Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

(U2020/9414) (U2020/9415) (U2020/9416) (U2020/9417) (U2020/9418) (U2020/9419) (U2020/9420) (U2020/9421) (U2020/9422) (U2020/9423) (U2020/9424) (U2020/9425) (U2020/9426) (U2020/9427) (U2020/9428) (U2020/9429) (U2020/9430) (U2020/9431) (U2020/9432) (U2020/9434) (U2020/9435) (U2020/9436) (U2020/9437) (U2020/9438)

[1] On 24 June 2020, Mr Neil Bartley, Mr Jake Bennett, Mr James Brajak, Mr Peter Burke, Mr Christopher Dale, Mr Kenneth Dryden, Mr Luke Duffy, Mr Leonard Farrance, Mr Stephen Gilmour, Mr Brendan Gornall, Mr Taylor Gosling, Mr Murray Gray, Mr Tim Henderson, Mr Joshua Hogg, Mr Stuart Kemp, Mr Clint Luck, Mr Ryan Martin, Mr James Mate, Mr Christopher Murdoch, Mr Gregory Remfry, Mr Ryan Schuster, Mr Boro Selak, Mr Simon Walder and Mr Alex Windisch (together the Applicants), were notified by their former employer Helensburgh Coal Pty Ltd (Peabody) (the Respondent), that their employment was to be terminated. Prior to their termination, the Applicants worked at the Respondent's Metropolitan Coal Mine (the Mine) located in the Illawarra region of New South Wales.

[2] On or about 10 July 2020, the Applicants filed applications (the Applications) with the Fair Work Commission (the Commission) for Unfair Dismissal remedies pursuant to section 394 of the Fair Work Act 2009 (the Act).

[3] The Applicants were represented by Mr Adam Walkaden of the Construction, Forestry, Maritime, Mining and Energy Union (the CFMMEU). Pursuant to section 596 of the Act, the Respondent was granted permission to be represented by Mr Dan Williams of MinterEllison.

[4] At the commencement of the Hearing, the parties agreed for the Applications to be heard together on the basis that the facts and decision-making process was largely common to all of the Applicants.

[5] The Respondent objected to the Applications on jurisdictional grounds, stating that each of the terminations were genuine redundancies within the meaning of section 389 of the Act. This decision deals only with the Respondent's jurisdictional objection.

[6] The Respondent extracts coking coal at the Mine. Coking cole is used to make steel. The COVID-19 pandemic has negatively impacted the demand and price of coking coal. As a result, the Respondent determined to decrease its level of production and its workforce at the Mine.

[7] After a period of employee consultation, the Respondent determined that:

1. 90 of its directly employed staff would be made redundant. Of these 90 employees, 47 individuals, including the Applicants, were subject to a forced redundancy: and

2. Its contractor workforce would be reduced by 40%.

[8] In November 2019, the Respondent entered into a service agreement with a conveyer belt contractor called Mentser, where Mentser would undertake belt cleaning and belt improvement work at the Mine. The contact commenced in April 2020. On 24 June 2020, only 8 Mentser employees were deployed at the Mine.

[9] The Applicants' employment was covered by the Helensburgh Coal Enterprise Agreement 2017 (the Agreement). The Agreement was approved by the Commission on 16 January 2018. In the Decision, it was determined pursuant to section 205(2) of the Act, that the model consultation term prescribed by the Fair Work Regulations 2009 was to be taken as a term of the Agreement.

[10] The relevant consultation obligations that the Agreement imposes on the Respondent are contained in Clauses 34 and 36.1 as well as the model consultation term. Each of these clauses has been extracted below.

(a) the Company has made a definite decision to introduce a capital works project, major change to production, program, organisation, structure, or technology in relation to enterprise; and

(b) the change is likely to have a significant effect on employees of the Company.

In this term, a major change is likely to have a significant effect on employees if it results in:

(a) the termination of the employment of employees; or

(b) major change to the composition, operation or size of the Company's

workforce or to the skills required of the employees; or

(c) the elimination of diminution of job opportunities (including opportunities for promotion or tenure); or

(f) the need to relocate employees to another workplace; or

(g) the restructuring of jobs. In this term, relevant employees means the employees who may be affected by the major change.

