking forms.

• Implements and manages an effective filing & records management system.

• Assists to maintain the supplied tyre bay facilities and equipment.

• Provides, maintains and replaces required tooling and equipment to undertake the contractual scope of works.

• Co-operates with Customer personnel and other contractors engaged in the maintenance of equipment and of any other units of equipment so as to make efficient use of available site facilities.

• Manages the use of telephone, data communication and fax equipment from the nominated point of connection network.

• Updates Files Menu - Applications, Suppliers, Tyre/Rim Specs, Vehicle Specs, Manufacturers, Tyres & Rims.

• Data Inputs all required information into TTC including Tyre & Rim Change, Pressure Checks, Other Inspections, Disposal of Tyres & Rims, and Vehicle Period End. Tyre sense information & Tolaps.live data entry if applicable.

• Ensures that hygiene standards are maintained in the facility.

• Reports hazards, unsafe work conditions and equipment to your Site Team Leader /Leading Hand so the appropriate action to eliminate or reduce the risk to acceptable levels.

• Reports all incidents, near misses and injuries according to procedures.

• Assists and co-operates with the site safety representative to resolve safety issues identified.

• Uses and maintains Personal Protective Equipment at all times.

• Actively participates in regular meetings and inspections in order to promote and improve safety in the workplace and document accordingly.

• Reads and confirms incident notices and other safety information conveyed to all personnel.

• Complies with site emergency evacuation procedures.

• Positively demonstrates environmentally responsible work practices

Performs related duties in keeping with the purpose and accountabilities of the role and or by the Site Team Leader.

The Key Performance Indicators are evolving and currently include:

• Administrative duties are complete and well managed for the location.

• Customers are very satisfied of the timely and accurate completion of assigned tasks, achieving customer satisfaction.

[57] Ms Groves' witness statements include the following descriptions of various aspects of her work at the Mine:

• "While working for the Respondent at the Mine, I spent most of the time on the computers. My job involved doing the Yancoal weekly and monthly tyre performance and other reports, and creating work orders and signing them off. I would co-ordinate the hours of work and coverage under the roster. I was responsible for booking or facilitating tyre services employees, attending the Mine site training they were required to undertake. The tyre service employees were trained and had their training authorised by the Mine. This had to be updated and current The Leading Hands would attend the Mine's toolbox talks. I commence work at 6:30 am which means I commenced at the same time as the maintenance employees that would be working day shift and I occasionally would attend them as well and I would attend the shift meetings that occurred in the tyre bay workshop area. We would also receive notification from the Mine about information and instruction we had to give the Respondent's employees in the toolbox talks. Would ensure that information was included. Weekly tyre performance reports were produced and distributed to the client's supervisory and managerial employees of the Mine. Annexed to this statement and marked JG-13 is a copy of a weekly tyre performance reports that I would provide to the supervisory and managerial employees at the Mine. This report is of week 45. It includes a document setting out some issues that arose that was worth remark and the tyre down times. Also a detailed spreadsheet setting out work undertaken, the plant and all of the down time that occurred due to or related to tyre maintenance work for the week. Every minute and the reason for any mining plant was down and out of production for a tyre or tyre related maintenance issue, had to be recorded and explained. Annexed to this statement and marked JG-14 is a copy of a monthly tyre performance reports for August 2019 for the truck fleet Komatsu 830E, CAT795 and CAT798 including scrapes, that I would provide to the supervisory and managerial employees at the Mine."[40]

• "I and some of the other Respondent's employees would also receive the weekly planning schedules from the Mine of the planned work that had to be done for the week. These planning schedules were distributed to all personnel at the Mine that were involved in ensuring labour and personnel were available for the maintenance that was planned for the week. I would receive it and review it. I would make up the work orders for each of the jobs that the Mine required to be done and I would also make sure the hours were assigned to the jobs. Annexed to this statement and marked JG-15 is a copy the draft MTW weekly maintenance schedule for the week ending 24 November 2019, that is provided to me and others by the Mine's maintenance planner who had developed the weekly maintenance plan for the tyre fitters, setting out the schedule maintenance we were to undertake for the week."[41]

• "... where it is indicated I was responsible for providing administrative support for the running of the services agreement and specifies some related functions, the services that were performed were principally all aspects of rubber tyre maintenance at the mine. I performed all administrative duties related to those functions. Mr Lovell's statement, which I refer to above at PN2(b) of this statement, describes aspects of my work and I agree with those comments. Those comments were found at PN38 to PN40 and also at PN53:-

1. It was not uncommon for Jasmine to have to stay back after finishing time to complete work. However, any time that she stayed back it had to be authorised by me so she could continue working. If she needed to stay back to finish work, she would ring me up and tell me that she needed to stay back and the reason for same. She would tell me the tasks that needed to be done and the priority tasks that she needed to complete. The priority tasks included, monthly reports, costings, inputting data about the number of tyre changes, the number of hours that vehicles were down, Tyre audit discrepancies which is all information that goes to the client as part of the tyre maintenance service provided by Kal Tire.

2. At times, MTW Coal Mine employees, including Corey Kelly, the Tyre Management Officer for Yancoal, Paul Flannagan, the Senior Workshop Supervisor or Simon Trigg, the Maintenance Superintendent, would tell me that there was data entry that needed to be completed as a matter of urgency, before Jasmine went home for the day. So I had to ask Jasmine to stay back. The MTW Coal Mine employees would usually make these requests to complete data entry for tyre pressures and tyre changes, audit discrepancies.

3. At other times, I had to ask her to stay back to get ready for end of month, when reports had to be made to the client or to make sure that tyres that were being issued were in the system.

53. Jasmine GROVES would review the paperwork to make sure it was done and the critical information was completed, then enter the information into Total Tyre Control. Jasmine would file them away and make sure the PRIDE for all service people working on the truck were stapled to the Tyre Change Sheet for the corresponding truck. I conduct random audit of the paperwork at different stages and varying times."[42]

• "I have been asked to comment on whether or not I perform the duties of a service receptionist. I did not perform the duties of a service receptionist. A receptionist, as I understand, is someone who performs work in a waiting area, lobby or front desk and would be the first point of contact for a call or someone attending. I did not perform that service receptionist role. I never greeted clients or potential customers and I did not man any reception. I did have a phone on my desk but it was a phone only for the purposes of people talking to me that wished to talk about work related issues. It was not publicly disclosed and could be found by looking up the mine's internal directory. An employee of the mine would contact me directly if they required me to perform work or they would come and see me. Each person that worked in the office had their own phone and there were no calls that went through me. In fact, I don't even think I could transfer a call. I never during my period of employment in fact had to transfer a call to anyone."[43]

• "I have been informed the Respondent's legal representative wrote to the Fair Work Commission on 18 March 2020 responding to enquiries related to during my employment with Kal Tire did "Ms Groves fit within the "service receptionist" classification...". This correspondence went to what was said to be my primary functions. Annexed to this statement and marked JG-1D is the alleged list of my primary functions from that correspondence and I respond to what is said to be my primary functions below.

1. I did not conduct reception duties; the mine reception area is located in the main administration building on the other side of the pit. Vivian Franklin is the mines receptionist. I shared an office with Peter Lovell, there was no reception or waiting area in this office or the tyre bay workshop.

I did not manage a telephone for anyone but myself. Mr Lovell and I each had a phone on our desk, the phone number was not publicly disclosed, and I never forwarded calls or took messages for any other persons, I was not given a work mobile phone by Kal Tire and was not responsible for any of the mobile phones used at MTW.

I was not the first point of contact in the office, the tyre bay is a restricted area and prior approval by MTW had to be given for any external visitors including Kal Tire employees who were not employed to work at MTW. Such visits were organised and approved by Corey Kelly; I did not request nor was I ever instructed to organise for anyone to attend the MTW tyre bay including the office for the length of my employment with Kal Tire.

Mine employees in supervisory/management roles such as Corey Kelly could enter the tyre bay to discuss work directly to myself or Peter without making an arrangement or prior approval.

1. I did enter work record sheets into Total Tyre Control and followed up missing paperwork. This system and its licencing was maintained by MTW. Each month a copy of the Total Tyre Control Database was sent to Spring Hill.

1. I would order all consumables from MTW store directly once an order number was available from MTW SAP system I provided the order numbers to the leading hand on shift. I did not document or track consumables, the leading hands would give me a list and quantity of items and I would order that. I did not order consumables from anywhere else other than MTW stores.

1. I did not organise quotes for consumables or tyres. Consumables were ordered and supplied through MTW Stores. MTW ordered and owned all tyres.

2. I did record KPIs for the Kal Tire monthly tyre reports. I also recorded KPIs for weekly and monthly reports to MTW commercial, planning, maintenance, mining and training teams.

I did not coordinate the logistics for site access.

I did not implement as I had to follow MTW procedures and processes for paperwork, but I did manage filing and records into Total Tyre Control, MTW SAP, MTW MinVu, MTW Public Records Drive. Kal Tire paperwork was filed in physical folders in the office and sent off site to the Muswellbrook office for archiving. At the end of the contract MTW retained Kal Tires paperwork for the previous 12 months. Total tyre control system and its contract was maintained by the mine and stayed property of the mine, Kal Tire were provided copies of the database each month.

Supplied tyre bay facilities and equipment were maintained by the MTW Infrastructure Team. If something needed to be serviced it would be on the mines SAP servicing schedule, if the facility or equipment needed to be fixed it was up to the person who found the issue to call infrastructure on the two way and put in a request.

I did not provide, maintain or replace required tooling or equipment.

