s.236 - Majority support determination

The Association of Professional Engineers, Scientists and Managers, Australia

Application for a majority support determination - Applicant's standing as bargaining representative - whether proposed group within the coal mining industry - whether group fairly chosen - whether majority want to bargain - Determination made

[1] The Association of Professional Engineers, Scientists and Managers, Australia (APESMA) is an organisation registered under the Fair Work (Registered Organisations) Act 2009 (RO Act) and purports to be a bargaining representative of employees of BHP Coal Pty Ltd (BHP) at Hay Point Coal Terminal (HPCT). APESMA has applied to the Fair Work Commission pursuant to s.236 of the Fair Work Act 2009 for a determination that a majority of employees who will be covered by a proposed enterprise agreement want to bargain with BHP.

[2] The proposed agreement seeks to cover employees of BHP at Hay Point Coal Terminal who directly report to Superintendents in the Production Port Department and the Maintenance Department (the Proposed Group).

[3] BHP oppose the application and assert that the Commission cannot be satisfied that:

a) APESMA has standing as a bargaining representative.

b) The Proposed Group has been fairly chosen.

c) The majority of employees want to bargain; or

d) That it is reasonable in all circumstances to make the relevant determination.

[4] Having considered each of the matters set out in ss 237(1) and (2), I am satisfied that it is appropriate in all of the circumstances to make the determination as sought by APESMA. My reasons follow.

[5] On 27 February 2025, I issued Directions for the parties to file further material to assist in my consideration of the application, including any objections. In particular, APESMA were to provide further details of those who had indicated their support for bargaining, and BHP were to provide a list of all employees they understood to be within the proposed group. This material was provided to the Commission only, so as to ensure confidentiality. BHP provided their material on 5 March 2025, noting they were aware that a number of employees (5) had withdrawn their support since initially signing the petition.

[6] On 6 March 2025, APESMA provided the material requested, and subsequently, on 12 March 2025, provided further clarification of their material, confirming that the list they previously provided to chambers did not include the 5 employees who had withdrawn their support, and additionally noting that 2 of these employees had since reconfirmed their support and an additional employee had signed the petition. APESMA provided an updated list that reflected these changes.

[7] On 13 March 2025, BHP confirmed their objection to the application on the following basis:

• The proposed coverage of the agreement remains uncertain and is not 'fairly chosen'.
• The petition is not a reliable indicator of support.
• The Commission should not be satisfied there is 'majority support' for bargaining; and
• It is not clear whether APESMA is entitled to represent the relevant employees.

[8] BHP further noted their belief that at least 6 employees had withdrawn their support for bargaining, however they provided no direct evidence to support this contention either at the time or during the hearing.

[9] The Commission undertook an analysis of all of the material provided by the parties and concluded that there were 40 employees within the scope of the proposed agreement and of those, 25 were supportive of bargaining.

[10] On 14 March 2025, via email, I expressed my preliminary view that a majority of employees appeared to be supportive of bargaining.

[11] On 19 March 2025, APESMA responded to BHP's objections.

[12] A case management conference was held 21 March 2025, and I subsequently issued directions for the filing of further material. An additional case management conference was listed on 16 May 2025; however, the conference did not go ahead as a result of the parties indicating a preference to move straight to hearing.

[13] The hearing was conducted on 31 July 2025 at the Fair Work Commission in Brisbane. Mr Josh Martin of Counsel represented APESMA, and Ms Catherine Pase of Counsel represented BHP. Ms Lauren Jessup-Little, Legal and Industrial officer of the Collieries Staff Division of APESMA and Mr Troy Moore, Shutdown/Outage Coordinator at HPTC and Workplace Delegate for APESMA, gave evidence in support of APESMA's application. Mr Adrian Catt, Director - Managers and Professionals Division of APESMA also provided a witness statement in support of APESMA's application but was not required to be cross-examined. Mr Daniel James Grech, Port Maintenance Manager of HPCT gave evidence on behalf of BHP.

• [14] BHP raised an objection to paragraphs 24 and 25 of Ms Jessup-Little's reply witness statement on the grounds that these statements were hearsay evidence, based on what she had been told by Mr Moore.[1] Noting exceptions to the hearsay rules, APESMA argued, and I agreed, that it would have been appropriate for any questions regarding the credibility of these statements to have been put to Mr Moore during cross examination of his evidence, which had just concluded.[2] Ms Pase did not take the opportunity to do so. Ms Jessup-Littles reply statement was admitted, noting that it would be afforded weight appropriate to the nature of the evidence, taking into account all the circumstances.

• [15] BHP further noted that APESMA had not adduced direct evidence from Mr Muddle who had managed the petition process and is no longer an employee of APESMA. BHP contend that rather than direct evidence, APESMA seek to rely on vague hearsay evidence about general sentiment of support for bargaining on site.[3] I note the file notes and meeting minutes of many of the meetings in which these matters were discussed were provided as a part of Ms Jessup-Littles evidence, and Ms Jessup-Little, was available to be cross examined on the legitimacy of these documents, as was Mr Moore, who was in attendance at many of the meetings referred to in Ms Jessup-Little's evidence. All of the evidence provided has been afforded appropriate weight, taking into account all the circumstances.

Timeline leading to the filing of the application

• [16] It is Ms Jessup-Little's evidence that on 29 May 2024 Mr Alexander Muddle, APESMA Organiser, held a meeting with APESMA members employed at HPCT.[4] The meeting was held at the Shamrock Hotel in Mackay.[5] The minutes of the meeting were attached to Ms Jessup-little's witness statement and show that those present discussed a range of workplace issues including bargaining with BHP.[6] Ms Jessup-little further says that on 10 and 31 October Mr Muddle held further online meetings with HPCT members, again discussing the steps involved in bargaining as well as matters that might form a log of claims. On 14 November 2024, Mr Muddle held an in-person meeting of Members at Rydges Mackay. Mr Moore attended this meeting. It is Mr Moore's evidence that Mr Muddle spoke to the 20 employees present about bargaining and explained that he had prepared a petition for those supportive of bargaining to sign. The petition stated:

"We, the undersigned employees of BHP Coal Pty Ltd wish to bargain for an

enterprise agreement under the Fair Work Act 2009 (Cth);

In signing this majority support petition, we the undersigned understand that this

document may be provided to the Fair Work Commission on a confidential basis for the

purposes of supporting a majority support application".

[17] Additionally, HPCT members in attendance at the meeting on 14 November 2024, carried the following motion:

"We request that Management representing Hay Point Coal Terminal respect our

right to collectively bargain, and do not have conversations with individuals

designed to undermine the group decision to bargain.

Should any of those management not respect our right to collectively bargain by

attempting to influence individuals, then we, the Production and Maintenance Staff

of Hay Point Coal Terminal commit to each other that we will not individually

respond to management and will immediately call a meeting of Production and

Maintenance Staff as part of the bargaining to discuss.

We request that our union provide a copy of this resolution to our respective

[18] It is Mr Moore's evidence that the majority of signatures on the petition were collected at this time. Mr Moore's evidence aligns with the meeting agenda and minutes attached to the witness statement of Ms Jessup-Little.

[19] The evidence suggests that following the 14 November 2024 meeting, Mr Muddle continued to meet with employees who had not been able to attend the meeting and obtained additional signatures on the petition.

• [20] On 5 December 2024, APESMA formally wrote to BHP. The correspondence was titled "Request to commence bargaining for an enterprise agreement to be made and approved pursuant to part 2-4 of the Fair Work Act (Cth) 2009."[7]

• APESMA is an organisation registered in accordance with the Act
• persons employed by BMA at HPCT in supervisory, administrative and technical classifications are eligible to be members of APESMA through its Collieries staff division.
• a majority of these persons have expressed a desire to commence bargaining.

[22] APESMA advised the proposed agreement, sought to cover:

"employees employed by BMA at HPCT who directly report to Superintendents in the Production Port and Maintenance Departments ("the Group"). The Group does not include the superintendents. Specifically, the Group are employees who directly report to the following positions which are the superintendents in the Production and Maintenance departments:

1. Superintendent Production Excavation;
2. Superintendent Production Planning;
3. Superintendent Port Maintenance;
4. Superintendent Reliability;
5. Superintendent Maintenance Services'

• [23] BHP responded to APESMA on 12 December 2024 advising that "it had not yet formed a view on whether bargaining should commence and does not agree to bargaining at this time". Noting the "scale and complexity" of the organisation, BHP sought additional information to clarify the specific scope of the proposed agreement including the exact roles and positions to be covered and the number of employees in the proposed bargaining unit. [9]

[24] On 20 December 2024, APESMA responded to BHP confirming the proposed scope included all employees below superintendent level in the Production Port and Maintenance Departments. Attached to the correspondence was a copy of the HPCT organisational chart that had been marked with a red box to highlight the exact scope. APESMA also clarified that contingent workers (marked in blue on the attached structure) were excluded. Based on this proposed scope, APESMA confirmed their understanding that there were 46 employees in the proposed bargaining unit of which 27 had signed the petition, (58.7%). APESMA further indicated that should BHP not consent to bargaining by 13 January 2024, APESMA would commence proceedings for a majority support determination.

• [25] On 13 January 2024, BHP responded to APESMA. BHP acknowledged APESMA had provided an organisational chart indicating the employees to be covered and made no further comment as to the accuracy of this chart. BHP highlight that APESMA's correspondence "did not contain any response relating to APESMA's entitlement to represent the industrial interests of this group" and sought information to determine if the group had been fairly chosen.[10]

[26] Additionally, BHP noted there were a number of employees on secondment to the positions identified whose substantive roles are covered by the Hay Point Services Pty Ltd Enterprise Agreement 2023 and that it was not clear if these employees had been included in the assessment of support.

• [27] APESMA responded to BHP on 29 January 2025.[11] The response explains how the group was chosen. APESMA expressed their view that the group meets the fairly chosen test under the Act, confirming that the group had not been selected on any arbitrary or discriminatory basis, rather that the selection of the group reflects the way in which the Departments had been organised by BHP. APESMA advised BHP that the group includes "supervisors at the same level in departments at the same level" which, they say, is common and consistent with the notion of fair choice of group at case law. APESMA again confirmed that it is "entitled under its Rules to coverage of staff in the coal mining industry as well as any person that is employed or usually employed in a managerial position in any industry, including supervisory workers".

• [28] Additionally, APESMA confirmed the proposed Agreement was not intended to cover employees on secondment and that only employees who are employed in their roles permanently had sought to commence bargaining (and had signed the petition to that effect).[12]

• [29] On 5 February 2025, BHP wrote to APESMA. In this correspondence, BHP sought further clarification of the scope and requested a copy of the petition put to employees so that they could "properly understand what some employees are said to have indicated their support for". [13] BHP also note that "given these concerns, we are unable to bargain at this time".

• [30] On 11 February 2025, APESMA wrote again to BHP, noting that "the scope has not changed, and remains as expressed on 5 December 2024". APESMA again clarified that the scope does not include contractors or seconded employees. APESMA provided the wording of the petition as follows:[14]

"We, the undersigned employees of BHP COAL PTY LTD wish to bargain for an enterprise agreement under the Fair Work Act 2009 (Cth).

In signing this majority support petition, we the undersigned understand that this document may be provided to the Fair Work Commission on a confidential basis for the purposes of supporting a majority support application."

[31] On 14 February 2025, BHP wrote to APESMA to indicate that despite APESMA's responses, they continued to hold a number of concerns, stating:

"It remains unclear to us which employees you are proposing to be covered by an enterprise agreement, nor are we satisfied that a majority of our employees want to bargain for an enterprise agreement. Despite your assertion regarding communications said to have occurred on 20 February 2024 (which we do not have a record of), to date you have not provided BMA with a copy of the petition you rely on, despite BMA requesting it. Further, the extract contained in your letter of 11 February 2025 does not provide us with any basis for assessing whether employees understood the nature or effect of what they were being asked to support.

Given our concerns, we are unable to agree to bargain at this time. We respect your right to apply to the Fair Work Commission for a majority support determination."[15]

Given our concerns, we are unable to agree to bargain at this time. We respect your right to apply to the Fair Work Commission for a majority support determination."[16]

[32] On 24 February 2025, BHP distributed a frequently asked questions (FAQ) document to all employees within the proposed group. The document suggested that "it is unclear to the Company exactly who APESMA has requested to bargain on behalf of, however, we understand they are seeking an EA that is proposed to cover employees reporting to the following Leadership positions:

[33] The FAQ' provided information about bargaining and the Majority Support Determination process. Relevantly, it included the following:

"What do I do if I expressed an interest in bargaining by signing APESMA's petition, but I no longer want to support the introduction of an EA?