34.2 As soon as practicable after the notification referred to above, the Company must discuss with the relevant employees and I or their representatives:

(a) the reasons for seeking to introduce the change;

(b) the commercial I economic basis upon which the proposal is based;

(e) measures the Company is taking or could take to avert or mitigate the adverse effect of the change on the employees; and

(f) the effect the change would be likely to have on other employees under the Agreement, including WHS considerations.

34.3 The Company shall, in advance of and for the purposes of the discussions, provide in writing, to the relevant employees and their representatives, information about the nature of the change referred to above including information about the expected effects of the change on the employees and any other matters likely to affect the employees.

34.4 The Company is not required to disclose confidential or commercially sensitive information to the relevant employees during discussions.

34.5 Where there is a dispute over the implementation of change, the Dispute Resolution

Procedure should be followed as outlined in this Agreement and work shall continue in accordance with the Company's reasonable direction while the dispute is resolved.

34.6 This clause will not be used to permit a proposal to be trialled which would involve a breach of operational safety.

34.7 The General Manager will meet with the Lodge on a bi-annual basis and an ad-hoc basis as and when required to discuss the Company's planned use of contractors at the Mine.

36.1 Should the Company decide to reduce the number of employees covered by the Agreement, the Parties will consult about the proposed terminations, measures to avoid or minimise the terminations and measures to mitigate any adverse effects of any terminations on the Employees concerned. During this consultation process, the use of contractors will be reviewed.

The Model Consultation Term Regulation 2.09 - Fair Work Commission Regulations 2009

(a) has made a definite decision to introduce a major change to production, program, organisation, structure or technology in relation to its enterprise that is likely to have a significant effect on the employees; or

(b) proposes to introduce a change to the regular roster or ordinary hours of work of employees.

(2) For a major change referred to in paragraph (1)(a):

(a) the employer must notify the relevant employees of the decision to introduce the major change; and

(3) The relevant employees may appoint a representative for the purposes of the procedures in this term.

(a) a relevant employee appoints, or relevant employees appoint, a representative for the purposes of consultation; and

(b) the employee or employees advise the employer of the identity of the representative;

(5) As soon as practicable after making its decision, the employer must:

(ii) the effect the change is likely to have on the employees; and

(iii) measures the employer is taking to avert or mitigate the adverse effect of the change on the employees; and

(b) for the purposes of the discussion - provide, in writing, to the relevant employees:

(i) all relevant information about the change including the nature of the change proposed; and

(ii) information about the expected effects of the change on the employees; and

(iii) any other matters likely to affect the employees.

(6) However, the employer is not required to disclose confidential or commercially sensitive information to the relevant employees.

(7) The employer must give prompt and genuine consideration to matters raised about the major change by the relevant employees.

(8) If a term in this agreement provides for a major change to production, program, organisation, structure or technology in relation to the enterprise of the employer, the requirements set out in paragraph (2)(a) and subclauses (3) and (5) are taken not to apply.

(9) In this term, a major change is likely to have a significant effect on employees if it results in:

(a) the termination of the employment of employees; or

(b) major change to the composition, operation or size of the employer's workforce or to the skills required of employees; or

(c) the elimination or diminution of job opportunities (including opportunities for promotion or tenure); or

(f) the need to relocate employees to another workplace; or

Change to regular roster or ordinary hours of work

(a) the employer must notify the relevant employees of the proposed change; and

(11) The relevant employees may appoint a representative for the purposes of the procedures in this term.

(a) a relevant employee appoints, or relevant employees appoint, a representative for the purposes of consultation; and

(b) the employee or employees advise the employer of the identity of the representative;

(13) As soon as practicable after proposing to introduce the change, the employer must:

(a) discuss with the relevant employees the introduction of the change; and

(b) for the purposes of the discussion - provide to the relevant employees:

(i) all relevant information about the change, including the nature of the change; and

(ii) information about what the employer reasonably believes will be the effects of the change on the employees; and

(iii) information about any other matters that the employer reasonably believes are likely to affect the employees; and

(c) invite the relevant employees to give their views about the impact of the change (including any impact in relation to their family or caring responsibilities).

(14) However, the employer is not required to disclose confidential or commercially sensitive information to the relevant employees.

