s.739 - Dispute resolution

Mining and Energy Union - Queensland District Branch

Alleged dispute about any matters arising under the enterprise agreement - travel between mine sites - whether start and finish location changed - whether employees performed work outside of rostered hours - dispute arbitrated - employees performed work outside rostered hours - dispute determined - parties to confer on Question 3

• [1] On 18 March 2025, the Mining and Energy Union - Queensland District Branch (MEU or the Applicant) filed an application pursuant under s.739 of the Fair Work Act 2009 (Cth) (the Act) seeking to resolve a dispute with Peabody Moorvale Pty Ltd Trading AS Peabody (the Respondent).

• [2] The dispute relates to the hours of work, start and finish times and unrostered overtime under the Peabody Energy Australia Moorvale Enterprise Agreement 2014 (the Agreement). The Agreement, unfortunately, has no clause numbering so the relevant terms are reproduced in full below.

• [3] The MEU made the Application pursuant to the Issue Resolution Procedure on page 12 of the Agreement.

• [4] The parties attempted to resolve the dispute on 9 May 2025 through a conciliation which was unsuccessful. Following the conciliation conference, I issued directions and listed the matter for arbitration on 20 August 2025. The Applicant was represented by Mr Chris Newman and the Respondent was represented by Ms Elizabeth Rakitovszky, Industrial Relations Manager.

• [5] The Respondent did not raise a jurisdictional objection to the dispute. I am satisfied that I have the jurisdiction to arbitrate the dispute in accordance with the Issue Resolution Procedure on page 12 of the Agreement. The parties have engaged in discussions prior to bringing the dispute to the Commission. Further, I note the application for dispute resolution pursuant to s.739 of the Act was lodged prior to the commencement of the current Agreement, the Peabody Energy Australia Moorvale Enterprise Agreement 2025.

• [6] The parties presented the questions to be determined before me as follows:

1. Was the start and finish location for employees covered by the Peabody Moorvale Enterprise Agreement 2014 (the Agreement) changed for employees working at the Moorvale South mine?

1. If yes, did the change to the locations in Q1 require employees to perform work at the Moorvale South mine outside their rostered hours of work?

1. If yes, were the employees entitled to payment in addition to their Based Annualised Salary and did the "Travel Allowance" implemented in September 2023 remunerate these employees for all work performed outside their rostered hours of work?

• [7] From 2014 to the beginning of 2022, there was one active mining pit at the Peabody Moorvale mine (for clarity, I will call this the Moorvale North pit).[1]

• [8] Employees living at the Civeo Coppabella Camp were required to drive from the camp to the Pre-Start Room at the Moorvale North pit. This is referred to as the "Moorvale Pre-start Room" by the parties. To avoid confusion, as there is another Pre-Start Room at Moorvale South, I will call this the Moorvale North Pre-Start Room.[2]

• [9] The Moorvale North Pre-Start Room is a distance of approximately 11 kilometres from the Civeo Camp, or a 10 minute drive by car.[3]

• [10] At the commencement of each shift, employees were required to undertake a Pre-Start process at the Moorvale North Pre-Start Room, which includes signing into the mine, undertaking a blood alcohol test and attending the Pre-Start meeting.[4]

• [11] The Respondent issued a direction on 29 January 2022 requiring employees to wear minimum PPE when travelling to and from the Pre-Start building. This included work boots, a long sleeve hi vis work shirt and long work pants.[5]

• [12] The Moorvale North Pre-Start Room was adjacent to the security gate.[6]

• [13] Employees were rostered on 12-hour shifts, inclusive of the Pre-Start meeting. There is an informal agreement that employees would undertake an extra half an hour of work throughout the day shift roster so that employees could leave at 3:00 pm on their final roster day, allowing them to take a flight home that afternoon.

• [14] Employees concluded their rostered shift at the Moorvale North Pre-Start Room, which was next to the security gate. They would then walk from the Pre-Start Room to the carpark to take a bus back to camp or drive home.

