Fair Work Act 2009

s.604 - Appeal of decisions

Appeal against decision [2024] FWC 2409 of Commissioner Johns at Melbourne on 17 October 2024 in matter number U2024/6711 - Application for unfair dismissal remedy -Jurisdictional objection based on assertion that respondent exceeded the high income threshold - Respondent employed in the position of Officer Medical Emergency - Whether the respondent was covered by the Black Coal Mining Industry Award - Occupational health nurse classification - Whether classification limited to employment the principal purpose of which is to engage in preventative health work - Nature of the classification descriptors in Schedule B to the Black Coal Mining Industry Award - Permission to appeal granted - Appeal dismissed.

[1] Odette Lennox was employed by Kestrel Coal Pty Ltd in the position of Officer Medical Emergency at the Kestrel Mine in the Bowen Basin near the town of Emerald in Queensland. Ms Lennox's employment was terminated on 22 May 2024. She subsequently applied to the Fair Work Commission (the Commission) for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Cth) (the Act).

[2] Kestrel Coal objected to Ms Lennox's application on grounds that she was not "protected from unfair dismissal" for the purposes of s 382(b) of the Act. Kestrel Coal said that Ms Lennox was not covered by the Black Coal Mining Industry Award 2020 (the Black Coal Award) and her annual rate of earnings was greater than the "high income threshold". The consequence, if those contentions were correct, is that the Commission is unable to order Ms Lennox's reinstatement, or the payment of compensation, under s 390(1) of the Act.

[3] There was no dispute that Ms Lennox's annual rate of earnings exceeded the high income threshold. The parties disagreed, however, as to whether Ms Lennox was covered by the Black Coal Award in relation to her employment by Kestrel Coal. The Commissioner found that Ms Lennox was covered by the Black Coal Award in her position as Officer Medical Emergency because that position fell within the classification of "Occupational Health Nurse" in Schedule B to the Award and her duties were directly connected with the day-to-day operation of the mine.[1] In the alternative, the Commissioner found that, if Ms Lennox was not covered by the Black Coal Award, she was covered by the Nurses Award 2020 (the Nurses Award).[2] The Commissioner rejected the jurisdictional objection made by Kestrel Coal and indicated that the application would be programmed for hearing.[3]

[4] Kestrel Coal contends that the Commissioner's decision is wrong and seeks permission to appeal, and to appeal, from the decision under s 604(1) of the Act. For the reasons which follow, permission to appeal should be granted, but the appeal should be dismissed. The decision of the Commissioner is correct.

[5] Part 3-2 of the Act is entitled "Unfair dismissal". Within Part 3-2, s 394(1) permits a person who has been dismissed to apply to the Commission for an order granting an unfair dismissal remedy. Section 390(1) confers power on the Commission to order reinstatement or the payment of compensation and provides as follows:

390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person's reinstatement, or the payment of compensation to a person, if:

• (a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
• (b) the person has been unfairly dismissed (see Division 3).

[6] In accordance with s 390(1)(a), the Commission can only order a person's reinstatement or the payment of compensation if satisfied that the person was "protected from unfair dismissal" at the time of being dismissed. When a person is "protected from unfair dismissal" is dealt with in s 382 which provides:

382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

• (i) a modern award covers the person;

• (ii) an enterprise agreement applies to the person in relation to the employment;

• (iii) the sum of the person's annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

[7] Each of subsections (a) and (b) must be satisfied for a person to be protected from unfair dismissal. There is no issue that Ms Lennox had completed the minimum employment period for the purposes of s 382(a). For the purposes of s 382(b), a person will be protected from unfair dismissal if any one of (i), (ii) or (iii) applies. It is accepted that no enterprise agreement applied to Ms Lennox for the purposes of s 382(b)(ii) and that her annual rate of earnings was not less than the high income threshold for the purposes of s 382(b)(iii). As such, Ms Lennox was protected from unfair dismissal only if a modern award covered her at the time she was dismissed for the purposes of s 382(b)(i).

[8] When a modern award covers an employee or employer is dealt with in s 48(1) which provides, relevantly, that a modern award covers an employer or employee if the award is "expressed to cover" the employer or employee. The context in which s 48(1) operates is that the Act requires that a modern award include a coverage term setting out the employers, employees, organisations and outworker entities that are covered by the award in a manner that complies with the requirements of that section.[4] The employers covered by an award may be specified by name or by inclusion in a specified class or classes and the employees must be specified by inclusion in a specified class or classes.[5] The class of employers or employees covered by a modern award may be specified, without limitation, by reference to a particular industry or part of an industry, or particular kinds of work.[6]

[9] Determination of whether an employer or employee is covered by a modern award is likely to involve questions concerning the construction of its coverage terms as well as a factual question as to the application of those terms in the circumstances of the particular employment at issue. In Gourabi v Westgate Medical Centre [2019] FWCFB 3874, for example, the Full Bench explained:[7]

... For relevant purposes, each modern award has a "coverage" clause that determines "the employers, employees, organisations and outworker entities" that are covered by it. The determination of whether a particular employment falls within the "coverage" clause of a modern award usually involves two considerations: first, a legal question concerning the proper construction of the coverage clause (and any other relevant provisions of the award) and, second, a factual question as to whether the employer and employee fall within the scope of the coverage clause, properly construed.