(15) The employer must give prompt and genuine consideration to matters raised about the change by the relevant employees.

relevant employees means the employees who may be affected by a change referred to in subclause (1).

Statutory provisions with respect to the Respondent's jurisdictional objection

[11] The sections of the Act that are relevant to the Respondent's jurisdictional objection are as follows:

396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.

(1) A person's dismissal was a case of genuine redundancy if:

• (a) the person's employer no longer required the person's job to be performed by anyone because of changes in the operational requirements of the employer's enterprise; and

• (b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

(2) A person's dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

(b) the enterprise of an associated entity of the employer.

[12] The Respondent submitted that the Commission did not have jurisdiction to hear or determine the Applications on their merits because the terminations were cases of genuine redundancy. The Respondent's submissions addressed each of the sections of 389 of the Act in turn.

[13] The Respondent submitted that due to the downturn in the market for coking coal, it decreased production at the Mine. As a result, it reduced its workforce and the Applicants' roles were identified as no longer required to be performed by anyone.

[14] The Respondent claimed that in order to have met the consultation obligations contained in the Agreement it needed to have:

"(a) notified the employees (and their representatives) about a definite decision to introduce a major change to production etc.;

(b) provided in writing relevant information about the change, including information about the expected effects on employees and any other relevant matter;

(c) discussed with the employees (and their representatives) the introduction of the change, the effect the change is likely to have and what measures are being taken to avert or mitigate the adverse effect of the changes;

(d) given prompt and genuine consideration to matters raised about the major change; and

[15] The Respondent claimed that it undertook the following consultation process:

"(a) Peabody met with representatives of the CFMMEU and the workforce at the Mine on 13 May 2020 to advise of the preliminary decision made to undergo the Operational Restructure, discuss key milestones and the proposed schedule for the consultation process, and table initial questions and suggestions for discussion at the following meetings.

(b) Peabody first advised the workforce more broadly of the intent to restructure its operations at the Mine during Mine site briefings on 13 May 2020. A letter was emailed to all employees on 13 May 2020, updating them on the Change to Business Plan and Consultation, which included reference to voluntary redundancies.

(c) Thereafter, a consultation period commenced which continued throughout May and June 2020:

(i) holding meetings with employee representatives on the following dates: 18 May 2020; 22 May 2020; 26 May 2020; 29 May 2020; 2 June 2020; 9 June

(ii) circulating an email update to employees on 25 May 2020 regarding timeline, selection criteria, shifts/rosters;

(iii) providing a Business Update to crews on 4 June 2020 and 5 June 2020;

(iv) circulating an email update to employees on 19 June 2020 on not acting on

(v) communicating the final position reached by Peabody to the CFMMEU on 24 June 2020 in relation to aspects of voluntary redundancies, bull gang, forced redundancies and timing."

[16] The Respondent submitted that in accordance with Clause 36.1 of the Agreement it reviewed the use of contractors at the Mine. The Respondent claimed that Clause 36.1 of the Agreement doesn't require the Respondent to remove every contractor from the Mine, nor accept any suggestion made by an employee to remove a contractor.

[17] The Respondent submitted that the question that the Commission must determine with respect to section 389(2) of the Act is whether redeployment within the employer's enterprise or the enterprise of an associated entity would have been reasonable at the time of dismissal.

[18] In answering the above question, the Respondent focused on the Applicants' suggestion that redeployment opportunities existed in respect of work that was performed by contractors at the Mine. The Applicants argued that the Respondent should have taken steps to redeploy the Applicants to perform such work. The Respondent claimed that the work being performed by these contactors was specialist work.

[19] In Daniel Stickley v Kestrel Coal Pty Ltd [2015] FWC 2884 (Kestrel Coal), Spencer C held:

[149] With respect to s.389(2)(a) "reasonable in all the circumstances for the person to be redeployed within the employer's enterprise", and whether the Applicants could have been reasonably redeployed into the Respondent's enterprise, it is not accepted that the Respondent had an obligation to redeploy the Applicant into a "backfill position" filled by Mastermyne employees. The timing of this project, and the short-term engagement of the project are relevant considerations, as is the Respondent's prerogative to structure their workforce on the optimum, operational and flexible basis for their business.