• [15] In 2022, operations commenced at the Peabody Moorvale south site.[7]

• [16] On 20 June 2022, the Respondent issued an information brief requiring production employees to attend for Pre-Start at the Moorvale North Pre-Start Room. Employees allocated to Moorvale South would then travel to the pit following Pre-Start. The brief notes that the end of shift location would be the Moorvale North Pre-Star Room. The brief states that following construction of facilities at Moorvale South, shifts would start and end there.[8]

• [17] Initially, employees assigned to the Moorvale South pit could use one of the Respondent's light vehicles and drive to the Moorvale South pit using the Peak Downs Highway, as well as a private quarry access road.[9] Mr Joshen Bendeich, Coal Operator and witness for the Applicant, estimates the drive from camp to the Moorvale South pit took 45 minutes.[10]

• [18] In October 2022, the Respondent completed building facilities at Moorvale South which included a Pre-Start Room, lockers, showers and maintenance facilities.[11] However, the Respondent was no longer able to use the private quarry access road.[12]

• [19] On 25 October 2022, the Respondent issued a further information brief, stating:

Following consultation and previous communications with you, on the Moorvale South Start Point Change commencing 9 November 2022, the Company is in the process of collecting and reviewing feedback provided by the workforce on the matter.

The on-coming crews will have an opportunity to provide feedback on the matter. All feedback is required by 3 November 2022.

Employees are encouraged to provide feedback if they haven't already done so. The data will be collated and discussed with the workforce.

The start date of commencing at Moorvale South is being reviewed and will be communicated once feedback is collected and discussed.

• [20] On 9 November 2022, the Pre-Start location for employees undertaking work at the Moorvale South pit was altered permanently to the Moorvale South Pre Start Room. Employees working at Moorvale South would arrive at the Moorvale South Pre Start Room at 6:00 AM for the day shift and 6:00 PM for night shift.

• [21] To get to Moorvale South, employees would catch a bus from camp, through the mine, to the Pre-Start Room at Moorvale South in time for the Pre-Start meeting. At the end of the shift, employees would catch a bus back towards the security gate at Moorvale North. The duration of the bus trip between Moorvale North and Moorvale South is heavily contested but I note for present purposes that it is approximately 20 to 30 minutes each way.

• [22] On 6 December 2022, a letter was provided to the Respondent, signed by a number of employees, disputing the requirement for employees to arrive earlier on site in order to get the bus to Moorvale South, and then arrive back later at the end of their shift.[13] In that letter, the employees refer to the decision of Deputy President Asbury (as she then was) in Construction, Forestry, Maritime, Mining and Energy Union (105N) v Peabody Energy Australia PCI Mine Management Pty Ltd [2019] FWC 4641 (CFMMEU v Peabody). The employees argued that they were being required to undertake "at least an extra 30 mins of work".

• [23] On 19 December 2022, the Respondent issued a letter in response to the dispute. The Respondent argued that that the company does not benefit from the travel arrangements as employees are not required to perform work when they are travelling to the pit, prior to the commencement of their shift.[14]

• [24] Further correspondence was exchanged in 2023. Following several months of discussion and meetings, in August 2023 the Respondent's management proposed a resolution in the form of a travel allowance. The details of the allowance are as follows:

• - A travel allowance of $3689 per annum - will be paid in your fortnightly pay cycle
• - It will be paid to all operational personnel affected by the start and end of shift location change at Moorvale South
• - The fortnightly travel allowance will attract super
• - The allowance will not be paid to employees who are absent from work for any reason
• - The allowance will only be paid to employees rostered on and who work a full rostered shift
• - The allowance will not be subject to any increase
• - The allowance will be back paid to 15 December 2022
• - The allowance will be reviewed and may be recalculated or discontinued as a consequence of future Pre-Start locations
• - Impacted employees will be requested to vote on the acceptance of the travel allowance via the TrueVote process[15]

• [25] Employees were asked to vote on the implementation of the allowance.

• [26] On 15 September 2023, the company confirmed the introduction of the travel allowance in the terms outlined above. The Respondent states that it was made clear to employees that the travel allowance was discretionary, rather than an entitlement under the Agreement.[16]

• [27] In around October or November 2023, operations at the Moorvale North pit ceased. All employees then commenced work at Moorvale South Pre-Start Room. A bus was provided directly from camp to the Pre-Start Room.