[10] Like a statute, construing an award begins with the text.[8] The essential task is to discern the objective meaning of the words used bearing in mind the context in which they appear and the purpose they are intended to serve.[9] Relevant context may include the whole of the text of the document,[10] the circumstances in which the instrument was made, its history and the legislative background.[11] An overly strict or literal approach to the construction of awards is rarely appropriate. It is justifiable to read an award so as to give effect to its evident purposes despite mere inconsistencies or infelicities of expression.[12] Meanings that "avoid inconvenience or injustice may reasonably be strained for".[13]

[11] In Bis Industries Limited v Construction, Forestry, Maritime, Mining and Energy Union [2021] FCA 1374, for example, White J dealt with a dispute as to the application of the Black Coal Award. In doing so, his Honour observed that:[14]

The determination of whether particular employment is covered by a modern Award requires the Court first to construe the coverage clause in the award. This requires the ascertainment of the objective meaning of the words used in the clause taking into account the context in which they appear and the purpose which they are intended to serve: Transport Workers' Union of Australia v Coles Supermarkets Australia Pty Ltd [2014] FCAFC 148; (2014) 245 IR 449 at [22]. Account must also be taken of the industrial context and background of which the FWC objectively may be taken to have been aware: Truck Moves Australia Pty Ltd v Simmonds [2015] FCA 1071 at [48]. The industrial context is particularly important in the case of the Black Coal Award given the statement in cl 4.2 that the term "black coal mining industry" has the meaning applied by courts and industrial tribunals and the note to cl 4.3 that 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.

[12] Where there is a question as to whether an award will apply or not, courts and industrial tribunals have endeavoured to adopt an interpretation that preserves the operation of industrial regulation. In San Remo (Southland) Pty Ltd v Farrell (1987) 22 IR 291, Macken J said in relation to the task of determining award application:[15]

[I]ndustrial tribunals have always tended to lean toward a construction of awards and employment circumstances which would preserve the operation of instruments of regulation such as awards rather than against their operation.

[13] The statutory context in which modern awards are made includes that the Commission must give effect to the "modern awards objective" of ensuring that modern awards "provide a fair and relevant minimum safety net of terms and conditions".[16] Consideration should also be given to the objects of the Act, including "ensuring a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions through the National Employment Standards, modern awards and national minimum wage orders."[17] Where possible, modern awards should be construed to achieve these objects and to avoid employees falling through a crack in the modern award system. It remains, nonetheless, a matter of interpreting the modern award according to its terms.

[14] In its submissions, Kestrel Coal referred to and placed some emphasis on s 48(5) of the Act which provides:

Modern awards cover employees in relation to particular employment

(5) A reference to a modern award covering an employee is a reference to the award covering the employee in relation to particular employment.

[15] In Bis Industries, White J commented:[18]

It can be taken that the term "particular employment" in s 48(5) is a reference to the employee's job rather than to the actual performance by the employee of the tasks involved in that job: ALDI Foods Pty Limited v Shop, Distributive & Allied Employees Association [2017] HCA 53; (2017) 262 CLR 593 at [75].

[16] The question of whether a particular award classification is appropriate and thus applicable to the work performed by an employee has traditionally been resolved by the application of the principle of "major and substantial employment" or an examination of the "principal purpose" of the employment.[19] That assessment does not involve merely quantifying the time spent on the various elements of work performed by an employee. Rather, an examination must be made of the nature of the work and the circumstances in which the employee is employed to do the work.[20] Further, it is not necessary that there be perfect correspondence between the classification descriptions, job-titles or indicative tasks contained in an industrial instrument. It is sufficient if the role in which a person is employed falls substantially within the scope of a classification described in the relevant award.[21]

[17] It is important to acknowledge that, although often found to be a useful device, examination of the "major and substantial employment" or "principal purpose" of an employee's employment is no more than aid in the task of construing and applying the relevant industrial instrument.[22] There will be instances in which the "principal purpose" test is ill-suited to determining whether a person falls within a classification if, for example, the classifications are expressed in highly generic terms and do not describe with any specificity the job functions required to be performed at each level.[23] The task is ultimately to construe the coverage terms of the modern award and assess whether, having regard to the evidence, the employee falls within the coverage of the award.

Coverage of the Black Coal Award and Nurses Award

[18] The employers and employees that the Black Coal Award is expressed to cover are described in clause 4.1 as follows:

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

(b) coal mining employees.

(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; and

(iii) employees employed by a mines rescue service.

[19] Clauses 4.2 and 4.3 provide an explication of the term "black coal mining industry" by stating that the term has the meaning applied by the courts and industrial tribunals, including the Coal Industry Tribunal, as well as setting out what the industry includes and does not include. A note appears at the end of clause 4.3 which indicates that "[t]he 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".

[20] There is no dispute that Kestrel Coal is an employer engaged in the black coal mining industry and, as a result, the relevant aspect of the definition is clause 4.1(b)(i). The requirements set out in clause 4.1(b)(i) in order for a person to be a "coal mining employee" are: (1) the employee is employed in the black coal industry; (2) the employee is employed by an employer engaged in the coal mining industry; (3) the duties of the employee are "directly connected with the day to day operation of a black coal mine; and (4) the employee is employed in a classification or class of work in Schedule A - Production and Engineering Employees or Schedule B - Staff Employees. We do not understand there to be any dispute as to elements (1), (2) and (3). The dispute is as to whether the Commissioner was correct to find that Ms Lennox was employed in a classification or class of work in Schedule B.

