DECISION

Fair Work Act 2009
s.236 - Application for a majority support determination

Association of Professional Engineers, Scientists and Managers, Australia, The
v
Mt Arthur Coal Pty Limited T/A Mt Arthur Coal
(B2017/1199)

Majority support determination – group of employees who will be covered by the agreement not fairly chosen – application dismissed.

[1] The Association of Professional Engineers, Scientists and Managers, Australia (APESMA) has made an application to the Fair Work Commission (Commission) pursuant to s.236 of the Fair Work Act 2009 (Cth) (Act) for a majority support determination (Application) in relation to a group of Mt Arthur Coal Pty Limited t/a Mt Arthur Coal (Mt Arthur) employees.

[2] The Application (at [1.2]) defines the group of employees who will be covered by the proposed enterprise agreement as follows:

“The proposed enterprise agreement would cover employees of the Respondent who are nominated to perform the statutory function of “Open Cut Examiner” by Mt Arthur Coal Pty Ltd except for step–up employees who are covered by the Mt Arthur Coal Enterprise Agreement 2016.”

[3] A hearing in relation to the Application was conducted by the Commission on 5 and 6 March 2018. Ms Catherine Bolger, a Director of the Collieries’ Staff Division of APESMA, gave evidence in support of the Application. Ms Bolger is responsible for representing the industrial interests of members of APESMA who are employed by Mt Arthur and who fall within the group of employees who will be covered by the proposed enterprise agreement. Mr Gregory Prove, Manager Human Resources of Mt Arthur’s open cut coal mine in the Hunter Valley where the group of employees who will be covered by the proposed enterprise agreement are employed (Mine), gave evidence in support of Mt Arthur’s opposition to the Application for a majority support determination.

Amendment of the Application and identification of the group chosen

[4] In oral closing submissions in reply, counsel for APESMA applied for leave to amend paragraph [1.2] of the Application in the following way: 1

“The proposed enterprise agreement would cover employees of the Respondent who are nominated to perform the statutory function of “Open Cut Examiner” by Mt Arthur Coal Pty Ltd except for (i) step–up employees who are covered by the Mt Arthur Coal Enterprise Agreement 2016 and (ii) any person who is not in a supervisor role.”

[5] Mt Arthur opposed the application for an amendment, principally on the basis that granting such an amendment at such a late stage in the hearing (after each side had adduced evidence) would deny Mt Arthur an opportunity to adduce evidence in relation to the revised group of employees, a majority of whom it is alleged want to bargain with Mt Arthur.

[6] I grant leave to APESMA to amend paragraph [1.2] of the Application in the way set out in paragraph [4] above. I am satisfied that amending the Application in this way will only result in a small number of employees being excluded from the group of employees who will be covered by the proposed enterprise agreement, and will not have any material bearing on the outcome of the Application. I am also satisfied that permitting the amendment sought by APESMA will not cause any material prejudice to Mt Arthur.

[7] I will refer in the balance of this decision to the revised group of employees (as defined in paragraph [4] above), who will be covered by the proposed enterprise agreement, as the Defined Employees.

[8] It is important to understand at the outset that Mt Arthur does not employ any person in a role which has or includes the title “Open Cut Examiner”. The Defined Employees are a sub-set of Supervisors employed at the Mine. Mt Arthur employs about 64 Supervisors to work at the Mine and about 35 of those Supervisors meet the definition (set out in paragraph [4] above) of Defined Employees.

The role of a majority support determination

[9] The role of a majority support determination is to commence the bargaining process when, among other things, there is majority support among employees to collectively bargain but their employer has not agreed to do so. 2

[10] The effect of a majority support determination extends no further than to enliven the bargaining process under the Act, including the obligation on bargaining representatives to meet the good faith bargaining requirements under s.228 of the Act. 3

[11] Disputes concerning the scope of a proposed enterprise agreement can be dealt with in bargaining or in an application for scope orders. However, the scheme of the Act does not envisage a role for a majority support determination in deciding the scope of bargaining or the scope of an enterprise agreement. 4

Fairly chosen?