I note that this decision was upheld on appeal.0F[1]

[20] Ms O'Brien testified that the issue of contactors and their ongoing involvement at the mine was determined in a deliberate manner

"Various questions were raised in this meeting, especially about how we would be dealing with contractors, if there were going to be reductions to the workforce at the Mine. On that point, it was communicated that:

(a) any decisions regarding contractors would be informed by the outcome of the voluntary redundancy process; and

(b) if further redundancies were required, Peabody would seek to distinguish between sustaining work, specialist skills and finite projects - meaning that we would consider which projects would be finishing by a set time and which ones may be ongoing. 'Sustaining work' was work which was required on an ongoing basis but did not otherwise fall within a specialist skillset."1F[2]

Ms O'Brien stated that Mentser are specialist contactors which was why they had not been removed from site.

[21] The Respondent's submissions outlined why Mentser were required to continue to provide services to the Mine. The Respondent contended that:

"(a) the work being performed is belt cleaning and belt improvement;

(b) the contract with Mentser had originally been negotiated and finalised in November 2019, but ultimately, they did not commence on site until approximately April 2020;

(c) Mentser replaced another contractor at the Mine (Nexus) when they began at the Mine;

d) Mentser's employees have received specialist in-house training to perform the work;

(e) the work was not being performed by Peabody employees, nor does Peabody offer the relevant training in order to perform this work; and

(f) the number of Mentser workers on-site is reducing (from 10 down to 8) given the change to operations at the Mine."

[22] The Respondent contended that section 389(2) of the Act does not oblige the Respondent to structure its enterprise to create roles for the redundant employees and that it would not have been reasonable to remove all contractors, in order to redeploy the Applicants.

[23] The Applicants did not make any submissions with respect to section 389(1)(a) of the Act.

[24] The Applicants contended that section 389(1)(b) of the Act obliged the Respondent to comply with Clause 34 and 36 of the Agreement as well as the model consultation clause. The Applicants pointed to two specific obligations that arose out of the consultation clauses contained in the Agreement. Firstly, the Applicants claimed that during the consultation process, the Respondent is required to provide them with relevant information. Secondly, the Applicants claimed that during the consultation process the Respondent is required to consider proposals advanced by its employees.

[25] The Applicants accepted that a number of meetings were held between the employees, the CFMMEU and the Respondent. However, the Applicants contended that this did not mean that the Respondent had complied with their consultation obligations.

[26] The Applicants claimed that the Respondent failed to provide relevant information concerning the skills and competencies of the contactors working at the Mine. The Applicants contended that a comparable analysis of the respective skills and competencies of the contactors and the Applicants was information that would have aided consultation. The CFMMEU argued that the Respondent should have averted the effects of the restructure by removing contractors from the Mine.

[27] The Applicants contended that the consultation process was terminated whilst two issues remained unresolved. Firstly, the redeployment of some of the Applicants into the roles performed by the Mentser contactors. Secondly, the Applicants' concern that some of the Applicants may have been scored unfairly had not been addressed by the Respondent.

[28] The Applicants contended that section 389(2) of the Act requires the Commission to determine whether, on the balance of probabilities and at the time of dismissal, it would have been reasonable in all of the circumstances for the Respondent to redeploy the Applicants into another role in their enterprise or an associated entity.

[29] The Applicants submitted that, in all the circumstances, it would have been reasonable for the Applicants to be redeployed by the Respondent.

[30] The Applicants contended that removing contractors would result in redeployment opportunities becoming available and that the Respondent's staffing preference was just one factor that should be considered when determining whether redeployment was appropriate in the circumstances.

[31] In response to the Applicants' contention that the Respondent failed to provide relevant information concerning the skills and competencies of the contractors working at the Mine, the Respondent made two claims. Firstly, the Respondent claimed that they were under no obligation to provide the information as Clause 34.4 of the Agreement and subclause 6 of the Model Consultation Clause state that the Respondent does not need to provide the Applicants confidential information. Further, the Respondent stated that had they provided the information they would have breached of the Privacy Act 1988 (Cth). Secondly, the Respondent contended that the Applicants were not deprived of a meaningful opportunity to consult as a result of the information not being provided. The Respondent considered the Applicants' suggestion to remove the contractors from the mine and decided against this course of action.