I would co-operate with personnel and other contractors in the area.

l) I did not manage the use of telephones or data communication; this was all done by MTW IT department. In fact, we were to call MTW IT for any issues with computers, internet, software etc and were not to attempt to fix the problem as all equipment I used was supplied by the Mine."[44]

[58] In her oral evidence given on 11 March 2020, Ms Groves accepted that she provided administrative support to Kal Tire's leadership team that was deployed at the Mine and her duties generally involved "reception duties, entering work record sheets, following up documentation, organising order numbers, quotes for consumables and tyres from suppliers, recording KPI data for reviews, preparing meeting minutes, co-ordinating logistics for site access by visitors, file and record management".[45]

[59] Ms Groves gave further oral evidence on 6 May 2020. That additional evidence was given after the Commission raised with the parties in correspondence a number of issues arising from the recent decision of the Full Bench in Spotless. On 6 May 2020, Ms Groves accepted she had agreed on 11 March 2020 that she performed a whole range of duties at the Mine, including reception duties, managing telephones and was the first point of contact in the office.[46] However, in her re-examination on 6 May 2020, Ms Groves gave the following evidence:[47]

"If we take you through each of the roles which says, "Tyre fitment and removal" - if we take you to those duties you were led to, with respect to the actual duties you performed what do you say with respect to the first bullet point?---I didn't conduct any reception duties, I didn't manage anyone else's phone and I wasn't the first point of contact for the office.

Organise quotes for consumables and tyres from suppliers?---I didn't order quotes for consumables or tyres. All the tyres were ordered and, like, stocked through the mine.

Prepare meeting minutes?---I did not prepare meeting minutes.

It says: Coordinate the logistics for site access for visitors using client booking forms?---I did not coordinate the logistics for site access.

Provides, maintains and replaces required tooling and equipment under the contractual scopes of work?---I didn't provide, maintain or replace any required tooling or equipment.

Who performed that role?---It would be the mine or if there was something that was Kal Tire's that was broken, it would be like Peter Lovell.

Manages the use of telephone, data communication, fax equipment from the nominated point of connection network?---I did not manage the use of telephone or the data connections. It was all done through MTW's IT department because all the computer and phone equipment - it was all theirs. We were in fact instructed not to actually try and fix it because it was theirs, so if we did break it or something happened, we would be in trouble."

[60] Although there is a conflict between the evidence Ms Groves gave in relation to her duties on 6 May 2020 compared to her evidence on 11 March 2020, I prefer the evidence given by Ms Groves about those matters on 6 May 2020, for the following reasons:

• First, the question asked of Ms Groves during her cross examination on 11 March 2020 was a 'rolled-up' question in which she was asked whether her duties generally involved nine different tasks. Ms Groves answered "yes".[48]

• Secondly, when Ms Groves was taken to each of those duties individually during her re-examination on 6 May 2020, she gave a detailed response to each question. In respect of a number of those duties Ms Groves agreed that she actually performed them, but for the remainder she stated that she did not.[49]

• Thirdly, the oral evidence Ms Groves gave during the hearing on 6 May 2020 was largely consistent with her witness statement dated 8 April 2020, where she gave a detailed account of her primary duties.[50]

• Fourthly, Kal Tire did not adduce evidence from any person who worked at the Mine to contradict the detailed evidence given by Ms Groves in her witness statement dated 8 April 2020 and her oral evidence on 6 May 2020 in relation to the particular work she undertook at the Mine. I accept that Ms Groves undertook that work at the Mine.

• Fifthly, Ms Groves' evidence to the effect that she did not perform reception duties at the Mine is supported by her unchallenged evidence that the Mine reception area is located in the main administration building on the other side of the Mine from where Ms Groves worked; a person by the name of Ms Vivian Franklin was the receptionist for the Mine; Ms Groves shared an office with Mr Lovell; there was no reception or waiting area in that office or in the tyre bay workshop at the Mine; Ms Groves did not manage a telephone for anyone but herself; Ms Groves and Mr Lovell each had a telephone on their desk; Ms Groves' telephone number was not publicly listed; Ms Groves never forwarded calls or took messages for any other person; Ms Groves was not given a mobile telephone by Kal Tire and was not responsible for any of the mobile telephones used at the Mine; Ms Groves was not the first point of contact in the office at the Mine; Ms Groves did not request nor was she ever instructed to organise for anyone to attend the tyre bay or the office therein; and Mine employees in supervisory/management roles entered the tyre bay to discuss work directly with Ms Groves or Mr Lovell without making a prior arrangement or obtaining prior approval.[51] Ms Groves' evidence on this point is also supported by the fact that Kal Tire's tyre service employees working on the Mine each carried a two-way radio so they could monitor activity on the Mine and be contacted directly by employees of the Mine. For example, supervisors employed by the Mine contacted Kal Tire's employees by two-way radio at the Mine to advise them that there was a piece of equipment requiring their attention.[52] That such communication was not made through a Kal Tire receptionist at the Mine is supportive of Ms Groves' evidence that she did not perform reception duties.

[61] Ms Groves reported to the Kal Tire Site Supervisor for the Mine, Mr Peter Lovell, who reported to Kal Tire's Area Manager, Mr Dean O'Connell. In his first witness statement, Mr O'Connell described Ms Groves' role as follows:[53]

"The Site Administrator is responsible for providing administrative support for the running of site Service Agreements, including data entry, timecard entry, administration of leave forms, organisation of site inductions for new employees and site training. Ms Groves performed her functions from the MTW Coal Mine. Employees engaged as Site Administrators must hold post-secondary education in office administration."

[62] Having conducted an examination of the nature of Ms Groves' work for Kal Tire at the Mine and the circumstances in which she was employed to do that work, I find that the principal purpose for which Ms Groves was employed was to provide administrative support to enable Kal Tire to provide its services at the Mine. My finding in that regard is supported by the extensive evidence given by Ms Groves concerning her duties and day-to-day work activities, the stated purpose in her 'role profile', and Mr O'Connell's evidence set out in the previous paragraph.

[63] I do not accept Kal Tire's contention that Ms Groves was employed within the "service receptionist" classification in B.3 of Schedule B to the Vehicle Award. There was a nexus between the work Ms Groves undertook at the Mine and the main area in which the vehicle services were performed by Kal Tire's employees at the Mine. In particular, there was immediate physical proximity between the office in which Ms Groves worked at the Mine and the workshop area where Kal Tire's employees undertook tyre maintenance work, if they were not doing such work in the Mine's workshop or at a breakdown in the Mine, and there was a close nexus between the nature of the administrative support work undertaken by Ms Groves and the provision of the relevant vehicle services (tyre maintenance services) by Kal Tire for the Mine. Such a nexus is necessary but not sufficient to establish that an employee works within the "service receptionist" classification. It remains necessary to consider the work undertaken by the employee and the principal purpose of their position to determine whether the work was that of a "service receptionist". That is where the analysis falls down in this case. For the reasons stated above, I accept Ms Groves' evidence that she did not undertake reception duties at the Mine, although she could have been directed to perform such duties because they were within the scope of her 'role profile'. Further, it is clear on the evidence that the principal purpose for which Ms Groves was employed was to provide administrative support to enable Kal Tire to provide its services at the Mine, not to work as a "service receptionist".

[64] It is apparent from the Full Bench decisions published in connection with the making of the Vehicle Award,[54] together with the classification definitions contained within the Vehicle Award, that it was not intended to cover, and does not cover, administrative positions such as the one occupied by Ms Groves during her employment with Kal Tire. Accordingly, my determination is that Ms Groves was not covered by the Vehicle Award during her employment with Kal Tire.

[65] Mr Bailey was engaged by Kal Tire as a Tyre Service Person at the Mine. He worked in the role of Team Leader from time to time as required. Mr Burgess was engaged by Kal Tire as a Trainee Tyre Service Person at the Mine.

[66] Kal Tire contends that the role of Trainee Tyre Service Person and Tyre Service Person at the Mine fell within the Level 3 R3 classification in Schedule B to the Vehicle Award. In particular, Kal Tire relies on the following classifications and relevant functions as listed in B.3 of the Vehicle Award:

• tyre fitter, to the extent that a Level 3 R3 Vehicle industry RS&R employee performs functions above that of a Level 2 R2 employee;

• wheel aligner - not being a tradesperson but having up to six months experience;

• use of power and hand tools and/or other equipment necessary to carry out the relevant tasks;

• use of materials handling equipment;

• fault finding;

• maintains simple numerical records from computer equipment;

• assists with on-the-job instruction in conjunction with general supervision, to the extent that Tyre Service People supervise Trainee Tyre Service People; and

• basic inventory controls.

[67] Mr Bailey and Mr Burgess contend they were not covered by any classification in the Vehicle Award during their employment with Kal Tire. They accept that as part of their role they performed some work that falls within the "tyre fitter" classification in the Vehicle Award, but contend that because they worked on a black coal mine and needed a range of skills and qualifications to do their work on a black coal mine, including monitoring two-way radios, operating equipment for the purpose of maintenance work, and following applicable processes and procedures, the work which they performed could not be said to fall within that classification.[55]

[68] The skill level definitions for Level 2 R2, Level 3 R3 and Level 4 R4 Vehicle industry RS&R employee are as follows [emphasis added]:

An employee at Level 2 is an employee who has completed up to 3 months structured training to enable an employee to attain/possess job skills relevant to tasks performed at this level and to the level of their training:

• works under direct supervision either individually or in a team environment;
• has some oral and written communication skills;
• can distinguish where a minor fault/error is made and undertake basic quality control of own work;
• is responsible for the quality of own work subject to routine supervision;
• has some input to job planning;
• can work from simple instructions;
• has some basic customer service skills;
• performs basic maintenance tasks;
• has basic knowledge of the range of services offered by the business;
• has simple numerical equipment skills; and
• may use selected hand tools.

• Battery repairer
• Brake servicer - first 6 months
• Driver of courtesy car or vehicle in relation to sales or sales promotion or in the course of registration, collection from or delivery to customer - vehicles up to and including maker's capacity of 3 tonnes
• Exhaust repairers - first 6 months
• Grinder and/or buffer metal - using a portable machine
• Lubritorium attendant
• Operator on warming mill
• Operator detreading, buffing, gouging, etc.
• Roadhouse attendant, when required to cook take away meals only
• Spring service worker
• Tradesperson's assistant (see also Level I)
• Tyre fitter

An employee at this level has completed 8 modules of a nationally accredited RS&R Certificate or equivalent training and uses skills above that of an employee at Level R2.