[21] The classifications or classes of work covered by the Black Coal Award are set out in Schedule A and Schedule B under the headings, respectively, "Production and Engineering Employees" and "Staff Employees". Schedule A contains only a reference to a "mineworker" classification and indicates, in clause A.1.2, that "[t]he structure is a single stream structure, which does not contain any demarcations relating to the performance of work" and, in clause A.1.3, that "[t]he definitions for each of the classification levels are necessarily general and intended to cover the types of work actually performed under this award". In clause A.2, there are then definitions of classifications of "mineworkers" from "Mineworker - Induction 1" to "Mineworker - Specialised" and, in clause A.3, provision for advancement that contemplates there will be trade and non-trade employees.

[22] Schedule B is entitled "Staff Employees". Clause B.1 is entitled "Employment functions" and contains definitions of some, but not all, of the employment functions or classifications which appear in the table of rates of pay which follow. Clause B.2 then sets out a table of minimum rates of pay for specified job functions, classifications or classes of work which are grouped from Group A to Group M. Within Group I, one of the employment functions set out is "Occupational Health Nurse". There is no definition of "Occupational Health Nurse" in the Black Coal Award.

[23] The coverage of the Nurses Award is also dealt with in clause 4.1 of that award in the following terms:

(a) employers throughout Australia in the health industry and their employees in the classifications listed in Schedule A - Classification Definitions to the exclusion of any other modern award; and

(b) employers who employ a nurse/midwife, principally engaged in nursing/midwifery duties comprehended by the classifications listed in Schedule A - Classification Definitions.

[24] Clause 4.1(a) only extends to employees of employers in the health industry and is, obviously enough, not relevant to Kestrel Coal. Clause 4.1(b), however, extends coverage to any employer who employs a nurse/midwife who is principally engaged in nursing/midwifery duties comprehended by classifications listed in Schedule A. The classifications in Schedule A including "occupational health nurse" which is defined as follows:

The duties and responsibilities of Occupational health nurses include, but are not necessarily confined to:

• the maintenance of appropriate records relating to the activities of the occupational health unit and services to clients;
• the rehabilitation of injured workers;
• preventative action in relation to occupational hazards that may lead to injury and/or illness;
• immediate and continuing treatment of occupational injuries and/or illness;
• health promotion; and
• the counselling of clients on health related matters.

[25] Clauses A.6.1 to A.6.4 then set out various levels of occupational nurses from "Occupational health nurse - level 1" to "Occupational health consultant - level 3". An Occupational health nurse - level 1 is a registered nurse with at least 4 years post registration experience and performs duties in relation to occupational health consistent with "giving direct nursing care to a group of clients", "assessing nursing care needs of clients" and "participating in provision of education to client".

[26] The notice of appeal contains nine grounds of appeal which are, to some extent, overlapping. Counsel for Kestrel Coal helpfully clarified that its grounds of appeal fall into three categories. First, Kestrel Coal contends in grounds 1, 5 and 6 that the Commissioner erred in misconstruing the occupational health nurse classification in Schedule B of the Black Coal Award. In summary, it submits that, to fall within the occupational health nurse classification, a person's job must be directed at preventing illness or injury in the workplace and be a job for a nurse. Second, Kestrel Coal submits in grounds 3, 4, 7 and 8 that the Commissioner erred in applying the principal purpose test and in finding, as a matter of fact, that Ms Lennox's position fell within the occupational health nurse classification. That finding was said to be in error in circumstances in which the primary function of the Officer Medical Emergency position was to undertake emergency response work and that the position did not require nursing qualifications and could be performed by a paramedic. Third, Kestrel Coal submits in grounds 2 and 9 that the Commissioner erred in finding, in the alternative, that Ms Lennox was covered by the Nurses Award because she fell within the classification of occupational health nurse.

[27] Ms Lennox submits that the reasoning of the Commissioner is sound and, even if it were not, the conclusion he reached was correct. First, she submits that the history of the development of the Black Coal Award and predecessor instruments indicates that it is intended to cover all employees employed in the black coal mining industry, by an employer engaged in the black coal mining industry and whose duties are directly connected with the day to day operation of the coal mine. Having regard to that context, Ms Lennox submits that the reference to occupational health nurse in Schedule B to the Black Coal Award should be understood as referring to an indicative class of work. Viewed in that manner, it is submitted that the reference to occupational health nurse is broad enough to accommodate the characteristics of work performed by Ms Lennox or, in any event, Ms Lennox was engaged "broadly as a Schedule B employee". Second, Ms Lennox submits that the Commissioner found that the duties of the Officer Medical Emergency position falls within the coverage of the Black Coal Award based on a proper application of the principal purpose test. Third, and in the alternative, Ms Lennox submits that the Commissioner was correct to find that she was covered by the Nurses Award because she was a nurse and principally engaged in nursing duties comprehended by the occupational health nurse level 1 or level 2 classifications.

[28] Ms Lennox advanced a further submission which, she accepts, was not made to the Commissioner at first instance. She submits that, if her employment with Kestrel Coal does not fall with a classification in Schedule B to the Black Coal Award, she falls by default into Schedule A. Ms Lennox submits that any employee employed in the black coal mining industry, by an employer engaged in the black coal mining industry and whose duties are directly connected with the day to day operation of the coal mine who does not fit within Schedule B is a "mineworker" for the purposes of Schedule A. Kestrel Coal opposed Ms Lennox being permitted to raise a new issue on appeal. Ultimately, the parties were directed to file further written submissions following the hearing of the appeal. For reasons that will become apparent, it is unnecessary to address this further submission.