[12] Although Mt Arthur opposes the Application on a number of different grounds, the principal issue in the proceedings is whether the Defined Employees were fairly chosen. I must be satisfied that is the case as a precondition to making the majority support determination sought by APESMA (ss.237(1)(b) and 237(2)(c) of the Act).

Principles re fairly chosen

[13] In the context of “fairly chosen”, the word “chosen” means selected to be covered by the relevant agreement. 5 In Cimeco Pty Ltd v CFMEU & Ors,6 a Full Bench of Fair Work Australia considered the meaning of the word “fairly” in the expression “fairly chosen”:

“[13] The word “fairly” is derived from the adverb “fair” and is a word of wide import. What is fair in a particular context is largely a matter of impression and judgment. Of the various definitions of “fairly” in the Oxford Dictionary the most apt in this context are:

‘by proper means, legitimately, impartially, justly’; and

‘with due regard to equity, candidly, impartially; without undue advantage on either side.’”

[14] Section 237(3A) of the Act is relevant in determining whether a group of employees who will be covered by an enterprise agreement was fairly chosen. It provides as follows:

“If the agreement will not cover all the employees of the employer or employers covered by the agreement, the FWC must, in deciding for the purposes of paragraph (2)(c) whether the group of employees who will be covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.”

[15] In Aerocare Flight Support Pty Ltd v TWU; ASU, 7 a Full Bench of the Commission summarised a number of principles from earlier decisions in relation to whether a group of employees was “fairly chosen” (references omitted):8

“…

● a Member’s decision as to whether or not they are satisfied that the group of employees covered by an agreement was “fairly chosen” involves a degree of subjectivity and the exercise of a very broad judgment or value judgment, and in a broad sense can be characterised as a discretionary decision;
…
● once it has been determined that an agreement does not cover all of the employees of the employment, it is necessary for the Commission to make a finding as to whether the group of employees who are covered is geographically, operationally or organisationally distinct, and then take that matter into account and give it due weight, having regard to all other factors;
● if the group of employees covered by the agreement is geographically, operationally or organisationally distinct then that would be a factor telling in favour of a finding that the group of employees was fairly chosen; conversely, if the group of employees covered by the agreement was not geographically, operationally or organisationally distinct then that would be a factor telling against a finding that the group was fairly chosen;
● however while the question of whether the group of employees covered is geographically, operationally or organisationally distinct must be evaluated and given due weight having regard to all other relevant considerations, that is not a determinative consideration in that it is not necessary to make a finding that the group is geographically, operationally or organisationally distinct in order to be satisfied that it was fairly chosen;
● the selection of the group of employees to be covered on some objective basis, as opposed to an arbitrary or subjective basis, is likely to favour a conclusion that the group was fairly chosen;
● the relevant considerations will vary from case to case, but the word “fairly” suggests that the selection of the group covered was not arbitrary or discriminatory, so that for example selection based upon employee characteristics such as date of employment, age or gender would be likely to be unfair; and
● it is appropriate to have regard to the interests of the employer, such as enhancing productivity, and the interests of both the employees included in the agreement’s coverage and the employees excluded.”

[16] In most enterprises, there is unlikely to be only one fair manner of selecting the class of employees to be covered by an enterprise agreement. It may be the case that different classes of employees may be equally described as fair in the sense that no manifest unfairness arises from their selection. In the context of an application for a majority support determination, the Commission’s task in ensuring that a group of employees was “fairly chosen” is not to determine the scope of an enterprise agreement, but to guard against unfairness by being satisfied that the group can be described, in all circumstances, as “fairly chosen”. 9

[17] Distinctness is not absolute and can be a matter of degree. 10

[18] Geographical distinctness is concerned with the geographical separation of the employer’s various work sites or work locations, rather than a separation of workplaces within the same work site or work location. 11

[19] As to operational distinctness, the term “operational” refers to an industrial or productive activity. 12

[20] The following propositions are relevant to the determination of whether a group of employees is organisationally distinct (references omitted): 13

“● the term “organisation” refers to the manner in which the employer has organised its enterprise in order to conduct its operations;

● the performance by a group of employees of duties which are qualitatively different from duties performed by other employees may justify a conclusion that the group is organisationally distinct;
● however the mere performance by a group of employees of different tasks or roles to others may not be sufficient to render it organisationally distinct where the employees work in an integrated way with the other employees to perform a particular business function; and
● most businesses have organisation structures which will allow organisationally distinct groups to be identified.”