A Level R3 employee would be expected to have the job skills relevant to the tasks performed and would work with only general supervision of daily duties and to the level of their training:

• where appropriate use a variety of power and hand tools and/or other equipment necessary to carry out the relevant tasks;
• possesses good oral and/or written communication skills;
• is responsible for quality of own work subject to routine supervision;
• plans own work in consultation with supervisor;
• requires only general job instruction;
• possesses customer service skills;
• performs basic maintenance tasks;
• acquires multiple manual skills;
• may use various materials handling equipment;
• has fault finding skills;
• maintains simple numerical records from computer equipment;
• can assist with on-the-job instruction in conjunction with general supervision;
• uses some basic negotiation skills in service areas;
• basic inventory controls; and
• receiving, despatching, distributing, sorting, checking, packing, (other than repetitive packing in a standard container or containers in which such goods are customarily sold), documenting and recording of goods, materials and components.

• Assembler - accessories
• Assembler - body shop
• Detailer (as defined)
• Machinist (metal) - 2nd class
• Operator in charge of extruder
• Operator mainly engaged examining tyres prior to repairing, retreading, recapping or lugging
• Operator repairing and/or building up and/or retreading and/or recapping used in:
  • aeroplane tyres (for re-use on aeroplanes); and
  • tyres other than as referred to above
• Operator relugging earth mover and/or grader and/or tractor tyres by hand
• Operator engaged in moulding or curing of retreaded, rebuilt, recapped or relugged tyres in:
  • unit heaters
  • autoclaves
• Painter - brush and/or spray on mechanical chassis components
• Paint shop assistant
• Polisher/cutter using buff or wet and dry rubber
• Service receptionist - not being a tradesperson
• Steam cleaner and/or proof coater
• Storeperson - first 12 months
• Wheel aligner - not being a tradesperson but having up to 6 months experience
• Wheel builder and/or repairer - not being a tradesperson - first 6 months' experience
• Wrecker - automotive

An employee at this level performs work above and beyond the skills of an employee at Level R3 and would normally have completed 16 modules of a nationally accredited RS&R Certificate or equivalent training.

A retail employee will be qualified to perform work within the duties and functions of an automotive parts salesperson other; motor vehicle and/or agricultural vehicle salesperson with less than 6 months' experience; salesperson other; and a console operator.

An employee required to work to the level of their training:

• works under general supervision, either individually or in a team environment;
• exercises discretion within their level of skills and training;
• understands and is responsible for quality of own work;
• possesses competent communications and written skills;
• intermediate key board skills;
• licensed and certified for lift driving;
• customer relation skills;
• inventory and store control including: licensed operation of all appropriate materials handling equipment; use of tools and equipment within the scope (basic non-trades maintenance); computer operation at a higher level than that of a Level 3 employee;
• assists in the provision of on-the-job training in conjunction with supervisor or trainer;
• possesses sales skills appropriate to this level;
• has cash register and console operation skills; and
• where applicable computer operation at a higher level than that of a Level R3 employee.

• Bodymaker - 2nd class
• Brake servicer - after 6 months' experience
• Console Operator
• Driver of courtesy car or vehicle in relation to sales or sales promotion or in the course of registration, collection from or delivery to customer-vehicle with maker's capacity over 3 tonnes
• Exhaust repairer - after 6 months
• Motorcycle assembler
• Roadhouse attendant if engaged primarily to cook other than take away foods
• Radiator repairer - other
• Wheel aligner - other than a tradesperson, after 6 months
• Wheel builder, repairer - after 6 months
• Automotive parts salesperson - other
• Motor vehicle and/or agricultural vehicle salesperson - less than 6 months' experience
• Salesperson - other
• Storeperson - more than 12 months' experience
• Driveway attendant operating a console
• Storeperson and packer
• Windscreen fitter and/or repairer"

[69] The Vehicle Award defines a "tyre fitter" in clause 3.1 as follows:

"Tyre fitter means an employee fitting tyres and/or tubes to rims and/or wheels, including, without limiting the generality of the foregoing, wheel balancing and all operations associated with the removal and/or replacement of rims and/or wheels from or onto vehicles and/or wheeled equipment, including operations involving the use of the employee of compressing, mechanical and/or power operated apparatus."

[70] Mr Bailey, Mr Burgess and Mr Harman did not give evidence in the proceedings. However, Mr Burgess reported to Mr Bailey, who reported to Mr Allgood, Mr Folpp and Mr Harman as Leading Hands. Mr Allgood and Mr Folpp gave evidence about the work and duties undertaken by Mr Bailey, Mr Burgess and Mr Harman at the Mine.

[71] Mr O'Connell gave unchallenged evidence, which I accept, that Tyre Service Persons are responsible for conducting tyre maintenance services in accordance with Kal Tire's Service Agreement, including:

• collating tyre and rim data;

• inspecting fitment integrity of earthmover tyres and rims;

• pressure maintenance and recording;

• rotating and matching tyres;

• inspecting and reporting on mine environment conditions that promote tyre damage;

• assembling tyres onto rims;

• replacing worn or damaged tyres and wheel assembly fitment;

• retorquing wheel fasteners according to site processes;

• maintaining and cleaning tyre bay facilities and equipment; and

• ensuring all SME are returned to site personnel according to site procedures.[56]

[72] All employees engaged by Kal Tire as Tyre Service Persons must hold an AUR21916 Certificate II in Automotive Tyre Servicing Technology.[57]

[73] The 'role profile' for the role of Tyre Service Person states that its purpose is as follows:[58]

"The Tyre Service Person is responsible for safely and efficiently executing a range of tyre maintenance and management tasks at their allocated site. In doing so the Tyre Service Person shall adhere to Kal Tire's work and safety standards, ensuring Kal Tire delivers and achieves the contractual Scope of Works and KPI's."

[74] The 'role profile' for a Tyre Service Person also includes the following relevant information:

• Assists with the collation of tyre and rim data, by ensuring the production of timely and accurate paperwork (tyre change forms, etc).

• Conducts regularly inspections of the fitment integrity of all earthmover tyres and rims.

• Conducts accurate and timely pressure maintenance - tyre pressure checking, adjusting

• Rotates and matches tyres to ensure equal and minimal wear.

• Inspects and reports on mine environment conditions that place tyre damage at risk.

• Removes and fits SME tyres and rims, at the tyre bay, the maintenance workshop or in field - this includes rotation and matching of tyres, assembly of tyres on to rims, replacement of worn or damaged tyres and wheel assembly fitment and removal for maintenance.

• Re-torques wheel fasteners as per site specific process.

• Maintains client supplied tyre bay facilities and equipment.

• Provides, maintains and replaces required tools and equipment to undertake this scope of works.

• Ensures that all SME are returned to client and that client responsible person is notified as per site specific procedure.

• Ensures that the client tyre bay facility is clean, well maintained and safe.

The Key Performance Indicators are evolving and currently include:

• All safety standards are followed and work is performed without incident to team,

• Perform Hazard and Safe work observations to customer requirements.

• Correct and safe use of tyre fitting tools and equipment are performed.

• Tyre maintenance is performed efficiently to meet the needs of the customer.

• Team member contributes to the smooth operations of the client Tyre Bay.

• At least one year related experience with direct experience as a tyre service person.

• LF (Forklift) National High Risk Work License.
• MR Truck License.

• Remove & Fit Wheel Assemblies.
• Remove, Repair & Refit Tyres & Tubes.
• Operate a Forklift - Tyre Handler.
• Apply Risk Management Processes.
• Conduct Safety & Health Investigations.
• Communicate Information.

• Experience working in an environment where safety procedures are a key part of daily operations."

[75] It is apparent from the evidence adduced that the work undertaken by Mr Burgess and Mr Bailey at the Mine was consistent with the 'role profile' for the Tyre Service Person.

[76] Having conducted an examination of the nature of the work undertaken by Mr Burgess and Mr Bailey for Kal Tire at the Mine and the circumstances in which they were employed to do that work, I find that the principal purpose for which each of Mr Burgess and Mr Bailey was employed was to inspect, fit and rotate tyres. Their roles comfortably fit within the "tyre fitter" classification in the Vehicle Award (Level 2 R2), but I accept Kal Tire's submission that the appropriate level for each of them was Level 3 R3, on account of their level of training and skills being above that of a Level 2 R2 employee.

[77] I reject the Applicants' contention that the roles occupied by Mr Burgess and Mr Bailey do not fall within the "tyre fitter" classification in the Vehicle Award because they worked on a black coal mine and needed a range of skills, qualifications and experience to work in that environment. The location of the work and the environment in which it was performed is not relevant to the initial determination of award coverage. Those concepts only potentially become relevant if there is overlapping coverage between two or more awards.

[78] Accordingly, my determination is that the roles held by Mr Burgess and Mr Bailey at the Mine fell within the coverage of the Vehicle Award, at the Level 3 R3 classification in Schedule B.

[79] Mr Allgood, Mr Folpp and Mr Harman were engaged by Kal Tire as Leading Hands at the Mine. Mr Harman was promoted to the role of Leading Hand about a month before the Applicants ceased employment at the Mine.[59]

[80] Kal Tire contends that the role of Leading Hand occupied by Mr Allgood, Mr Folpp and Mr Harman at the Mine fell within the Level 5 R5 classification in Schedule B to the Vehicle Award.

[81] Mr Allgood, Mr Folpp and Mr Harman contend they were not covered by any classification in the Vehicle Award during their employment with Kal Tire. They accept that as part of their role they performed some work that falls within the "tyre fitter" classification in the Vehicle Award, but contend that because they worked on a black coal mine and needed a range of skills and qualifications to do their work on a black coal mine, including monitoring two-way radios, operating equipment for the purpose of maintenance work, and following applicable processes and procedures, the work which they performed could not be said to fall within that classification.[60]

[82] The skill level definition for a Level 5 R5 Vehicle industry RS&R employee is as follows [emphasis added]:

A repair and service employee at this level performs work above and beyond the skills of an employee at Level R4 and would have 20 modules of a nationally accredited RS&R Certificate or equivalent training. A Level R5 employee is required to work to the level of their training.