[29] Section 604(1) of the Act makes it clear that there is no right to appeal, and an appeal may only be made with the permission of the Commission. Generally, the Commission must grant permission to appeal if satisfied that is in the public interest to do so.[24] Otherwise, the Full Bench has a broad discretion as to whether permission to appeal should be granted.[25]

[30] The discretion of the Commission to grant permission is more confined in the case of an application for permission to appeal from a decision of the Commission made in unfair dismissal proceedings under Part 3-2 of the Act. In that respect, s 400 of the Act provides:

• (1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.

• (2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.

[31] Section 400(1) manifests an intention that the threshold for a grant of permission to appeal is higher in respect of unfair dismissal appeals than that pertaining to appeals generally.[26] Permission to appeal can only be granted if the Full Bench is satisfied it is in the public interest to do so, and no general or residual discretion exists if that threshold is not met. Section 400(2) limits review on appeal based on an alleged mistake of fact in that an alleged error of fact must involve a significant error of fact.

[32] The Full Bench is satisfied that it is in the public interest for permission to appeal to be granted in this matter for the purposes of ss 400(1) and 604(2) of the Act. Although they have arisen in the context of unfair dismissal proceedings, the appeal raises a number of questions as to the proper interpretation and application of the Black Coal Award and the Nurses Award. Those questions concern the jurisdiction of the Commission and the coverage of important modern awards which apply, or potentially apply, to large numbers of workers.[27] Those questions are of potential significance beyond the present case. That favours a conclusion that it is in the public interest to grant permission to appeal. Furthermore, Kestrel Coal complains that it was denied procedural fairness by reason of the Commissioner relying on definitions of "occupational health nurse" obtained from sources which were not raised with the parties. It is in the public interest that parties receive a fair hearing before the Commission and this factor also favours permission to appeal being granted.

[33] If permission to appeal is granted, the question raised by Kestrel Coal's appeal is whether the Commissioner erred in finding that Ms Lennox was covered by the Black Coal Award or, alternatively, the Nurses Award for the purposes of s 382(b)(i) of the Act such that she is protected from unfair dismissal. The determination of whether an employer or employee are covered by a modern award may involve questions of construction and fact. It is, however, a legal question which has the effect of determining the legal rights of the employer and employee.[28] It is a question in relation to which there is only one correct answer and, if permission to appeal is granted, the question on appeal is whether the answer given by the Commissioner was correct or not.[29] That is so notwithstanding that the jurisdictional prerequisite to the Commission granting an unfair dismissal remedy, in s 390(1)(a), is that ultimately that the Commission must be "satisfied" that the applicant is a person who is protected from unfair dismissal.

[34] The first two contentions advanced by Kestrel Coal address the question of whether Ms Lennox was covered by the Black Coal Award at the time of her dismissal by reason of being employed in a classification or class of work of "Occupational Health Nurse" in Schedule B. Answering that question, as we have explained, involves both the construction of the Black Coal Award and the application of the Award, properly construed, to Ms Lennox's employment with Kestrel Coal.

[35] The background facts and the nature of the work undertaken by Ms Lennox is largely uncontroversial. Ms Lennox says that she has been working in nursing roles in coal mines since September 2014. Immediately prior to commencing employment with Kestrel Coal, Ms Lennox was employed by Corporation Protection Australia Group (CPA) commencing in February 2020. From mid-2021 until January 2022, she worked for CPA on a full-time basis at the Kestrel mine. Ms Lennox had a casual employment agreement with CPA that recorded her classification as "nurse" and that her award status was the "Nurses Award 2010". In January 2022, Kestrel Coal made a decision to bring Ms Lennox's role in house and employ her directly. Ms Lennox indicated that she continued to perform work in the same office, in the same team, on the same roster and that there was no substantial change to the role she was performing other than that she became a direct employee of Kestrel Coal.

[36] On 6 January 2022, Ms Lennox was issued with an "Offer of Employment Agreement" which recorded her classification as "Officer Medical Emergency" and indicated that her duties were as set out in the terms and conditions of employment and any position description that may apply to her position. A further contract of employment was issued to Ms Lennox dated 16 May 2023 which again recorded her position as "Officer Medical Emergency" and that her duties were as set out in the terms and conditions of employment and any position description that may apply to her position. No position description is in existence. Ms Lennox gave evidence that she was required by Kestrel Coal to maintain registration with the Australian Health Practitioner Regulation Agency (AHPRA) as a registered nurse (practising) and was required to undertake nursing specific training to maintain her registration. Ms Lennox says she was also required to maintain a range of other competencies.

[37] Kestrel Coal's Manager of Health, Safety and Training, Renee Acton, also gave evidence before the Commissioner. Ms Acton indicated that the roles involved in managing medical emergencies included Officer Medical Emergency and First Responders and Emergency Medical Technicians. Ms Acton described the role of Officer Medical Emergency in the following terms:

The primary purpose of an Officer Medical Emergency is to respond quickly and effectively to medical emergencies and incidents involving personnel at Kestrel Mine, including providing patient care and triage. This is their main job. While on standby, they perform tasks to ensure they are ready for emergencies, such as keeping the ambulance and drugs stocked and compliant. They also perform ancillary tasks to support the HST function. These tasks, which other HST members can also carry out, help keep them engaged and productive rather than inactive while they are on standby to respond to emergencies. This is explained further below.

[38] Ms Acton stated that the Officer Medical Emergency is required to hold a nationally accredited qualification in nursing or paramedicine and maintain registration with AHPRA as well as other competencies. She gave evidence that the preferred candidate for the position of Officer Medical Emergency is an experienced paramedic, but that nurses have frequently filled the role. She described the duties of an Officer Medical Emergency as follows:

24. The primary purpose of an Officer Medical Emergency is to respond quickly and effectively to medical emergencies and incidents involving personnel at Kestrel Mine, including providing patient care and triage. This is why they are employed for this job.