Proposed agreement does not cover all of Mt Arthur’s employees

[21] It is not in dispute, and I am satisfied on the evidence, that the proposed enterprise agreement will not cover all the employees of Mt Arthur. Accordingly, I must, in deciding whether the Defined Employees were fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct (s.237(3A) of the Act).

Geographically distinct?

[22] Mt Arthur employs over 1,000 people at the Mine in various production, engineering, management and administrative roles. There are also a number of labour hire workers and contractors who perform work at the Mine.

[23] The Mine is located on one site, which is south west of Muswellbrook, New South Wales. The Mine is comprised of a number of different production areas where coal is being extracted from the ground, as well as a coal handling preparation plant (CHPP), maintenance buildings, and various administrative buildings. 14

[24] The Defined Employees work in various locations across the Mine, but primarily in the various productive areas of the Mine where coal is being extracted from the ground. The Defined Employees do not regularly attend, or work in, the CHPP or the maintenance buildings.

[25] Movement around the Mine is governed by Mt Arthur’s Transport Management Plan, 15 which requires, amongst other things, permission to be sought and granted before entering any hazardous area of the Mine. Employees must be inducted, or be in the presence of a person who has been inducted, to enter the CHPP.16 Similarly, in the maintenance buildings an employee cannot move into an area beyond the marked walkways unless they are inducted into those areas or in the presence of a person who has been inducted.17 APESMA submits that these restrictions on the capacity of employees to enter particular work areas support a conclusion that Defined Employees are geographically distinct.18 I reject this submission for two reasons. First, this argument goes to the separation of workplaces within the same worksite and not to the separation of Mt Arthur’s various worksites. Secondly, the Defined Employees can and do move around the Mine, albeit they need to comply with Mt Arthur’s Transport Management Plan by, for example, travelling in the presence of a person who has been inducted into a particular hazardous area of the Mine if the Defined Employee has not been inducted into that area.

[26] During any one shift, Defined Employees may work in different productive areas across the Mine. Other employees of Mt Arthur also work at the same locations across the Mine as Defined Employees on a regular basis, including production and engineering employees (who work in the role of Operator or Maintainer) and other employees in supervisory roles. Defined Employees do not work at a different work site or work location to other employees of Mt Arthur. Accordingly, the Defined Employees are not geographically distinct.

Operationally and/or organisationally distinct?

[27] Mt Arthur’s industrial or productive activity (i.e. its “operation”) is coal mining. That involves the extraction of coal at the Mine, the preparation of such coal in the CHPP within the Mine, and the maintenance of plant and equipment at the Mine. One of the production areas of the Mine (Area F) is operated by a contractor, Thiess. Otherwise Mt Arthur operates the Mine.

[28] The work of extracting and preparing the coal at the Mine is undertaken by operators (Operators). The work of maintaining and repairing the plant and equipment, used by the Operators when extracting coal and preparing coal in the CHPP, is undertaken by maintenance employees (Maintainers).

[29] Mt Arthur’s Operators and Maintainers, who perform work covered by Schedule A – Production and Engineering Employees of the Black Coal Mining Industry Award 2010 (Black Coal Award), are covered by the Mt Arthur Coal Enterprise Agreement 2016.

[30] Schedule B – Staff Employees of the Black Coal Award includes a wide range of non-production classifications including:

● production supervisor, which means an employee at an open-cut mine whose duties include operational planning, co-ordination, supervision and control of mining and overburden operations and personnel on all shifts worked at the mine; and

● open-cut overseer, which means an employee appropriately qualified and certified performing general supervisory duties which may include the duties of an open-cut examiner under the Coal Mine Health and Safety Act 2002 (NSW).

[31] Mt Arthur’s employees who are covered by Schedule B – Staff Employees of the Black Coal Award are not covered by an enterprise agreement. The Maintainers and Operators are the only Mt Arthur employees at the Mine who are covered by an enterprise agreement.