[32] In relation to the allegation that the consultation process had not been completed, the Respondent claimed that it had reviewed a number of the Applicants' redundancy scores but ultimately that review did not change the redundancy outcome. Further, the Respondent claimed that selection of an individual for redundancy is not a matter on which the company must consult.

[33] With respect to whether it was reasonable in the circumstance for the Respondent to redeploy the Applicants into another position in their enterprise, the Respondent asserted the following:

• The Respondent was under no obligation to redeploy employees in roles filled by the contractors.

• The Respondent pointed out that the Applicants had not explained how replacing the contractors would have been reasonable in the circumstances.

• The Respondent contended that in all the circumstances it would not be reasonable to replace the remaining contractors. The Respondent stated that the work undertaken by the remaining contractors was not normally undertaken by employees of the Respondent and that the Applicants would require significant training to perform the work.

[34] I have taken into account all of the submissions and evidence that have been provided by the parties. The fact that an issue has not been identified in this decision does not mean that the issue has not been taken into account or considered.

[35] I agree with Mr Williams that the primary issue for determination is whether the Respondent had an obligation to redeploy the Applicants into roles that were being performed by contractors.

[36] Vice President Hatcher succinctly encapsulated the relevant consideration in relation to section 389(2) of the Act. In Pettet and Ors v Mt Arthur Coal Pty Ltd [2015] FWC 2851, where he held:

"[6] The principles concerning the interpretation and application of s.389(2) have been stated in two Full Bench decisions, Ulan Coal Mines Ltd v Honeysett and Technical and Further Education Commission t/a TAFE NSW v Pykett. Those principles were summarised in Huang v Forgacs Engineering Pty Limited as follows:

"(1) The exclusion in s.389(2) poses a hypothetical question which must be answered by reference to all of the relevant circumstances.

(2) The question is concerned with circumstances which pertained at the time of the dismissal.

(3) In order to conclude that it would have been reasonable to redeploy the dismissed person, the Commission must find, on the balance of probabilities, that there was a job or a position or other work within the employer's enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy the dismissed employee.

(4) A number of matters are capable of being relevant in answering the question, including the nature of any available position, the qualifications required to perform the job, the employee's skills, qualifications and experience, the location of the job and the remuneration which it offered. ""

[37] Based on my knowledge from my recent decision in Construction, Forestry, Maritime, Mining and Energy Union v Peabody CHPP Pty Ltd [2020] FWC 6287, which involved the same or similar industrial parties and advocates/representatives, I am aware that the Respondent is not philosophically opposed to "insource" work by removing contractors from the Mine. The "insourcing" of the CHPP shows that the current management of the Respondent are open to the concept of employees taking over the roles, duties and responsibilities of contractors. I note that the CHPP was operated by contractors for at least the last 20 years. I have taken this into account.

[38] The majority of the Applicant's evidence was focused on the work being performed by Mentser. Mentser commenced a 5-year contract at the Mine in April 2020 for the maintenance of the conveyor belts at the Mine.

[39] The Union sought information from the Respondent through the consultation process in relation to the skills and competencies of the Mentser employees. The Respondent refused to provide this information on the grounds that the information was confidential and private. In response to an Order to Produce, issued by the Commission, the Respondent provided a redacted copy of the Mentser Training Matrix (Exhibit 3) and the Mentser Conveyer Specialisation Training Matrix (Exhibit 4).

[40] Exhibit 3 provides the training information for 11 individuals. I note that Mentser now only have 8 employees working at the Mine. I also note that 6 of the 11 employees completed certificate 3 training courses, however, I am unaware of the relevance or requirement of this accreditation to perform the conveyor belt functions at the Mine. Ms O'Brien was unable to provide any clarification on these issues. I have taken this into account.

[41] Exhibit 4 provides information in relation to 13 employees who have undertaken up to 28 modules of an "in-house" training course. I am unaware if these training modules are nationally accredited or simply serve a "micky mouse", function specific competency and are non-portable. Unfortunately, Ms O'Brien was unable to provide any clarification on this issue either. I have taken this into account.

[42] Ms O'Brien agreed that, for at least 26 of the competencies in the Mentser Conveyer Specialisation Training, a certificate 3 qualification is not necessary. Upon reflection, I also doubt that a trade qualification (or a Certificate 3 qualification) is necessary for the Inspection or Safety Audit competencies either. I note that the statutory belt inspections at the Mine were previously undertaken by a Deputy until April 2020, when Mentser took over the role. I have taken this into account.