25. In addition to responding to medical emergencies and incidents on site, the Officer Medical Emergency performs several other duties essential for maintaining readiness. These duties include:

(a) Ambulance equipment checks: Conduct daily checks on ambulance equipment (e.g. crash cart, Thomas pack, airway pack, IV bag, intubation kit, medication bag), update equipment registers, and ensure all items are stocked and compliant.

(b) Ambulance vehicle checks: Perform daily pre-start checks on the ambulance and Kestrel emergency vehicle, clean interiors and exteriors, and refuel as needed.

(c) Shift handovers: Conduct handovers with the incoming Officer Medical Emergency for the QH28 register (controlled drug register), safe/vehicle keys, and shift reports (update team pages with shift notes).

(d) Trauma box maintenance: Perform checks and restocking of trauma boxes, manage tags and security stickers, update trauma box and drug registers.

(e) First aid checks: Inspect AEDs, first aid kits, eyewash stations, and Diphoterine, restocking and replacing as necessary.

(f) Inventory management: Conduct inventory counts on medical emergency equipment, obtain quotes, raise purchase orders, and restock upon receipt.

(g) Controlled drug register compliance: Perform checks and ensure compliance for controlled drugs, restocking as required.

(h) Inspections: Conduct inspections of trauma boxes and first aid kits underground to ensure compliance.

(i) Freezer checks: Check and restock ice block freezers used for patient injuries.

(j) Training and support: Assist in the development and training of new Officers Medical Emergency by providing on-the-job training.

(k) Project leadership: Lead projects related to emergency care as directed, such as updating procedures, training materials, and patient care records.

(l) External coordination: Organise and facilitate/escort external representatives for annual biomedical equipment checks.

(m) Support to First Responders and EMTs: Assist First Responders and EMTs as required to enhance emergency response capabilities, including informal training, clinic and equipment familiarisation, and mentorship.

(n) Medical records maintenance: Create and maintain medical records for newly inducted personnel on the local drive and INX (InHealth module). Upload health documents to ensure up-to-date information, including records of incidents.

26. These duties are performed exclusively by the Officer Medical Emergency, not by any other members of the HST team.

27. While the Officer Medical Emergency is on standby and has completed the necessary duties to maintain readiness, they also perform ancillary tasks to support the broader HST function, keeping them occupied rather than inactive whilst on standby. These tasks generally include:

(a) Fatigue monitoring: Monitor, manage and respond to Gallagher fatigue alerts for workers exceeding hours on-site. This duty is also performed by other members of the HST team.

(b) Assist with Coal Board Medicals: Support the Business Partner Health & Safety (2000175) in reviewing and approving Coal Board Medicals. This task is primarily the responsibility of and is usually undertaken by the Business Partner Health & Safety (2000175).

(c) Fit testing: Conduct hearing and respiratory fit testing for coal mine workers, upload compliance documentation to INX (InTuition module), and maintain accurate records. This task is performed with the assistance of the Business Partner Hygiene (2000179).

(d) Drug and alcohol testing: Perform random drug and alcohol testing and organise and facilitate the calibration of breathalysers as required. This duty can also be undertaken by various members of the HST team.

(e) Data entry for safety activities: Record, count and enter data for Take 5s, safety interactions, 'find it, fix it' activities and fit testing as applicable. This task can also be performed by various members of the HST team.

[39] Ms Lennox agreed that she undertook the duties described by Ms Acton although she disagreed with the assertion that the primary purpose of the role was responding to medical emergencies and incidents and that other duties were additional or ancillary duties.

[40] Kestrel Coal says that it is necessary to first construe reference to "Occupational Health Nurse" in Schedule B to the Black Coal Award and then apply the construction arrived at to the employment of Ms Lennox. Kestrel Coal submits that, properly construed, the classification of occupational health nurse applies to individuals whose primary purpose involves performing occupational health nursing duties and who are required to hold nursing qualifications to undertake those duties. There are essentially two components which Kestrel Coal emphasised. It says that that occupational health must be directed at preventing illness or injury in the workplace and that the job must require nursing qualifications. Kestrel Coal suggests that the expression does not extend to the position of Officer Medical Emergency at the Kestrel mine which is directed at emergency or incident response and can also be occupied by a paramedic. It is necessary to consider both aspects of the submission made by Kestrel Coal.

[41] We do not consider that the language or context of the Black Coal Award supports the submission that the expression "occupational health nurse" is limited to employment the principal purpose of which is preventative health work. We do not believe there is any reason to give the expression so narrow an interpretation. The expression "occupational health nurse" is not defined in the Black Coal Award. In support of its submission that the classification should be limited to preventative health, Kestrel Coal relied primarily on dictionary definitions of the expressions "occupational health" and "nurse". The Cambridge Dictionary definition of "occupational health" and "nurse" referred to by Kestrel Coal, respectively, are as follows:

... the study or activity of trying to prevent people becoming ill because of their job.

... a person whose job is to care for people who are ill or injured, especially in a hospital.

[42] In our view, reference to a single dictionary definition of the constituent elements of the composite expression "occupational health nurse" does not provide a sufficient basis to read that expression, in the context of the Black Coal Award, in the manner contended for by Kestrel Coal.