Please speak to your Union delegate and advise them of this. Alternatively, you can speak to your Department Manager". [18]

[34] On 25 February 2025, APESMA filed an application for a Majority Support Determination with the Commission. The application suggested they understood there to be 40 employees covered by the proposed agreement and that of those, 27 employees had signed a petition in support of bargaining. Accordingly, they understood that approximately 67% of employees were in support of bargaining.

[35] It is Ms Jessup-Little's evidence that she had been advised by Mr Muddle that, between 4 and 5 March 2025, he had received emails from five employees stating they no longer supported bargaining. The evidence suggests that accounting for these 5 retractions, there remained 22 employees supportive of bargaining at that time.

• [36] On 5 March 2025, APESMA distributed a response to the FAQ document. The document notes that the FAQ's distributed by BHP may have "created some confusion and concerns amongst members, and we have received a number of questions regarding the information provided by the company".[19]

[37] APESMA's FAQ document provided responses to, and further clarification of each of the questions raised in BHP's FAQ document.

[38] In response to BHP's suggestion that the proposed scope remained unclear, APESMA provided the following:

"The petition supported by members is that the EA will cover all staff who directly report the the above six superintendents. It is further noted that "We have repeatedly clarified this with the company and our application to the FWC is based on this group."[20]

[39] In response to BHP's suggestion to contact their union delegate if they wished to withdraw support for bargaining, APESMA advised that members could also contact the Unions Organiser and Legal Officer. The contact details for Mr Muddle and Ms Jessup-Little were provided for this purpose.

• [40] It was Ms Jessup-Little's evidence that between 5 and 11 March, she attempted to contact the members who had withdrawn their support - she was able to speak to four of the five and says her conversations with these employees focussed mainly on their concerns that they would be targeted for supporting bargaining, and several discussions between employees and superintendents to that effect.[21] On 10 March 2025 Ms Jessup-Little held an online meeting with HPCT Members. Mr Greg Yates, Senior Organiser with APESMA attended the meeting and discussed a range of questions raised by employees about the process. [22]

• [41] It was Ms Jessup-Little's evidence that after the application had been filed, one additional employee signed the petition and two of the five members who had withdrawn their support indicated by email that they were now in support of bargaining. The evidence suggests that from 10 March 2025 there were 25 employees supportive of bargaining.[23]

• [42] BHP acknowledged these employees had opted back in, however, Mr Gretch recalled that some of the employees who had opted back in had told him they had done so because other team members weren't speaking to them at work (and they assumed this was because they had withdrawn support for the petition). [24]

• [43] Mr Gretch further suggested that two of the employees had advised him that one of APESMA's lawyers had 'guaranteed' they would be better off if they were part of the enterprise agreement and that they would not go 'backwards'.[25] Whilst Ms Jessup-Little acknowledged she spoke to the employees about the better off overall test, it was her evidence that "in my conversations with members, I did not indicate that that they were "guaranteed" to be better off". Ms Jessup-Little also noted that of the members who reversed their "withdrawal" none had raised with her any concerns that colleagues were not speaking to them. [26]

• [44] On 29 May 2025 another employee within the group indicated their support for bargaining. Taking this additional employee into account, at the time of the hearing, APESMA understood there to be 26 employees who were supportive of bargaining.[27]

[45] BHP Coal and Mitsubishi Development are equal owners in a joint venture, BHP Mitsubishi Alliance (BMA). BMA extracts, transports, blends and exports metallurgical

black coal from five mines in Queensland's Bowen Basin: Goonyella Riverside, Broadmeadow, Peak Downs, Saraji and Caval Ridge.[28]

• [46] All coal produced by BMA at its mines in the Bowen Basin is processed through the HPCT which is located at the Port of Hay Point, about 38km south of Mackay, Queensland. HPCT is owned and operated by BMA. [29]

• [47] Mr Moore described the HPCT as a "pit to port facility".[30] HPCT is connected to the five BMA mines by a rail network. Coal is loaded onto trains at the mine then transported to HPCT. Coal arriving a HPCT is either loaded directly from the trains onto ships, or it is loaded by "Stacker Reclaimers" onto stockpiles in the yard to be blended as required to meet the blend requirements of particular orders. [31]

• [48] When blended coal is required, the Stacker Reclaimers reclaim coal from different stockpiles onto a conveyor which transports it into a hopper where the different coals are blended. [32]

• [49] The blended coal is then loaded from the hoppers onto a conveyor belt which transports it along the jetty to the ship loader which loads the coal into ships moored at the Hay Point deep water wharf.[33] Mr Martin described the key processes undertaken at HPCT as the blending of coal and the loading of coal from the rail line onto the ships.[34] APESMA characterise this work as being within the coal mining industry.[35] BHP on the other hand, are of the view that the work of HPCT is not part of the coal mining industry, rather, it is concerned with shipping and export.[36] Notwithstanding the dispute with respect to the industry in which the work occurs, there does not appear to be any contest between the parties as to the work that is undertaken at HPCT.

[50] Similarly, there does not appear to be any material dispute with respect to the way in which this work is organised. There are four main departments at HPCT: The Production Department, the Maintenance Department, the Engineering Department and the Rail Department - the two the subject of the Application are the Production Port Department and the Maintenance Department.

• [51] The Production Port Department comprises the Production Port Execution and the Production[37] Port Planning organisational units. The Production Port Department is responsible for the operations of HPCT including:

(g) ensuring the safety of all personnel at HPCT; and

(h) short-term and long-term scheduling of some of the above activities.

[52] The Maintenance Department comprises the Port Maintenance, Shutdown Execution, Reliability and Maintenance Services units.

[53] The Maintenance Department is responsible for:

(a) maintaining most equipment on-site at the HPCT;

(b) the planning and scheduling of maintenance works;

(d) all other maintenance activities falling outside civil maintenance; and

(e) ensuring safety of personnel through both maintaining equipment and in the safe

[54] Each organisational unit within both Departments is headed up by a Superintendent. Within these Departments BHP employ a range of Supervisors, Coordinators, and other specialists. These roles are all at the same level within the organisational structure and report directly to the relevant Superintendent. These roles make up the proposed group for the purpose of this application.

• [55] The employees in the proposed group are commonly referred to as "Staff". The term "Staff" has a specific meaning within the black coal mining industry and is commonly used to differentiate between employees at different levels, or as Ms Pase suggested, to identify "non EA or non-operational" employees.[38]

[56] Mr Moore's description of each Department was broadly consistent with Mr Gretch's evidence, and neither party sought to dispute the evidence of the other to this extent. BHP did, however, dispute APESMA's contentions regarding the work being performed by some employees within the proposed group as relevant to APESMA's Managers and Supervisor's Industry Rule. I have more to say on this later in this decision.

[57] Pursuant to s. 237 of the Act, a bargaining representative of an employee who will be covered by the proposed agreement may apply for a majority support determination.

[58] Section 237 of the Act provides that the Commission must make a majority support determination if satisfied that:

a) a majority of employees in the Group want to bargain;

b) the employer has not yet agreed to bargain, or initiated bargaining

c) the Group was fairly chosen; and

d) it is reasonable in all the circumstances to make the determination

[59] There is no dispute that BHP has not yet agreed to bargain. The matters in issue therefore are:

• does APESMA have standing to make the application?
• is there majority support for the application?
• is the Proposed Group fairly chosen?
• is it Reasonable in the circumstances to make the relevant determination?

• [60] To have standing to bring this application, APESMA must be a bargaining representative of an employee who will be covered by the agreement. BHP accept APESMA need only be a bargaining representative of one of the employees in the Proposed Group to have the necessary standing to bring this application.[39]

[61] Pursuant to s176(3) APESMA cannot be a bargaining representative of an employee unless it is entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement. It is of this point that BHP say the Commission cannot be satisfied as a matter of fact.

[62] The phrase "entitled to represent the industrial interest of" is not defined by the Act. Whether an organisation is so entitled will necessarily depend on the eligibility rules of that organisation. The relevant task, therefore, is to determine whether APESMA's Rules allow it to represent the industrial interests of the workers in the Proposed Group.

[63] BHP note that the principles to be applied when construing the eligibility rules of a registered organisation have been summarised as follows by Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ in R v Williams; Ex parte Australian Building Construction

Employees' and Builders Labourers' Federation 2 (Williams) at 408 -

"The eligibility provisions in the rules of a registered organization of employees

serve the function of defining the general area or areas of industry or industrial

pursuit from which members can legitimately be drawn and with which the

organization can legitimately be concerned ... Since such eligibility provisions

constitute a reference point for courts, commissions, employers, employees

and other organizations in determining or ascertaining an organization's proper

coverage and field of operation, they must be construed objectively ... In so

construing them, however, it is permissible to pay regard to any common

understanding among people concerned with relevant industries and

particularly with industrial matters of the ordinary application of the words used

and to take account of evidence of that common understanding furnished by

the previous use of the words in the relevant organization's rules and in

statutory provisions, decisions, determinations, awards, reports and other

papers concerned with the relevant industry or industries ..." (citations omitted)

• [64] The parties agree that the following principles as summarised by the Full Bench in Australian Manufacturing Workers Union v ResMed Limited (ResMed)[40] are those to be applied when constraining the eligibility rules of a registered organisation:[41]

1. Union eligibility rules will be construed objectively.

1. The nature of union eligibility rules means that they should be construed liberally rather than narrowly or technically.

3. Regard may be had to common understandings among people concerned with

relevant industries, and particularly with industrial matters of the ordinary application of the words used, as well as to the previous use of the words in the relevant organisation's rules and in statutory provisions, decisions, determinations, awards, reports and other papers concerned with the relevant industry or industries.

1. Federal awards, including consent awards, made by Commonwealth industrial tribunals at a time when the legislative award-making power was founded upon the industrial disputes power in s 51(xxxv) of the Constitution, are important reference sources because a union may only be a party to an industrial dispute involving employees who are eligible to be its members.

1. If there is ambiguity about the meaning of words in eligibility rules, assistance may be sought in the terms of the industry rule (although the scope of the eligibility rule is not restricted by the scope of the industry rule).

1. Words in an eligibility rule should not be read in isolation such as to give the rule a wide and indefinite scope of operation that is unlikely to have been intended.

1. Terms used in union eligibility rules should not be interpreted statically in accordance with the meaning they bore at the time they were first introduced into the rules. Although such terms will have a fixed connotation, they bear a changing denotation. They may be interpreted in accordance with their appropriate current meaning, taking into account changing technologies and methods of work. This may mean that eligibility rules may cover industries or callings not known when the rules were originally drafted.

8. The words "in or in connection with" are words of expansion. However, for the requisite connection to be established, the work of employees in question must be referable or significant to the work of the second group of employees with whom there is said to be a connection. It is not enough that the work of relevant employees makes it possible for an employer to conduct a business involving the performance of work by the second group of employees. [references removed].

• [65] APESMA further submit the Full Court of the Federal Court in Construction, Forestry, Mining and Energy Union v CSBP Ltd,[42] also espoused the principle that in the construction of union rules, they should be looked at as a whole.[43]

[66] I have had regard to the above principles in my consideration of this matter.

[67] APESMA argues coverage and standing on two bases under the registered rules of APESMA (Rules) - Rule 3.12 (Collieries Industry Rule) and Rule 3.13 (Managers and Professionals Rule) which relevantly provide:

Without in any way limiting or being limited by Rule 3.1 to 3.11 or Rule 3.13 and 3.14, the following persons shall be eligible to be members of the Organisation:

3.12.1 Persons who are employed in the coal or shale mining industry at or about a coal or shale mine in a supervisory, professional, administrative, clerical or technical capacity up to and including the level of responsibility of under manager in charge.

3.12.2 Persons who are employed in the coal or shale mining industry in a supervisory, professional, administrative, clerical or technical capacity up to and including the level of responsibility of under manager in charge in a mine office or mine laboratory where that person's work is directly connected with the day to day operation of a coal or shale mine and the production of coal or shale whether or not such mine office or mine laboratory is situated on a coal mining lease.

