Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Neil Bartley & Ors
v
Helensburgh Coal Pty Ltd
(U2020/9414) (U2020/9415) (U2020/9416) (U2020/9417) (U2020/9418) (U2020/9419) (U2020/9420) (U2020/9421) (U2020/9422) (U2020/9423) (U2020/9424) (U2020/9425) (U2020/9426) (U2020/9427) (U2020/9428) (U2020/9429) (U2020/9430) (U2020/9431) (U2020/9432) (U2020/9434) (U2020/9435) (U2020/9436) (U2020/9437) (U2020/9438)

Application for an unfair dismissal remedy.

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

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

Procedural history of the applications

[3] This matter has a lengthy history which is outlined in summary below.

[4] I first heard the matters jointly, with consent of the parties, in October 2020. The Respondent objected to the Applications on jurisdictional grounds, stating that each of the terminations were genuine redundancies within the meaning of s.389 of the Act. My decision on the jurisdictional objection was issued on 24 December 2020 (the December 2020 Decision). 1 The Respondent lodged an appeal against that decision. In a decision issued on 19 May 2021 (the Appeal Decision),2 a Full Bench of the Commission quashed my decision in [[2020] FWC 5756] and remitted the matters to me for determination, consistent with the reasons of the Full Bench in the appeal.

Background

[5] As provided in the Appeal Decision, the background to this matter is uncontentious and is set out at paragraphs [6]-[10] of the December 2020 Decision. Those paragraphs are extracted in full here:

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

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

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

b) Its contractor workforce would be reduced by 40%.

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

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

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

Clause 34 of the Agreement

34.1 This term applies if:

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

and

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

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

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

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

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

(d) the alteration of hours of work; or

(e) the need to retrain employees; or

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

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

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

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

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

(c) alternatives considered;

(d) the likely effect of the change on employees;

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

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

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

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

34.5 Where there is a dispute over the implementation of change, the Dispute Resolution Procedure should be followed as outlined in this Agreement and work shall continue in accordance with the Company's reasonable direction while the dispute is resolved.

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

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

Clause 36.1 of the Agreement

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

During this consultation process, the use of contractors will be reviewed.

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

(1) This term applies if the employer:

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

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

Major change

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

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

(b) subclauses (3) to (9) apply.

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

(4) If:

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

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

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

(a) discuss with the relevant employees:

(i) the introduction of the change; and

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

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

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

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

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

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

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

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

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

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

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

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

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

(d) the alteration of hours of work; or

(e) the need to retrain employees; or

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

(g) the restructuring of jobs.

Change to regular roster or ordinary hours of work

(10) For a change referred to in paragraph (1)(b):

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

(b) subclauses (11) to (15) apply.

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

(12) If:

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

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

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

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

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

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

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

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

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

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

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

(16) In this term:

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

Statutory provisions with respect to the Respondent’s jurisdictional objection

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

“396 Initial matters to be considered before merits

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

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

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

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

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

“389 Meaning of genuine redundancy

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

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

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

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

(a) the employer’s enterprise; or

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

(My emphasis)

The current decision

[7] Further to the matters being remitted to me for determination, I conducted a conference and directions by telephone. Directions were issued for filing of materials by the parties and the hearing was conducted by video via Microsoft Teams on 6 and 7 October 2021, with closing submissions via Microsoft Teams on 27 October 2021.

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

Respondent’s Submissions

[9] In accordance with the Respondent’s jurisdictional objection, the Respondent filed its materials first. The Respondent’s position is that the dismissals of the Applicants were cases of genuine redundancy for the purpose of s.389(1) of the Act. The Respondent submitted there has been no finding of breach of a consultation obligation, and therefore the only remaining issue on remitter from the Full Bench is whether there was a reasonable redeployment opportunity in Peabody’s enterprise. The Respondent submitted that there were no reasonable redeployment opportunities to which the Applicants could be redeployed.

[10] The Respondent submitted that pursuant to ss.385(d) and 389(2) of the Act, the onus is on each individual Applicant to establish that their individual dismissals were not a case of genuine redundancy. 3 The Respondent submitted that for such a finding, there must be an appropriate evidentiary basis for a conclusion that it was reasonable in all of the circumstances for each Applicant to have been redeployed to a job or position or other work within Peabody’s enterprise at the time of the particular redundancies, with the relevant date in this matter being as at 24 June 2020.

[11] The Respondent submitted that the Applicants cannot establish this, because:

(a) Nexus and Mentser are not performing the 'core' work for which Peabody engages directly employed personnel. The 'insourcing' of the work would have been a significant change to the operations of the Mine.

(b) Nexus and Mentser employees are not labour hire or supplementary labour employees working within Peabody's own crews. They perform separate work and have autonomy over the works required of them on-site. They are not directly supervised by Peabody staff.

(c) The removal of work from Nexus and Mentser would have had a significant impact on both businesses and their employees engaged at the Mine. That impact is a relevant consideration. It is quite likely that those employees would have been terminated from their employment because of a lack of redeployment opportunities.

(d) When all the evidence is considered, there is no reasonably practicable way by which the redundant Applicants could have been redeployed to perform the work being performed by Nexus or Mentser. Put simply, it would require Peabody to accept a distortion to its operation which would make no business sense.

[12] Further, the Respondent noted that as set out by the Full Bench in the Appeal Decision, a range of matters will need to be considered in determining if redeployment to work undertaken by a contractor would be reasonable in all of the circumstances, including:

(a) the degree of control over the work of the contractor by the employer;

(b) the length of the contract and the period left to run;

(c) whether the insourcing of the work would require a change to the employer's business or operational strategy;

(d) the history of contracting the work in question;

(e) the rights and impacts on the contractors and their employees;

(f) that positions cannot be created where there are none;

(g) displacing existing occupants of positions is unlikely to be appropriate; and

(h) if the work was to be insourced, whether any of the Applicants had the necessary skills and experience to perform that work. 4

[13] The Respondent accepted that it would have been possible for it to insource some aspects of the work which were being performed by Mentser and Nexus at the Mine as at 24 June 2020. The Respondent submitted, however, that is “far from the test as to whether it would have been reasonable to do so in order to create a redeployment opportunity which did not otherwise exist”. The Respondent submitted that it would have been a wholly unreasonable decision for it to redeploy any of the Applicants to the work being performed by Nexus and Mentser. It noted that the test requires reasonableness but does not require an employer to make business decisions which would make no operational sense, particularly when doing so would cause unwarranted harm to others.

Mentser and Nexus being used to perform non-core work

[14] The Respondent relied on Mr Michael Carter’s (Vice President, Technical Services US and Aus for the Respondent) evidence that the Respondent’s directly employed workforce are employed to perform ‘core’ work at the Mine and contractors are engaged to perform ‘non-core’ work. 5 According to Mr Carter, this is similar to the Respondent’s operations at the Wambo mine and elsewhere.