A retail employee at this level will be qualified to perform work of an experienced automotive spare parts salesperson:

• requires minimum supervision;
• possesses technical job skills within the level of their training;
• works from detailed instructions and procedures;
• co-ordinates work in a team environment or works individually under limited supervision;
• exercises discretion within their level of skills and training;
• assists in the provision of on-the-job training in conjunction with tradespersons and supervisor/trainers;
• may prepare reports and interpret written information relevant to tasks performed;
• understands and is responsible for quality of own work;
• possesses competent communications and written skills;
• possesses technical job skills within their level of training;
• possesses customer contact skills to perform tasks at this level;
• undertakes specialist troubleshooting, problem solving and maintenance skills at this level;
• has multiple manual skills;
• can use relevant tools and equipment;
• can operate numerical/computer equipment supplied in sales, distribution, repair, servicing and relevant to tasks at this level; and
• has adequate negotiating skills in sales and services to perform tasks at this level.

• Automotive parts salesperson - experienced
• Automotive servicer or checker
• Radiator repairer - 1st class"

[83] Leading Hands perform tyre fitting duties and are responsible for managing Kal Tire's on-site service team at the Mine.[61] They report to Kal Tire's Site Supervisor.

[84] Kal Tire employed a team of about 10 employees to undertake tyre fitting and associated tasks at the Mine, including three Leading Hands.[62] In addition, Ms Groves was employed in an administrative capacity.

[85] Leading Hands must hold at least a Certificate II in Automotive (Mechanical - tyre fitting and repair Light and Heavy). They are required to have at least one to two years of heavy earthmoving tyre fitting experience as a qualified tyre fitter, but are not required to be trade qualified.

[86] The 'role profile' for the role of Leading Hand states that its purpose is as follows:[63]

"The Leading Hand is responsible for managing Kal Tire's onsite service team and managing the day-to-day operational relationship with the customer in the absence of the Site Team Leader or when the Site Team Leader is on R&R. As an employer of choice, Kal Tire offer suitable Leading Hands the opportunity to progress to Site Team Leader."

[87] The 'role profile' for a Leading Hand also includes the following relevant information:[64]

• Ensure the contract scope-of-works meets Kal Tires high standard.

• Ensure the minimum and or contract key performance indicators (KPI) are met to Kal Tires high standard.

• Direct Team Members in performing tyre fitting and workshop maintenance duties in a safe and cost efficient way.

• Ensure all tyre data collected is as accurate as possible and is applicable in Kaltires service provision to the client.

• Ensure all data collected is promptly entered into the Computerized Tyre Maintenance and Management System (CTMMS).

• Ensure all documentation on site is filed and stored promptly and is auditable.

• Maintain sufficient stock on site of rims, rim components, rim soap, sealant, tyres etc, and regularly audit to maintain correct levels.

• Facilitate and present tyre related performance or other information at meetings or presentations to large groups of people.

• Perform tyre fitter duties if required, or any other duties allocated.

The Key Performance Indicators are evolving and currently include:

• Pressure checks for main haul truck and loader fleet are completed biweekly.

• Tread depth for main haul truck and loader fleet are completed monthly.

• Haul road and pit inspection reports are completed biweekly.

• Tyre awareness for all operators is completed quarterly.

• Daily attendance to all site safety and planning meetings is compiled.

• Daily entry of data of all tyre related information into CTMMS is compiled."

[88] It is apparent from the evidence adduced that the work undertaken by Mr Allgood, Mr Folpp and Mr Harman at the Mine was consistent with 'role profile' for the Leading Hand.

[89] Having conducted an examination of the nature of the work undertaken by Mr Allgood, Mr Folpp and Mr Harman for Kal Tire at the Mine and the circumstances in which they were employed to do that work, I find that the principal purpose for which each of Mr Allgood, Mr Folpp and Mr Harman was employed was to co-ordinate the work undertaken by Kal Tire's employees at the Mine in inspecting, fitting and rotating tyres in the most efficient manner possible, as well as ensuring regular reports were provided to the Mine in relation to a range of tyre maintenance and efficiency measures. I accept Kal Tire's submission that the appropriate level for each of them was Level 5 R5, on account of the fact that they undertook "tyre fitter" duties as required, but the level of their training, skills, co-ordination of work, requirement for minimum supervision, and preparation of reports was consistent with that of a Level 5 R5 employee.

[90] I reject the Applicants' contention that the roles occupied by Mr Allgood, Mr Folpp and Mr Harman do not fall within the classifications in the Vehicle Award because they worked on a black coal mine and needed a range of skills, qualifications and experience to work in that environment. The location of the work and the environment in which it was performed is not relevant to the initial determination of award coverage. Those concepts only potentially become relevant if there is overlapping coverage between two or more awards.

[91] Accordingly, my determination is that the roles occupied by Mr Allgood, Mr Folpp and Mr Harman at the Mine fell with the coverage of the Vehicle Award, at the Level 5 R5 classification in Schedule B.

[92] Clause 4 of the Black Coal Award governs its coverage:

(a) employers of coal mining employees as defined in clause 4.1(b); and

(i) employees who are employed in the black coal mining industry by an employer engaged in the black coal mining industry, whose duties are directly connected with the day to day operation of a black coal mine and who are employed in a classification or class of work in Schedule A - Production and Engineering Employees or Schedule B - Staff Employees of this award;

(ii) employees who are employed in the black coal mining industry, whose duties are carried out at or about a place where black coal is mined and are directly connected with the day to day operation of a black coal mine and who are employed in a classification or class of work in Schedule A - Production and Engineering Employees or Schedule B - Staff Employees of this award;

(iii) employees employed by a mines rescue service.

4.2 For the purpose of this award, black coal mining industry has the meaning applied by the courts and industrial tribunals, including the Coal Industry Tribunal. Subject to the foregoing, the black coal mining industry includes:

(a) the extraction or mining of black coal on a coal mining lease by means of underground or surface mining methods;

(b) the processing of black coal at a coal handling or coal processing plant on or adjacent to a coal mining lease;

(c) the transportation of black coal on a coal mining lease; and

(d) other work on a coal mining lease directly connected with the extraction, mining and processing of black coal.

4.3 The black coal mining industry does not include:

(a) the mining of brown coal in conjunction with the operation of a power station;

(b) the work of employees employed in head offices or corporate administration offices (but excluding work in town offices associated with the day-to-day operation of a local mine or mines) of employers engaged in the black coal mining industry;

(d) construction work on or adjacent to a coal mine site;

(f) haulage of coal off a coal mining lease (unless such haulage is to a wash plant or char plant in the vicinity of the mine); or

(g) the supply of shotfiring or other explosive services by an employer not otherwise engaged in the black coal mining industry.

NOTE: The coverage clause is intended to reflect the status quo which existed under key pre-modern awards in relation to the kinds of employers and employees to whom those awards applied and the extent to which the awards applied to such employers and employees.

An example of the types of issues and some of the case law to be considered when addressing coverage matters can be found in Australian Collieries Staff Association and Queensland Coal Owners Association - No. 20 of 1980, 22 February 1982 {Print CR2297} and in the Court decisions cited in this decision.

4.4 The award does not cover an employee excluded from award coverage by the Act.

4.5 The award does not cover employees who are covered by a modern enterprise award, or an enterprise instrument (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to those employees.

4.6 The award does not cover employees who are covered by a State reference public sector modern award, or a State reference public sector transitional award (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to those employees.

4.7 This award covers employers which provide group training services for apprentices and/or trainees engaged in the industry and/or parts of industry set out at clause 4.1 and those apprentices and/or trainees engaged by a group training service hosted by a company to perform work at a location where the activities described herein are being performed. This subclause operates subject to the exclusions from coverage in this award.

4.8 Subject to clauses 4.1 and 4.2, where an employer is covered by more than one award, an employee of that employer is covered by the award classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work.

NOTE: Where there is no classification for a particular employee in this award it is possible that the employer and that employee are covered by an award with occupational coverage."

Consideration re proper construction of clause 4.1 of the Black Coal Award

[93] Clause 4.1 of the Black Coal Award provides that it "covers employers of coal mining employees ... and coal mining employees". Unlike some other modern awards, clause 4.1 of the Black Coal Award does not describe the employers covered by the award by reference to any particular industry. For example, clause 4.1 of the General Retail Industry Award 2010 provides that it "covers employers throughout Australia in the general retail industry and their employees in the classifications ..." Accordingly, provided an employee meets the definition of a "coal mining employee" in clause 4.1(b) of the Black Coal Award, that employee and their employer will be covered by the Black Coal Award.

[94] An employee will be a "coal mining employee" within the meaning of clause 4.1(b) of the Black Coal Award if they meet the description in paragraph (i), (ii) or (iii) of clause 4.1(b). Paragraph (iii) is not relevant to the present case because the Applicants were not employed by a mines rescue service. The Applicants do not rely on paragraph (i). Instead they contend that they meet the description of a "coal mining employee" in paragraph (ii) of clause 4.1(b) of the Black Coal Award.

[95] There are two important distinctions between paragraphs (i) and (ii) of clause 4.1(b) of the Black Coal Award: first, paragraph (i) requires the employer of the employee in question to be "engaged in the black coal mining industry", whereas there is no such requirement in the text of paragraph (ii); and, secondly, paragraph (ii) requires the employee's duties to be "carried out at or about a place where black coal is mined", whereas there is no such requirement in paragraph (i).

[96] Contrary to the submissions put by Kal Tire, there is no requirement on the proper construction of clause 4.1(b)(ii) of the Black Coal Award that an employer must be "in" or "engaged in" the black coal mining industry in order for employees of that employer to be covered by the Black Coal Award.[65] Kal Tire relies on the word "employed" in the first line of clause 4.1(b)(ii) of the Black Coal Award and submits that whether a person is employed in an industry is a question which must focus on the character of the industry carried on by the employer. The expression "employed in" in the first line of paragraphs (i) and (ii) of clause 4.1(b) of the Black Coal Award is used to describe the necessary connection between the employee in question and the black coal mining industry; it says nothing about whether the employer of the employee in question is "in" or "engaged in" that industry. Furthermore, it is objectively telling that paragraph (i) of clause 4.1(b) requires the employer to be "engaged in the black coal mining industry", but paragraph (ii) does not. If it was an inherent or essential feature of an employee being employed in the black coal mining industry that the employer of that employee was "in" or "engaged in" that industry, then the words "by an employer engaged in the black coal mining industry" in paragraph (i) would be otiose. A construction which gives meaning and effect to words in a clause within an industrial instrument is to be preferred over one which does not.[66]

[97] In addition, it is apparent from clause 4.1 that the principal focus of the question of award coverage under the Black Coal Award is on the employee. If an employee meets the definition of a "coal mining employee", then clauses 4.1(a) and (b) make plain that both the employee and the employer of any such employee are covered by the Black Coal Award.