[32] A management structure sits above the Operators and Maintainers employed at the Mine. That management structure is depicted in the following way in Mt Arthur’s Safety Management System: 19

[33] This management structure shows Supervisors and Open Cut Examiners to sit at the same level at the bottom of the management hierarchy. As stated above, although this management structure refers to both Supervisors and Open Cut Examiners, Mt Arthur does not employ any person in a role which has or includes the title “Open Cut Examiner”.

[34] The titles and approximate numbers 20 of Supervisors (including the Defined Employees) employed by Mt Arthur at the Mine are as follows:21

[35] Based on the above table, there are approximately 64 Supervisors employed by Mt Arthur at the Mine in total. In the event that a Supervisor is absent from work or is required to undertake a different function on a particular day, Mt Arthur often uses Operators to step-up into the role of Supervisor for the particular shift. Many, if not all, of those Operators who step-up into the role of Supervisor from time to time are not qualified or nominated by Mt Arthur as open cut examiners.

[36] The position of Open Cut Examiner, referred to in the management structure, is a statutory position established by the Work Health and Safety (Mine and Petroleum Sites) Regulation 2014 (Regulation).

[37] The Regulation establishes a range of “statutory functions” at a mine, which “can be exercised at the mine only by an individual who is nominated to exercise the function by the mine operator”. 22 One such “statutory function” at an open cut coal mine is that of Open Cut Examiner. The statutory function of an Open Cut Examiner is to “supervise workers and inspect work areas in a part of the mine”.23 This obligation does not apply to a coal mine at which no extraction occurs.24

[38] To be eligible to fulfil the functions of a statutory Open Cut Examiner, an individual must hold a current practising certificate, and a certificate of competence as either a Mining Engineering Manager or an Open Cut Examiner. These certificates are issued by the Mine Competence Board, NSW Department of Planning and Environment.

[39] In order to comply with the Regulation and the Work Health and Safety (Mine and Petroleum Sites) Act 2013 (WHS Mines Act), Mt Arthur nominates, in writing, existing employees, who hold the required qualifications, to the statutory position of Open Cut Examiner.

[40] Typically, Mt Arthur nominates persons who are employed as Supervisors to the statutory position of Open Cut Examiner given supervision and inspection are a Supervisor’s core responsibilities. 25 Indeed, in furtherance of their role, all Supervisors employed at the Mine are required to:26

(a) manage risks and hazards;

(b) plan and allocate work;

(c) undertake various administrative tasks including the completion of time sheets and the approval of leave;

(d) provide coaching, support, guidance, and feedback;

(e) complete incident investigations in relation to their work area; and

(f) ensure that the Operators and Maintainers under their supervision comply with the standards required to meet Mt Arthur’s various policies, operating standards, and regulatory obligations.

[1] As outlined in paragraph [4] above, it is this group of Supervisors (nominated by Mt Arthur to the statutory position of open cut examiner) who form the group of Defined Employees.

[2] The written nominations given by Mt Arthur to employees in relation to the statutory position of Open Cut Examiner inform them, among other things, that:

● they have been nominated pursuant to the Regulation to the “position of an Open Cut Examiner at Mt Arthur Coal”;

● their duties and responsibilities at the Mine are that of an Open Cut Examiner and they are required to comply with particular legislation and Mt Arthur’s Safety Management System;

● as an Open Cut Examiner, they are required to ensure that:

○ under Mt Arthur’s Safety Management System, “people are trained and competent for specified tasks and that people are working within site systems and procedures”;

○ regular inspections are carried out in accordance with Mt Arthur’s inspection program; and

○ they inform Mt Arthur if they become aware that the “conduct of the coal operation does not conform with the Work Health & Safety Act 2011, or the Work Health & Safety (Mines) Act 2013 or the regulations under either Act.”

[3] The written nominations given by Mt Arthur 27 do not state that the duties and responsibilities of Open Cut Examiner only apply when they are performing statutory inspections or supervision on a particular shift.