[15] As to Nexus, the Respondent submitted the evidence clearly establishes that:

(a) The work retained by Nexus was predominantly project work, and in many cases had been ongoing for quite some time before the restructure and redundancies at the Mine in June 2020. 6

(b) It was not the case that Peabody had recently 'outsourced' this work to Nexus nor were Nexus' employees performing the work on a labour hire or supplementary basis to Peabody's core workforce. It is separate project work which is almost predominantly performed by an external contractor given their specialist skills and experience. 7

(c) Because of the nature of the project work retained by Nexus, aspects of it were sporadic or could only be performed at specific times. By using Nexus, there was a flexibility for performing the work which did not exist within Peabody's directly employed workforce. This also allowed Peabody to increase or decrease the manning needed to suit business at the Mine. That flexibility would not exist if the work was to be performed by Peabody's directly employed workforce. 8

[16] As to Mentser, the Respondent submitted that the evidence establishes:

(a) An operational decision had been made to outsource the bulk of conveyor maintenance works to a specialist contractor. That decision came well before the restructure and redundancies at the Mine in June 2020. Aspects of the work had also been performed by other contractors prior to Mentser commencing at the Mine, with certain aspects of the work not performed by Peabody employees at all historically. 9

(b) Whilst some of the work which is performed by Mentser's employees on the Mine can be described as standard black coal work (e.g. belt shovelling) and could be performed by Peabody's directly employed workforce, the work which was to be performed by Mentser went well beyond that. The work was directed at improving safety in relation to the conveyor system at the Mine and identifying and improving the underlying defects or inadequacies in the conveyor system to eliminate the need for the 'standard' work to be completed. This was work for which Peabody wanted to engage a specialist contractor to perform having regard to safety considerations and efficiencies of a dedicated contractor workforce. 10

(c) To the extent Peabody's directly employed workforce performed parts of the work to be done by Mentser historically, it was done on an ad hoc basis. 11 Mentser employees did not displace Peabody employees performing core work.

[17] The Respondent submitted that in neither case are the contractors providing labour hire or supplementary labour and working within the crews of Peabody at the Mine; rather, they provide standalone crews and perform work which the Respondent does not engage its directly employed workforce to perform. The Respondent submitted that the day-to-day work is managed by each of its contractors, not Peabody, however, there are occasions where both are involved.

[18] The Respondent submitted it is also apparent that:

(a) For the Nexus work, their supervisors for the work are highly experienced in the noncore work which Nexus was contracted to perform; 12

(b) In relation to the Mentser work, the Peabody employees (including the Applicants) may have shared some common skills and experience with the Mentser employees, but none of them had the necessary skills and experience in all of the tasks which would have enabled an 'in-house' crew to carry out and self-supervise the work; 13

(c) Supervision of the works by Peabody would have impacted on supervision of its core work (if supervisors were moved to supervise the contract works) or would have necessitated the employment of more supervisors. 14

[19] The Respondent submitted that removal of Nexus and Mentser from the Mine would have represented a fundamental change to its operations at the Mine. It submitted that the use of Nexus and Mentser to perform this work provided the business with:

(a) flexibility in relation to manning, particularly where aspects of work can be sporadic;

(b) the specialist skill and experience for the work which was required, including expert supervision; and

(c) efficiencies in the performance of the work, which would not have been possible if the work was all insourced and had to be worked using Peabody's directly employed workforce.

[20] As to any possibility of redeploying the Applicants, the Respondent submitted that at no stage, either in consultation or in the first hearing, have the Applicants or the CFMMEU articulated a cogent or practical explanation as to how redeployment of the Applicants into the work being performed by Nexus or Mentser could have occurred. The Respondent submitted this is unsurprising as there is no practical way to do that given the significant obstacles, including:

(a) None of the Applicants had the skills and experience to perform all of the work which Peabody had contracted Nexus or Mentser to perform. Significant training would be required.

(b) A crew made up of the Applicants would be unable, without significant training and experience in the work, to self-supervise all of the work which Peabody had contracted Mentser or Nexus to perform.

(c) A satisfactory solution to the training deficit would have been difficult to find, because much of the training of the Mentser and Nexus workforces was performed in-house by the contractors. Peabody was not equipped to provide that training, and an investment would have been required. That investment would have involved money and time, neither of which was reasonably available and neither of which would have represented a reasonable burden.

(d) Even if it is established that some or even all of the Applicants could have immediately performed part of the work Peabody had contracted Nexus or Mentser to perform, it would be wholly impracticable and unreasonable for Peabody to redeploy any of the Applicants to perform a small portion of the work and for Nexus or Mentser to retain the other work and to integrate the redeployed Peabody employees into their own crews. Nor is that an arrangement which Peabody had any legal right to force onto an independent contractor.

(e) Additionally, the Nexus work is for the most part sporadic or project work. Numbers required would fluctuate. It would be wholly impracticable and unreasonable for Peabody to redeploy any of the Applicants to perform project or sporadic work.

[21] The Respondent submitted that for these reasons, it would have been operationally impracticable for the Applicants to be redeployed into the work performed by Nexus or Mentser. It noted that similar operational impracticalities have led the Commission to find that the displacement of contractors, and even labour hire, was not reasonable, 15 and submitted that a similar finding should be made in this case.

Peabody employees unlikely to have all the skills necessary and training

[22] Further, in relation to the Mentser work, the Respondent submitted the following matters for consideration by the Commission:

(a) A number of Mentser's employees have or are working towards specialist qualifications directly relevant to that work. 16 It is unlikely that any of the Applicants have that experience or qualifications.17

(b) For the belt inspectors utilised at the Mine, the on-the-job training takes at least 12 months before being assessed as competent. 18 It is unlikely that any of the Applicants have that experience.

(c) There is specific technology used by Mentser in support of its work, and that technology would not be able to be used by Peabody's directly engaged workforce if Mentser were removed from the Mine. 19 That technology is key to the conveyor management works which Mentser are engaged to perform.

(d) The Mentser employees have also received the in-house conveyor training. 20

[23] The Respondent noted that it does not carry out the relevant training ‘in-house’, 21 and that skillset does not exist within its workforce. The Respondent relied here on the evidence of Mr Carter and Mr Andrew Withers (Engineering Manager for the Metropolitan Coal Mine), to the effect that they do not believe the Respondent’s workforce (including the Applicants) could complete the works to the same standard, quality and timeframes of Nexus or Mentser.22 The Respondent submitted that these factors weigh heavily against a finding that it would have been reasonable to redeploy the Applicants into the work of Nexus or Mentser.

[24] The Respondent cited the Teterin Appeal decision, 23 and submitted that as in that case, the fact that some Applicants may have the skills and experience to perform some of the work performed by Nexus or Mentser does not mean that it would have been reasonable to redeploy those Applicants into that work. The Respondent relied here on other factors including the operational impracticality of doing so, which it submitted weighs heavily against a finding that redeployment was reasonable in all of the circumstances.

Significant impacts on the employees of Nexus and Mentser if removed from the Mine

[25] Further, the Respondent submitted that the impact on employees of Nexus and Mentser, and the businesses themselves, must be considered by the Commission when having regard to the circumstances which existed in June 2020. The Respondent submitted that the employees of Nexus and Mentser retained at the Mine were not labour hire employees back-filling roles which were ordinarily filled by Peabody’s directly employed workforce. 24 As to Nexus, the Respondent submitted that many of their employees had been deployed to the Mine and had been working on the projects for a considerable period of time.