[43] Ms O'Brien acknowledged that the Applicants would be able to perform the work being undertaken by both Mentser and Nexus with the provision of additional training.

[44] However, when comparing the skills of the employees to the specialist skills of the Mentser employees, Ms O'Brien was emphatic that the Mine employees did not have the necessary skills to perform the specialist role.

[45] Relevantly, in response to a series of questions from me, Ms O'Brien testified as follows.

"So you adopted the Menster competencies for the conveyor belt to Helensburgh?---Not the entire job, it's the day-to-day task list involved knowledge on all of these things to be able to complete the work.

Okay. So where's the list of Peabody competencies for the Metropolitan Mine, in relation to the belt technician?---We don't have them. From my understanding, there's a lot of the belt cleaning work has been contracted out for quite some time, but there would be some trades - would be trades carrying out a lot of the other work, the maintenance work and any improvement work, but it wasn't actually getting done.

But don't you have work method statements for each task within the mine?---We do. We have procedures for most of our work, yes.

And Menster would be required to work in accordance with those procedures, wouldn't they?---That's correct.

So you must have competencies then for each of those procedures?---Not necessarily.

I find that hard to believe, in a highly regulated environment, such as yours, that you wouldn't have a work method statement for each task that is undertaken within the mine, which would include the necessary competencies and qualifications required for people to perform that work?---Yes, but not for every single job. So not very job requires a competency.

All right. In relation to the Menster training, can you tell me, it's in house training and they're in house competencies, or in house identified competencies, can you tell me, is the training the Menster provide, through its conveyer specialist accreditation, is it nationally accredited and portable?---I can't - I can't answer that question.

So in the training industry, in house training is sometimes referred to as Mickey Mouse training, is this Mickey Mouse training?---I don't believe so, but I'd have to confirm that."2F[3]

[46] In response to questions from Mr Walkaden, Ms O' Brien testified that of the 4 contractors who were recently employed to cover long term temporary vacancies of employees, only 1 of the employees was off work at the time of the redundancy process. I have taken this into account.

[47] Mr Davey is the District Secretary of the South West District Branch of the Mining and Energy Division of the CFMMEU. Mr Davey worked at the Mine for the 17 years prior to his election as a union official. Mr Davey has appeared before me on dozens of occasions over the last 8 years as a witness, advocate or workplace representative in both hearings and conferences. Mr Davey was the Lodge President of the CFMMEU whilst working at the Mine. I find that Mr Davey is a witness of credit based on his honesty and lengthy experience working "on the tools" at the Mine.

[48] Mr Davey testified that the issue of contractors remaining on site was a "hot topic" of discussion at every meeting throughout the consultation process.

[49] Relevantly, Mr Davey claimed:

"I refer to paragraph 24 of the O'Brien Statement. I don't agree that secondary support work, which had prior to the redundancies been done by contractors, is now being done by the permanent employees. It is my understanding that the Nexus contractors continue to install secondary support with mega bolts in the Outbye, the Tail Gate or Main Gate areas of the Mine. This is work or a job that the permanent employees that were made redundant could perform."3F[4]

[50] Under cross examination, Mr Davey did not agree with Ms O'Brien that the work performed by Mentser employees was specialised work that could not be performed by the permanent workforce.

"You've heard the evidence from Ms O'Brien this morning, by reference to the specialist training matrix, they would have had to have gained, some how, that specialist training, wouldn't they, the conveyor specialist training?---That's the hard part because a lot of us people have already done that particular work, standing side by side with the fitter. A lot of the experienced guys know how to track belts, thread through the loop take up. There's a job procedure with every job. If you've got a supervisor with you, and a competent person, with the years of experience that we've had, easily we could have done it. We do belt extensions into panel each time, which fulfils them roles, and we do them as per the matrix that's laid out for us to complete them particular job tasks."4F[5]

[51] In response to questions from Mr Williams, Mr Davey explained the process in which, traditionally permanent employees have been engaged at the Mine, thereby substantiating his assertion that the permanent workforce could have performed the work being undertaken by the contractors.