[4] The Regulation does not specify how many Open Cut Examiners must be on duty at a mine at any one time. That is a matter for the operator of the mine. However, the Regulation requires the mine operator to ensure that an inspection plan is prepared and inspections are carried out in accordance with the inspection plan and the Regulation. The inspection plan must divide the mine into “inspection areas, each being an area of a size no larger than that which can be reasonably inspected by a competent person within the time allocated to that person”. 28 An inspection of each production area at an open cut coal mine at which mining operations are taking place must be carried out under the mine’s inspection plan at least once every shift.29 Mt Arthur has an inspection plan in place at the Mine.30

[5] APESMA submits that the effect of the Regulation is to require all supervisory work in a productive area of the Mine to be undertaken by an Open Cut Examiner. I do not accept that submission. The Regulation requires that statutory functions such as that of an Open Cut Examiner can be exercised at the mine only by an individual who is nominated to exercise the function by the mine operator. 31 The statutory function of an Open Cut Examiner is to supervise workers and inspect work in a part of the mine and to prepare an inspection report. Provided the operator of a mine complies with that obligation by ensuring that an appropriately qualified and nominated Open Cut Examiner is appointed to be, and is, responsible for supervising workers and inspecting work in a part of the mine during a particular shift, neither the Regulation nor the WHS Mines Act prohibits the operator of the mine from having another supervisor or managerial employee, in addition to the statutory Open Cut Examiner, supervising particular work or tasks being undertaken in that part of the mine, nor does the Regulation or the WHS Mines Act require those other supervisors or managerial employees to be qualified and nominated as an Open Cut Examiner. Those other supervisors or managerial employees are not engaged in the statutory function of inspection and/or supervision; the statutory function is being undertaken by the appropriately qualified and nominated Open Cut Examiner. For example:

● consider a situation in which an apprentice mechanic is directly supervised by a qualified mechanic when undertaking repairs to a piece of plant or equipment in a productive area of the Mine. In my view, Mt Arthur would be able to comply with its relevant obligations under the Regulation and WHS Mines Act by ensuring that an appropriately qualified and nominated person (such as an Open Cut Examiner) was appointed and responsible (during the shift in question) for supervising workers and inspecting work in the part of the Mine in which the apprentice was undertaking repairs, and Mt Arthur would not be obliged in those circumstances to ensure that the qualified mechanic was also qualified and nominated as an Open Cut Examiner; and

● consider an operator responsible for driving a haulage truck in a productive area of the Mine, who is directly supervised by a Supervisor Overburden. In my view, Mt Arthur would be able to comply with its relevant obligations under the Regulation and WHS Mines Act by ensuring that an appropriately qualified and nominated person (such as an Open Cut Examiner) was appointed and responsible (during the shift in question) for supervising and inspecting work in the part of the Mine in which the operator was driving a haulage truck, and Mt Arthur would not be obliged in those circumstances to ensure that the Supervisor Overburden was also qualified and nominated as an Open Cut Examiner.

[6] Regardless of the proper interpretation of the obligations imposed on Mt Arthur by the Regulation or the WHS Mines Act, what is important in the context of the present case is how Mt Arthur actually conducts its “operation” and how it has organised its enterprise to do so.

[7] For each particular shift at the Mine, three or four Open Cut Examiners are identified by Mt Arthur as the “statutory examiners” for that shift. Each of the three or four “statutory examiners” is assigned one or more areas 32 at the Mine for the shift and is responsible for undertaking inspections and supervision in those areas and preparing an inspection report.

[8] There are about 35 Open Cut Examiners at the Mine who fall within the group of Defined Employees. Approximately seven of these Open Cut Examiners are employed in the role of Supervisor Statutory Compliance at the Mine (see paragraph [34]). Supervisors Statutory Compliance are employed exclusively for the purposes of performing the “statutory function” of open cut examiner, 33 including the preparation of an inspection report for each shift.34 As such, Supervisors Statutory Compliance do not have the same day to day operational responsibilities as the balance of Defined Employees. This is because all other Supervisors are employed for the broader purpose of overseeing the work of, and ensuring the health and safety of, the Operators and Maintainers in their team. That is so, regardless of whether a Supervisor has been nominated as an Open Cut Examiner or not.