[26] The Respondent relied on the evidence of Mr Killian Grennell (General Manager of Nexus Mining), that any further reduction in the work available to Nexus at the Mine would have had a significant impact on Nexus and its employees:

(a) Nexus had already lost a significant piece of work at the Appin Mine at around the same time as the restructure at the Mine. Only a portion of the affected employees were able to be redeployed to other Nexus opportunities at the Dendrobium Mine. 25

(b) Nexus had a reduction in the amount of work which it had at the Mine. Given the lack of alternative opportunities, the vast majority of Nexus' employees agreed to enter into a job-share arrangement which allowed Nexus (and by extension Peabody) to retain the bulk of its workforce with their experience at the Mine. 26

(c) If some or all of the work at the Mine had been removed from Nexus, the vast majority of the cohort would have been terminated, it would have been a significant loss of revenue for the business and Nexus is likely to have lost some of its core expertise which may have had a flow on effect once new opportunities became available in the industry. 27

[27] As to Mentser, the Respondent submitted that the opportunity at the Mine was a significant one for the business and saw it invest in the engagement of a skilled workforce to fulfil its contractual obligations to Peabody at the Mine. 28 The Respondent submitted that if all of the work at the Mine had been removed from Mentser, the vast majority of the cohort would have been terminated and there would have been a significant loss of revenue for the business.29

[28] The Respondent cited findings of Deputy President Lawrence in the Teterin decision as follows:

(a) displacing existing occupants of positions is not appropriate;

(b) a requirement that there be a complete change in the employer's employment strategy is not appropriate. 30

[29] The Respondent submitted that on the evidence, it is clear that if the Respondent had insourced all of the work of Nexus and Mentser this would have:

(a) displaced existing occupants of roles;

(b) likely led to the termination of those employees from their employment; and

(c) would have been a complete change in Peabody's business and operational strategy for the completion of the works for which Nexus and Mentser were engaged.

Reply submissions

[30] In its reply submissions, the Respondent relied on the ‘high bar’, set by the Full Bench decision and other decisions of the Commission, 31 faced by an employee who contends that another worker, whose role is not affected by the employer’s change process,32 should be displaced in order to create a redeployment opportunity, or that an employer should in effect be forced to change its strategy or assume additional cost, delay or inefficiency to do so. The Respondent submitted that on its evidence now before the Commission, the Commission should find that displacing Mentser employees or additional Nexus employees would not only not be reasonable but would be commercially and operationally irresponsible.

[31] While the Applicants submit that the Respondent’s grounds are ‘overly simplified or exaggerated’, the Respondent noted in its reply submissions that this claim is made without any substantial elaboration. The Respondent submitted that the Applicants have provided no demonstrable reasoning as to how the ‘obstacles’ outlined in the Respondent’s evidence could be overcome. The Respondent submitted, therefore, the Commission cannot reasonably find that it would have been reasonable in all of the circumstances for each and every Applicant to be redeployed into work within the Respondent’s enterprise.

[32] The Respondent submitted there is no explanation by the Applicants as to:

(a) why the work which had been contracted to Mentser or Nexus should be insourced by Peabody in circumstances where:

i. the relationship with Nexus to perform the project work had been ongoing for some time, was consistent with Peabody's operational strategy for this type of work and particular projects had identifiable end-dates; and

ii. there are aspects of the service provided by Mentser for conveyor management which has never been performed by Peabody and could not practically be done by a 'crew' of Peabody employees, and there were genuine operational reasons as to why the management process was outsourced; and

(b) how the operational impracticalities, such as the provision of training and the supervision of particular tasks (particularly as it relates to the Nexus project work), would actually be overcome.

(Respondent’s emphasis)

[33] Further, the Respondent submitted that the impact of a decision to insource work from Nexus and Mentser of this magnitude at the relevant time in June 2020 may have had catastrophic flow-on effects to those businesses. The Respondent submitted this is not to set aside the impact of the redundancies on the Applicants, however, submitted that there was no change process which affected the Mentser roles or those of the remaining Nexus employees, and there is no industrially defensible reason to make them the ‘victim’ of the financial and operational circumstances which led to the impact on the Peabody roles.

Contention that the Applicants 'can' perform the work of Nexus and Mentser

[34] The Respondent acknowledged the Applicants’ sworn statements regarding their skills relating to Mentser and Nexus work. The Respondent provided its own summary of the Applicants’ evidence, which it does not accept in all respects, as follows:

[35] The Respondent submitted that the Applicants’ evidence is merely a ‘tick’ against tasks they have performed at some stage during their working life. The Respondent submitted that the Commission should not accept this evidence towards a finding that the individual has the necessary skills to take over all of the work being performed by Nexus or Mentser employees in a “seamless, safe and efficient way” such that it would be reasonable for the Respondent to adopt that course. The Respondent submitted in the contrary that many of the Applicants have ‘never’ (Respondent’s emphasis) performed various tasks necessary to complete work being performed by Nexus or Mentser, and therefore they cannot reasonably be redeployed into that work. The Respondent submitted that some of the other Applicants have only performed the tasks in previous employment, and in some cases some time ago. It submitted that the Applicants have not given evidence as to their proficiency or experience in performing each task, and the passage of time and relevant work practices at the Mine would require “at least a significant retraining process”.

[36] Specifically, the Respondent submitted that on their evidence, Luke Duffy, Stephen Gilmour and Clint Luck do not support a finding that they have the necessary skills or experience to have been redeployed into Nexus or Mentser work because many of the tasks identified had not been performed by them previously.

[37] The Respondent submitted that the onus is not on the Company to identify which of the Applicants have the skills, or ability to acquire the skills with retraining, to perform some or all of the tasks performed by the Mentser or Nexus contractors.

Misunderstanding of 'the work' performed by Nexus and Mentser

[38] The Respondent made submissions that the Applicants misunderstand or underestimate the contention as to why redeploying the redundant cohort to the work of Nexus and Mentser was not reasonable. Despite any competencies of the Applicants, or any ability for the Applicants to be trained in the relevant competencies, the Respondent submitted that the full scope of the service provided by Nexus and Mentser must be considered.

[39] As to the Nexus work, the Respondent made further submissions that:

(a) Nexus employees are performing a combination of specialist work (in that some works require a different skillset or approach to what a similar 'task' may require in 'straightforward' coal mining work) and project work with defined end dates. 33

(b) As explained by Michael Carter, the coordination of activities for carrying out non-core work (particularly where it is complex) was better managed by the use of contractors even where Peabody's directly employed workforce has some or even all of the required base skills available. 34

(c) The Nexus work was supervised by highly experienced supervisors. 35 The supervision of complicated work was a key factor in the decision to utilise a specialist contractor to perform the works.

[40] As to the Mentser work, the Respondent made further submissions that:

(a) No Applicant gives detailed evidence of their training and experience in carrying out conveyor management work. 36 This can be contrasted with the specific evidence provided on behalf of Mentser about the in-house and external training that its employees have and continue to undertake.37

(b) There is specialist technology which Mentser's employees use to carry out inspections and produce reports as part of the conveyor management works. That technology is not available to third parties such as Peabody. 38 It is not suggested that each and every employee of Mentser has to be proficient in using that technology, however the work performed by each crew is informed by the outputs of those inspection reports.