[98] I also reject the submission put on behalf of Kal Tire that it is necessary to examine the substantial character of the industrial enterprise that Kal Tire is providing, namely tyre servicing to the mining industry,[67] for the purpose of determining award coverage under the Black Coal Award for the Applicants. The Black Coal Award does not define the black coal mining industry by reference to a characterisation of the employer's business taken as a whole. Paragraph (ii) of clause 4.1(b) of the Black Coal Award does not require the employer of the employee in question to be "in" or "engaged in" the black coal mining industry. It follows that the "substantial character" test is not appropriate to determine coverage of the Black Coal Award for employees who are alleged to fit within paragraph (ii) of clause 4.1(b).[68]

[99] In order for one or more of the Applicants to be a "coal mining employee" within the meaning of clause 4.1(b)(ii) of the Black Coal Award and therefore covered by the Black Coal Award, the following criteria must be met:

• the employee must be employed in the black coal mining industry;

• the employee's duties must be carried out at or about a place where black coal is mined;

• the employee's duties must be directly connected with the day to day operation of a black coal mine; and

• the employee must be employed in a classification or class of work in Schedule A - Production and Engineering Employees or Schedule B - Staff Employees of the Black Coal Award.

What does "employed in the black coal mining industry" mean?

[100] Whether or not an employee is "employed in the black coal mining industry" involves two enquiries: first, the nature and limits of the term "black coal mining industry"; and, secondly, the relationship between the employee and the black coal mining industry such that the employee can be said to be "in" the black coal mining industry.[69]

[101] As to the meaning of the black coal mining industry, the word "mine" is defined in clause 3.1 of the Black Coal Award to mean "any open cut or underground coal mine, or any operation or establishment, in the black coal mining industry", but the expression "black coal mining industry" is not defined in the Black Coal Award. Clause 4.2 of the Black Coal Award provides that "black coal mining industry has the meaning applied by the courts and industrial tribunals, including the Coal Industry Tribunal". The balance of clause 4.2 provides a non-exhaustive list of work or activities that are included in the black coal mining industry, "subject to the foregoing" statement that the "black coal mining industry has the meaning applied by the courts and industrial tribunals". Clause 4.3 of the Black Coal Award provides a non-exhaustive list of work or activities that do not form part of the black coal mining industry.

[102] The "coal mining industry" or "black coal mining industry" is not a technical term.[70] Latham CJ considered the meaning of the expression "coal mining industry" in R v Drake-Brockman and Others; Ex parte National Oil Pty Ltd:[71]

"When the term "mining" is associated with the name of a particular product, according to the ordinary use of the word it relates to the production of that product (e.g. coal) beginning with the actual removal of either the product itself, or that which contains it (e.g. gold-bearing quartz), from the soil, and ending with the production of the product itself. Thus "gold mining" includes the extraction of gold-bearing material from the soil, and the treatment of that material so as to produce gold...

In my opinion the coal-mining industry is the industry which produces coal as the consequence of mining operations. Coal-mining operations include, not only the actual excavation of the coal from the seam, but also the removal of it from the pit to the surface and placing it upon the surface in a disposable form. All those operations would, according to the ordinary use of language, properly be included within coal-mining operations and would be conducted as part of the coal-mining industry."

[103] Applying Latham CJ's reasoning in National Oil to the present case, the black coal mining industry is the industry which produces black coal as the consequence of mining operations. Black coal mining operations include, not only the actual excavation of the black coal from the seam, but also the transportation of the black coal from the point at which it is extracted from the seam to the surface and placing it upon the surface in a disposable form.[72] In addition, black coal is commonly taken directly to a coal preparation plant on the surface of the mine for the purpose of washing the black coal to remove soil and rock from it, and then crushing the black coal into graded sized chunks. All those operations would, according to the ordinary use of language, properly be included within black coal mining operations and would be conducted as part of the black coal mining industry.[73]

[104] The note directly beneath clause 4.3 of the Black Coal Award explains that the intent of the coverage clause in the Black Coal Award (clause 4.1) is to "reflect the status quo which existed under key pre-modern awards in relation to the kinds of employers and employees to whom those awards applied ..." The note also nominates one case as an "example of the types of issues and some of the case law to be considered when addressing coverage".[74] Caution must, however, be taken when considering some decisions of courts and industrial tribunals in relation to the black coal industry insofar those decisions, or parts of them, focus on questions or issues which are different from those which arise under particular parts of clause 4 of the Black Coal Award. For example, decisions concerning whether an employee is eligible to join a union under an industry-based eligibility rule focus on whether the employer of that employee is in the particular industry.[75] For the reasons set out above, it is not a requirement of paragraph 4.1(b)(ii) of the Black Coal Award that the employer be "in" or "engaged" in the black coal mining industry. Other decisions focus on whether there is a "dispute ... likely to affect the amicable relations of employers and employees in the coal mining industry",[76] "whether the order made by the Central Reference Board is an order with respect to an industrial dispute or matter in the coal-mining industry";[77] or whether the relationship between an employer and one or more of its employees is in the coal mining industry.[78] Those questions do not arise under clause 4 of the Black Coal Award. Notwithstanding those potential limitations, many previous decisions of courts and industrial tribunals in relation to the black coal mining industry are of assistance because, for example, they explain the meaning of the black coal mining industry (as contemplated by the first sentence of clause 4.2 of the Black Coal Award) or they decide coverage under a key pre-modern award.

[105] As to the nature of the relationship required in order for an employee to be "employed in the black coal mining industry", there must be a substantial connection between the employee and the black coal mining industry to satisfy the relationship required by the preposition "in".[79]

[106] A range of factors will be relevant to an assessment as to whether there is a substantial connection between the employee and the black coal mining industry. Although the issues dealt with in authorities such as Thiess and Collieries Staff Association are different to the issues here, the factors which were considered in those cases are plainly relevant to whether an employee is "employed in the black coal mining industry". Those factors include, without limitation:

(a) the nature of the work undertaken by the employee and the degree of connection, if any, between that work and the mining of black coal;[80]

(b) the degree of control, if any, of the operator of the black coal mine over the work undertaken by the employee and the organisation of that work (e.g. by way of rostering and determining the hours to be worked by the employee);[81]

(c) the location of the work undertaken by the employee, particularly whether such work is undertaken on a mining lease;[82]

(d) the degree of integration, if any, between the employee in question and employees of the operator of the black coal mine, assuming the employee in question is employed by a different entity;[83]

(e) whether the equipment used by the employee in question in undertaking their work is owned by the operator of the black coal mine;[84] and

(f) the nature of the employer's business. If the employer is in the black coal mining industry or has an interest in the operation of a black coal mine, this will weigh in favour of a finding of a substantial connection between an employee of that employer and the black coal mining industry. [85] However, it is not necessary that the employer be in the black coal mining industry or have an interest in the operation of a black coal mine in order for the requisite connection to exist. Consider, for example, a labour hire company with 1,000 employees, 999 of whom work in the health sector and one of whom is placed by the labour hire company to work, on a permanent, full-time basis, for and under the control of the operator of a black coal mine, digging black coal out of the ground. The employer in this example would not be in the black coal mining industry or have an interest in the operation of a black coal mine, but there could be little doubt that the employee digging black coal out of the ground on a daily basis would be employed in the black coal mining industry.

[107] Ultimately, like in Thiess, it is a question of fact and degree depending on all the circumstances of the case whether a particular employee is in the black coal mining industry.[86]

[108] Also of relevance to this case is the fact that it has long been accepted that clerical and administrative employees in coal mining enterprises may be working within the coal mining industry.[87]

Were the Applicants employed in the black coal mining industry?

[109] The Applicants each worked exclusively at the Mine, save for a short period when Mr Allgood was on workers' compensation and he worked at Kal Tire's Muswellbrook branch and with respect to Mr Bailey, for the first seven months he worked at Kal Tire's Muswellbrook branch workshop and then worked at the Bengalla open cut coal mine from August 2014 until January 2015, at which time he commenced work at the Mine and remained working there on a permanent basis until his dismissal.[88] The Applicants' contracts of employment nominated the Mine as their place of work, albeit at least some of those contracts gave Kal Tire the right to change the place of work "based on Kal Tire contracts" or Kal Tire's "operational requirements". Further, the contracts of employment for each of the Applicants state that their employment with Kal Tire may be terminated if their site access is withdrawn for any reason and their continuing employment with Kal Tire is conditional on them holding all "site required licences" and "fitness for work requirements and other requirements associated with the site". In all the circumstances, the location of the work undertaken by the Applicants weighs in favour of a conclusion that they were employed in the black coal mining industry.

[110] As to the premises and equipment used by the Applicants in undertaking their work, they were based in an area known as the tyre bay on the Mine. The tyre bay is comprised of a workshop and an office. Ms Groves was based in the office. The other Applicants worked most often in the workshop within the tyre bay, but were regularly required to undertake work in the other workshops located on the Mine, which were used by the Mine's maintenance employees to undertake maintenance or repair work, or at any location in the Mine where there was a breakdown or other need for a vehicle with rubber tyres to be worked on. The tyre bay was owned by the Mine. The office within the tyre bay was owned and maintained by the Mine. The office facilities such as desks, computers, printers, furniture and the like in the office within the tyre bay were owned and maintained by the Mine. The Mine also provided Kal Tire's employees with a two-way radio for each Tyre Service Person and Leading Hand to carry while they were at work on the Mine, some of the light vehicles used by Kal Tire's employees on the Mine, one rubber tyred handler, some torque guns,[89] and all the tyres, valves, rims, nuts, bolts, lock rings, and consumables used by the Applicants at the Mine.[90] Kal Tire provided the majority of the tools required to perform tyre maintenance activities at the Mine,[91] including a forklift tyre handler, a four-wheel drive service vehicle for use at the Mine, a Mine compliant vehicle, a pressure response vehicle, two torque multipliers, three rattle guns, a regulator, a small hand torque multiplier and a large hand torque multiplier, assorted sockets and extensions, lifting gear, three Porta power pumps, assorted hand tools and hand tooling for light to medium vehicles, 1,800 Heads, TSR Heads and HYD hoses with protective sheaving, assorted rams, and certified jacks and stands.[92] Kal Tire also provided all tyre management systems used at the Mine.[93] On balance, the premises and equipment used by the Applicants in conducting their work at the Mine provides some support for a conclusion that the Applicants were employed in the black coal mining industry.