The following persons shall be eligible for membership of the Organisation:

3.13.1 Any person temporarily, permanently or usually employed within the Commonwealth of Australia or in any place in which the Act applies on a full-time or part-time basis for hire or reward in or in connection with the industry specified in Rule 2B, provided that:

3.13.1.1 the applicant is employed or usually employed in a managerial position, including management positions as defined and described in the Australian Standard Classification of Occupations First Edition Major Groups 1 Managers and Administrators, but not including positions at the levels of supervisor or foremen, or

3.13.1.2 the applicant is employed or usually employed in a professional position which requires the exercise of professional skill, knowledge or expertise as typically exercised by Accountants, Financial Controllers, Administrators and Company Secretaries, Internal Auditors, Planning and Systems Analysts, Personnel Officers, Industrial Relations Officers, Occupational Health and Safety Officers and Public Relations Officers, or as defined in the Australian Standard Classification of Occupations First Edition Major Groups 2, or..."

[68] APESMA do not press Rule 3.12.1, accepting that the relevant employees do not work "at or about a coal mine". With respect to the Collieries Industry Rule, APESMA seek to rely on Rule 13.12.2. The parties agree that to be eligible for membership, pursuant to Rule 3.12.2 a person must be employed:

(b) in a supervisory, professional, administrative, clerical or technical capacity up to

and including the level of responsibility of under manager in charge; and

(c) in a mine office or mine laboratory where that person's work is directly

connected with the day-to-day operation of a coal or shale mine and the production of coal or shale, whether or not such mine office or mine laboratory is situated on a coal mining lease. (emphasis added)

• [69] BHP accepts that at least one or more of the employees in the Proposed Group meet the criterion in (b) above. [44] However, they argue that none of the employees in the Proposed Group are employed in the coal mining industry or employed in a mine office or mine laboratory. They argue further that none of those employees' work is directly connected with the day-to-day operation of a coal or shale mine and the production of coal or shale.

[70] The matters in dispute with respect to the Collieries Industry Rule therefore are:

(a) Whether the relevant employees are in the coal mining industry, and

(b) Whether they perform work in a mine office or laboratory and

(c) Whether such work is directly connected with the day-to-day operation of a coal or shale mine and the production of coal or shale.

Are the relevant employees in the coal mining industry?

[71] APESMA argue a key consideration when determining the industry in which the relevant employees work, is the work actually being performed. As noted, the work performed, and its relationship to BHP's broader operations is not the subject of any substantive dispute between the parties however APESMA additionally suggest the work performed is an integral part of BMA's mining operations and that the mining and exported coal produced in the Bowen Basin depend on two key processes that occur at the HPCT - the blending of coal and the loading of coal onto ships.

• [72] APESMA note that HPCT was constructed in 1969, two years before the first coal was loaded in 1971, specifically to service the Goonyella and Peak Downs mines.[45] As Mr Moore states, "The mining of coal by BHP Coal in the Bowen Basin would not be viable and therefore could not take place without the Hay Point Coal Terminal, or an equivalent facility."[46] It is submitted that the historical integration of HPTC with BMA's mining operations demonstrates that the terminal has always been understood as part of the coal mining industry. [47]

• [73] APESMA submit the work of the relevant employees is being performed in the coal mining industry for the following reasons:[48]

• HPCT is directly connected by rail with BHP's coal mines in the Bowen Basin;
• HPCT performs two particular functions necessary for the mining and sale of coal by BMA to its customers that are not performed elsewhere; namely the blending of coal , and the loading of coal onto ships for export;
• HPCT is an integral and necessary part of BHP's coal business.

• [74] APESMA say BHP's contention that the coal mining industry is only concerned with the actual process of the mining itself adopts an artificially narrow construction rather than engaging with the case law as to what the phrase 'coal mining industry' actually means. It is further argued that BHP's reliance on the definition of the "black coal mining industry" contained in the Black Coal Mining Industry Award (BCMI Award) is problematic for two reasons. Firstly, APESMA says their Eligibility Rule refers to the coal mining industry, not the black coal mining industry and to rely on definitions of the black coal mining industry (which they note is a subset of the broader coal mining industry) is to unduly narrow the words of the Eligibility Rule by importing "words that just aren't there".[49]

• [75] Secondly, APESMA submit that definitions contained within awards have the function of defining the application of the particular award, which is quite separate to defining union eligibility, noting different considerations and principles apply to the interpretation of awards versus the interpretation of union eligibility rules. It is suggested that attempting to define union eligibility rules by reference to a modern award artificially constrains coverage and ignores the historical context in which these rules were developed - through protracted negotiations and demarcation disputes. To demonstrate this point, my attention was drawn to Rule 3.13.3, which contains exceptions for fifteen other unions, which APESMA say demonstrates their Eligibility Rules are the product of a complex industrial history that cannot be reduced to a simple modern award definition.[50]

• [76] Notwithstanding the above, APESMA submit there is insufficient evidence from which to conclude there is a common understanding of the meaning of the black coal mining industry, particularly as it relates to the inclusion or otherwise of a purpose-built coal loading facility, and that the Commission should not assume such common understanding.[51]

[77] It is submitted that to properly interpret eligibility rules, one must construe the words in the rule itself, and as such, the BCMI Award is of no assistance to the Commission in undertaking its task, and "ought be entirely disregarded".

[78] APESMA cite Australian Collieries Staff Association, Re (1990) 35 IR 440 (Collieries Case). The case concerned the Australian Colliery Staff Association (ASCA) (a predecessor organisation to APESMA) and its ability to enrol five clerical employees as union members, including employees at Hay Point Services Pty Ltd (a predecessor of HPCT - which at the time, was similarly a wholly owned subsidiary of BHP Utah Coal Ltd (BUCL) a predecessor to BHP).

• [79] As emphasised by APESMA, the Collieries Case described Hay Point Services Pty Ltd's operations in terms remarkably similar to the current HPCT operations:[52]

"Hay Point Services Pty Ltd (HPS) is a wholly owned subsidiary of BUCL and operated port facilities for loading bulk coal on ships at the port of Hay Point. The coal is transported to the facility by rail from the Goonyella Riverside, Peak Downs, Saraji and Norwich Park mines. From time to time coal is blended at the loader and from time to time coal is dispatched from mine sites upon the request of the coal loader so that it can fulfil its loading requirements having regard to specific coal orders received. The employment of certain employees of the company is regulated by an industrial agreement. The Clerical, administrative and technical/professional employees at the loader are employed, it appears, by BUCL itself. There is no evidence that any employees in these latter groups were members of any organisation of employees though it is not in issue that many are eligible to join a number of registered organisations. There conditions of employment were not regulated by awards or industrial agreements save for clerical employees who are employed under the Queensland Clerks award."

• [80] The decision in the Collieries Case sets out the Eligibility Rules of the ASCA at that time:[53]

"The Association shall consist of persons who are employed in or about coal or shale mines, or by firms or companies whose principal business is the production and marketing of coal and/or shale, as under­managers, open-cut overseers, overmen, engineers-in-charge, engineers­electricians-in-charge, engineers-in-charge, coal loading plant, assistant engineers-in-charge, electricians-in-charge, assistant electricians-in­charge, engineers-electricians-in-charge, engineers-in-charge coal loading plant, constructional overseers, coal loading plant overseers, wagon construction and repairs overseer, surface foremen (in supervis­ory capacity not using tools of trade), accountants-chief clerks, chief clerks, senior clerks, colliery clerks, office clerks, junior clerks, cadets, store clerks, weigh clerks, who are engaged in office works, traffic officers, mine surveyors, assistant mine surveyors, surveyors' assistants other than labourers, timekeepers solely employed as such, screen and surface overseers, screen overseers, overseers of railway operations other than leading fettlers, and gangers, special constables, draughtsmen, tracers, loader unit overseers, coal cleaning plant overseers, motor patrolmen, livestock overseers (other than grooms, ostlers and leading hands-in-charge of a stable), installation inspectors, caretakers, mines rescue corps instructors, and/or any other person covered by a classification in the Australian Collieries' Staff Association Award, and any recognised colliery or colliery firm or company official or employee approved of by the council and not provided for by any other industrial award and any other person although not coming within the aforesaid classification who shall hold an official position in the association."

[81] APESMA submit their current Eligibility Rules have been broken down from and are based on the wording of the older eligibility rule referenced in the Collieries decision. Specifically, they say rule 3.12.1 picks up the older wording "in or about a coal mine" with the use of the words "at or about a coal mine" and the second part of the older rule above is reflected in the wording "persons who are employed by a firm or company whose principal business is both the production and marketing of coal as accountants, chief clerks, senior clerks, office clerks or junior clerks" which is found at 3.12.3 of the current rules.

[82] APESMA note there is no reference to the coal mining industry in 3.12.3. It was the predecessor of this Rule that was considered in the Collieries decision.

• [83] In the Collieries decision, Deputy President Moore observed that:[54]

"The clerical, administrative and other activities undertaken at the BUCL head office are, in the main, directed to providing the administrative infrastructure which permits coal mining to occur and the product of that mining to be sold. Even if the operations of BUCL head office are not in the coal mining industry, they can be seen as being in connection with it in the sense that those operations provide much of the administrative support for the operations of the mine"

• [84] APESMA accept that the Commission didn't expressly find that the employees the subject of that decision (clerical employees) were in the coal mining industry - but argues this is because it didn't need to, as the rules being considered did not require this. APESMA also note the Deputy President distinguished the Collieries Case from key authorities that deal with the scope of the "coal mining industry" at that time as follows:[55]

"These decisions having regard to the factual context on which the meaning of the expression "coal or shale mine industry" was being considered provide limited direct assistance in determining the scope of that industry for present purposes vis the operations of BUCL's Brisbane office.

While members of the court broadly discuss the limits of the coal mining industry, their judgments provide no real guidance as to the limits of that industry in relation to employees whose employment is directed at sustaining the mine operations itself. By this, I mean providing clerical and administrative support to those employees directly engaged in mining where both groups are employed in the same company."

[85] APESMA say, this principally suggests that the authorities that dealt with the meaning of the "coal mining industry" at that time focussed on blue-collar workers as opposed to white-collar clerical workers that were being considered in that case and that is the reason the Deputy President wasn't willing to have regard to those particular authorities in that matter.

• [86] APESMA say that, unlike the Collieries case, such authorities are relevant in this present matter. APESMA rely on the High Court decision R v Drake-Brockman; Ex-parte National Oil Pty Ltd [1943] HCA 35; (1943) 68 CLR 51 (National Oil). This decision concerned a dispute as to whether the wages and conditions of employment of certain employees of the applicant was a dispute "in the coal mining industry".[56] APESMA emphasise the high Court's statement:[57]

"Expressions such as the 'mining industry', the 'gold mining industry', the 'coal mining industry, the 'shale mining industry', the 'shale oil industry', the 'iron industry' and so forth, are not technical expressions, but popular general descriptions without any definite or clear boundary lines.  The character of the operations, their connected processes and usage must, in the end, determine the industrial classification under which the operations should be placed."

• [87] APESMA submit this established the term "coal mining industry" must be construed in a non-technical and broad manner, not with a narrow construction. APESMA also rely on the remarks of Chief Justice Latham which they say establish that the coal mining industry encompasses more than the excavation of coal from the seam, but rather, captures the production of coal as a consequence of mining, and importantly, established a limitation of the industry, being the subsequent treatment of coal, such as turning it into gas, petrol or any other product:[58]

"In my opinion, the coal mining industry is the industry which produces coal as the consequence of mining operations.  Coal mining operations include not only the actual excavation of the coal from the seam, but also the removal of it from the pit to the surface and placing it upon the surface in a disposable form. All those operations would, according to the ordinary use of language, properly be included within coal mining operations and would be conducted as part of the coal mining industry.  The subsequent treatment of coal, however, by turning it into gas or into petrol or into dyes or other products, would not, in my opinion, be part of the coal mining industry. The results of such processes would not be coal but something else." (emphasis added)

• [88] Further reliance is placed on the High Court decision R v Hickman; ex parte Fox (1945) 70 CLR_, (Hickman_) which it is suggested, builds on National Oil. Hickman concerned the question of whether the employing firm, and their employees employed by them as lorry drivers were persons engaged in the coal mining industry. My attention was drawn to the following paragraphs which APESMA say highlights the non-precise nature of the term "industry":[59]

"The term 'industry' is not a precise technical term.  One industry sometimes overlaps into another industry.  In my opinion, no absolute rule can be laid down for determining the limits of a particular industry.  The question whether a particular industrial operation belongs to one industry rather than another cannot be decided merely by considering the nature of that operation itself.