[43] Dictionary definitions can, in some circumstances, assist in ascertaining the ordinary meaning of a word or expression used in an award. Authority suggests, however, that caution should be exercised in reaching for dictionary definitions to resolve questions of statutory construction as the search is for the legal meaning of the words used by Parliament.[30] The Full Bench has recently observed that similar caution is appropriate in the case of interpreting an award.[31] An undue focus on the possible meanings of individual words or phrases derived from a dictionary has the potential to neglect contextual and purposive considerations which should properly guide their interpretation.[32]

[44] Furthermore, other dictionary definitions are available which refer to potentially different connotations. The Macquarie Dictionary definition of "occupational health" is as follows:

... those activities devoted to protecting or maintaining the health of people at work.

[45] The Oxford Dictionary definition of the same term is:

... the branch of medicine dealing with the prevention and treatment of job-related injuries and illnesses.

[46] We do not think that the ordinary meaning of the expression "occupational health nurse" excludes a nurse engaged at a workplace whose primary function is to respond to and treat workplace illness or injury, whether on an emergency or ongoing basis, or is limited to a nurse involved in preventative health. The Nurses Award is also instructive. As we have recorded above, the classification of "occupational health nurse" in that Award undertakes duties which include not only preventative action in relation to health and safety in the workplace, but also "immediate and continuing treatment of occupational injuries and/or illness". With respect, that appears to us to accord with the ordinary meaning of the expression.

[47] In relation to the requirement of nursing qualifications, we do not believe that the argument assists Kestrel Coal. The classification of "occupational health nurse" must be understood as directed at the performance of what, broadly speaking, could be regarded as involving nursing work. Ms Lennox's role undoubtedly does so. Even as described by Ms Acton, the essential function of the position involves "patient care and triage" in responding to emergencies and incidents. It is unnecessary, for the purposes of the present case, to determine whether a person must necessarily hold a current nursing qualification to fit within the classification. It is sufficient to note that Ms Lennox was required by Kestrel Coal to possess and maintain registration with the AHPRA as a registered nurse (practising). It is, in our opinion, immaterial that Kestrel Coal says that a person qualified and registered as a paramedic could also undertake the work of the position.

[48] This view of the extent of the classification of "occupational health nurse" is consistent with the proper understanding of the intended scope of the coverage of the Black Coal Award in general and the nature of the "employment functions" referred to in Schedule B in particular. Kestrel Coal submits that the classifications in Schedule B are narrow and occupationally based and to be contrasted with the broad-banded classification structure for production and engineering employees in Schedule A. Ms Lennox's submissions addressed the history and derivation of the current coverage provisions of the Black Coal Award and predecessor pre-modern awards and she submits, in short, that the intention is that the Award cover at least all employees of mine operators employed to perform work at a black coal mine subject to express exception. Ms Lennox submits that the history supports construing the coverage of the classifications and classes of work identified in Schedule B as referring broadly to classes of work rather than in a narrow or pedantic fashion.

[49] The Black Coal Award was first made in 2010. When first making the Black Coal Award in Re Minister for Employment and Workplace Relations [2008] AIRCFB 1000; (2008) 177 IR 364, the Full Bench of the Commission indicated that the intention of the new award was to preserve the status quo. The Full Bench said:[33]

... We note that the stated goal of the CFMEU and the CMIEG was to achieve a coverage clause that as closely as possible reflects the status quo in terms of the existing application of the key federal pre-reform awards both in relation to the kinds of employers to whom those awards apply and the extent to which the awards apply to such employers. We agree with that goal and intend that the award we have made should neither expand nor contract the reach of the key pre-reform awards both in relation to the kinds of employers to whom those awards apply and the extent to which the awards apply to such employers. It follows that we reject submissions that sought to have mechanical and electrical contractors invariably covered by awards other than the modern award for the black coal mining industry.

[50] The Full Bench inserted notes into clause 4 of the Black Coal Award which remain in the current award. The note which appears following clause 4.3 now states:

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.

[51] The relevant pre-modern awards were the Coal Mining Industry (Production and Engineering) Consolidated Award 1997 (the Production and Engineering Award) and the Coal Mining Industry (Staff) Award 2004 (the Staff Award). These awards were industry awards which applied nationally. The Production and Engineering Award, as it was immediately prior to the making of the Black Coal Award bound, relevantly, what was then the Construction, Forestry, Mining and Energy Union, "and its members employed in any of the classes of work or classifications covered by its eligibility rules."[34] The classification provision noted that "[t]he new structure is a 'single stream' structure, which does not contain any demarcations relating to the performance of work".[35] This coverage is now reflected in Schedule A to the Black Coal Award. In relation to Schedule A, White J commented in Bis Industries Limited v Construction, Forestry, Maritime, Mining and Energy Union [2021] FCA 1374 that:[36]

The only classification for which Schedule A provides is that of "Mineworker" (putting to one side apprentices and juniors). The Black Coal Award does not contain any definition of the term "Mineworker". It is evident, however, that it is intended as a generic description intended to cover all workers in a mine other than those who are "Staff Employees" for whom Schedule B makes provision.

[52] The Staff Award as it existed immediately before the Black Coal Award was made was a "members only" award. It was expressed to bind "[t]he Association of Professional Engineers, Scientists and Managers, Australia (APESMA) and its members employed in Queensland, New South Wales and Tasmania in the coal mining industry".[37] The coverage provision of the Staff Award was not otherwise limited. The wage rates then set out in the Staff Award prescribed wage rates by reference to a series of classification titles which reflect those now found in Schedule B, including "occupational health nurse".[38]

[53] The classification title of "occupational health nurse" was first included in a predecessor award in the Coal Mining Industry (Supervision and Administration) Interim Consent Award, 1990 (the 1990 Award). The coverage of the 1990 Award similarly referred to membership of APESMA and the wage rates contained groups of classifications. Ms Lennox points to the fact that the 1990 Award introduced "broadbanded award rates", that is, a process which involved "broadbanding" or synthesizing all classifications at the time into new, basic classification levels. Ms Lennox submits that this was achieved in the 1990 Award through the groups set out in wage rates, and that the job titles set out within each of those groups are indicative exemplars, rather than exhaustive.