[41] The Respondent reiterated that despite the skills and experience of some of the Applicants to perform work performed by Nexus or Mentser, this does not result in it being reasonable to redeploy those Applicants into that work. The Respondent submitted that other factors, such as operational impracticality of doing so, weigh heavily against a finding of redeployment being reasonable.

Contention that the Applicants 'should' perform the work of Nexus and Mentser

[42] The Respondent submitted that the Applicants’ submission that they ‘should’ perform the work of Nexus and Mentser should be rejected.

[43] The Respondent submitted that in June 2020, there were no ‘available positions’ within its workforce. It submitted that it was not recruiting and did not have any ‘open’ or vacant roles, or roles being filled by labour hire. The Respondent submitted the Applicants have provided no authority in support of their argument that an employee performing a role “(which is not a backfill or labour hire role which would otherwise be filled by the employer)” should be displaced from that role to create an available position.

[44] The Respondent submitted that redeployment of some or all of the Applicants into the contractor roles would have required the Respondent to “wholly restructure” its approach to the performance of project work as it related to Nexus. It noted further that Mentser has also been engaged for a specific purpose.

[45] In support of its engagement of Nexus, the Respondent submitted:

(a) Peabody's First Submission was not that Nexus only performed non-core work prior to the redundancies. Instead, Peabody's evidence and submission was focused on why certain work was insourced and why other work was not.

(b) The fact that aspects of the work previously being performed by Nexus was insourced at the time of the redundancies in June 2020 does not mean that the work retained by Nexus should have also been insourced.

(c) Project work had been performed by Nexus at the Mine for a lengthy period. This is consistent with Peabody's operating strategy at its other Mines and is consistent with how work of this nature is performed in the industry.

(d) No evidence or submission is provided by the Applicants as to why it would be reasonable to insource the project work being performed by Nexus having regard to:

i. the fact that Peabody does not have the necessary supervisor cohort to supervise a crew of Peabody employees performing the work;

ii. the fact that it is separate project work which is almost predominantly performed by an external contractor in the industry given their specialist skills and experience;

iii. aspects of the work had identifiable timetables for completion which would have had to have been extended if the work was insourced with cost thrown away by Peabody;

iv. aspects of the work were sporadic or only capable of being performed at certain times;

v. there was cost certainty for Peabody in being able to flex up and flex down the number of contractors to suit business at the Mine which could not have been done using a directly-employed cohort to perform the work;

vi. how training would have been facilitated for any redeployed Applicants;

vii. the fact that employees of Nexus would be displaced from their roles and most likely made redundant.

[46] With respect to Mentser, it submitted:

(a) Mr Withers believes that the engagement of Mentser to perform the belt improvement and management work has resulted in a saving of approximately $600,000 to Peabody. 39

(b) Mr Withers identifies that the approach to conveyor management had not been effective to reduce risk. Mr Withers also identifies that the Mentser crews have achieved very positive results in relation to their work at the Mine. 40

(c) No evidence or submission is provided by the Applicants as to how it would be reasonable to insource the work being performed by Mentser having regard to:

i. how the full scope of work contracted to Mentser would have been performed by a directly-employed cohort where aspects of the work performed by Mentser had never been performed by Peabody employees;

ii. how training would have been facilitated for any redeployed Applicants;

iii. the fact that employees of Mentser would be displaced from their roles and most likely made redundant.

[47] The Respondent submitted that for these reasons, and without a compelling argument to overcome the ‘practical difficulties’ outlined, it cannot be found that redeployment of all of the Applicants would have been reasonable in all of the circumstances. It submitted that, on the evidence, the Commission should find that it was not reasonable for Peabody to insource the work being performed by Nexus or Mentser at the time of the redundancies in June 2020; and the Applicants’ applications should be dismissed on the basis that the redundancies were genuine redundancies for the purposes of s.389(2) of the Act.

Applicants’ Submissions

[48] The Applicants highlighted that in its Appeal Decision, the Full Bench rejected the Respondent’s argument that the work performed at the Mine by the Mentser and Nexus contractors could not be considered pursuant to s.389(2) of the Act, 41 which was the primary ground agitated by the Respondent on appeal.42 The Applicants submitted that in rejecting the Respondent’s argument, the Full Bench held:

“[68] It follows from the above that we agree that there are no binding principles that attach to a consideration of whether redeployment within the enterprise is ‘’reasonable in all of the circumstances’’. It also follows that we do not consider that redeployment to the work conducted by contractors is automatically excluded from such a consideration.”

[49] The Applicants noted that the Full Bench made some other observations, not binding, about the sort of matters that may need to be considered in making the evaluative judgment required by s.389(2) of the Act. 43 The Applicants submitted that those observations can be distilled into two questions:

•  The first question is whether the Applicants could perform the identified job or position. This question must be answered based on the evidence before the Commission. It must be answered based on the Applicants skills (or the skills that could be acquired with a period of reasonable retraining).

•  The second question is whether the Applicants should perform the identified job or position. This question must be answered based on all of the circumstances. If the job or position has been outsourced (as is the case in this proceeding), this will require consideration of the reasonableness or practicality of the employer insourcing that work. 44

(Applicants’ emphasis)

[50] The Applicants submitted that ultimately, the Full Bench found error, upheld the appeal and quashed the original decision. The Applicants therefore addressed the Respondent’s jurisdictional objection concerning s.389(2) of the Act, being the issue on which the Full Bench remitted the matter for determination.

[51] The Applicants submitted that in conducting the rehearing as to s.389(2) of the Act, the Commission must have regard to the evidence already adduced in the first instance proceeding and the additional evidence led by the parties. 45

Additional authorities in respect of s.389(2) of the FW Act

[52] The Applicants cited the Full Bench decision in Ulan Coal Mines Limited v Honeysett and others (‘Honeysett’) 46 and the decision in Technical and Further Education Commission v L. Pykett (‘Pykett’)47 as relevant to the consideration of s.389(2) of the Act. The Applicants submitted that these decisions outline a number of principles to be applied in considering that section, as follows.

[53] The Applicants submitted that in accordance with Honeysett, the Full Bench described what is meant by redeployment and provided some guidance as to the factors that may determine whether redeployment is reasonable:

“It is an essential part of the concept of redeployment under s.389(2)(a) that a redundant employee be placed in another job in the employer’s enterprise as an alternative to termination of employment. Of course the job must be suitable, in the sense that the employee should have the skills and competence required to perform it to the required standard either immediately or with a reasonable period of retraining. Other considerations may be relevant such as the location of the job and remuneration attaching to it. Where an employer decides that, rather than fill a vacancy by redeploying an employee into a suitable job in its own enterprise, it will advertise the vacancy and require the employee to compete with other applicants, it might subsequently be found that the resulting dismissal is not a case of genuine redundancy. This is because it would have been reasonable to redeploy the employee into the vacancy…

…While each case will depend on what would have been reasonable in the circumstances, subjecting a redundant employee to a competitive process for an advertised vacancy in an associated entity may lead to a conclusion that the employee was not genuinely redundant.” 48

[54] The Applicant submitted that both Honeysett 49 and Pykett50 provide that the question of whether redeployment within the employer’s enterprise or an associated entity would have been reasonable is to be applied at the time of dismissal.