• [28] The dispute centres around page 7 of the Agreement, which describes when a shift starts and ends:

Work will be arranged so as to ensure that you have at least ten (10) consecutive hours off duty between normal work on consecutive days.

Shift start and finish times will be in accordance with the Site Procedures. The start of shift will be the commencement of Pre-Start and the end of shift will be at the security gate.

When unrostered overtime work is necessary the Company will arrange for you to have at least ten (10) consecutive hours off duty between the work of successive shifts without loss of earnings.

If you are approved to work unrostered overtime you will be paid at double time at the struck hourly rate.

• [29] "Unrostered Overtime" is defined on page 3 of the Agreement to mean: "Any work performed outside your normal and regular rostered days and hours of work".

• [30] Page 4 of the Agreement sets out how an employee will be remunerated for hours worked.

Your Base Annualised Salary has been structured to include all factors associated with this Appointment, including but not limited to, hours of work and other conditions. The Base Annualised Salary includes compensation for all hours worked and provides for all rostered overtime, weekend work, public holidays worked, shift work, and all other payments or allowances associated with the regular roster. A full breakdown of your remuneration package is detailed in the Schedule B.

Your Base Annualised Salary will be paid fortnightly by electronic funds transfer into your nominated bank account.

Christmas Day and Boxing Day are considered non-work days. Roster and travel arrangement options for Christmas and Boxing Day for the term of this Agreement is attached as Schedule E. In October each year we will meet and consult with the aim to reach an agreement with the majority of people affected. The consultation will be about which of the two options, or any options, are most suitable at the time.

If you work on these days, you will be paid the struck hourly rate, as outlined in Schedule B, at triple time for all hours worked.

All other unrostered overtime worked will be paid at double time based on the struck hourly rate.

• [31] The Base Annualised Salary is paid in lieu of any additional payment for the hours of work performed on the roster. However, any time worked outside of this roster must be paid at double time, based on the struck hourly rate.

• [32] The formula for working out the Base Annualised Salary and Struck Hourly Rate can be found in Appendix B of the Agreement.

• [33] The Full Bench in AMWU v Berri Pty Ltd[17] provides the principles regarding the construction and interpretation of clauses within the Enterprise Agreement which state the following:

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

(i) the text of the agreement viewed as a whole;

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

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

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

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

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

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

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

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

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

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

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

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

12. Evidence of objective background facts will include:

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

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

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

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

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

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

• [34] More recently, the Full Court of the Federal Court of Australia stated the principles applicable to the interpretation of an enterprise agreements in James Cook University v Ridd:

"(i) The starting point is the ordinary meaning of the words, read as a whole and in context.

(ii) A purposive approach is preferred to a narrow or pedantic approach - the framers of such documents were likely to be of a "practical bent of mind". The interpretation "turns upon the language of the particular agreement, understood in the light of its industrial context and purpose".

(iii) Context is not confined to the words of the instrument surrounding the expression to be construed. It may extend to "... the entire document of which it is a part, or to other documents with which there is an association".

(iv) Context may include "... ideas that gave rise to an expression in a document from which it has been taken".

(v) Recourse may be had to the history of a particular clause "Where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form..."

(vi) A generous construction is preferred over a strictly literal approach, but "Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties".

(vii) Words are not to be interpreted in a vacuum divorced from industrial realities but in the light of the customs and working conditions of the particular industry."[18] [references omitted]

• [35] The Applicant, in short, argues that the start time for a shift commences with the Pre-Start meeting. Therefore, the start of a shift is defined by an event, the meeting, rather than a location.[19]

• [36] However, the end of the shift is marked not by an event, but by a specific place, the security gate at Moorvale Mine site.[20] The Applicant's position is that once work begins, the employees perform their allotted hours of work and finish their rostered shift at the security gate. [21]

• [37] The union's position is that if the employer is unable to ensure that employees reach the security gate by the end of their rostered hours, then the employees are entitled to an overtime payment at double the struck hourly rate.[22]

• [38] The union argued that whilst the agreement permits a change of the start location, it does not permit a change to where it finishes.[23] The changes at Moorvale South meant that employees were not reaching the specified security gates until approximately 25 to 30 minutes after the end of their rostered shift.[24]Additional time between when they shift ended and when they reached the security gate is paid work time and should be remunerated as additional overtime payment.[25] Further, the union argues that the travel allowance of $3,689 to employees does not compensate employee have been paid who should have been paid overtime as required by the agreement.