[111] As to the nature of the work undertaken by the Applicants and the degree of connection, if any, between that work and the mining of black coal at the Mine, most of the mining vehicles and equipment used at the Mine were rubber tyred and had to be serviced by Kal Tire's employees at the Mine. For example, rubber tyred vehicles were used to deliver explosives to various parts of the Mine and it was necessary to use explosives to blast the overburden at the Mine so the overburden could be destabilised and removed in order to expose the coal, approximately 80 haul trucks were used to move the coal and overburden at the Mine, about half a dozen graders were used to grade the roads throughout the Mine, approximately four rubber tyred dozers were used to clean up around the shovel loading areas at the Mine (without cleaning up these areas, the trucks could not be loaded), approximately seven water carts were used for dust suppression and to fight any fires at the Mine, three large loaders were used to load coal from the floor to the trucks, two small rubber tyred loaders were used to clean up areas on the roads at the Mine, about three service carts were used to lube and fuel all the equipment at the Mine, tractors were used to do the cable handling for the shovels and draglines, cranes were used in connection with mobile maintenance at the Mine, two scrapers were used for road maintenance and repair, rubber tyred forklifts were used to lift stock at the Mine, two rubber tyred handlers were used for tyre maintenance, and numerous small trucks, light vehicles and transporters were used to transport people and goods around the Mine. The draglines, shovels and diggers used at the Mine were not rubber tyred.[94] The draglines do not move coal; they are used to move overburden which allows access to the coal seam.[95] Diggers (without rubber tyres) were used at the Mine to lift the coal out of the seam, as were front end loaders (with rubber tyres).[96]

[112] I accept the evidence given by Mr Allgood and Mr O'Connell to the effect that it was not possible to produce coal at the Mine without Kal Tire's employees, or suitable replacement workers, doing tyre maintenance work on the rubber tyre vehicles and equipment used at the Mine.[97] That is because the tyres on rubber tyre vehicles and equipment need maintenance and servicing. Ms Groves did all the administrative work in connection with the provision Kal Tire's tyre services at the Mine. In all the circumstances, I am satisfied that there was a significant degree of connection between the work undertaken by the Applicants and the mining of black coal at the Mine. This weighs in favour of a conclusion that the Applicants were employed in the black coal mining industry.

[113] As to the degree of control of the Mine over the work undertaken by the Applicants and the organisation of that work, Kal Tire determined the rosters to be worked by the Applicants at the Mine, but did so to suit the needs of the Mine. The Applicants (save for Ms Groves) worked a rotating seven day four panel roster system, with shifts of 12 hours in duration worked across 24 hours of the day, 363 days per year. This was the same roster that was in place for the production and maintenance employees of the Mine. As a result, the Applicants (save for Ms Groves) commenced and finished work each day at the same time as the majority of the employees of the Mine.[98] The reason the Applicants (save for Ms Groves) worked the same shifts as the employees of the Mine was because Kal Tire needed to provide its tyre maintenance services at the Mine whenever it was being operated. Three of Kal Tire's tyre service maintenance employees (including Leading Hands) worked on each day shift and two worked on each night shift at the Mine.[99] Ms Groves was rostered to work from Monday to Friday to fulfil her administrative duties.

[114] Kal Tire's Site Supervisor for the Mine, Mr Lovell, was based at the Mine and worked five days a week, about 10 or 11 hours a day.[100] When Mr Lovell was not at the Mine, supervisors and managerial staff of the Mine provided direct instructions to the Applicants in relation to the work they were required to do and the order in which they were required to do it at the Mine.[101] When Mr Lovell was at the Mine, he says the protocol was for Mine employees to speak to him to discuss any instructions or priorities that needed to be communicated to Kal Tire's employees.[102] The Applicants' evidence paints a somewhat different picture. They say that the practice was for supervisors from the production and maintenance parts of the Mine to make direct contact with Kal Tire's tyre service employees and give them instructions about the work they were required to undertake.[103] I prefer the Applicants' evidence in relation to this issue over Mr Lovell's evidence concerning the alleged protocol. The Applicants' evidence is consistent with other evidence given by Mr Lovell to the effect that it was "not uncommon for the MTW Coal Mine Support Officer to continually interrupt Kal Tire's servicepeople in their work and tell them what to do and how to do it without coming through me".[104] Mr Lovell also accepted that when there was a machine break down caused by tyre damage or other incidents at the Mine, the priority of work was reassessed by the Mine's maintenance superintendent or supervisors, who gave instructions to either Mr Lovell or the Kal Tire tyre service maintenance employees directly as to what work needed to be done.[105] Indeed, the weekly tyre schedules prepared by Mr Lovell and an employee of the Mine were usually changed on a daily basis by the Mine's workshop supervisors, Open Cut Examiners or superintendent in charge of maintenance.[106] Further, the fact that Kal Tire's tyre service employees carried two-way radios and mobile telephones with them on the Mine at all times meant that managerial and supervisory employees from the Mine could, and did, contact the Applicants on a regular basis to provide instructions to them in relation to the work they were required to do and the priority of their work.[107]

[115] Mr Cory Kelly was employed by the Mine as a Maintenance Tyre Officer. His role was to purchase and supply the tyres required by Kal Tire to perform their services at the Mine, as well as to "more or less audit" Mr Lovell's management of Kal Tire staff at the Mine.[108] Mr Kelly gave instructions to Ms Groves on a very regular basis and re-arranged her priorities, if needed.[109] Mr Rod Stimpson was employed by the Mine as the Stores Supervisor. He gave Ms Groves instructions in relation to the Total Tyre Control system.[110]

[116] The Applicants were instructed to follow the Mine's procedures and policies and they overruled Kal Tire's procedures and policies to the extent of any inconsistency.[111] The Mine's Open Cut Examiners were responsible for the overall supervision of everybody on the Mine site, including the Applicants.[112]

[117] Although each of the Applicants reported directly to a Kal Tire employee, it is apparent from the evidence as a whole that the Mine's supervisory and managerial employees exercised a fair amount of control over the work undertaken by the Applicants and the organisation of that work on the Mine. This weighs in favour of a conclusion that the Applicants were employed in the black coal mining industry.

[118] As to the degree of integration between the Applicants and employees of the Mine, the Applicants commenced and concluded work each day at the Mine. The Applicants (save for Ms Groves) commenced and finished work each day at the same time as the majority of the Mine's employees. When the Applicants arrived at the Mine each day, they attended the mandatory log on point and undertook alcohol testing with the Mine's employee.[113] There was also a random drug testing regime in place at the Mine. If any of the Applicants were randomly selected for drug testing, they would attend for the drug test with employees of the Mine.[114] At the commencement of each shift, the Kal Tire Leading Hand attended a start-up meeting at the Mine's south workshop with the Mine's south workshop shift supervisor and all of the Mine's south workshop maintenance employees.[115] The Leading Hand then walked to the tyre bay area where the Applicants were based. It was about 100m away from the south workshop. The Leading Hand made contact with the Mine's north workshop supervisor to discuss work and work priorities for the shift.[116] The Leading Hand then held a meeting with the other Kal Tire employees on shift to go through the work to be undertaken on that shift.[117]

[119] The Applicants were integrated within the communication systems used at the Mine and received instructions through those communication systems. In particular, the Applicants were given a Yancoal Mount Thorley Warkworth email address. Kal Tire's Leading Hands received regular emails from the Mine's supervisory and managerial employees, including instructions on how they were to perform their role while working at the Mine.[118] Kal Tire's Leading Hands were required to check their Yancoal Mount Thorley Warkworth emails and to act in accordance with the instructions in them.[119] Ms Groves also used her Yancoal Mount Thorley Warkworth email on a regular basis in the course of her duties. In about the last month of his employment with Kal Tire, Mr Allgood was given a Kal Tire email address. Mr Allgood did not recall ever using that email address.[120] I accept Mr O'Connell's evidence that each of Kal Tire's employees at the Mine had a Kal Tire email address as well as a Yancoal Mount Thorley Warkworth email address, but they never or rarely used their Kal Tire email address.[121]

[120] In the tyre bay area there was a two-way radio system that was turned on; the same two-way radio system was used throughout the Mine by its employees. The two-way radio system enabled the Applicants to know what was happening in the Mine and to be contacted for work direction and instructions. Each of Kal Tire's tyre service employees had to take a two-way radio with them whenever they left the workshop area in the tyre bay.[122] The Leading Hands also carried mobile telephones (supplied by Kal Tire) when they were at the Mine. The Mine's supervisory and managerial employees had the contact telephone numbers for Kal Tire's Leading Hands. Lengthier conversations took place over the mobile telephone at the Mine, so that the two-way radio system was not clogged up. Ms Groves was provided with a Yancoal telephone and extension number on which she could be called directly by any employee at the Mine who was on that telephone system.[123]

[121] The Applicants provided extensive daily, weekly, monthly and other reports to the Mine's supervisory and managerial employees.[124] The Applicants also put tyre maintenance service information into the Total Tyre Control data management system. The Mine used the information in that system.