[54] This history supports an approach of reading the classifications or "employment functions" listed in Schedule B in a broad, rather than narrow or confined, manner. That is consistent with the language of the Black Coal Award itself. Clause 4.1(b)(i) and (ii) defined "coal mining employees" by reference to the "classification or class of work" Schedule A and Schedule B. Schedule B, when providing definitions of some of the classification titles in clause B.1 refers to those definitions as "Employment functions". That supports the conclusion that the classification titles are intended to describe the broad functions undertaken by an employee. We also note that clause 4.3 expressly excludes particular types of work from constituting part of the "black coal mining industry" which do not necessarily fall within any of the express classifications or classes of work in Schedule A or Schedule B.

[55] The classifications and classes of work referred to in Schedule B should generally be understood as intended to reflect the type of roles and functions likely to be required at a coal mine outside of production and engineering work (leaving aside those which are expressly excluded from being part of the black coal mining industry by clause 4.3). The classifications and classes of work referred to in Schedule B should not be construed in a manner that gives them only a narrow or confined operation and risks leaving staff employees working in coal mines outside the Black Coal Award.

[56] Kestrel Coal relied on the decision of Asbury DP (as the Vice President then was) in Construction, Forestry, Maritime, Mining and Energy Union v BHP Coal Pty Ltd [2020] FWC 4322. The dispute before the Commission in those proceedings concerned an enterprise agreement the coverage of which was defined by reference to Schedule A of the Black Coal Award, including whether the classifications of field officer and controller fell within that coverage. Part of the argument advanced by BHP was that field officers and controllers were closer to the classifications covered by Schedule B. The Deputy President commented in relation to field officers:[39]

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

[57] In relation to the controller position, the Deputy President said:[40]

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

[58] To the extent that the Deputy President regarded the classifications in Schedule B as occupationally based, that is consistent with the manner in which we have construed the Schedule. With great respect, we are unable to agree that the classifications or classes of work in Schedule B should be described as "narrow" or approached on the basis they are intended to be narrowly confined. The focus of the proceedings before the Deputy President concerned whether the employees in the relevant positions performed work covered by Schedule A and detailed consideration of Schedule B was not required. It is unclear what material was put before the Deputy President in relation to the history of the Black Coal Award or its predecessors. We also note that the Deputy President's finding with respect to the position of controller was overturned on appeal.[41]

[59] For these reasons, the Commissioner was correct to find that Ms Lennox was employed in the classification of occupational health nurse for the purposes of Schedule B to the Black Coal Award and covered by a modern award for the purposes of s 382(b)(i) of the Act. The evidence as to the work performed by Ms Lennox in the position of Officer Medical Emergency included responding to medical emergencies and incidents, including providing patient care and triage, as well as various tasks to maintain readiness such as equipment checks and record management. Ms Lennox also undertook health-related tasks, including fatigue monitoring, medicals and fitness testing, drug and alcohol testing and data entry for safety activities. She was required to have and maintain current registration as a nurse. We believe the conclusion of the Commissioner was correct whether or not the principal purpose of Ms Lennox's employment is capable of being described as responding to emergencies and incidents. Even if that is the case, her employment fits within the classification of occupational health nurse.

[60] In those circumstances, it is unnecessary to address in detail the alternative contentions made on behalf of Ms Lennox. Had it been necessary to decide the question, we believe the Commissioner was correct to find that Ms Lennox was covered by the Nurses Award because her employment came within the occupational health nurse classification in Schedule A to that Award. We observe that it may not be necessary that it do so. Arguably, it would be sufficient that Ms Lennox be employed as a registered nurse for the purposes of Schedule A of the Nurses Award.

[61] For the reasons we have explained, permission to appeal should be granted. However, the conclusion of the Commissioner was correct, and the appeal must be dismissed. The Full Bench makes the following orders:

• (a) Permission to appeal is granted; and

• (b) The appeal is dismissed.

B Rauf with T Vockler, of counsel, instructed by Ashurst for the appellant.

E Sarlos and A Nash of the Mining and Energy Union for the respondent.

[1] Lennox v Kestrel Coal Pty Limited [2024] FWC 2409 at [64] and [76]-[77].

[2] Lennox v Kestrel Coal Pty Limited [2024] FWC 2409 at [75].

[3] Lennox v Kestrel Coal Pty Limited [2024] FWC 2409 at [78].

[4] Fair Work Act 2009 (Cth), s 143(1).

[5] Fair Work Act 2009 (Cth), s 143(5)(a) and (b).

[6] Fair Work Act 2009 (Cth), s 143(6).

[7] Gourabi v Westgate Medical Centre [2019] FWCFB 3874 at [26].

[8] City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; (2006) 153 IR 426 at [53] (French J); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Excelior Pty Ltd [2013] FCA 638 at [28] (Katzmann J).

[9] Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 at [2] and [13] (Gleeson CJ and McHugh J) and [96] (Kirby J); Transport Workers' Union of Australia v Coles Supermarkets Australia Pty Ltd [2014] FCAFC 148; (2014) 245 IR 449 at [22].