[55] Further, the Applicants submitted that in Pykett, the Full Bench held that the Commission can only determine that redeployment would have been reasonable if a finding can be made, on the balance of probabilities, that there was a job or a position or other work within the employer’s enterprise (or that of an associated entity) to which it would have been reasonable in all of the circumstances to redeploy the dismissed employee. However, in making that finding the Commission is not required to identify the particular job or position to which the dismissed could have been redeployed. 51

[56] Lastly, the Applicants submitted that in Honeysett, 52 guidance was provided as to the factors to be considered pursuant to the broad evaluative judgment required by s.389(2):

“They include the nature of any available position, the qualifications required to perform the job, the employee’s skills, qualifications and experience, the location of the job in relation to the employee’s residence and the remuneration which is offered.”

The Applicants can perform the work done by the Mentser & Nexus Contractors

[57] The Applicants submitted that even on the evidence of the Respondent in the first instance, it was evident – “at the very least” – that the Applicants could perform the work done by the Mentser and Nexus contractors with a period of retraining. The Applicants cited by way of example the cross-examination of Ms O’Brien as follows:

“PN249: Just focusing upon the operator work, without going through a cross-referencing exercise of the cardholder reports of the applicants against the skills and competencies of the Menster and Nexus operators, you would accept, wouldn’t you, that the operators who are made redundant as part of this case had the skills, experience and competencies to perform the work performed by the Menster employees, with a reasonable period of re-training, wouldn’t you? --- With a period of re-training, yes.

PN250: And likewise, you would accept the same proposition in respect of some, but not all, of the work performed by the Nexus employees, wouldn’t you? ---- Yes, there would be some additional training that would be required in a number of different areas. So the Nexus employees do perform a range of things.

PN251: Yes? --- A range of tasks, yes.

PN252: So in general terms, without having to go through the nitty gritty and spend a few hours going through the cardholder reports, et cetera, in general terms, with additional training, these operators made redundant could perform the work performed by those two contractors, with a few exceptions, particularly as it relates to the Nexus employees doing what you said would be the hard rock or the civil construction work. Is that what you’re saying? ---- And handling of polymeric material and specialist shotcreting, et cetera, like that, yes.”

[58] The Applicants submitted the suggestion that any such requirement to provide training to the Applicants – noting that much training at the Mine is ‘on the job’ – is a compelling reason to accept the Respondent’s argument should be rejected. The Applicants submitted that the material relied on by the Respondent in making this argument is “put in general terms” and the Respondent has not sought to identify which of the Applicants have the skills – “or could acquire them with retraining” – to perform some or all of the tasks now performed by the Mentser and/or Nexus contractors. The Applicants submitted that the Respondent’s rehearing submissions seek only to suggest that none of the Applicants had the skills to perform all of the work done by the Mentser and/or Nexus contractors. 53

[59] The Applicants submitted, however, there are two problems with the Respondent’s assertion. Firstly, the assertion is not supported by any evidence and secondly, the premise of the assertion is unsound. The Applicants submitted that even if the assertion was true, it would only be a relevant factor going to reasonableness if all of the Mentser and Nexus contractors were equally able to perform all of the work contracted by Peabody to their employer. In this regard, the Applicants submitted that it would be plainly unreasonable to demand something of the Applicants that is not demanded of the Mentser and Nexus contractors.

[60] The Applicants submitted that the Full Bench made an observation about the state of the evidence concerning the skills of the Applicants in its Appeal Decision:

“[92] …. We would observe however that it is not apparent that any evidence was put before the Commissioner in relation to the specific skills and knowledge of each applicant below. For this reason alone the task the Appellant says was not undertaken with respect to each employee could not have been undertaken.”

[61] However, the Applicants submitted that this issue has now been addressed, and the Commission has before it evidence from each Applicant concerning their skills to perform the work done by the Mentser and Nexus contractors at the Mine. The Applicants submitted that evidence enables a positive answer to the first question, that is, the Applicants have the skills, or could acquire those skills with reasonable retraining, to perform the work done by the Mentser and Nexus contractors at the Mine.

The Applicants should perform the work done by the Mentser and Nexus contractors

[62] The Applicants submitted the Respondent has failed to mount a persuasive argument in respect of ‘whether The Applicants should perform the work done by the Mentser and Nexus contractors.’ The Applicants reiterated that many of the grounds relied on by the Respondent are overly simplified or exaggerated. By way of example, the Applicants submitted that suggesting there is a neat demarcation between the contracting out of ‘core’ and ‘non-core’ work at the Mine is simply untrue. 54 The Applicants noted this is especially the case given the Respondent is seeking to contract out such ‘core’ work.

[63] As to many of the grounds being ‘expressed in general terms’, the Applicants noted by way of example that the Respondent has suggested that the belt work being done by Mentser is safer and more efficient than when such work was done by Peabody employees. 55 The Applicants submitted that this claim is not backed by any evidence and is therefore meaningless. The Applicants submitted the same can be said about the ‘supposed sporadic nature’ of the project work undertaken by Nexus.

[64] The Applicants submitted that each of the obstacles put forward by the Respondent as a barrier to redeployment to the contractor roles can be overcome, and any preference the employer has for staffing its business is only one factor that must be weighed in coming to an overall determination as to whether redeployment would be reasonable in all the circumstances.

[65] The Applicants submitted in summary that on the facts before the Commission, it would have been reasonable in all of the circumstances to have redeployed the Applicants into a job or work that is performed by contractors at the Mine, especially Nexus and Mentser, and for these reasons the Commission should find that s.389(2) has not been satisfied and the jurisdictional objection be dismissed.

Consideration

[66] The Full Bench provided clarity and guidance in relation to this dispute by the following extracts in their Appeal Decision:

“[69] We would observe however that it would generally be the case that a range of matters would need to be considered in determining if redeployment to work undertaken by a contractor would be reasonable in all of the circumstances including the degree of control over the work of the contractor by the employer, the length of the contract and period left to run, any requirement to change the employer’s business strategy (e.g. to have all maintenance work performed by a contractor etc), the history of contracting the work in question, the rights of third parties, to name but a few. It may also be that consideration should be given to the issues identified by Deputy President Lawrence in Teterin: that positions cannot be created where there are none and that displacing existing occupants of positions may not be appropriate. The difficulty, as was observed in Pykett, is that the knowledge of the circumstances pertaining to the contractors will often be held by the employer and not by an employee who may consider the redundancy not to be genuine. Matters of procedural fairness may also require an opportunity being given to an affected contractor to be heard on these issues. But these are matters to be considered by a Member in dealing with an application where redeployment to the work of a contractor is being pursued. They do not form binding principles but rather may be relevant matters to consider.