[122] There was a common staff room used by the Applicants and the Mine's employees.[125] Mr Kelly could, and did, attend the tyre bay area and the office within it whenever he wished.[126] The workshop in the tyre bay area shares a roofline with a workshop used by the Mine's employees; the two workshops are separated by a wall.[127] Maintenance employees of the Mine performed work in the workshop within the tyre bay area if they needed to do maintenance work while the vehicles were in that workshop. The work those employees undertook was trade qualified work, not tyre maintenance work.[128] Kal Tire's tyre service employees undertook work in the Mine's workshops whenever there was a need for them to work on the tyres of vehicles in those workshops. At those times, Kal Tire's employees worked alongside qualified tradespersons and vehicle maintenance personnel employed by the Mine, who were performing vehicle maintenance work on the same vehicles as Kal Tire's employees were working on.[129] Kal Tire's tyre service employees also undertook work throughout the Mine when a vehicle was broken down or otherwise needed tyre maintenance services performed on it in the field.[130] When work was undertaken in those operational parts of the Mine and away from the tyre bay area, Kal Tire's tyre service employees were under the direct supervision and direction from the Mine's Open Cut Examiner, for the purpose of ensuring the work was done safely.[131]

[123] The competencies required to be held by the Applicants to work at the Mine were principally determined by the Mine.[132] The training for those competencies was principally provided by the Mine and assessments were granted to the Applicants by the Mine.[133] Some of Kal Tire's tyre services employees held operator competencies for earthmoving vehicles in the Mine. They used those competencies to transport vehicles for tyre maintenance purposes, not to mine coal.[134]

[124] There was a close working relationship between the Applicants and the Mine's managers, supervisors and other employees.[135] Mr Lovell agreed that the Mine's managerial and supervisory employees treated Kal Tire's tyre service employees like employees of the Mine.[136] Kal Tire was classed as a category one contractor at the Mine, which Mr Lovell said meant that Kal Tire's employees were considered by the Mine to be equivalent to full time employees of the Mine.[137] Mr Lovell also explained that as equivalent employees, Kal Tire's employees at the Mine received, for example, Christmas presents from the Mine, which were the same as the presents given to employees of the Mine.[138] Mr O'Connell disagreed with the proposition that category one employees were treated as direct employees of the Mine, but did not explain why he held this view.[139] Mr O'Connell was not aware whether Kal Tire's employees at the Mine received Christmas presents from the Mine.[140] I prefer Mr Lovell's evidence over Mr O'Connell's evidence in relation to this issue because Mr Lovell was based at the Mine on a full time basis, whereas Mr O'Connell was only at the Mine about two days a week, and Mr Lovell had more day-to-day interactions with employees of the Mine.

[125] The Applicants were contractually obliged to, and did, report directly to a Kal Tire employee such as Kal Tire's Site Supervisor,[141] however the reality is that they were also subject to instruction and supervision from managerial and supervisory employees at the Mine. I accept evidence given by the Applicants that they were told to follow the instructions of the Mine's supervisors.[142] I consider this to be a function of the relationship between the Mine and Kal Tire as client and service provider.[143] The Mine's employees did not performance manage, set remuneration, or approve leave for the Applicants.[144]

[126] On balance, I am satisfied there was a fair degree of integration between the Applicants and employees of the Mine. This weighs in support of a conclusion that the Applicants were employed in the black coal mining industry.

[127] As to whether Kal Tire was engaged in the black coal mining industry during the Applicants' employment at the Mine, that is a question of fact. The answer is determined by the substantial character of the activities in which the employer is engaged. One industry may overlap with another.[145] An employer may conduct a business in more than one industry.[146] Further, the substantial character of a business may be in or in connection with more than one industry.[147] Kal Tire provides tyre maintenance services to a range of clients in a range of different industries. It does not mine coal or any other product. Its specialised skills lie in the provision of tyre maintenance services to assist the operator of a mine or any enterprise in which vehicles with rubber tyres are used to achieve the maximum efficiency of those tyres and thereby enhance productivity in the business. Kal Tire provides those services to its clients on ordinary commercial terms. Having regard to all the circumstances, I am satisfied that during the Applicants' employment, Kal Tire was engaged in the vehicle services industry; it was not also engaged in the black coal industry. The nature of Kal Tire's business weighs against a conclusion that the Applicants were employed in the black coal mining industry, but is not determinative of the question.

[128] In 2018, Kal Tire was approached by the Coal Mining Industry (Long Service Leave Funding) Corporation because a former employee and a current employee working at the Mine had made a request for recognition of black coal long service leave entitlements under the Coal Mining Industry (Long Service Leave) Administration Act 1992. Kal Tire took the view that these employees were not eligible for long service leave under that legislation, but for commercial reasons decided, on a without admissions basis, to opt into the black coal portable long service leave scheme and make contributions to it for the benefit of its employees working at the Mine (including the Applicants). Kal Tire's conduct in this regard does not constitute a concession or admission in relation to award coverage and is neutral to my determination of whether the Applicants were employed in the black coal mining industry.

[129] Having considered all the evidence carefully and given appropriate weight to the matters set out above, I am satisfied that when the Applicants were employed by Kal Tire they undertook work on a coal mining lease and their work was directly connected with the extraction, mining and processing of black coal; they were each employed in the black coal mining industry when they were employed by Kal Tire.

Were the duties of each Applicant carried out at or about a place where black coal is mined?

[130] Each Applicant carried out their duties for Kal Tire at the Mine. That is a place at which black coal is mined.

Were the duties of each Applicant directly connected with the day to day operation of a black coal mine?

[131] The words "connected with" are capable of describing a spectrum of relationships ranging from the direct and immediate to the tenuous and remote.[148] The meaning of the word "connection" is wide and imprecise, one of its common meanings being "relation between things one of which is bound up with, or involved in, another".[149] Given the context of the expression "connected with" in paragraph (ii) of clause 4.1(b) of the Black Coal Award, I am of the opinion that this common meaning of "connection" is what was objectively intended. Accordingly, the question is whether each Applicant's duties were directly bound up with, or involved in, the day to day operation of a coal mine.

[132] "Directly" is a word susceptible of various meanings. In ordinary usage, the word "directly" is to be contrasted with "indirectly".[150] The particular meaning to be ascribed to it must depend on the context and circumstances of each case.[151] The word "direct" may mean "straightforward, uninterrupted or immediate" or "without intervening agency".[152] In the context of a provision addressing the extent of connection between an employee's duties and the day to day operation of a black coal mine, I am of the opinion that the word/adverb "directly" means "uninterrupted or immediate".

[133] Accordingly, whether an employee's duties are "directly connected with the day to day operation of a coal mine" within the meaning of paragraph (ii) of clause 4.1(b)(ii) of the Black Coal Award will depend on whether the duties are, in an immediate or uninterrupted way, bound up with, or involved in, the day to day operation of a black coal mine.

[134] In Collieries Staff Association, the following findings were made in relation to whether the duties of particular employees were directly connected to the mining of coal:

• the activities of geologists and a capital works administration officer employed by a holding company in Brisbane (MIM Holdings Ltd) were held to have no direct connection with the production of coal by subsidiary companies, notwithstanding the holding company was responsible for marketing coal produced by the subsidiary companies and the holding company took "a close and continuing interest in the day to day operations of its subsidiary";[153] and

• the activities of employees based in the head office of a mining company (Thiess Bros Pty Ltd) in Brisbane, who were responsible for planning for the development of new coal mines, had no direct connection with the production of coal, while the activities of accounts payable employees based at the head office in Brisbane had a direct connection with mining.[154]

[135] I am satisfied on the evidence that the Applicants' duties were involved, in an immediate way, in the day-to-day operation of the Mine. The Applicants (save for Ms Groves) undertook tyre maintenance duties on numerous vehicles used at the Mine to produce coal and transport it around the Mine. That work was directly connected to the extraction, transportation and processing of coal at the Mine. Ms Groves undertook the administration work required to enable Kal Tire to provide its tyre maintenance services at the Mine. In that way, her duties were also directly connected to the mining of coal at the Mine, just as the duties of an accounts payable clerk employed by the Mine would be.

[136] In all the circumstances, I am satisfied that the duties of each Applicant were directly connected with the day to day operation of a black coal mine.

Were the Applicants employed in a classification or class of work in Schedule A - Production and Engineering Employees or Schedule B - Staff Employees of the Black Coal Award?

[137] The positions of the Applicants (save for Ms Groves) at the Mine were, in my view, comfortably within one of the Mineworker classifications in Schedule A - Production and Engineering Employees to the Black Coal Award. I note that one of the advanced indicative competencies referred to in clause A.5 of Schedule A to the Black Coal Award is "tyre fitting".

[138] Ms Groves' role at the Mine would, in my view, comfortably fit within one of the "clerk" or "senior clerk" classifications in Group A, B or C of Schedule B - Staff Employees to the Black Coal Award.

[139] For the reasons stated I am satisfied that the Applicants fell within the coverage of the Black Coal Award when they were employed by Kal Tire.

[140] The characteristics, skills and duties of classifications in the Clerks Award are expressed in highly generic terms, but they must be read as necessarily limited by the scope of coverage of the Clerks Award.[155] Clause 4.1 of the Clerks Award provides that it covers employees engaged wholly or principally in clerical work, including administrative duties of a clerical nature.

[141] Putting to one side the exceptions to coverage in the Clerks Award, to which I will shortly turn, in light of my earlier finding that the principal purpose for which Ms Groves was employed was to provide administrative support to enable Kal Tire to provide its services at the Mine, it is clear that Ms Groves' role with Kal Tire fell within the coverage of the Clerks Award.

[142] Clause 4.1(a) of the Clerks Award contains an exception to coverage. It relevantly provides:

(a) an employer bound by a modern award that contains clerical classifications..."

[143] Kal Tire contends that it is not, and was not during Ms Groves' employment with Kal Tire, bound by the Black Coal Award because clause 4.1(b)(i) of that award provides that the employer must be "engaged in the black coal mining industry" and it is not, and has never been, engaged in that industry. I reject this argument. An employer does not have to be engaged in the black coal mining industry in order for it to be covered by the Black Coal Award and thereby bound by it. An employer is covered by the Black Coal Award if it is the employer of "coal mining employees" within the meaning of clause 4.1(b). An employee may meet the definition of a "coal mining employee" under clause 4.1(b)(ii) or (iii) of the Black Coal Award regardless of whether their employer is engaged in the black coal mining industry. The industry of the employer is only engaged if an employee seeks to establish award coverage pursuant to clause 4.1(b)(i) of the Black Coal Award. For the reasons given above, I am satisfied that in relation to Ms Groves' employment Kal Tire was bound by a modern award (the Black Coal Award) that contains clerical classifications.