"Whether you had the detail of their particular skills and competencies or not, you were certainly well-placed to have a discussion with Peabody as to what contractors should and shouldn't be removed from the mine, weren't you, because you had many discussions of that kind?---Yes.

Every meeting, every single meeting?---Yes, every meeting. Every meeting I asked that permanent employees stay and that the contractors be removed.

That's right. And you didn't need to have recourse to the individual's skills and competencies to make your views about that known, did you?---No, I didn't, Mr Williams, because what happens is, is you get a job where the contractor is a cleanskin or a very inexperienced miner, you start with the basics of the job, off-siting, shovel and belts. Then, those that are lucky enough, back in the day, it's all changed now, obviously, because they don't put permanent employees on, but once you got them skillsets you were employed as a permanent coal miner at that particular pit. So the contractor paid the money while you were getting trained up, then when you become fully trained you got a job at that pit and then you took over that role. So I know what they go through is what exactly every single one of us went through, at Helensburgh, prior to getting full-time jobs.

No, that wasn't quite the point, Mr Davey. Perhaps I didn't put it very well. Of course they have to have the right skills and competencies, but the relevant issue for your consultation was what work they were doing, wasn't it, and whether the Peabody workers could do it?---We knew what work they were doing and we knew that the Peabody employees could do it, because that's where the Peabody employees originated from, working for that particular contractor."5F[6]

[52] Mr Davey claimed that, in his view, the majority of the work being performed by both Nexus and Mentser is entry level or basic coal mining work which was well within the scope and competency of the permanent employees.

[53] Mr Chris Murdoch provided a witness statement (Exhibit 5). Mr Murdoch was not cross examined on its contents. Mr Murdoch was an Operator at the Mine for 6 years prior to being made redundant.

[54] Mr Murdoch provided detailed evidence supporting his assertions that the work being performed by Nexus and Mentser was not specialised work and is work which has been undertaken by permanent employees in the past.

"10. I refer to paragraph 56 of the O'Brien Statement. I disagree that the belt cleaning and belt improvement work perfomed by the Menster employees is specialist work. The belt cleaning work is essentially a general labouring/cleaning role. Invariably, this task does not require the operation of any machinery or equipment. The machinery or equipment that may occasionally required would be either a bobcat or an Eimco (loader). Primarily, the worker uses a shovel to pick up the coal that has fallen off the belt and put it back onto the belt. The belt improvement work is essentily work done by a fitter, such as adjusting the scrapers, adjustment of tracking, replacing the rollers, belt installation and belt maintenance. An Operator/s will usually assist the fitter in performing these tasks. All of this work had been done by permanent Peabody employees until it was contracted out, which was in about mid 2015. Even after contractors started to perform the belt cleaning and belt improvement work (from about mid 2015), permanent Peabody employees, including myself, continued to perform belt cleaning and belt improvement work on an as needs basis. Other than vulcanising the belts, I am unaware of any specific training or skills that are required to perform this work.

16. I refer to paragraph 75 of the O'Brien Statement. I disagree that redeployment into the work performed by the contractors would have resulted in the creation of roles which are not otherwise performed by permanent employees. I also disagree that redeployment into such roles would have required significant training or upskilling. Some of the tasks that remain performed by contractors at the Mine - belt cleaning, secondary support, installing the gas pipes, erecting stoppings, operating the LHD (basicially all the excavation, support, ventiliation, installation and civil work performed by contractors will require at least 1 operator in the LHD)- is basic black coal work. These tasks tend to be performed by new comers to the coal industry. As for training, training is mostly acquired on the job. There is no class room based learning at the Mine. All of the tasks that are performed by contractors who are engaged and paid as an Operator could be done by the permanent workforce with either no or very minimal trainining required. Many of the tasks that are being done by contractors from either Nexus or Menster is work that the mineworkers who were made redundant were performimg as contractors themselves prior to commencing permanent employment at the Mine."6F[7]

[55] I note the decision of Spencer C in Kestrel Coal. This decision can be distinguished on the basis that the contract only had a few months to operate and that it lacked common sense to disturbed that arrangement for such a short period of time. In this case the contract with Mentser still has more than four years to run.