[70] Further, we do not consider it reasonable to establish a rule, as suggested by the Appellant, as to what contracted work it might be feasible to consider and what should be automatically discounted in considering the reasonableness or otherwise of redeployment. The broad discretion afforded to the decision maker in determining if redeployment is “reasonable in all of the circumstances” should not be circumscribed in such a manner.

[86] In determining if it was reasonable in all of the circumstances for the employees to be redeployed into work performed by contractors the Commissioner would, by necessity, need to consider if the work performed by contractors could be performed by employees – in this regard the Commissioner would need to have regard to the skills and training of the employees concerned and consider this in some appropriate manner against the skills required in the work of the contractors. In this respect whether the contractor work was “specialist work” is a relevant consideration to the extent of such a skills assessment. Further, a relevant consideration in determining if redeployment was reasonable in the circumstances is a consideration of the reasonableness or practicality of the employer insourcing the work performed by contractors. We consider that in making the assessment he did the Commissioner was required to consider and balance, in addition to the nature of the work, the feasibility of insourcing that work from the employer’s perspective.

[91] We would conclude that the reasonableness or otherwise of the Appellant insourcing work of Menster and Nexus is not the inquiry required of the Commission. As mentioned above, whether work could or should be insourced is, in our opinion, a necessary matter to decide as part of the inquiry as to whether it is reasonable, in all of the circumstances, to redeploy the employees to that work. The reasonableness of insourcing is not, in our view, the correct question and is certainly not determinative of the matter and in this respect the Commissioner fell into error.”

[67] I note the Full Bench’s comments in relation to my decision in CFMMEU v Peabody CHPP Pty Ltd that the Respondent is not philosophically opposed to insourcing work. The Full Bench obviously did not understand the background to the CHPP case. Operation of the Coal Handling Preparation Plant (CHPP) had been outsourced by the Respondent some 20 years ago. The Respondent then made a decision to insource the work on the CHPP. Employees of the contractor working on the CHPP were offered jobs with the Respondent. By taking this action, the Respondent showed that it was not philosophically opposed to the insourcing of working.

[68] I will now turn my attention to the issues identified by the Full Bench in paragraph 65 above:

a) Degree of Control

Mentser – the Respondent has absolute control over the work performed by Mentser, including when they undertook tasks via the daily work orders and how they do the work via work method statements.

Nexus – Nexus is controlled by the Respondent via work orders and project planning.

Employees of the contractors work the same roster as the Respondent’s employees and attend the same pre-start meeting as the Respondent’s employees.

b) Length of Contract

Menster – The Mentser contract had only just commenced and had almost 5 years to run.

Nexus – The Nexus contract was due to expire around the same time as the restructuring. The contract was obviously extended by 12 months. Mr Carter testified that Nexus are on a job and pay scenario, where they only get paid for the jobs that they are asked to undertake. They are not paid in advance, nor do they have a project completion payment as part of their contract.

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

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

I note that this decision was upheld on appeal. 56

This decision can be distinguished on the basis that the contract only had a few months to operate and that it lacked common sense to disturb that arrangement for such a short period of time. In this case the contract with Mentser still has more than four years to run.

c) Respondent’s business strategy

Mentser – The trade work on the conveyor belts continues to be performed by the Respondent’s tradespersons – at no charge to Mentser. The Operator work has previously been performed by a mix involving the Respondent’s Operators and Contractors. The Respondent’s Operators were undertaking the non-trade work prior to Mentser. The fire on the conveyor belt seems to have been the catalyst for the outsourcing of this work. However, it could be argued that a change in the culture of Management was all that was needed.

Nexus – Nexus are engaged to perform project work, some of which is specialist work. There is a dispute as to whether all of the work undertaken by Nexus is either specialist work or project work. On the basis that some of the work performed by Nexus is gas pipe installation and secondary support work, I am satisfied that not all of the work performed by Nexus is either specialist work or work of a project nature.

d) Rights of Third Parties

Mentser and Nexus have contracts with the Respondent. The provisions of those contracts speak for themselves. It is not the role of the Commission to involve itself in contract negotiation or contract resolution between a contractor and its client. That is a matter for the Courts. The Commission only has jurisdiction through the Fair Work Act. Any other consideration is irrelevant. The Respondent has no relationship, contractually or otherwise, with the employees of Mentser or Nexus.

e) Qualifications of Employees

Mentser – Mentser have a number of employees who have successfully completed an AQF3 in Polymer Processing. This qualification is nationally accredited and portable. However, I am unsure of the relevance of this qualification. Neither the Respondent or Mr Abbott led evidence in relation to the syllabus of this qualification or the benefits of any competency acquisition in relation to performing the operator functions on the belts. The qualification certainly doesn’t allow the employee to undertake any fitter trade work. On the basis that not every employee of Mentser held this qualification at the time of the restructure, I have accepted that this qualification is desirable to perform some of the functions but not compulsory.

f) Effect on employees of Contractors if displaced

Unfortunately, the downsizing or restructuring of any organisation has an adverse effect on somebody. Put simply, an employer is trying to cut its costs and improve its profitability by hopefully increasing its productivity by maintaining its production levels whilst decreasing its input costs. I do not accept the argument by the Respondent that the Act does not differentiate between its employees and the employees of contractors. The Respondent has defined and prescribed obligations to its employees under the Act in relation to a plethora of issues including the NES, unfair dismissal and the objects of the Act. No such obligations exist between the Respondent and the employees of either Mentser or Nexus, except possibly in a moral sense. The principal obligation for the Respondent is to comply with the Act in relation to its employees.

g) Positions not to be created

In accordance with the decision of Lawrence, DP in Teterin, it is not appropriate to simply create positions where none exist. In this instance, 22 Applicants are claiming that their terminations were not cases of genuine redundancy and that they were unfairly dismissed. I note that there were in excess of 60 employees of Nexus and Mentser combined who continued to be employed after the restructure.

h) Itinerant Nature of Contract Work

From my experience in working within contractors over the last 35 years, I understand the itinerant nature associated with working for a contractor. The work is not secure and casual employment is prevalent. For many, it is a difficult and unfortunate circumstance. However, this decision is not about the benefits or hazards associated with working for a contractor. Mr Carter attempted to evade this question from Mr Walkaden but the simple, irrefutable facts are that, unless you are a specialist, with a well-defined skill set which is in demand in the workplace, employees working for a contractor have precarious job security compared to the directly employed employees of the Respondent.

i) Flexibility of Contracts

I am satisfied that there is greater flexibility afforded to the Respondent by engaging Contractors to do work. Contractors have the capacity to ramp up or down its workforce, with little or no notice because they are either casual employees or they can be transferred to another site.

Mentser – the Mentser employees are full time employees who work the same set shifts of the Respondent’s employees.

Nexus – 50% of Nexus employees are casual, however, they work the set shifts of the Respondent’s employees and are fully engaged at the Metropolitan Mine, ie, they do not move work locations.

It is not in dispute that any employee of the Respondent working underground falls under the control and supervision of the local Deputy and Undermanager.

Other considerations

[69] There are a number of other considerations which I believe to be relevant in this matter, as follows:

Are Mentser a specialist contractor?