• [39] The Respondent argues that the correct interpretation of the Agreement is that it prescribes a point in time at which the shift starts and finishes, rather than a location.[26] The Respondent submits that it would be incongruous, as the Applicant suggests, for the commencement of the shift to be defined temporally, but the end of the shift defined by reference to a location.[27]

• [40] Furthermore, the Respondent argues that the security gate is an arbitrary feature.[28] The Respondent notes that there are a number of entry and exit points and employees, during the relevant period, were not required to actually use the security gate.

• [41] The Respondent notes that the security gate is adjacent to the Moorvale Pre-Start Room (that is, at Moorvale North). This is the location where employees use the Kronos Machines to sign in and out of the mine. With this context, the Respondent submits that "at the security gate" should be construed to mean the point in time at which the employee is signed out of the mine and is no longer subject to the Safety Management System.[29] The Respondent submits that, in practice, employees at Moorvale South sign out of the mine at the Moorvale South Pre-Start Room, before they get on the bus. Therefore, on the Respondent's argument, the employee's rostered shift has ended when they are on the bus to Moorvale North.

• [42] The Respondent submits that even if the Applicant's position is accepted, and is it found that the start and finish locations did change, this still did not necessitate employees to perform work outside their rostered hours. The Respondent submits that the travel is travel to or from work rather than travel during work.[30]

• [43] In relation to the pre-shift process, the Respondent submits that employees are not ready, willing and able to perform work while travelling to the Pre-Start location, as they have not completed the Pre-Start process (including signing in, a blood alcohol test and undertaking a meeting).[31]

• [44] In relation to the end of shift process, the Respondent submits that employees are not required to wear PPE while on the bus back to the camp. The Respondent argues that employees could store their PPE and personal effects at the Moorvale South Pre-Start Room, prior to getting on the bus.

• [45] Finally, the Respondent submits that the travel allowance of $3,689 paid to employees more than covers any entitlement the employees may have under the Agreement. The Respondent relies on "time in motion studies" conducted by the Superintendent. The Applicant contests the figures relied upon by the Respondent.

• [46] I accept the submission that "Pre-Start", in context with "commencement of Pre-Start" is a reference to a meeting, rather than a location. This is in contrast with Deputy President Asbury's decision in CFMMEU v Peabody, in which there was a designated start point employees were required to travel to before their shift commences.

• [47] As Pre-Start is an event, rather than a location, it is within the employer's discretion to change where the meeting is held. In fact, the Respondent changed this location on 9 November 2022 when it moved the Pre-Start meeting location to the Pre-Start Room at Moorvale South. Relevant employees were directed to attend Pre-Start meetings there.

• [48] In defining the end of the shift, the starting point is the text of the Agreement. The words used are "and the end of shift will be at the security gate." It is notable that the Agreement does not state "the end of shift will be when the employee signs out". That seems to be, in practice, how the Respondent views the start and end of the shift.

• [49] The plain and ordinary meaning of "at the security gate" refers to a location, rather than a point in time. Firstly, the use of the preposition "at" and the definite article "the" indicate that what is being discussed is a fixed and definite object. Secondly, I accept the Applicant's submission that the ordinary meaning of "security gate" indicates a physical location. Indeed, the word "gate" suggests a fixture, and therefore, a defined point.

• [50] In construing the agreement, an overly pedantic approach is discouraged. However, at the same time, I must give effect to the objective intention of the parties, as gleaned through the text of the agreement and context. I do not accept the argument that it would be incongruous for the start of shift to be defined by a point in time, and for the end of the shift to be defined by a location. It is axiomatic that enterprise agreements are written by ordinary people, with practical bent of mind. With respect, that is evident when reading this agreement.