[56] For the Respondent to be able to sustain its jurisdictional objection to the Applications, it must be able to satisfy that it has complied with the relevant provisions of the Agreement and the Act in relation to consultation and genuine redundancy.

[57] I am satisfied and find that the Respondent has consulted with the Applicant and the CFMMEU. A total of 8 meetings were conducted between the parties. Whilst there is some disagreement as to whether agreement was reached in relation to a number of issues, it has been widely held that consultation does not require agreement between the parties in order to satisfy the obligation. The outstanding issue of the promised review of Mr Murdoch did not occur, but this issue could have been resolved by a telephone call or an exchange of emails.

[58] I am not satisfied that the work being performed by Nexus or Mentser is specialist work. The unchallenged evidence of Mr Murdoch is that the work being performed by the contractors falls within the skills and competencies of the permanent workforce on the basis that they either still perform the work, previously performed the work for the Respondent or previously performed the work whilst working for a contractor performing this work. Mr Davey testified that there were now employees of the Respondent who could "volcanise the belt," having previously worked for a contractor who undertook that task. As a result, the skills required to perform this specialised work were present within the skills and competencies of the permanent staff. I also accept the unchallenged evidence of Mr Davey that some of the work being performed by the Nexus employees was previously undertaken by employees of the Respondent and was basic black coal work.

[59] I have adopted the test utilised by Ms O'Brien (see paragraph [20]). As a result, I find that the work performed by Mentser and Nexus to not be specialist work. The work is ongoing and sustaining. As a result, it would have been reasonable in all of the circumstances to redeploy the dismissed permanent employees into these roles. I find that the permanent employees have the necessary skills, qualifications and experience to undertake the functions being performed by these contractors.

[60] I do not accept the submission of the Respondent that the mechanical fitters who took voluntary redundancy should not form part of my consideration. Voluntary redundancy is not an employment right. If there was work for the fitters to perform then, by definition, their roles were not redundant in accordance with section 389(1)(a) of the Act.

[61] Whilst the Respondent appears blissfully unaware of the actual nationally accredited qualifications which are required to perform the full range of functions on the conveyor belts, the Respondent is equally unaware of the formal qualifications of the remaining Mentser employees. Providing evidence for 13 and 11 Mentser employees when only 8 are employed identifies a flawed evaluation process, especially when the General Manager of the Mine testified that she relied on Exhibit 4 (which contains the redacted names of the 13 Mentser employees) in making her decision not to redeploy any of the permanent employees to undertake this work.

[62] I do not accept the submission that the Respondent would have been required to employ additional supervisors to supervise the conveyer belt work. It is plainly obvious that the Mentser employees are self-supervised, working in groups of 2. There is no reason why the permanent employees could not have followed the same supervision pattern or be supervised by an existing Deputy.

[63] I am satisfied and find that it would have been reasonable for the Respondent to insource some, if not all, of the work that is being undertaken by both Nexus and Mentser and redeploy its dismissed employee into these roles. As a result, the Applicants' termination does not satisfy section 389(2)(a) of the Act.

[64] It is also appropriate to make comment in relation to an additional issue, which had no bearing on the determination of the matter. The selection matrix used by the Respondent in identifying the redundant employees is a matter for the industrial parties, however, it is unique for a matrix to allocate reliability or "attendance at work" a value of 40% where issues such as safety, technical competence and teamwork only received 20%. Such a scenario raises a concern in relation to the focus and priorities of the Respondent if attendance is as importance as safety and technical competence combined.

[65] For the reasons stated above, apart from paragraph [64], the jurisdictional objection is dismissed.

[66] A Directions Conference will be convened in the immediate future to program the substantive application.

[67] I so Order.

[1] See Stickley and others v Kestrel Coal Pty Ltd [2015] FWCFB 4760

[2] Witness statement of Raelene O'Brien, signed 7 September 2020 [12].

[3] Transcript of Proceeding, 20 October 2020 [427]-[434].

[4] Witness statement of Andrew Davey signed 28 September 2020 [11].

[5] Transcript of Proceeding, 20 October 2020 [551].

[6] Transcript of Proceeding, 20 October 2020 [570] - [576].

[7] Witness statement of Christopher Murdoch signed 28 September 2020 [10] - [16].

Printed by authority of the Commonwealth Government Printer