[70] The evidence of Ms O’Brien at first instance is particularly relevant on this issue:

“So reading - I think it was Mr Murdoch's affidavit, he went through a long list of competencies that he had, and went through task-by-task-by-task.  Are you of the view that Mr Murdoch couldn't walk in and work on a conveyor belt tomorrow?---Again, some of the tasks could be done I suppose, but I guess for this particular contract the bare minimum was the conveyor specialist training to be completed, because there's a range of tasks and an understanding of the operation of the equipment required.”

(My emphasis)

[71] Further, Ms O’Brien’s first witness statement separated the contractor work into 3 categories, namely, sustaining work, specialist skills, and finite projects:

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

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

(b) if further redundancies were required, Peabody would seek to distinguish between sustaining work, specialist skills and finite projects – meaning that we would consider which projects would be finishing by a set time and which ones may be ongoing. ‘Sustaining work’ was work which was required on an ongoing basis but did not otherwise fall within a specialist skillset.” 57

…

“23. Much of this meeting was spent addressing concerns about fixed term employees and contractors, mitigation measures, and selection criteria. Relevantly, some of the issues for discussion included:

…

(b) discussions about contractor numbers and mitigation measures to avoid significant job losses at the Mine. It was Peabody’s position that contractors would still be required for the continued operation of the Mine, despite the reduction to the workforce, particularly for specialist tasks where the contractors had a specific skillset, expertise or critical project work that had already largely been paid for and had a finite end date. However, there was considerable discussion and disagreement about what Peabody considered to be ‘specialist work’. In particular, the concern was about whether permanent employees could transition into contractor roles and whether the employees could carry out the work being undertaken by contractors so that there would be fewer redundancies required.

24. Although we did not reach complete agreement on the issue of contractors, Peabody did remove some contractors from the Mine where they were performing what Peabody considered to be ‘sustaining work’ and used this as an opportunity to preserve jobs for Peabody workers (discussed further later in this statement). For example, the contractors who were providing secondary support crew were removed and this work is now being performed by Peabody’s directly employed workforce.”

…

“All of the contractors performing ‘sustaining’ works were displaced, as well as some contractors performing specific project works. There was a reduction of 67 contractor workers in total.”

(My emphasis)

[72] In this regard, the Mentser Specialist Training was the principal reason why Ms O’Brien regards Mentser to be a specialist contractor. The evidence of Mr Abbott is that the 28 modules of competency are partially delivered through a paper-based training program of just two days. The remainder of the training is delivered ‘on the job’ by having an experienced operator work with the inexperienced operator as part of a two-man crew. Occasionally, the training manager would also be underground.

[73] This training course is run by Mentser, it is not accredited via a National Training Package or an Industry Training Committee and is not portable or recognised by any other employer. Further, if any ‘trade’ work is to be undertaken, then the Respondent provides the tradesperson to perform that work.

[74] I do not agree with Mr Withers or Ms O’Brien that the training provided by Mentser is quality training. The training is not nationally recognised or accredited – nor is it portable. To suggest that the theoretical component of 28 individual and separate competencies can be obtained in two days of classroom training defies logic.

[75] The actual competencies that are gained by Mentser employees is via training that is provided on the job. Such competency acquisition is commonplace in the coal industry. It would appear that almost every non-trade competency in the coal industry is obtained by ‘on the job’ training.

[76] In relation to the Mentser ‘software program’, I find it extraordinary that the Respondent regards this program as some kind of panacea to all of its conveyor belt problems. The Respondent has had access to all of this type of information since it started using a conveyor belt to transfer coal. A Deputy is required to ‘walk the belt’ and provide an inspection report every shift. I am advised that these reports are not discarded because they are statutory inspections. Therefore, they would have this information for every coal mine that they operate in Australia since they started undertaking statutory inspections, if not around the world. What they appear to be missing is a computer program which collates the information.

[77] There is no doubt that the Respondent’s focus on the conveyor belts was poor. It would appear that a preventable fire occurred in 2019. It is not in my domain to apportion blame for the incident. However, what is evident is that the Respondent did not historically give conveyor belt maintenance a high priority. Rather than have specialist crews of Operators work on just the belts, the Respondent applied an ad hoc rotation arrangement to the work. Further, when another area of the mine was short staffed, if that area was deemed to be more critical, then management made the decision to raid the conveyor belt crews for that manpower. That scenario, which Mr Withers complained about in his evidence, was a decision of management. It had nothing to do with the competence, skill or training of the employees.

[78] A number of the Applicants also testified that, when working on the belts, they would submit job orders for work to be undertaken. The uncontested evidence is that these work orders were not given a high priority by management.

[79] Mr Withers was very enthusiastic about the Mentser reports because “they have pictures”. There is no evidence before me as to whether the Respondent had ever asked the Deputies or Operators to take photos of issues that formed part of their statutory reports or work orders.

[80] As the senior Mechanical Engineer at the Mine, it is self-evident that Mr Withers was very frustrated with the way in which management undermined his authority and desire in relation to the conveyor belts:

“Is that because you didn't give sufficient priority to the conveyor work when the Peabody employees were doing it, or you didn't provide sufficient management to ensure they did a good job, or they didn't have any pride in their job, which is contrary to the evidence of other employees that have given evidence yesterday, by the way.  But you're of the view that employees saw this as a low level task, had no pride in their area and didn't want to do the work.  I'd put to you - - -?---It's not that they weren't - they weren't taking ownership of the conveyor system.  One day it would be one guy, the next day it would be someone else.  If there was a sick leave, the first guy who would come out of the system would be the conveyor guy, he would go into the panel.  So it was the conveyor that would fall down.” 58

[81] Such a reaction is understandable. I accept that there would be alternate views at a senior level as to whether the cutting of coal has a higher priority than the maintenance of the equipment that transports the coal out of the mine. However, what is not in dispute in this proceeding is that not a single employee, some of whom had extensive conveyor belt experience, was asked whether they would be prepared to perform belt work as an alternative to being made redundant.

[82] Further, Mr Withers became very emotive and quite aggressive when answering questions from me:

“I understand the supply industry?---You talk about - you talk about training, order 34 says that you've got to supply adequate training.  For a man transport, which you drive like a 4-wheel drive, you drive out on a public road, you spend three months to six months to get them trained on that, on a 53 kilowatt machine yet you don't need to train our conveyor guys who are working with a 1.2 megawatt fucking thing that can rip you to bits?  How dare you even talk like that.” 59

[83] As a result of this inappropriate, unwarranted and colourful response, I am of the view that Mr Withers has a problem with anyone questioning his decision to outsource the conveyor belt work to Mentser, including the Commission.

[84] It is not in dispute that these two-man crews are self-supervised but would undoubtedly see a Deputy of the Respondent when the Deputy undertakes their statutory inspection each shift. It is also not in dispute that Mentser belt inspectors undertake an inspection twice a week, the results of which are uploaded into the Raven reports. Further, the Mentser employees perform work each shift in accordance to work orders issued by Peabody.

[85] In relation to the reports provided by the Raven software, I note that Mentser conduct inspection twice a week, compared to the at least twice daily inspections undertaken by Peabody employed Deputies. On a comparison basis, Peabody employees inspect the belts 700% more than Mentser employees each week.