• [51] Further, in relation to the argument that, in practice, there are many entry and exit points to the site, I do not consider that to be relevant. As I understand it, the Respondent is not making an argument that, as a matter of custom and practice, the agreement was varied. I consider there is not enough evidence support an argument like that, in any event. I see no reason for me to ignore the ordinary meaning of the text of the Agreement. Further, in any event, Mr Bendeich notes that the security gate is only approximately 100 metres from where employees exited the mine.[32] Under the new Agreement, employees leave via the security gate.[33]

• [52] I find that the end point of the shift under the Agreement is the location of the security gate. Therefore, the employee finishes their shift once they reach and bypass this location. In relation to the question posed regarding whether the finish location for employees was changed I note for the period in dispute, the end point for the shift is and has always been, as a matter of law, the security gate. The Respondent did, however, purport to change the finish location for employees assigned to work at Moorvale South by moving the Pre-Start location to the Moorvale South Pre-Start building. As the Respondent notes, employees were to sign out at the Moorvale South Pre-Start building before heading to Moorvale North.

Were the employees required to "perform work" when travelling between Moorvale South and Moorvale North?

If you are approved to work unrostered overtime you will be paid at double time at the struck hourly rate.

• [54] Unrostered overtime is defined in the Agreement as "[a]ny work performed outside your normal and regular rostered days and hours of work". It is necessary, therefore, to consider whether employees were performing "work" in the relevant period.

• [55] The Agreement states that employees will be paid at double time if the overtime is "approved". I have not been provided with details of the approval process. However, if the employer has directed employees to undertake the work, I would suggest the work has been "approved" within the ordinary meaning of that word.

• [56] There is, of course, as the Respondent submits, a difference between travelling "to and from" work and travelling "during" work. When the employees are travelling within the Respondent's mine site, as opposed to commuting from home, the question of whether the employees are working is one of fact and degree.

• [57] Although distinguishable, the reasoning of Deputy President Asbury in CFMMEU v Peabody is useful. The Deputy President states in that decision:

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

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

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

• [58] This matter is, in a way, the inverse of CFMMEU v Peabody. The Applicant's argument is that employees are directed to keep performing production work for an additional half hour before they get on the bus to the exit (adjacent to the security gate). As a result, the employees reach the security gate approximately 20 to 30 minutes after the end of their rostered shift.

• [59] The Respondent submits that the employees were not ready, willing and able to perform work, in accordance with the Respondent's site processes and were therefore not working. This is because the employees had signed out of the mine by the time they got on the bus and therefore were no longer compliant with the Safety Health Management System.

• [60] In Warramunda Village Inc v Pryde [2002] FCA 250, the Full Court of the Federal Court held:

[17] It cannot be said that, in rendering a "sleep-over shift", an employee is "on call" within the meaning of cl 32. For the purpose of cl 32 an employee who is off duty but "on call" is free to conduct his, or her, private life subject to the employer being able to direct the employee to report for duty, and to the employee organizing his or her affairs to be able to respond to that direction if given. (See: Suffolk County Council v Secretary of State for the Environment [1984] ICR 882 (House of Lords)). An employee who attends at the place of employment pursuant to the employer's direction to be at the employer's premises for a period of time and be available to provide service at the premises as required by the employer, is not carrying on private activities but is providing service to the employer. Such an employee is at "work" for the purposes of the 1995 Award and is entitled to be remunerated according to the terms of the Award. (See: Hospital Employees' Industrial Union of Workers, WA v Proprietors of Lee-Downs Nursing Home (1977) 57 WAIG 455 per Burt CJ at 456).