For example, a clerk may be employed in the boot-making industry, the coal industry, the transport industry, or almost any industry.  The problems associated with the overlapping of craft and industrial unions are well known and have to be carefully considered by industrial authorities when they are determining the terms of their awards.

In my opinion, all the circumstances of each case must be taken into account.  If coal is taken in skips by employees of the colliery owners from the pit top to a place of storage on the colliery, such work would be work in the coal mining industry.

Similarly, examples are given in affidavits filed on behalf of the respondents of railways, owned and controlled by proprietors of collieries and operated by employees of such proprietors, upon which coal is conveyed considerable distances to railway sidings or wharves.  Such transport of coal may be regarded as falling within the coal mining industry. (emphasis added)"

[89] In summarising the relevant authorities, APESMA concludes that a broad meaning of the "coal mining industry" must be adopted, arguing that, pursuant to Hickman, if those employees who transport the coal to the terminal are within the coal mining industry, it would naturally follow that the employees who then immediately unload that same coal, and blend it before it's shipped off, are also in the coal mining industry.

• [90] APESMA submitted that the corollary of the contrary submission was that once the coal leaves the train, you're no longer in the coal mining industry. This is said to be an artificially narrow construction, particularly noting that at this point, the coal is still not in its sellable form.[60] It still needs to be blended before it can be distributed to the customer.

[91] APESMA submit that regard must also be had to their industry rule, Rule 2, which they say demonstrates that APESMA was originally constituted, and registered on the basis that it was formed "in connection with the coal mining industry".

Without in any way limiting Rules 2 -Industry, the organisation is formed in connection with the coal mining industry..."

[92] It is suggested that the interpretation of the term "coal mining industry" in the context of APESMA's Eligibility Rules, must be given its broad interpretation given it's standing as a registered organisation is predicated on it having been formed in connection with the coal mining industry. Having regard to this, and the relevant authorities, APESMA say it is abundantly clear that the relevant employees are within the coal mining industry.

[93] BHP say while it is true that HPCT is connected to coal mines by rail, this is in no way indicative of the industry in which HPCT operates or the industry in which the relevant employees work. BHP say the blending of coal and loading of coal onto ships for export - functions APESMA say are necessary for the "mining and sale of coal" - are not part of "mining coal", nor do they take place at a coal mine, where the mining of coal actually takes place. Whilst not disputing these activities are part of the sale of coal, BHP submit that processes related to preparing a product for sale or export are processes that are not unique to coal or the coal mining industry.

[94] BHP argue the work undertaken by the proposed group is an exportation process which would look the same irrespective of the product the subject of the process. In these circumstances, BHP are of the view that HPCT's core activity is shipping and exports and that is the industry in which it operates and the industry in which the proposed group are employed - not the coal mining industry.

• [95] BHP suggest their interpretation of the coal mining industry is neither narrow or technical, rather, they have simply giving the phrase "coal mining industry" it's plain, ordinary meaning, which they say, for the purpose of this matter is synonymous with the black coal mining industry, which is the industry of mining coal and coal production, not the shipping or exporting of coal.[61]

[96] It is suggested that following the principles in ResMed, regard should be had to the meaning of the "black coal Industry" as contained in the BCMI Award.

[97] BHP submit that BMA's coal mining business is in black coal only. It is argued that the BCMI Award has broad coverage and application to workers employed in the black coal mining industry. The phrase "black coal mining industry" is defined in the BCMI Award as follows -

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

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

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

the transportation of black coal on a coal mining lease; and

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

4.3 The black coal mining industry does not include:

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

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

(c) the operation of a coal export terminal;

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

(e) catering and other domestic services;

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

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

NOTE: The coverage clause is intended to reflect the status quo which existed under

key pre-modern awards in relation to the kinds of employers and employees to whom

those awards applied and the extent to which the awards applied to such employers

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

[98] BHP highlight that clause 4.2 above, refers to the extraction, mining, processing, transportation of black coal on a mining lease, or other related work that is on or adjacent to a mining lease. None of which apply to the employees at HPCT. Further, BHP highlight the express exclusion for the operation of coal export terminals.

[99] It is submitted that the note that follows 4.3 above, shows that, in 2010, when the BCMI Award was drafted, it was the common understanding that coal export terminals were not part of the black coal mining industry at that point in time.

[100] BHP note there is a specific award for coal terminals - the Coal Export Terminals Award 2020 (CETA). The CETA defines a coal export terminal as:

"4.2 A coal export terminal is a facility that receives and stockpiles coal, and loads coal onto vessels for export and which does not deal with other cargo or undertake other port activities unless such cargo or activities are of a minor nature or incidental to that facility's activities relating to the receipt, stockpiling and loading of coal."

[101] BHP highlight that the CETA definition of a coal export terminal says nothing about the mining of coal, production of coal, and makes no mention of the coal mining industry, rather, the only reference to "industry" are references to the "coal export industry".

[102] The "Coal mining industry long service leave (Long service Leave) Administration Act 1992 (Cth), (LSL Act) which sets the coverage of the industry-specific long service leave scheme, states that the "black coal mining industry has the same meaning as in the Black Coal Mining Industry Award 2010 as in force on 1 January 2010". As noted, the Award at that time also excluded employees of coal export terminals and accordingly, employees at HPCT do not participate in the industry-specific long service leave scheme.

[103] BHP say that all of these contextual indicators, along with the fact that the Coal Mining Safety and Health Act 1999 (Qld) (Coal Mining Safety Act) apply to all mines, but not to HPCT, point to HPCT not being a part of the coal mining industry. It follows, they say, that workers at HPCT are equally not a part of the coal mining industry.

• [104] BHP argue the Collieries decision is not relevant to this matter as it was decided on the basis of the language "in connection with", which is fundamentally different from the current eligibility rule language.[62] BHP emphasise the words "in connection with" are words of expansion (as acknowledged in ResMed) and suggest the words "in the coal mining industry, the language of the current rule, is much clearer and more confined.

[105] By way of comparative example, BHP point to the Rules of the Mining and Energy Union (MEU) which specifically refer to work "in the coal mining industry or in connection with the coal mining industry." The MEU was a bargaining representative in the Hay Point Services Agreement at HPCT because of the "in connection with" language in their Rules - a concept that is specifically not included in APESMA's Rules.

[106] BHP note APESMA's current Rules were created after the Collieries decision, and as such were created to reflect the Eligibility Rule that existed at the time of the Collieries decision which provided:

"The Association shall consist of persons who are employed in or about coal or shale mines, or by firms or companies whose principle business is the production and marketing of coal and/or shale, as under-managers, open cut overseers, ......."

• [107] BHP say that Rule 3.12.1 has picked up the term "in-or about coal or shale mines" and the remainder of the old Rule is picked up in Rule 3.12.3 which provides:[63]

"3.12.3 Persons who are employed by a firm or company whose principal business is both the production and marketing of coal as accountants - chief clerks, senior clerks, office clerks, or junior clerks."

• [108] In distinguishing the Collieries decision from this present matter, Ms Pase stated:[64]

"that was the eligibility rule at the time. That eligibility rule - and this case was about class - that eligibility rule has been put in APESMA's rules there at 3.12.3. So to use this decision as a means of interpreting 3.12.2, I say, is erroneous. They are talking about two different things".

[109] BHP reiterate their view that the correct way to look at this matter is to consider the common understanding and the referrable award - the BCMI Award - which they say provides a clear and unequivocal definition of what the coal mining industry is.

• [110] Ms Pase did not dispute that both the Hickman and National Oil decisions refer to the coal mining industry as the industry which produced coal as the consequence of mining operations, and that such operations include not only the actual excavation of coal from the seam, but also the removal of it from the pit to the surface and placing it upon the surface in a disposable form. Notwithstanding this, it was argued that all of those functions happen on the mining lease which is "a far cry from what is happening at Hay Point Coal Terminal, which is the exportation of coal".[65]

• [111] BHP submit a finding that HPCT and the employees who work there are in the coal mining industry would be contrary to a long‑standing common understanding within the industry about what that means, what that industry is, and the character of that industry as informed by the BCMI Award and everything that flows from that. BHP note that the BCMI Award does provide for some things that are not directly on the lease but restricts such operations to those that are adjacent to the lease. In "not tying it to the lease" Ms Pase went on to suggest that what is going on within the lease and adjacent to it is "the mining and the coal mining industry, which is the production of coal, which is not what's happening at the port".[66]

[112] BHP's submissions focus in large part on what they say is the common understanding of the phrase "Coal Mining Industry" as derived from the BCMI Award and associated legislation, including the Coal Mining Safety and Health Act 1999 (Qld) and the LSL Act.

[113] As noted by APESMA, the principles to be applied when construing award coverage provisions are significantly different to those that apply to the construction of union rules dealing with coverage. The relevance of Modern Awards to the construction of union eligibility rules was considered in Central Queensland Services Pty Ltd (AG2019/39) BMA Rail Enterprise Agreement 2018. In this decision, Deputy President Lake concluded the role of modern awards in construing union eligibility rules should be assigned lesser weight than the principles as derived from relevant authorities. I consider Deputy President Lake's words in that case equally applicable in this matter:

[134] The introduction of Modern Awards on 1 January 2010 replaced some 1,500 decades old Federal and State awards with 122 industry and/or occupational based awards. The result of this process was a significant departure from previous practice where unions and indeed, employer associations, were named as "a party" to a particular industry and/or occupational awards. Resulting from this is that the Modern Awards no longer prescribe which unions cover or ought to cover certain industries or occupations. With the lesser role given to Modern Awards in the construction of union eligibility rules I am of the view that greater attention is now required on the principles I have set out in these reasons. Therefore, whilst I have note submission of the Applicant with respect to how the relevant Modern Awards may provide "guidance" with regard to union eligibility specifically the Black Coal Mining Industry Award 2010 and the Rail Industry Award 2010, this submission has not been determinative."

• [114] Additionally, I note the definition of the black coal mining industry contained in the BCMI Award, is prefaced with the phrase "for the purpose of this award". It is my view that the inclusion of this phrase serves to limit the definition such that it should be understood to apply only for the purpose of determining the coverage of the BCMI Award. This view is further supported by the LSL Act, which, rather than providing a definition of its own, provides that for the purposes of that Act, the definition of the industry shall have the same meaning as in the BCMI Award. I take this to speak more to the desire of the industrial parties and the legislators to limit the coverage of that specific legislation to align with the BCMI Award, rather than an intention to define the limits of the industry more generally.[67] I have not been convinced that the BCMI Award coverage clause reflects anything other than the common understanding of the coverage of the BCMI Award, and by extension, the LSL Act.

[115] As to the Coal Mining Safety and Health Act 1999 (Qld), I note it does not contain a definition of the coal mining industry but simply a definition of a "coal mine". I accept that this definition also captures limited work adjoining or adjacent to a mining lease but consider this to be appropriate to the intent of that particular legislation - ensuring the safety of those operating a coal mine and undertaking mining operations. The application of the Coal Mining Safety and Health Act 1999 (Qld) is purposefully limited, such that it is also of limited weight when considering the scope of the broader industry within which such operations are conducted.

[116] For the reasons discussed above, I have not been convinced that significant weight should be ascribed to the definitions of the coal mining industry as contained in either the BCMI Award or the definition of a coal mine as contained in the Coal Mining Safety and Health Act 1999 (Qld) and agree with APESMA's submission, that to do so is an over simplification of the task, which overlooks relevant and long-standing authorities, dealing with what the phrase "coal mining industry" actually means.

• [117] National Oil established that expressions such as "coal mining industry" are not technical expressions, rather they were said to be "popular general descriptions without any definite or clear boundary lines" and that "the character of the operations, their connected processes and usage must, in the end, determine the industrial classification under which the operations should be place".[68]

• [118] I have had particular regard to the comments of Chief Justice Latham at page 56 which I accept clearly establish that the coal mining industry encompasses more than the excavation of coal from the seam, but rather, captures the whole process of producing coal as a consequence of mining.[69]

[119] Applying Latham CJ's reasoning in National Oil to this present case and having considered the character of the operations at HPCT, and their connection to BHP's other operations, I am satisfied that the functions and processes undertaken at HPCT are crucial to the production of coal.