[144] Clause 4.6 of the Clerks Award contains a further exception to coverage. It relevantly provides:

"Without limiting the generality of the foregoing this award does not cover employers covered by the following industry awards with respect to employees covered by the awards:

[145] For the reasons already given, I am satisfied that Kal Tire was covered by the Black Coal Award with respect to Ms Groves, who was also covered by that award.

[146] By reason of the exclusions to coverage in clauses 4.1(a) and 4.6 of the Clerks Award, both of which are satisfied, the Clerks Award did not cover Ms Groves in relation to her employment with Kal Tire.

[147] By way of summary, I have found that:

• (a) Ms Groves' role fell within the coverage of the Black Coal Award and the Clerks Award (putting to one side the exceptions to coverage in the Clerks Award), but not the Vehicle Award; and

• (b) the roles held by Mr Allgood, Mr Folpp, Mr Harman, Mr Bailey and Mr Burgess fell within the coverage of the Black Coal Award and the Vehicle Award.

[148] The question of overlapping coverage between the Black Coal Award and the Clerks Award is dealt with in clauses 4.1(a) and 4.6 of the Clerks Award. They effectively provide that the Black Coal Award prevails. Accordingly, my determination is that Ms Groves was covered by the Black Coal Award during her employment with Kal Tire.

[149] According to the ratio in Spotless, the question of overlapping coverage between the Black Coal Award and the Vehicle Award is dealt with by the words "to the exclusion of any other modern award" in clause 4.1 of the Vehicle Award. It follows that the Vehicle Award prevails over the Black Coal Award. Accordingly, my determination is that Mr Allgood, Mr Folpp, Mr Harman, Mr Bailey and Mr Burgess were covered by the Vehicle Award during their employment with Kal Tire.

[150] If I had been required to determine, in the case of Mr Allgood, Mr Folpp, Mr Harman, Mr Bailey and Mr Burgess, which award classification (between the Vehicle Award and the Black Coal Award) was most appropriate to the work performed by those employees and the environment in which those employees normally performed the work,[156] I would have selected the classifications in the Black Coal Award to which I have referred above, because those classifications are, in my view, most appropriate to the nature of the tyre maintenance service work undertaken by those employees on vehicles used to produce coal in a black coal mine and the black coal mining environment in which they worked on a daily basis.

Mr K Endacott, Industrial Officer of the CFMMEU, for the Applicants

11 March (in person), 6 May (by telephone) and 14 May 2020 (by telephone).

[1] [2020] FWCFB 1235

[2] AMWU v Simplot Australia Pty Ltd [2018] FWCFB 1156 at [28]; Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at 382 per McHugh, Gummow, Kirby and Hayne JJ; Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294 at [92]- [93] per Allsop J

[3] [2008] AIRCFB 1000

[4] [2008] AIRCFB 1000, Annexure A

[5] Air Pilots Award 2010; Commercial Sales Award 2010; Concrete Products Award 2010; Contract Call Centres Award 2010; Cotton Ginning Award 2010; Joinery and Building Trades Award 2010; Miscellaneous Award 2010; Plumbing and Fire Sprinklers Award 2010; Professional Employees Award 2010; Storage Services and Wholesale Award 2010; Sugar Industry Award 2010; Travelling Shows Award 2010.

[7] http://www.airc.gov.au/awardmod/research.htm#comparativeschedules

[9] Mitolo Group Pty Ltd v NUW [2015] FWCFB 2524 (Mitolo) at [37]

[11] TWU v Coles Supermarkets Australia Pty Ltd (2014) 245 IR 449; [2014] FCAFC 148 (TWU v Coles) at [22]

[14] Hallam v Sodexo Remote Sites Australia Pty Ltd [2018] FWCFB 1496 at [25]

[15] (2002) 122 IR 387 at [9]

[16] [2017] FWCFB 3202 at [31]

[19] Ex R6, Ex R7, together with the oral evidence given by Mr Crew on and 11 March 2020 and 6 May 2020

[31] Transcript 6 May 2020 PN429; Ex R5 at [12]

[32] Transcript 6 May 2020 PN437 & PN466-471

[33] Award Modernisation [2009] AIRCFB 450

[34] [2017] FCA 910

[45] Transcript 11 March 2020 at PN188-9

[54] See paragraphs [49]-[50] above

[61] Ex R6 at [23]; Ex A4 at [13]; Ex A8 at [18]-[20]; Ex A7 at [6]-[10]

[65] CQ Industries Pty Ltd [2017] FWC 5667 (CQ Industries) at [47]-[48]; Spotless Facility Services Pty Ltd [2019] FWC 5890 (Spotless) at [17]

[66] AMWU v Simplot Australia Pty Ltd [2018] FWCFB 1156 at [28]; CPSU v University of New South Wales [2007] AIRCFB 892 at [25]

[67] Kal Tire's outline of submissions at [15]

[68] TWU v Coles at [21]; Mitolo at [43]

[69] Central West Group Apprentices Ltd v Coal Mines Insurance Ltd [2008] NSWCA 34 (Central West) at [37]

[70] R v Central Reference Board and Others; Ex parte Thiess (Repairs) Pty Ltd [1948] HCA 9; (1948) 77 CLR 123 (Thiess) at 130 and 136

[71] [1943] HCA 35; (1943) 68 CLR 51 (National Oil) at 56

[72] R v Hickman and Others; Ex parte Fox and Another [1945] HCA 53; (1945) 70 CLR 598 (Fox) at 608

[73] See for example, Construction, Forestry, Mining and Energy Union and Heggies Bulkhaul Limited - No. 280 of 1994, 27 February 1995 [Print CR4796] at 7; Australian Coal and Shale Employees' Federation and W. A. Hughes Pty. Limited and others - No. 109 of 1978, 23 February 1979 [Print CR2713] at 5

[74] Australian Collieries Staff Association and New South Wales Combined Colliery Proprietors Association, Queensland Coal Owners Association and others - No. 20 of 1980, 22 February 1982 [Print CR2997] (Collieries Staff Association)

[75] See, for example, CFMEU v Dyno Nobel Asia Pacific Limited [PR956868] at [16]; Harnischfeger of Australia Pty Ltd [PR963826] at [85]

[78] See, for example, Collieries Staff Association at 15; Australian Collieries Staff Association and Utah Development Company Pty Limited and others - No. 405 of 1984, 22 February 1985 [Print CR3453]

[80] Collieries Staff Association at 17; CQ Industries at [50]-[51]

[81] Thiess at 131 and 135; CQ Industries at [50]-[51]

[82] Collieries Staff Association at 16-17; CQ Industries at [50]-[51]

[83] CQ Industries at [50]-[51]; Spotless at [24] and [55]-[57]

[84] CQ Industries at [50]-[51]; Spotless at [24] and [58]-[66]

[87] Collieries Staff Association at 14 & 17; The King v Hickman and Others; ex parte Clinton and Others [1945] HCA 53; (1945) 70 CLR 598 at 608

[90] Ex R5 at [10]; Ex A3 at [31]-[32]

[91] Ex R5 at [11]; Transcript 11 March 2020 PN773

[96] Ex A5 at [9]; Transcript 11 March 2020 PN733

[97] Ex A2 at [41]; Ex A5 at [9]; Transcript 11 March 2020 PN1049-1053

[100] Transcript 11 March 2020 PN765, PN774-780 & PN1059

[101] Transcript 11 March 2020 PN777-780, PN912-3 & PN920

[105] Transcript 11 March 2020 PN819-824 & PN833-841

[106] Transcript 11 March 2020 PN862-6

[107] Transcript 11 March 2020 PN917-8 & PN942

[109] Transcript 11 March 2020 PN784-789

[110] Transcript 11 March 2020 PN790-796

[112] Transcript 11 March 2020 PN779-780

[121] Transcript 11 March 2020 PN1130-1

[124] Ex A1 at [30]; Ex A3 at [22]; Ex A4 at [15]

[127] Transcript 11 March 2020 PN372-4

[128] Transcript 11 March 2020 PN375-6

[129] Transcript 11 March 2020 PN378-9

[130] Transcript 11 March 2020 PN382-4

[131] Transcript 11 March 2020 PN399-404

[132] Ex A4 at [29]; Ex A3 at [45]

[133] Ex A4 at [28]-[30]; Ex A3 at [45]

[134] Transcript 11 March 2020 PN385-8

[137] Transcript 11 March 2020 at PN805-6

[138] Ex R1 at [74]; Transcript 11 March 2020 PN808-814

[140] Transcript 11 March 2020 at PN1091-2

[144] Transcript 11 March 2020 PN408-10

[145] The King v Hickman and Others; ex parte Clinton and Others [1945] HCA 53; (1945) 70 CLR 598 at 608

[146] R v Drake-Brockman and Others; ex parte National Oil Pty Ltd [1943] HCA 35; (1943) 68 CLR 51 at 57

[147] Harnischfeger of Australia Pty Ltd v CFMEU [2005] AIRC 890 at [86]

[148] Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 115 ALR 1 at 10

[150] Blacktown Workers' Club Ltd v O'Shannessy [2011] NSWCA 265 at [52]

[151] Faywin Investments v Federal Commissioner of Taxation [1989] FCA 387; (1989) 89 ALR 599 at 607; Blacktown Workers' Club Ltd v O'Shannessy [2011] NSWCA 265 at [52]

[152] Transport Accident Commission v Jewell [1995] VicRp 22; [1995] 1 VR 300 at 313

[153] Collieries Staff Association at 19

[154] Collieries Staff Association at 20

[155] Broadspectrum Limited v United Voice [2017] FWCFB 3202 at [34]

[156] Vehicle Award at clause 4.3(b) and Black Coal Award at clause 4.8

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