[10] Re Media, Entertainment and Arts Alliance; Ex parte Hoyts Corp Pty Ltd [1993] HCA 40; (1993) 178 CLR 379 at 386-387.

[11] George A Bond & Co Ltd (in liq) v McKenzie [1929] AR 498 at 503-504; Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518.

[12] Kucks v CSR Ltd (1996) 66 IR 182 at 184 (Madgwick J); United Firefighters Union of Australia v Metropolitan Fire and Emergency Services Board [2006] FCAFC 84; (2006) 152 FCR 18 at [51]- [52].

[13] Kucks v CSR Ltd (1996) 66 IR 182 at 184; Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 at [96] (Kirby J).

[14] Bis Industries Limited v Construction, Forestry, Maritime, Mining and Energy Union [2021] FCA 1374 at [28] (White J).

[15] San Remo (Southland) Pty Ltd v Farrell (1987) 22 IR 291 at 294- 295 (Macken J). See also Re State Rail Authority Firefighters Award 2001 [2002] NSWIRComm 159; (2002) 122 IR 13 at [22].

[16] Fair Work Act 2009 (Cth), s 134(1).

[17] Fair Work Act 2009 (Cth), s 3(b).

[18] Bis Industries Limited v Construction, Forestry, Maritime, Mining and Energy Union [2021] FCA 1374 at [25] (White J).

[19] Federated Engine Drivers and Firemen's Association of Australasia v Maffra Co-operative Milk Products Co Ltd [1940] CthArbRp 244; (1940) 42 CAR 836 at 837 (O'Mara J); Logan v Otis Elevator Company Pty Ltd [1997] IRCA 200 at 67 (Moore J); Construction, Forestry, Mining and Energy Union v Anglo Coal (Callide Management) Pty Ltd [2015] FCA 696 at [38]- [39] (Logan J); Choppair Helicopters Pty Ltd v Bobridge [2018] FCA 325 at [64]- [69] (Bromberg J).

[20] Logan v Otis Elevator Company Pty Ltd [1997] IRCA 200 at 67 (Moore J) referring to Ware v O'Donnell Griffin (Television Services) Pty Ltd [1971] AR (NSW) 18 at 19 (Sheldon J). See also Carpenter v Corona Manufacturing Pty Ltd [2002] ARIC 1562; [2002] AIRC 1562; (2002) 122 IR 387 at [9].

[21] Roebuck v Shopping Centres Australasia Property Group Re Limited [2024] FCA 503 at [80] (Feutrill J).

[22] Kingmill Australia Pty Ltd (t/a Thrifty Car Rental) v Federated Clerks' Union of Australia (NSW Branch) [2001] NSWIRComm 141; (2001) 106 IR 271 at [70].

[23] Zheng v Poten & Partners (Aust) Pty Ltd [2021] FWCFB 3478 ; (2021) 307 IR 339 at [45].

[24] Fair Work Act 2009 (Cth), s 604(2).

[25] Wan v Australian Industrial Relations Commission [2001] FCA 1803; (2001) 116 FCR 481 at [30] (Spender, Kiefel, Dowsett JJ); Ferrymen Pty Ltd v Maritime Union of Australia [2013] FWCFB 8025; (2013) 238 IR 258 at [9]- [12].

[26] Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54; (2011) 192 FCR 78 at [34] (Buchanan J); Workpac Pty Ltd v Bambach [2012] FWAFC 3206; [2012] FWAFB 3206; (2012) 220 IR 313 at [14]; Barwon Health - Geelong Hospital v Colson [2013] FWCFB 4515; (2013) 233 IR 364 at [6].

[27] See, for example, Clinical Laboratories Pty Ltd (t/as Australian Clinical Labs) v Health Services Union [2024] FWCFB 296 at [29].

[28] Australian Municipal, Administrative, Clerical and Services Union v City of Fremantle [2011] FWAFB 7161; (2011) 213 IR 233 at [18].

[29] Australian Workers' Union v Coffey Information Pty Ltd [2013] FWCFB 2894; (2013) 232 IR 262 at [18].

[30] TAL Life Ltd v Shuetrim [2016] NSWCA 68; (2016) 91 NSWLR 439 at [80] (Leeming JA); South Western Sydney Local Health District v Gould [2018] NSWCA 69; (2018) 97 NSWLR 513 at [78]- [83] (Leeming JA).

[31] Clinical Laboratories Pty Ltd T/A Australian Clinical Labs v Health Services Union [2024] FWCFB 296 at [45].

[32] Cooper v The Owners of Strata Plan No. 58068 [2020] NSWCA 250; (2020) 103 NSWLR 160 at [22] (Basten JA).

[33] Re Minister for Employment and Workplace Relations [2008] AIRCFB 1000; (2008) 177 IR 364 at [156].

[34] Coal Mining Industry (Production and Engineering) Consolidated Award 1997, clause 3.2.1.

[35] Coal Mining Industry (Production and Engineering) Consolidated Award 1997, clause 18.1.

[36] Bis Industries Limited v Construction, Forestry, Maritime, Mining and Energy Union [2021] FCA 1374 at [270].

[37] Coal Mining Industry (Staff) Award 2004, clause 3.1.

[38] Coal Mining Industry (Staff) Award 2004, clause 16.2.

[39] Construction, Forestry, Maritime, Mining and Energy Union v BHP Coal Pty Ltd [2020] FWC 4322 at [281].

[40] Construction, Forestry, Maritime, Mining and Energy Union v BHP Coal Pty Ltd [2020] FWC 4322 at [287].

[41] BHP Coal Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2021] FWCFB 197 at [23].

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