• [61] "Work" should not be given an overly narrow meaning under the Agreement, bearing in mind the industrial purpose of the Agreement. The central point of Deputy President Asbury's decision, following Warramunda Village Inc v Pryde and other authorities, is that where employees are directed by the employer to undertake an activity, and where the employer gains a direct benefit from that activity, it is more likely to be found that that activity amounts to work. I agree with that reasoning in this matter. Another factor which makes the activity indicative of "work", within the meaning of the Agreement, is that, in this case, the bus ride, takes place wholly within the Respondent's mine site and using the Respondent's vehicle.

• [62] In this case, the employees are directed to travel to Moorvale South, and then work until the end of their rostered shift time. The Respondent gains a direct benefit from that activity. Employees are then required under the Site Processes to sign out of the mine at Moorvale South. Further, the Applicant provided evidence to demonstrate that employees were required to wear at least minimum PPE when travelling on the mine site, which is indicative of the employees working when travelling between the pits.

• [63] The suggestion employees were not ready, willing and able to work as a result of being signed out is artificial. The employees were not able to work (in accordance with Site Processes) because they were signed out at Moorvale South. The employees signed out at Moorvale South because of the directives and processes put in place by the Respondent requiring them to do so. It is not a case of incapacity or unwillingness to work.

• [64] I find that when travelling from Moorvale South to the security gate at Moorvale North, the employees were working outside their rostered hours.

Whether the Employees are entitled to an additional payment?

• [65] Having found that employees were required to work outside of their rostered hours, it follows that, in accordance with the terms of the Agreement, employees are entitled to overtime.

• [66] The Respondent has chosen to attempt to resolve this dispute through direct engagement with employees. While an employer is perfectly entitled to directly engage with its employees, this matter is an example of the risks of that approach. The Respondent's view was that a discretionary allowance which was stated to be "not subject to increase" resolved the matter. However, where the matter involves an allegation of underpayment under an enterprise agreement, a discretionary allowance is unlikely to resolve matters.

• [67] I am unable to determine on the evidence before me whether the travel allowance remunerated employees for their work performed as per the Agreement. It does appear that the Respondent has used an ordinary time base figure, rather than double time. As the travel time on the bus is work outside the rostered hours, the overtime provisions under the agreement would apply.

• [68] The primary issue is that there is no agreement on the duration of the bus ride. Short of the Commission availing itself of the bus, I am reliant on the evidence provided by the parties. The parties may be able to agree on an average duration which accounts for the fact that the bus ride is longer or shorter on some days, depending on the weather. The parties would also have to identify which employees used the bus, and on which days. I understand the Respondent has Kronos data with the employees' sign in and sign out times, which can be used for this purpose.

• [69] I find that the answers to the questions posed for arbitration are:

1. Was the start and finish location for employees covered by the Peabody Moorvale Enterprise Agreement 2014 (the Agreement) changed for employees working at the Moorvale South mine?

1. If yes, did the change to the locations in Q1 require employees to perform work at the Moorvale South mine outside their rostered hours of work?

1. If yes, were the employees entitled to payment in addition to their Based Annualised Salary and did the "Travel Allowance" implemented in September 2023 remunerate these employees for all work performed outside their rostered hours of work?

The employees were entitled to be paid for unrostered overtime for work performed outside their rostered hours.

• [70] In relation to the third question, I direct the parties to do the following:

(a) The parties are to confer and examine their respective data on the duration of the bus ride.

(b) I direct the parties to report to my Chambers by 5 January 2026 (noting the upcoming holiday period) advising whether they have agreed on an average duration for the bus ride and proposing a methodology for how the payments to employees will be calculated.

[1] Albert Scheepers Witness Statement [6].

[5] Annexure JB2-1 to Statement of Joshen Bendeich

[8] Annexure AS2 to Albert Scheepers Witness Statement.

[9] Joshen Bendeich Statement [5]; Albert Scheepers Statement [23]

[13] AS4 Annexure to Albert Scheepers Witness Statement.

[14] AS6 Annexure to Albert Scheepers Witness Statement.

[15] AS13 Annexure to Albert Scheepers Witness Statement.

[17] AMWU v Berri Pty Ltd [2017] FWCFB 3005.

[18] James Cook University v Ridd [2020] FCAFC 123 at [65].

[32] Reply Statement of Joshen Bendeich [4]

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