• [120] King v Hibble; ex parte Broken Hill Proprietary Company Limited (Hibble) established an important distinction to be considered when determining the limits or otherwise of the coal mining industry_.[70]_ In Hibble, the High Court was asked to determine whether 'workmen' who had been admitted as members of the Coal and Shale Employees' Federation (the Federation) were persons engaged in or in connection with the coal and shale industry pursuant to the Federation's Rules. It is noted that the words being considered in this matter were in or in connection with, however the comments of the High Court as they relate to the coal industry more generally are relevant to this matter. The five members of the High Court held in Hibble that:[71]

"The words are no doubt wide but they do not cover every person who uses coal or who works in connection with it...

The discrimen adopted by the Coal and Shale Employees' Federation, on a proper interpretation of their rules, is, we think, the trade or business of the employer. Thus, some employers extract coal from the earth, convert some of it into coke, and distribute both coal and coke to consumers. Such a business would in point of fact be part of the coal or shale industry, and all persons employed in that business are properly said to be employed in or in connection with that industry."

• [121] The High Court further observed in Hibble that:[72]

"The question of whether a particular trade or business is or is not part of the coal and shale industry must in all cases be a question of fact. We hold that a steel and iron manufacturer who for the purpose of his business uses coal in its natural state or after it has been transformed by him to coke is not engaged in the coal or shale industry and these employees are not employed in or in connection with that industry."

[122] National Oil establishes a similar distinction. In National Oil the work in question was found not to be in the coal mining industry because, unlike in this matter, the product (shale) had undergone additional processes such that it had been turned into something else (in that case, oil).

[123] A conclusion can be drawn based on the reasoning in Hibble and National Oil that there is a distinction between the production process - getting the coal out of the ground, processing the coal and getting the coal to the customer - and what the customer does with the coal. Applying this reasoning the circumstances of this matter, it is clear that the product being produced by BMA is coal. The production of this product starts with the raw product being extracted from the seam. Importantly, from the time the product leaves the mining lease, during its transportation to HPCT and at all times it is being processed by employees at HPCT, it remains the same product - coal.

[124] I have found the 1982 decision of the Coal Industry Tribunal (_ASCA v NSW Combined Colliery Proprietors Associatio_n) which was referred to in the Collieries decision as the "Head Office case" relevant to this matter. In that case, the Tribunal was considering its jurisdiction under the Coal Industry Act 1946 to deal with disputes relating to employment at a number of head offices of companies that were involved, to varying degrees, with the mining of coal.

• [125] Similar to this matter, the respondents claimed the activities the subject of the claims were not in the coal mining industry. Five of six were found to not be in the coal mining industry. Of those found to not be within the industry, all were based in Brisbane and whilst some of the activities at some of the companies was found to have a close interaction with mine sites and operations, there was not deemed to be sufficient connection by way of place or industrial usage between the work being undertaken in these offices and the companies' coal mining activities.[73]

• [126] The one exception to this was Dampier Mining Co. Limited. Dampier was a company engaged in the mining and marketing of coal. The relevant employees were based in Emerald, some 61 kilometres from the Gregory mine and a greater distance from the Cook and Leichardt collieries. This office was organisationally responsible, through a General Superintendent who was also controlling Mining Operations. At Dampier, work which could be characterised as more traditional colliery work was undertaken as well as administrative functions and there was found to be a "Close connection between the office and the mines. It was further said of the Emerald Office that "without the mines the office would not exist".[74]

[127] The reasoning in Dampier is useful when considering BHP's argument that the work being undertaken by the proposed group at HPCT is an exportation process which would look the same irrespective of the product the subject of the process. This suggestion is not supported by the evidence, nor is it supported by the definition of a coal export terminal that is found in the CETA. The CETA definition clearly establishes that a coal export facility is a facility that receives and stockpiles coal and loads it on to vessels but which, importantly**, does not deal with other cargo or undertake other port activities**. This adds weight to APESMA's contention that BMA's mining operations could not function without HPCT and similarly suggests that, as per the Head office case, HPCT would not exist without the mines.

[128] As to BHP's suggestion that the work at HPCT is conducted in the shipping and export industry, and as such, cannot be part of the Coal mining industry, I have not been convinced this position aligns with the relevant authorities. Support for APESMA's position is found in Hickman, which found there to be no absolute rule when determining the limits of a particular industry and established that it is not uncommon for one industry to overlap with another.

• [129] Similarly, in CFMEU v Dyno Nobel Asia Pacific Limited [2005] AIRC 622 [51] the Full Bench makes it clear that: "the business of an employer can be "in or in connection" with more than one industry ...".[75] The Full Bench further says this can arise where "the business of the single employer is a single integrated enterprise but nevertheless operates substantially in or in connection with two or more industries simultaneously", because there "is an overlap between industries and the business operates in the area of overlap", and, or, because the" the nature of the single integrated business is such that the business itself overlaps two or more distinct industries".

[130] Applying the principles of the relevant authorities to this matter, even if I was to accept BHP's contention that the work being performed at HPCT should be considered to be within the shipping and export industry, or any other industry for that matter, there is nothing precluding me from finding that such work is also part of the coal mining industry.

[131] Hickman established another important distinction between employees transporting a range of products, one of which was coal (in that case Lorry Drivers), and employees who worked on rail lines that were owned and operated by the same proprietors as the coal mines with the sole purpose of transporting coal from the mines to the wharves. Hickman regarded these employees as falling within the coal mining industry, while the lorry drivers were not. The Court reasoned that the lorry drivers were employed by a company that did not solely transport coal, and that the lorry drivers were also involved in the transportation of other products. Applying the reasoning in Hickman to this matter adds weight to APESMA's contention that if the employees transporting the coal by rail from the mine to HPCT are in the coal mining industry, then those who unload this same coal and blend it before it is shipped off are also in the coal mining industry.

[132] In contrast with the facts in Hickman, there is no dispute that BMA owns and operates a number of coal mines in the Bowen Basin and that this work is a part of the coal mining industry. This same coal is then loaded onto trains, also owned and operated by BMA. There is no dispute that this work is also considered to be a part of the coal mining industry. This very same coal is then transported on BMA owned and operated locomotives to HPCT. Again, there is no dispute that this work is also within the coal mining industry. For the reasons outlined above, I consider the final process in the production of coal is then undertaken at HPCT, which is also owned and operated by BMA.

[133] Having considered all the evidence carefully and given appropriate weight to the matters set out above, I am satisfied that the work being performed at the HPCT is being conducted in the coal mining industry.

Is the work of the relevant employees conducted in a mine office and is it directly connected to the day-to-day operations of a coal mine and the production of coal?

• [134] The second element of eligibility Rule 3.12.2 to be considered is whether or not the work of the relevant employees is undertaken in a mine office or mine laboratory where that person's work is directly connected with the day to day operations of a coal mine and the production of coal, whether or not such mine office or mine laboratory is situated on a coal mining lease. APESMA do not press that the Proposed Group work in a Mine Laboratory and BHP Coal accepts that for the purpose of Rule 3.12, a mine office (or laboratory) does not necessarily have to be situated at a mine (on a coal mining lease). The express terms of the rule make this clear.[76]

• [135] Mr Gretch confirmed that every single person within the proposed scope works out of an office at Hay Point,[77] The questions that arise therefore are firstly, whether the relevant employees are working in mine offices within the meaning of APESMA's Rules and secondly, whether such work is related and connected to the operation of a coal mine and the production of coal.

• [136] APESMA note the term "mine office" has not been the subject of judicial consideration, however given the High Court has determined the phrase "coal mining industry" is not a technical term, "mine office" has to be construed in the same way, and not through some "strange technicality".[78]

• [137] As to the meaning of "mine office", it is again argued that any reliance on the black coal industry to construe the meaning of the term in this context is clearly wrong as that is just not what the Rule says, "if anything. It comes back to the coal mining industry which we say they fall within".[79]

[138] APESMA note the Macquarie Dictionary defines an "office" as:

"1. A room or place for the carrying-out of business, etc

2. A place in which the clerical work of a business is done

3. A place where tickets etc are sold, information given etc.

4. A building or a set of rooms given to the business of a government organisation: the post office.

5. A position of duty, trust, or authority, especially in the government or in some company, society, etc.

6. A duty of a person or agency: the office of adviser.

7. Something (good, or occasionally, bad) done for another: it was through your good offices that I got the job.

8. Chiefly Brit a department of government: the Foreign Office."

• [139] APESMA suggest the first definition is the most apposite - referring simply to a place where work is done.[80]

[140] A distinction is drawn between Rules 3.12.1 and 3.12.2. It is suggested that the two rules have been purposely drafted to capture two different types of work. Rule 3.12.1 (which is not pressed) is intended to capture work that is performed at or about a coal mine. It is argued that Rule 3.12.2 on the other hand uses the terms "office" and laboratory" to expressly refer to a place where work is performed which is not at or about a coal mine. APESMA conclude therefore that the terms mine office and mine laboratory are not intended to mean an office or laboratory on a mine site.

• [141] Noting the Rule does not impose a geographical requirement for an "office" to be located at a mine, and consistent with the ordinary meaning of the word "office", APESMA say the phrase "mine office" should be construed as a place where work is done in respect of the mine, or alternately, as "working at an office, i.e. a building or a subset of rooms connected with a mine". [81]

• [142] APESMA submit the Supervisors, Coordinators, Engineers and Specialists employed at HPCT work out of offices at HPCT, these offices they say exists solely to work with, at the service of and in response to BHP's coal mining operations in the Bowen Basin. On this basis it is submitted that the Supervisors, Coordinators, Engineers and Specialists employed in the BHP offices at the HPCT site work in a "mine office".[82]

[143] As to the further requirement that the work being conducted in the mine office be directly connected with the day-to-day operations of a coal mine, APESMA rely in large part on their previous submissions that the work being performed at HPCT is a fully integrated function of BHP's entire coal mining operation, without which, and the people working there, the operation would arguably be obsolete.

• [144] My attention was again drawn to the Collieries decision, and the comments of Latham CJ, which they say leave beyond doubt that the clerical employees the subject of that matter were performing work that was associated with the production of coal:[83]

"Having regard only to the eligibility rule of the ASCA, clerical employees of the BCUL employed at the Brisbane head office are eligible for membership of ASCA. This would also be true of clerical employees of BUCL employed at Hay Point and the Mackay Laboratory, even though the clerical employees at Hay Point are engaged in activities relating to the loading of coal and employees at Mackay are engaged in activities relating to the operation of a laboratory this does not alter the fact that the company which is their employer has, as its principal business, the production and marketing of coal which is the condition for eligibility established by the rule.

[145] APESMA argue that if the clerical employees of HPCT were found to have been performing work that was associated with the production of coal, then it would follow that those the subject of this application, who's work includes the blending and loading of coal are also performing work that is associated with the production of coal.

[146] In summarising their argument with respect to the relevant employees APESMA say:

"The work carried out by the employees in the Group is also work which is directly connected with the day-to-day operation of a coal mine and the production of coal insofar as their work turns upon the level of production and the coal being produced at each of BHPs Bowen Basin mine for planning, and the blending and export of coal through its operations".[84]

[147] BHP submits a "mine office" cannot simply be any office where coal-related work occurs but must be an office that relates directly to a mine and mining operations and the existence of offices and desks at HPCT does not transform it into a mine office.

• [148] BHP accept that for the purposes of Rule 3.12, a mine office does not need to be situated at a mine (on a coal mining lease) but say that irrespective of geographical location, HPCT is not a "mine office"[85] which they say, by its very terms, must be directly connected or related to a mine, and in this matter, a black coal mine.[86]

• [149] BHP again suggest that regard should be had to the BCMI Award which defines the term "mine" as meaning "any open cut or underground coal mine, or any operation or establishment, in the black coal mining industry". It is accepted that this may include an office that is not situated on a coal mining lease (by the inclusion of the term "operation or establishment"), but it is argued this definition comes back to the definition of black coal mining industry within the BCMI Award, which specifically excludes HPCT as a coal export terminal.[87]

[150] Following the principle of Williams and ResMed it is suggested the proper understanding of "mine office" can be derived from the Coal Mining Safety and Health Act 1999 (Qld), which BHP argue is a critical part of the coal mining legislative framework, (which does not regulate the operations of HPCT).