[9] Although Supervisors who are not Defined Employees do have not the statutory functions and responsibilities of Open Cut Examiners, 35 their role is still to supervise the work of, and ensure the health and safety of, their team.

[10] I accept Mr Prove’s evidence that, in fulfilling their role, (a) there are a number of Defined Employees who work immediately alongside, on a daily basis, other Supervisors who are not Defined Employees and (b) Supervisors, including Defined Employees, frequently cross paths during the course of their shift and/or are required to interact with each other (both remotely and in person) in order to support the Mine’s operations. For example, a Supervisor Maintenance regularly interacts with Production Supervisors in order to set up planned and breakdown maintenance on production machines. 36 Another important example is that all Supervisors working at the Mine on a particular shift attend the same daily production meeting which the Mine’s safety and production plans and results are discussed.

[11] I am also satisfied that Mt Arthur uses some Supervisors who are not qualified as Open Cut Examiners to supervise workers in productive areas of the Mine. 37 APESMA also accepts this, at least to some extent.38 It follows that the Defined Employees and some of the Mine’s other Supervisors work in the same part of Mt Arthur’s “operation”, namely the extraction of coal at the Mine. A significant number of Operators and some of the Maintainers also work in that part of Mt Arthur’s “operation” on a regular basis.

[12] This degree of interaction between the Supervisors within the operation is consistent with how Mt Arthur treats all Supervisors (including the Defined Employees) as a single cohort for managerial and administrative purposes. 39

[13] Mt Arthur uses a single template contract of employment for all Supervisors employed at the Mine. This template contract is amended to reflect individual terms and conditions of employment agreed-upon for each Supervisor.

[14] All Supervisor roles at the Mine are graded as grade 9 in BHP’s global grading system. 40 If a Superintendent or Manager wishes to employ a Supervisor at the Mine at a higher level of base salary than the range of base salary for a grade 9 employee under BHP’s global grading system, approval to do so must be sought from Mr Prove.41

[15] In addition to the remuneration set out in their individual contracts of employment, some Supervisors are paid a critical skills allowance as a result of the particular role they perform at the Mine. The critical skills allowance is a discretionary annual payment of $10,000 in exchange for an agreement from the employee to provide a longer notice period in the event that they intend to leave their employment with Mt Arthur. I accept Mr Prove’s evidence that the critical skills allowance is offered on the basis of an employee’s skills or capabilities rather than because they hold a particular qualification. The critical skills allowance is paid by Mt Arthur to Defined Employees as well as other Supervisors who are not Open Cut Examiners. 42 The critical skills allowance is also paid to a few Engineers and about four Co-ordinators employed by Mt Arthur.43

[16] All Supervisors at the Mine are required by Mt Arthur to hold the following qualifications:

(a) Apply Risk Management Processes (RIIRIS301D);

(b) Conduct Safety and Health Investigations (RIIWHS301D);

(c) Communicate Information (RIICOM301D); and

(d) Carry Out Risk Management Processes (RIIRIS402D).

[1] All Supervisors employed by Mt Arthur at the Mine are required to complete the following training:

(a) Incident Investigations Training and Conduct Incident Investigations;

(b) Supervisor Field Leadership;

(c) Safety Management System;

(d) Supervisor Fitness for Work;

(e) Legislation Training;

(f) On Scene Coordinator Escalation Protocols;

(g) Code of Business Conduct;

(h) Mental Health for Leaders; and

(i) First Aid CPR Training and Assessment.

[1] All Supervisors employed by Mt Arthur are also required to participate in its safety program known as “Field Leadership” and its leadership workshops known as “Leading Step Up” and “Leading Value”.

[2] All Supervisors employed by Mt Arthur at the Mine (save for the seven Supervisors Statutory Compliance) are rostered to work in the same manner by Mt Arthur.

[3] As is apparent from the management structure in paragraph [32] above, all Open Cut Examiners and Supervisors report to Superintendents and some of the Open Cut Examiners report to the same Superintendent as Supervisors. Superintendents report to Managers, who report to the General Manager, which is the most senior position at the Mine. As a result, neither this management structure nor the more detailed parts of the organisational structure included as part of Mt Arthur’s Safety Management System 44 identify the Defined Employees as an organisationally distinct group.