• [151] The Coal Mining Safety and Health Act 1999 (Qld) defines a coal mine as including "buildings for administration, accommodation and associated facilities within the boundaries of land the subject of a mining tenure for the mine or land adjoining or adjacent to the boundaries of the land."[88] BHP submit this definition demonstrates that a mine office is understood in the industry as being at a coal mine or adjacent to a coal mine, maintaining a direct geographic and functional relationship with mining operations.[89]

• [152] BHP say that APESMA's reliance on the ordinary meaning of the term "office" in this matter is misplaced, as in the context of APESMA's Rules, an office relates only to a "mine".[90] Again, whilst accepting this may not be directly so in terms of its geographical location, conceptually, the purported "office must be sufficiently connected to a "coal mine", which they say HPCT is not.[91]

• [153] BHP rely on their earlier submissions in arguing that the work performed by the proposed group is not directly connected to the day-to-day operations of a coal mine or the production of coal, restating their position that the production of coal takes place at the BMA mines in the Bowen Basin. In closing submissions, Ms Pase again reiterated BHP's view that the work of the proposed group is not directly connected with the day-today operations of a coal mine and the production of coal - rather, the work being performed is exporting coal, preparing it for sale and exporting it at that point of sale. Ms Pase stated, "at a push - it might be connected but it's certainly not directly connected, and the Rules are very clear that it must be directly connected to that operation, the day-to-day operation of that mine".[92]

[154] For the reasons already provided, I have not been convinced that significant weight should be ascribed to the definitions contained within either the BCMI Award or the Coal Mining Safety and Health Act 1999 (Qld). Further, I have not been convinced by BHP's attempts to re-establish a geographical requirement that is expressly excluded from the text of the Rule.

[155] I have already been satisfied the functions and processes undertaken at HPCT are crucial to the production of coal and are conducted within the coal mining industry. Having considered all the evidence carefully and given appropriate weight to the matters set out above, I am satisfied that the work being performed at the HPCT is being conducted in a mine office and is directly connected with the day-to-day operations of a coal mine and the production of coal.

[156] I am satisfied that the work being conducted by BHP and the relevant employees at HPCT falls within the coal mining industry, the first element of Rule 3.12.2 is therefore satisfied.

[157] I am further satisfied that the work of the relevant employees is being performed in an office and is directly connected with the day-to-day operations of a coal mine and the production of coal. The second element of Rule 3.12.2 is also satisfied.

[158] The requirements of Rule 3.12.2 are therefore met, and the relevant employees are eligible for membership of APESMA and APESMA is able to represent the industrial interests of the proposed group.

[159] APESMA also submits that the relevant employees are eligible for membership pursuant to Rule 3.13. Rule 3.13 has two parts, Sub-rule 3.13.1.1 which concerns managers and Sub-rule 3.13.1.2 concerning professionals.

[160] The evidence suggests the relevant employees fall within two groups. The first being supervisors and coordinators and the second comprising other specialist roles. For the most part, APESMA argue the work of the supervisors and coordinators fall within their Managers Rule and the other specialist roles fall within their Professionals Rule. In some cases, it is argued that certain roles are capable of fitting within either Rule.

• [161] The Managers Rule captures employees "employed or usually employed in a managerial position. The Rule includes those defined in the Australian Standard Classification of Occupations (ASCO) Group 1 - Managers and Administrators, but this is not a requirement. The Rule also explicitly excludes positions at the level of supervisor or foreman. APESMA acknowledged this exemption however they say that whilst the supervisors in the proposed group are referred to as supervisors, in substance, they are still performing a managerial function.[93]

• [162] BHP say none of the employees in the Proposed Group are at the "managerial level", suggesting the first layer of management at HPCT are the Superintendents,[94] whom those within the Proposed Group report to and who are expressly not part of the proposed group.[95] Notwithstanding this, BHP say the role of supervisors at HPCT is to lead frontline personnel in a manner expected of supervisors or foreman, as distinct from exercising managerial prerogative. As to the Coordinators and specialist they say, these are autonomous roles without any managerial responsibilities.

• [163] APESMA say BHP's submissions fail to engage with the managerial functions that are actually performed by the supervisors at HPCT.[96] My attention was drawn to Mr Moore's evidence, in which he describes the role of supervisors as including planning, supervision, directing and managing the work of the people who report to them directly. APESMA accepts much of this work falls within the ambit of a supervisory function, however they highlight that the supervisors are also responsible for managing the performance of the people within their team, their leave and all other aspects of employment - work APESMA say is unequivocally a management function and a principal part of their role.

• [164] APESMA submit Rule 13.3.1.1 derives from the Rules of the Australian Management Industrial Association (AMIA), which merged with APESMA in or about 2004.[97] Based on the statement provided by Mr Catt,[98] whom BHP did not seek to cross examine,[99] APESMA contend the AMIA Rule was drafted broadly to capture any person working in a managerial role who did not have clear coverage elsewhere. This was understood to include people who supervise, direct and manage work - compared to leading hands who perform the same tasks as those who they may direct, but who they, in effect, led by example or those who merely supervise or oversee the work of others and no more. It is this distinction they say that is the intention of the words "but not including the levels of supervisor and foreman". [100]

• [165] APESMA say the Supervisors at HPCT are covered by the Managerial Rule because they are employed in managerial positions. They are responsible for planning, supervising, directing and managing the work, and all aspects of the employment (leave, performance etc) of the people who report directly to them. APESMA say they are "in the ordinary meaning of the words, therefore, "Managers" insofar as they manage aspects of the business of BHP at HPTC, and consequently, in the employment context are responsible for giving directions to employees who report to them, and managing those employees work and performance."[101]

[166] Noting BHP did not engage with the history of Rule 3.13.1, I accept APESMA's submission that the AIMIA Rule, which was merged with APESMA's Rules in or around 2004 was drafted broadly so as to capture any person working in a managerial role who did not have clear coverage elsewhere. I further accept the inclusion of a distinction for supervisors and leading hands is intended to capture those whose work is confined only to the supervision and oversight of the work of others, rather than to exclude any role that contains supervisory functions or that these words in anyway restrict a broader role, which includes managerial functions, from being captured. This construction is consistent with the plain meaning of the rule and with the principles I have earlier discussed.

[167] Having regard to the evidence as to the spectrum of the work performed by the supervisors at HPCT, I am satisfied that, notwithstanding their title, they are performing a managerial role that goes well beyond the ordinary function of merely supervising the work of others.

• [168] I have not been persuaded by BHP's suggestion that the functions being performed by Coordinators, who plan and coordinate the work to be undertaken, is not managerial in nature because they operate autonomously and do not directly manage the work of others.[102] There is no support for BHP's contention in the ASCO, which defines "Major Group 1 - Managers" as follows:[103]

"Managers plan, organise, direct, control, coordinate and review the operations of government, commercial, agricultural, industrial, non-profit and other organisations, and departments.....

[169] Relevantly, the task of Managers is said to include "directing and coordinating the allocation of assets and resources". There is no express requirement that these functions relate to the supervision or management of human resources and there are many examples within ASCO Group 1 of sub groups whose tasks focus in large part on the coordination of operations and assets, rather than human resources.

[170] I have not been persuaded by BHP's contention that none of the employees are performing managerial functions by reference to their own naming conventions, or their belief that the first line of "management" at HPCT are the superintendents. Rule 3.13.1.2 does not require an employee to be employed in a role that is in any way identified as a "Manager", rather it requires the person be "usually employed in a managerial position". In short, the focus of the Rule is on the work performed rather than the nomenclature that has been adopted. To construe the Rules on the basis contended for by BHP would enable coverage to be varied simply by the title of the role.

[171] In the circumstances of this matter, I am satisfied that the work of those employees referred to as either Supervisors or Coordinators at HPCT falls within the scope of managerial positions as required by Rule 3.13.1.1.

[172] To be eligible for membership under the Professionals Rule, an employee must usually be employed in a professional position which requires the exercising of professional skill, knowledge or expertise. Whilst not an exhaustive list, the Rule goes on to note this may include the skills knowledge or expertise as typically exercised by Accountants, Financial Controllers, Administrators and Company Secretaries, Internal Auditors, Planners and others or importantly, those defined by the ASCO Group 2.

• [173] Mr Catt's statement further suggests that Sub-rule 3.13.1.2 was also drafted broadly, for the purpose of ensuring that, unlike other Divisions, such as Rule 3.1 - Professional Engineers and 3.2 - Professional Scientist, members eligible under 3.13 do not require a certificate or degree.[104] APESMA maintain the Professionals Rule, is broad enough to cover all of the employees in the proposed group, due to their professional skill, knowledge and expertise. A contention they say is supported by the broad range of occupations captured in both the Rule itself and ASCO Group 2.[105]

[174] BHP drew my attention to the positions of financial controller and the SAP trainer, which they argue are primarily training roles and do not rise to the level of being professional positions that require the exercising of professional skill, knowledge or expertise. It is submitted that rather than being specialist in nature, this work simply encompasses "low-level functions".

• [175] APESMA submit that there is an inconsistency between BHP's position and Mr Grech's evidence, highlighting while BHP submitted these were lower functioning roles, Mr Grech referred to them as specialists.[106] APESMA's counsel referred to Mr Grech's witness statement which, when specifically referring to the specialists' roles within the Proposed Group states:

"This is not a position I would expect a supervisor or coordinator to move into given the different background and skill requirements of this role."[107]

• [176] APESMA submit that the above quote from Mr Grech's witness statement provides an implicit and express acknowledgement that these people are skilled and operating at a higher level. My attention was again drawn to Mr Grech's evidence and his acceptance that the work of another of the specials in the group was consistent with the description of a "Software Trainer" as provided in Unit Group 2232 ICT Trainers - within the ASCO 2.[108] Similarly, APESMA noted the role of Financial Controller was specifically provided for in the Unit Group 1322 Finance Managers in ASCO Group 1.

[177] In all of the circumstances, I have not been convinced by BHP's arguments. Noting the Rule does not require professional qualifications, I accept that the specialist within the Proposed Group are professional positions, which require requisite skill, knowledge or expertise: for example, specialist finance related knowledge, specialist knowledge in relation to data analysis and specialist information technology knowledge. I accept that these roles fall within Rule 3.13.1.2. I also agree with APESMA's contention that the Supervisors and Coordinators within the proposed group are also capable of being captured by Rule 3.13.1.2 due to their professional skill, knowledge and expertise.

[178] For the reasons outlined above, I find that the employees within the proposed group fall within Eligibility Rule 3.13 - Managers and Professionals.

[179] The final element in determining APESMA's standing as a bargaining representative is whether they have a member who will be covered by the proposed agreement.

• [180] BHP say there has been no evidence about the individuals within the Proposed Group being members of the Union. BHP say the one member they were aware of (presumably Mr Moore) is a Coordinator, and if I was to find that APESMA did not have coverage of coordinators, then APESMA may not meet the requirements of s.176(1)(b)(i).[109]

• [181] APESMA submit they are entitled to represent the industrial interests of the proposed group, and this does not require membership.[110] APESMA submit that the authority of a trade union and the basis for its registration is to represent at large, it is not an agent of its members. This authority has been established for well over 100 years.[111] I agree with APESMA on this point. The question of whether the Proposed Group is eligible for membership of APESMA is distinct from the question of whether or not these same employees are in fact members or not.

• [182] I have already found that APESMA is entitled to represent the industrial interests of employees in relation to the work performed under the agreement. In these circumstances Mr Moore's evidence of membership is therefore sufficient for the purposes of satisfying s.176(1)(b)(i). Notwithstanding this, for completeness, I note that during the hearing, APESMA offered to provide a membership list, if necessary,[112] however, this was not pressed by BHP, and I did not find it was necessary. Further, Ms Jessup Little's witness statement contained minutes of membership meetings, in which the names of members in attendance, other than Mr Moore's, were redacted. It is also noted that the Members in attendance participated in a ballot to elect Mr Moore and one other member as Delegates, a process that required movers an seconders.[113] It is also of note that Ms Jessup-Little's statement provided that unredacted versions of these meeting minutes were available to be provided to the Commission if required. Again, BHP did not press for their production. Mr Moore's evidence also refers to membership growth at HPCT.

[183] I am satisfied that at least one of the proposed group is a member of APESMA, and that this satisfies the requirements of s.176(1)(b)(i).

[184] I am satisfied that the employees within the proposed group meet the requirements of Eligibility Rule 3.12. They are therefore eligible for membership of APESMA and APESMA is entitled to represent their industrial interests.

[185] I am further satisfied that employees within the proposed group meet the eligibility requirements of Rule 13.3 in that they are either Managers, Professionals or in some cases both. They are therefore eligible for membership of APESMA and APESMA is entitled to represent their industrial interests.

[186] To be clear, it is not necessary for the relevant employees to be eligible under both Rules. Eligibility pursuant to either Rule 3.12 or 3.13 is sufficient to establish that APESMA are entitled to represent their industrial interests in relation to work that will be performed under the agreement.

[187] I am therefore satisfied that APESMA has standing as a bargaining representative and is eligible to make this application.

• [188] Section 237(2)(c) requires that the proposed group must be fairly chosen. There is no need for the group of employees to be the fairest group that could be chosen; it is sufficient that the group is fairly chosen.[114]

• [189] APESMA submit the case authorities outline the following relevant principles on 'fairly chosen':[115]

• a) "The selection of the group must not be arbitrary or discriminatory[116]

• b) the Commission must make a finding as to whether the group of employees to be covered are geographically, operationally or organisationally distinct and if so, will point in favour of a finding that the group was fairly chosen[117]

• c) the concept of 'distinctness' should not be considered in an absolute sense but is a matter of degree[118]

• d) whether the group was geographically, operationally or organisationally distinct is not decisive, but a matter to be given due weight, having regard to all other relevant considerations[119]

• e) there may be more than one way of fairly choosing the group of employees to be covered by a proposed enterprise agreement[120]

• f) The Commission's task is not to determine the fairest grouping, but to "guard against manifest unfairness in the selection of the proposed cohort of employees[121]"

• [190] BHP agree with APESMA's submitted principles pertaining to the Commission's task in assessing whether the Proposed Group is "fairly chosen."[122] However, with the addition that if a group of employees covered by the proposed agreement is not geographically, operationally or organisationally distinct, this would be a factor telling against a finding that the group was fairly chosen.

[191] There is no dispute that the proposed agreement does not seek to cover all employees at HPCT. Therefore, the question of whether the group is fairly chosen requires an assessment of the group's distinctness, and whether or not the group has been chosen on any arbitrary, or discriminatory basis.

• [192] APESMA argue the Proposed Group is organisationally distinct, in that it is only drawn from the Production Port Department and from the Maintenance Department.[123] Further, the proposed agreement seeks to cover all employees of these Departments who report to the Superintendents in those Departments and does not arbitrarily exclude any employees below the Superintendent level.[124]

• [193] APESMA submit there has been no manifest unfairness in the Group as chosen and further, that in absence of any such manifest unfairness, and noting the observations of the Commission's full bench decisions in Donnybrook Holdings Pty Ltd v CEPU,[125] and Liquor, Hospitality and Miscellaneous Union v Coca-Cola Amatil (Aust) Pty Ltd,[126] which recognise the role of a majority support determination as only the start of the negotiations and which note the broader legislative context, that significant weight should also be given to the preference of the union and its members. [127]

• [194] BHP accept the two Departments are themselves organisationally distinct,[128] reporting to different management roles, however, argue that the Proposed Group is not operationally or organisationally distinct in that it is not limited or confined to roles of a similar nature in terms of work performed, level of responsibility or organisational grading (classification), submitting that is a factor that should weigh against a finding that the Proposed Group is fairly chosen.[129] Further BHP suggests the group has been "arbitrarily" selected based on reporting lines.[130] They argue that this selection will have, "an inherent uncertainty and variability regarding the coverage of the proposed agreement."[131] BHP submit as such, a finding that the Proposed Group is fairly chosen would be contrary to the Commission's task in guarding against manifest unfairness in the selection of the proposed cohort of employees.[132]

[195] I do not accept this argument. The proposed scope reflects the very structure that has been established by BHP. The evidence provided in this matter clearly confirms the work of these Departments can be distinguished from other departments within the HPCT Structure.

• [196] It is also relevant that the Proposed Group encompasses employees who already have a collective identity. The term "staff" is commonly accepted as distinguishing the proposed group from operators and maintenance workers at HPCT, who are covered by a separate enterprise agreement. [133]

[197] I do not accept BHP's contention that the scope has been unclear or has changed during communication. A review of the correspondence exchanged between the parties confirms that APESMA have clearly articulated the proposed scope from the outset and have provided BHP with further explanations when requested.

[198] In all of the circumstances, I have not been convinced by BHP's arguments and find the Proposed Group is operationally distinct. Further, I have seen no evidence to suggest the group has been selected on an arbitrary or discriminatory basis, nor do I consider there to be any manifest unfairness in the Proposed Group as chosen. I am therefore satisfied that the group of employees proposed to be covered are fairly chosen.

[199] There are two elements to be considered when determining if there is majority support. Firstly, how many employees are in the proposed cohort and secondly, how many of those employees are supportive of bargaining.

• [200] APESMA submits that the majority support requirement must be satisfied by reference to that portion of the group of employees who will be covered by the proposed agreement who are presently employed at the time determined by the Commission, rather than those who may be covered by the agreement if made.[134]

• [201] Citing National Union of Workers v Lovisa Pty Limited [2019] FWC 2885 at paragraph 13, APESMA submit that the Commission has previously held in respect of these sorts of applications, that it is inappropriate to fix the number of employees at a later point in time in circumstances where it would artificially increase the employee denominator for the purpose of calculating whether a majority wishes to bargain.[135] Based on this, they argue that BHP's latest cohort numbers of 51 employees should not be considered.

• [202] APESMA submit further that the Commission has a discretion to assess the point in time at which to determine the cohort of employees. They say this should be 5 March 2026, being the point when BHP provided the organisational chart to the Commission, which indicated that the cohort at that time was 46 employees.[136]

• [203] BHP did not engage with the above authorities, nor did they make any specific submission regarding the appropriate point in time for this to be determined. They did however provide an employee list[137] and organisational chart[138] as of 30 July 2025 - the day before the hearing on this matter - and Mr Grech's evidence indicated that, based on this latest list, the total number of employees in the proposed group would be 51.[139]

[204] APESMA submit that, unlike the discretion available to the Commission with respect to the size of the cohort, the Commission does not have the discretion to determine when there is a majority, rather the Commission has to assess this based on the most recent available information before it, citing Kantfield Pty Ltd T/A Martogg & Company v The Australian Workers Union [2016] FWCFB 8372 (Kantfield). As such, APESMA submit that the latest number of employees in the cohort that supported the petition was now 26 and that was the number of employees in support that the Commission should find.

• [205] BHP agree that the Kantfield decision made it clear that the point in time at which the Commission must reach the level of satisfaction of whether there was majority support is at the point of determination or in this case, the day of the hearing, and that it is not open to the Commission to determine a point of time other than that time.[140]

• [206] Notwithstanding the above, BHP submits that Kantfield further established that, in making its decision, the commission must have regard to the most up to date information available. It is argued that there has been a significant delay since the time of the petition "apparently being conducted"[141] and the hearing and as such, the Commission cannot be satisfied that, at the point when the Commission will decide this application, a majority of the relevant employees want to bargain.[142] BHP say in this case, particularly in circumstances where employees have changed their mind, the evidence on the majority support on this matter, is not of a standard that enables any finding to be made about a majority. In response to this suggestion, I pressed Ms Pase on how those submissions sat with BHP's rejection of the suggestion, in advance of the hearing, that the question of support might be clarified by the conduct of a confidential survey of the proposed group.

• [207] Ms Pase did not provide a response to my question. She did, however, suggest that one could perhaps be conducted now:[143]

"That brings me to a natural, sensible alternative pathway which is the conduct of a (indistinct) initial survey. So, while our primary position or primary contention is that the Commission cannot be satisfied on the available evidence that it has because of the waxing and waning, et cetera, if there is any doubt about that, you know, and things that might give doubt about on the delays and petition. Again, as I say, that's no one's fault (indistinct) a delay, that it's this changing of employees in and out, changing employee numbers, all of this brings to a sensible alternative solution which would be to - for the conduct of (indistinct). And as I understand it, that is something that the union is also putting forward as an alternative solution for (indistinct)."

• [208] When pressed, Ms Pase accepted that BHP were stepping away from their earlier position that the conducting of a survey was not appropriate and now suggested that if the Commission was not satisfied, and needed more information, the conducting of a survey would be an option available to the Commission.[144] The conducting of a survey in advance of the hearing would have put the question of support beyond doubt and settled a significant portion of the matters in dispute. BHP, however, chose not to proceed in this way.

[209] I am satisfied that I have sufficient evidence to determine the level of support for bargaining. I have had regard to the fact both parties have provided additional information to the employees in the Proposed Group regarding the bargaining process in the lead up to and post the filing of this application. I accept that the provision of this information did see some fluctuation in the number of employees in support of bargaining, however, I am satisfied that these positions had stabilised by the time of the hearing.

• [210] APESMA submits, and I agree, that the employees within the Proposed Group have received a significant amount of information from both sides about what it may mean for them to commence bargaining for an enterprise agreement. They are better informed than most. It cannot be said that they do not understand the implications of their decision to sign the petition.[145] I also note that those employees have been canvassed by BHP on several occasions earlier in these proceedings and that if the Company wished to put more recent material in relation to the views of employees before the Commission it could have done so. Further, assertions on the part of BHP about whether employees have changed position or felt pressured to agree to bargaining, have been hearsay, and I am not prepared to accept such allegations without cogent and direct evidence. I prefer the evidence advanced by APESMA in the form of petitions and meeting records.

• [211] APESMA submit the evidence is that the majority of employees in the Proposed Group have signed and stand by the petition in support of bargaining and there is not sufficient evidence on which to draw conclusions to the contrary. It is therefore submitted that this evidence should be accepted and relied on by the Commission to support a finding that the majority are supportive of bargaining and orders made on this basis.[146]

• [212] BHP on the other hand argued that very little weight should be given to the 3 or perhaps 4 employees that indicated they were now supportive of bargaining. This is due to the Commission having no evidence of the understanding of the terms in which the employees apparently indicated their support for bargaining, the related conversations and whether the employees were in fact employees within the group.[147] BHP submitted that neither Ms Jessup-Little or APESMA had gone to the effort of seeking an updated petition or even asking the question herself of the employees at HPCT on whether they supported bargaining now and that no weight can be given to the generalised hearsay evidence in Ms Jessup-Little's reply statement about having been told by Mr Greg Yates that unidentified names or numbers of members have told him that they remain committed to bargaining.[148]

• [213] As such BHP submitted that the Commission cannot be satisfied on the available evidence of a majority because of the waxing and waning of employees in support of bargaining.[149]

• [214] DP Saunders recently summarised the principles relating to the application of s.237(2)(a) in the decision of CEPU v Hunternet Group Training Pty Ltd (t/as Hunternet Career Connections) [2025] FWC 2232.[150] I adopt these principals in this matter:

"[6] Section 237(2)(a) of the Act clearly confers on the Commission a discretion to determine "a time" when the relevant employees are employed by the employer. This provision empowers the Commission to fix by reference to "a time" the cohort of employees from which the question of majority is to be determined. However, the date on which the Commission must assess whether a majority of employees wish to bargain must be the date of the Commission's decision, using the most recently available information. The practicalities were helpfully described in the following way by DP Colman in National Union of Workers v Lovisa Pty Ltd:

"Thus the Commission might exercise its discretion to determine 1 January to be the time at which the cohort of employees is to be fixed, and on 1 February (the date of its decision) determine whether a majority of the persons employed at 1 January wishes to bargain. Evidence about employees' wishes, such as petitions, produced throughout January and up until 1 February could be taken into account in determining whether a majority existed. The question for the Commission would be whether, as at 1 February, a majority of the employees who were employed as at 1 January wished to bargain".

[7] The facts and circumstances of each case will bear on the exercise of the discretion conferred on the Commission by s 237(2)(a)(i) of the Act. How such a discretion has been exercised in other cases, with different facts, does not provide much assistance.

[8] The following general principles assist to guide the exercise of a discretion under the Act:

(a) the discretion must be exercised judicially, that is to say not arbitrarily, capriciously or so as to frustrate the legislative intent;

(b) the discretion should be exercised in a manner which is 'fair and just', and takes into account 'equity, good conscience and the merits of the matter'; and

(c) the discretion should be exercised having regard to the objects of the Act and the relevant Part of the Act."