[4] Mt Arthur’s Inspection Plan sets out an inspection and reporting hierarchy for the purpose of identifying and addressing risks and hazards in the workplace. 45 That inspection and reporting hierarchy shows Open Cut Examiners to be at a higher level in the hierarchy than Supervisors, which is not surprising given the statutory functions and responsibilities of Open Cut Examiners and the importance of those statutory functions and responsibilities to the task of identifying and addressing risks and hazards in the workplace. However, this difference in the inspection and reporting hierarchy for the purpose of identifying and addressing risks and hazards in the workplace does not, in my view, warrant a finding that Open Cut Examiners are at a higher level generally in the management hierarchy to Supervisors. The management structure depicted in paragraph [32] above is, in my view, better evidence of the level of Open Cut Examiners and Supervisors in the management hierarchy at Mt Arthur.

[5] The performance by Defined Employees of the statutory functions and responsibilities of Open Cut Examiner and the qualifications, nomination, experience and expertise required for the statutory position of Open Cut Examiner do not provide a sufficient basis upon which a finding of operational or organisational distinctness can be made in the circumstances of the present case. It is apparent from the facts, matters and circumstances described in the previous paragraphs that the Defined Employees work in an integrated way with Mt Arthur’s other Supervisors to supervise teams of Operators and/or Maintainers who work within Mt Arthur’s “operation”.

[6] For all the reasons set out above, I am satisfied that the Defined Employees are not operationally or organisationally distinct from the other Supervisors.

Finding re fairly chosen

[7] The fact that the Defined Employees are not geographically, operationally or organisationally distinct weighs against a conclusion that the group was fairly chosen. However, that is not determinative of the question of whether the group was fairly chosen. Other relevant considerations must also be evaluated and given due weight.

[8] The Defined Employees have been selected as a group because (a) they share a common high level of qualification, nomination as an Open Cut Examiner under the Regulation and WHS Mines Act, and a set of statutory responsibilities; and (b) they work in supervisory roles in a productive area of the Mine. It follows that the selection of the Defined Employees as a group has been on an objective basis (as opposed to an arbitrary, subjective or discriminatory basis) and this weighs in favour of a conclusion that the group was fairly chosen. So, too, does the fact that there is nothing about the choice of Defined Employees that undermines collective bargaining.

[9] I accept Mt Arthur’s submission that it is in its interest for the majority support determination sought by APESMA not to be made and for it not to bargain with the Defined Employees for their own enterprise agreement. Treating all Supervisors as a single cohort for managerial and administrative purposes and engaging Supervisors on individual contracts gives Mt Arthur advantages in relation to administrative and managerial efficiency, as well as flexibility. This weighs against a conclusion that the Defined Employees were fairly chosen.

[10] I do not accept Mt Arthur’s contention that collective bargaining with the Defined Employees would limit its ability to recognise and reward the performance and/or seniority of particular Defined Employees or other Supervisors, or that it may accordingly have adverse implications for the total remuneration of a number of Defined Employees or other Supervisors. 46 Mechanisms to recognise and reward individual performance and/or seniority could either be included in an enterprise agreement or dealt with in individual contracts which operate together with an enterprise agreement.

[11] I accept APESMA’s submission that it is in the interests of Defined Employees for them to be able to bargain for their own enterprise agreement with Mt Arthur. They wish to bargain collectively for a range of benefits including redundancy benefits. This weighs in favour of a conclusion that the group was fairly chosen.

[12] No evidence was adduced from the other Supervisors who are not Defined Employees, or from any other employees excluded from the coverage of the proposed enterprise agreement, as to whether it would be in their interests for a majority support determination in the terms sought by APESMA to be made. I am not satisfied that the making of such a majority support determination would be either in or against their interests. In all the circumstances, I consider the interests of employees excluded from the coverage of the proposed enterprise agreement to be a neutral consideration in my evaluation as to whether the group of Defined Employees were fairly chosen.

[13] APESMA relies on enterprise agreements made at a range of underground coal mines between the operators of those underground coal mines and deputies employed at those mines to support its fairly chosen argument in this case. A deputy is a statutory function under the Regulation. The statutory function of a deputy is to supervise workers and inspect work areas in a part of an underground coal mine. 47 However, the mere fact that enterprise agreements have been made at those underground coal mines with deputies is not relevant to the question in this case of whether the Defined Employees employed by Mt Arthur were fairly chosen. That is, without knowing the specific facts, matters and circumstances which led to a finding that a group of employees fulfilling the statutory role of deputy at a mine were fairly chosen, the making and approval of such enterprise agreements does not assist in determining whether the Defined Employees were fairly chosen.

[14] Having taken into account all the evidence adduced in these proceedings and the submissions made by each of the parties, my value judgment 48 is that the Defined Employees were not fairly chosen. Considered together, the factors weighing against a finding of fairly chosen outweigh those in support of such a conclusion, with the result that I am not satisfied the selection of the Defined Employees as a sub-set of the Supervisors employed by Mt Arthur was a fairly chosen group within the meaning of s.237(2)(c) of the Act.

Conclusion

[15] Because I am not satisfied that the Defined Employees were fairly chosen, one of the preconditions to making a majority support determination has not been met (ss.237(1)(b) and 237(2)(c) of the Act). Accordingly, I dismiss the Application.

COMMISSIONER

Appearances:

Doust, L for APESMA

Rauf, B for Mt Arthur

Hearing details:

2018.

Newcastle:

March 5 and 6.

<PR601806>

 1   PN1903-4

 2   LHMU v Coca-Cola Amatil (Aust) Pty Ltd [2009] FWAFB 668 at [28]

 3   Ibid

 4   Ibid at [29]

 5   Cimeco Pty Ltd v CFMEU & Ors [2012] FWAFB 2206 at [12]

 6   [2012] FWAFB 2206

 7   [2017] FWCFB 5826

 8   Ibid at [26]

 9   CFMEU v ResCo Labour & Training Pty Ltd [2012] FWAFB 8461 at [35]

 10   QGC Pty Ltd v AWU [2017] FWCFB 1165 at [42]

 11   AWU v BP Refinery (Kwinana) Pty Ltd [2014] FWCFB 1476 at [13]

 12   Ibid at [44]

 13   Aerocare Flight Support Pty Ltd v TWU; ASU at [27]

 14   Ex A4

 15   Ex A6

 16   PN1083-1089

 17   PN1091-1098

 18   PN1680-1681

 19   Ex R1 at p4

 20   There are some minor differences between the evidence contained in Mr Prove’s witness statement (Ex R3 at [6]) and Ex R4 in relation to the numbers of Supervisors in particular roles (e.g. Supervisor Overburden is 14 in Ex R3 at [6] but 13 in Ex R4). These differences are minor and do not impact on the analysis.

 21   Ex R3

 22   Clause 136(2) of the Regulation

 23   Schedule 10, section 18(1) of the Regulation

 24   Schedule 10, section 18(3) of the Regulation

 25   Ex R3 at [11]

 26   Ibid at [17]

 27   Ex A5

 28   Clause 85(2)(a) of the Regulation

 29   Clause 85(4) of the Regulation

 30   Ex A2 at pp.11-29

 31   Clause 136(2) of the Regulation

 32   Ex A4

 33   Ex R3 at [7], [31]

 34   Ex A5 at pp.35-50

 35   Ex A2 at pp.17-18 & 37-38

 36   Ex R3 at [19]; PN1415-1419

 37   Ex R4

 38   PN713-715 & PN1532-1537

 39   Ex R3 at [15]

 40   PN1130-1135

 41   PN1129-1132

 42   PN953 & PN1151

 43   PN1156-1158 & PN1312-1317

 44   Ex R1 and R5

 45   Ex A2 at p14

 46   Ex R3 at [48]-[49] & [51]-[52]

 47   Schedule 10, section 10(1) of the Regulation

 48   Aerocare Flight Support Pty Ltd v TWU; ASU at [26] (third bullet point)

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