[215] Consistent with the above, and considering all of the circumstances of this matter, I consider 5 March 2025 to be the time the cohort of employees from which the question of majority is to be determined. It follows then that there are 46 employees within the cohort based on the list provided by BHP at that time. I am satisfied that the scope of the proposed agreement has at all times been clear. I accept there has been some slight shift in the number of employees within the group since that time, however this has been as a result of changes to the organisational structure made by BHP, not as a result of any lack of clarity in the group proposed by APESMA.

[216] I accept the evidence of Ms Jessup-Little regarding the employees who reconfirmed their support for bargaining between 5-11 March 2025 and note that these changes were reflected in the updated list that APESMA provided to Chambers 12 March 2025. I also accept Ms Jesup-Little's evidence of her discussions with Mr Moore regarding the additional employee who re-confirmed support on 29th May 2025 and note Ms Jessup Little offered to make the email she received regarding this available to the commission on a confidential basis. As noted in paragraph 14 BHP had the opportunity to ask Mr Moore about this employee but did not. I have also had regard to the fact that, with the exception of Mr Gretch's comments regarding the reason some may have chosen to confirm their support for bargaining, BHP have not led any direct evidence from which I could reasonably conclude that any employee's wishes have been misrepresented.

[217] I am further satisfied that the employees who have signed the petition or have otherwise confirmed their support for bargaining understood what they were signing and I take their signing of the petition to be a clear indication that they wish to commence bargaining with their employer.

[218] To be clear, I do not accept BHP's suggestion that there is any uncertainty surrounding the final number of relevant employees who are supportive of bargaining, even taking into account the time that has passed since the initial petition was taken. Noting how well informed the relevant employees have been through this process, it is reasonable to conclude that any employee who may have wanted to change their positions would have done so in advance of the hearing.

[219] Taking into account the fluctuations in support over time, I am satisfied that, at the time of the hearing, 26 employees, had indicated their support for bargaining. This means that there are more employees in favour of bargaining than against and represents 56.52% of the proposed group. I am therefore satisfied that a majority of employees within the proposed group want to commence bargaining.

Is it reasonable in all the circumstances make the determination?

[220] APESMA submit that the requirements of s.237(1) and s.237(2)(a), (b) and (c) have been satisfied. Further, there is also no basis to find that the productivity or efficiency of BHP's business would be unfairly affected by bargaining with the Proposed Group such that to make the order sought would be, in any way, unfair. S.237 sits within and supports a legislative framework which is strongly in favour of enterprise bargaining. Relevantly, it is mandatory for the Commission to make a majority support determination when satisfied of the matters in ss.237(1) and (2). Accordingly, it is submitted that the Commission must give due weight to the wishes of employees who propose to bargain, in support of the legislative framework, and that in all the circumstances it is reasonable to make the determination sought.

• [221] BHP submit that if, despite the issues raised in their submissions, the Commission reaches the necessary level of satisfaction as to the Proposed Group being fairly chosen and the existence of a majority who want to bargain, it should use its discretion not to make the determination on the basis of "The significant delay" and the "constantly fluctuating state of affairs in terms of who's in or out".[151]

[222] The issues raised by BHP with respect to s.237(2)(d) have each been addressed in my earlier considerations. I have found the scope of the proposed group was and remains clear, and I have not been convinced that there are any issues of concern with respect to the time that has passed since the vast majority of those in support of bargaining signed the petition. It is also the case that at least some of the delay BHP complains of has been occasioned by its opposition to the order being made and says nothing about the possibility of the views of the relevant cohort of employees changing. Considering all of the circumstances of this matter, I consider it reasonable to make the determination.

• [223] Having formed the requisite satisfaction in relation to the matters in section 237(2) of the Act, I must make a majority support determination. A determination[152] will be issued with this Decision.

[1] P.9, Transcript of Hearing (31 July 2025).

[2] _Evidence Act 1995 (_Cth), s64(3). While acknowledging the Commission is not bound by rules of evidence in relation to a matter before it pursuant to Fair Work Act 2009 (Cth), s591.

[3] P.454 of the DHB- Respondent Submissions.

[4] P.10 of the DHB - Statement of Lauren Jessup-Little.

[6] P.30-34 of the DHB - Statement of Lauren Jessup-Little - LJ-2.

[7] P.59 of the DHB - Statement of Lauren Jessup-Little - LJ-7.

[9] P.61 of the DHB - Statement of Lauren Jessup-Little - LJ-8.

[10] P.65 of the DHB - Statement of Lauren Jessup-Little - LJ-10.

[11] P.68 of the DHB - Statement of Lauren Jessup-Little - LJ-11.

[13] P.69 of the DHB - Statement of Lauren Jessup-Little - LJ-12.

[14] P.70 of the DHB - Statement of Lauren Jessup-Little - LJ-13

[15] P.72 of the DHB - Statement of Lauren Jessup-Little - LJ-14.

[16] P.72 of the DHB - Statement of Lauren Jessup-Little - LJ-14.

[17] P.74 of the DHB - Statement of Lauren Jessup-Little - LJ-15.

[18] P.83 of the DHB - Statement of Lauren Jessup-Little - LJ-16.

[19] P.79 of the DHB - Statement of Lauren Jessup-Little - LJ-16.

[20] P.82 of the DHB - Statement of Lauren Jessup-Little - LJ-16.

[21] P.15 of the DHB - Statement of Lauren Jessup-Little.

[22] P.16 of the DHB - Statement of Lauren Jessup-Little.

[24] P.416 of the DHB- Witness Statement of Daniel Gretch.

[26] P.395-396 of the DHB - Reply Statement of Lauren Jessup-Little.

[27] P.396-397 of the DHB - Reply Statement of Lauren Jessup-Little; P.16-17, Transcript of Hearing (31 July 2025).

[28] P.443 of the DHB- Respondent Submissions.

[30] P.92 of the DHB - Witness Statement of Troy Moore.

[32] P.93 of the DHB- Statement of Troy Moore.

[33] P.94 of the DHB- Statement of Troy Moore.

[34] P.2, Transcript of Hearing (31 July 2025).

[35] P.399 of the DHB- Applicant's Outline of Submissions in Reply.

[36] P.446 of the DHB- Respondent Submissions.

[37] P.93 of the DHB - Witness Statement of Daniel Gretch.

[39] P.452 of the DHB - Respondent's Submissions.

[40] [2014] FWCFB 3501, [26].

[41] P.388-399 of the DHB - Applicant's Outline of Submissions in Reply; P.444 of the DHB - Respondent's Submissions.

[42] [2012] FCAFC 48, [39].

[43] P.389 of the DHB - Applicant's Submissions.

[44] P.445 of the DHB - Respondent Submissions.

[45] P.93 of the DHB - Statement of Troy Moore.

[47] P.92 of the DHB - Statement of Troy Moore.

[48] P.389 of the DHB - Applicant's Submissions.

[50] P.49-50, Transcript of Hearing (31 July 2025).

[51] P.399 of the DHB - Applicant's Outline of Submissions in Reply.

[52] Australian Collieries Staff Association, Re (1990) 35 IR 440, 445.

[56] R v Drake-Brockman; Ex-parte National Oil Pty Ltd [1943] HCA 35; (1943) 68 CLR 51 P.54.

[59] R v Hickman; ex parte Fox (1945) 70 CLR P.608.

[67] See clause 4.3(c) of the Black Coal Mining Industry Award 2010 as in force on 1 January 2010; P.447 of the DHB - Respondent's Submissions.

[68] R v Drake-Brockman; Ex-parte National Oil Pty Ltd [1943] HCA 35; (1943) 68 CLR 51 P.59.

[73] Australian Collieries Staff Association v NSW Combined Colliery Proprietors Association, Queensland Coal Owners' Association and others (No 20 of 1980) (Coal Industry Tribunal, 22 February 1982) C.R. 2998, 19.

[75] CFMEU v Dyno Nobel Asia Pacific Limited [2005] AIRC 622 [51] as cited in Application for approval of the BMA Rail Enterprise Agreement 2018 [2019] FWC 5003.

[76] P.448 of the DHB - Respondent's Submissions.

[77] P.30, Transcript of Hearing (31 July 2025).

[80] P.390 of the DHB - Applicant's Submissions.

[82] P.390 of the DHB - Applicant's Submissions.

[83] Australian Collieries Staff Association, Re (1990) 35 IR 440, 451.

[84] P.390 of the DHB - Applicant's Submissions.

[85] P.448 of the DHB - Respondent's Submissions.

[88] P.449 of the DHB - Respondent Submissions.

[89] P.450 of the DHB - Respondent Submissions.

[90] P.449 of the DHB - Respondent's Submissions.

[91] P.450 of the DHB - Respondent Submissions.

[93] P.58, Transcript of Hearing (31 July 2025).

[94] P.451 of the DHB - Respondent Submissions.

[97] P.390-391 of the DHB - Applicant Outline of Submissions.

[98] P.102 of the DHB - Statement of Adrian Catt.

[99] In accordance with the Rule in Browne v Dunn (1893) 6 R 67, [70],[76].

[100] P.391 of the DHB - Applicant Outline of Submissions.

[102] P.97 of the DHB - Statement of Troy Moore.

[103] P.118 of the DHB - Statement of Adrian Catt - AC-2.

[104] P.104 of the DHB - Statement of Adrian Catt.

[105] P.391 of the DHB - Applicant's Submissions.

[106] P.89, Transcript of Hearing (31 July 2025).

[107] P.414 of the DHB - Witness Statement of Daniel Grech.

[108] Transcript PN628, PN626; P.142, 266 of the DHB - Statement of Adrian Catt.

[109] P.77, Transcript of Hearing (31 July 2025).

[110] P.89, Transcript of Hearing (31 July 2025).

[111] P.90, Transcript of Hearing (31 July 2025).

[112] P.91, Transcript of Hearing (31 July 2025).

[113] P.30 of the DHB - Statement of Lauren Jessup-Little - LJ-2; P.98 of the DHB- Statement of Troy Moore.

[114] Construction, Forestry, Mining and Energy Union v Alcoa of Australia Ltd [2014] FWC 7123 at [71].

[115] P.391-392 of the DHB - Applicant Outline of Submissions.

[116] Cimeco Pty Ltd v Construction, Forestry, Mining and Energy Union [2012] FWAFB 2206.

[118] Cotton On Group Services Pty Ltd v National Union of Workers [2014] FWCFB 8899 at [8].

[119] Cimeco Pty Ltd v Construction, Forestry, Mining and Energy Union [2012] FWAFB 2206 at [20].

[120] The Australian Workers' Union v BP Refinery (Kwinana) Pty Ltd [2014] FWCFB 1476 at [14].

[121] United Firefighters Union of Australia v Metropolitan Fire and Emergency Services Board [2010] FWAFB

[122] P.452 [63] of the DHB - Respondent Submissions.

[123] P.392 of the DHB - Applicant Outline of Submissions.

[124] P.392 of the DHB - Applicant Outline of Submissions.

[125] Donnybrook Holdings Pty Ltd v CEPU [2021] FWCFB 1825.

[126] Liquor, Hospitality and Miscellaneous Union v Coca-Cola Amatil (Aust) Pty Ltd [2009] FWAFB 668, [39].

[127] P.392 of the DHB - Applicant Outline of Submissions.

[128] P.453 of the DHB - Respondent Submissions.

[129] P.452-453 of the DHB - Respondent Submissions; P.81-82, Transcript of Hearing (31 July 2025).

[130] P.453 of the DHB - Respondent Submissions.

[133] P.392 of the DHB - Applicant Outline of Submissions.

[134] Alcoa of Australia Limited v CFMEU [2015] FWCFB 1832.

[135] P.65, Transcript of Hearing (31 July 2025).

[137] P.20, Transcript of Hearing (31 July 2025).

[138] P.21, Transcript of Hearing (31 July 2025).

[139] P.31, Transcript of Hearing (31 July 2025).

[140] P.83, Transcript of Hearing (31 July 2025).

[142] P.82-83, Transcript of Hearing (31 July 2025).

[145] P.393 of the DHB - Applicant Outline of Submissions.

[147] P.85, Transcript of Hearing (31 July 2025).

[148] P.84-85, Transcript of Hearing (31 July 2025).

[149] P.86, Transcript of Hearing (31 July 2025).

[150] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Hunternet Group Training Pty Ltd (t/as Hunternet Career Connections) [2025] FWC 2232.

[152] PR797990 - the determination.

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