[86] The fact that the Deputies do not provide pictures is something which can be discussed between the parties to satisfy Mr Withers.

Are Nexus a specialist contractor?

[87] There is no doubt that Nexus provides a wide range of services based on a wide range of skills and competencies of its employees. It is not in dispute that the Respondent did not consult or ask any of its employees whether they held any of those skills or competencies or could have gained any of those competencies with some additional training. Based on the self-assessment task undertaken by the Applicants, 9 Applicants identified themselves as having 100% of the suite of competencies required, whilst a further 5 Applicants held more than 90% of the competencies. A further 4 employees held more than 75% of the competencies. Mr Grennell agreed that no Nexus employee held all of the competencies to perform all of the work that is undertaken by Nexus at the Mine and that the Employees would normally work in groups.

[88] I am satisfied and find that Mr Davey is a witness of credit. His evidence is direct, forthright and invariably withstands initial countervailing suggestion or accusation.

[89] Mr Davey claimed that the majority of the Nexus project work was basic black coal work. This scenario was not initially agreed to by Mr Grennell but was supported by Mr Carter.

[90] Further, Mr Davey’s descriptive commentary of the “Scope of Work” for both Mentser and Nexus was accepted into evidence without objection or cross examination. Please see Appendix 1 to this Decision.

[91] Based on the reasoning above, I can find no impediment to the Respondent if it were to insource sufficient work to allow for the Applicants to be redeployed.

[92] I will now turn to an assessment of the skillset and competency of each Applicant. This assessment has been conducted based on the self-assessment of the Applicants in relation to the tasks identified by the scope of work provisions in the contracts between the Respondent and Mentser and the Respondent and Nexus. It is not in dispute that the Respondent did not ask a single employee if they had the competency to undertake any of these tasks prior to the employees being made redundant. Further, the Mentser scope of work in its contract includes the work required to be performed by tradespersons. It is not in dispute that Mentser does not employ any tradespersons. When mechanical or electrical trade work needs to be performed on the belts, this work is performed by Peabody tradespersons. The trades competencies of this scope of work equates to approximately 10%.

a) Mr Neil Bartley

Mr Bartley commenced at the Mine in 2004 as an Operator. Mr Bartley testified that he could perform 89% of the Mentser tasks and 100% of the Nexus tasks. I am satisfied that Mr Bartley was a suitable candidate for redeployment in either the Mentser and Nexus work.

b) Mr Jake Bennett

Mr Bennett commenced as an Operator at the Mine in 2014. Mr Bennett is a Mechanical Fitter by trade. Mr Bennett testified that he had the competency to perform 89% of the Mentser tasks and 68% of the Nexus tasks. Mr Bennett believed that the training required to pick up those other competencies would be minimal. I am satisfied that Mr Bennett was a suitable candidate to be redeployed into either the Menster or Nexus work, accepting that he may have required some on the job training for some of the Nexus tasks.

c) Mr James Brajak

Mr Brajak commenced at the Mine in 2011. Mr Brajak testified that he had the skills and competency to perform 91% of the Mentser work but only 9% of the Nexus work. Mr Brajak is a Mechanical Fitter. As a result, he has the capacity and qualifications to do 100% of the Mentser tasks, unlike any of the other Applicants or any employee of Mentser. I am satisfied that Mr Brajak was a suitable candidate for redeployment into the Mentser scope of work.

d) Mr Christopher Dale

Mr Dale commenced at the Mine as an Operator in 2019. Mr Dale testified that he was competent to perform 91% of the Mentser tasks and 85% of the Nexus tasks. He believed that the training required to pick up the other competencies would be either minimal or none. I am satisfied that Mr Dale would have been a suitable candidate for redeployment into either the Mentser and Nexus work.

e) Mr Ken Dryden

Mr Dryden had 16 years’ experience as an Operator with the Respondent at the Mine. Mr Dryden testified that he was competent to perform 93% of the Mentser work and 100% of the Nexus work. Mr Dryden could do every task except those that required a trade certificate. I am satisfied that Mr Dryden was a suitable candidate for redeployment in either the Mentser or Nexus scope of work.

f) Mr Luke Duffy

Mr Duffy commenced work with the Respondent in 2016. Mr Duffy testified that he was competent to perform 80% of the Mentser tasks and 82% of the Nexus tasks. Mr Duffy believes that he would require minimal training to upgrade his skills and competencies in all areas except where a statutory ticket or trade certificate is required. I am satisfied that Mr Duffy would have been a suitable candidate to be redeployed int the Mentser or Nexus scope of work.

g) Mr Leonard Farrance

Mr Farrance commenced his employment with the Respondent as an Operator in 2014. Mr Farrance testified that he is competent to perform 72% of the Mentser work and 91% of the Nexus work. Mr Farrance advised that he has a trade background in manufacturing and the maintenance of mining equipment and that nay training requirement to improve his competency level would be minimal. I am satisfied that Mr Farrance would have been a suitable candidate for redeployment in either the Mentser or Nexus scope of work.

h) Mr Stephen Gilmour

Mr Gilmour commenced work with the Respondent as an Operator in 2006. Mr Gilmour testified that he was competent to perform 67% of the Mentser tasks and 79% of the Nexus tasks. Mr Gilmour advised that he had worked at the Mine on two previous occasions for a period of 10 years. I am satisfied that Mr Gilmour would have been a suitable candidate for redeployment in either the Mentser or Nexus scope of work.

i) Mr Brendan Gornall

Mr Gornall has worked as an Operator with the Respondent since 2012. Mr Gornall testified that he was competent to perform 89% of the Mentser work and 100% of the Nexus work. Mr Gornall was confident that he would obtain additional competencies with virtually no training. I am satisfied that Mr Gornall would have been a suitable candidate for redeployment in either the Mentser or Nexus scope.

j) Mr Taylor Gosling

Mr Gosling has been employed as a electrician for the Respondent since 2012 but as an electrician apprentice since 2008. Mr Gosling testified that he was competent to perform 89% of the Mentser work and 68% of the Nexus work. Mr Gosling testified that he has undertaken any number of operator and mechanical fitting roles during his employment. Unsurprisingly, Mr Gosling is of the view that he would require zero or minimal training to increase his competency in these areas. I am satisfied that Mr Gosling would have been a suitable candidate for redeployment in either the Menster or Nexus scope of work.

k) Mr Murray Gray

Mr Gray has worked for the Respondent as an Operator at the Mine since 2011. Mr Gray testified that he was competent to perform 89% of the Menster work and 100% of the Nexus work. Mr Gray does not hold a statutory licence or trades certificate but can basically perform any other task. I am satisfied that Mr Gray would have been a suitable candidate for redeployment within either the Menster or Nexus scope of work.

l) Mr Tim Henderson

Mr Henderson has worked for the Respondent since 2008 as an Operator. Mr Henderson testified that he was competent to perform 83% of the Mentser work and 100% of the Nexus work. Mr Henderson claimed that he would require minimal training to increase his competencies. I am satisfied that Mr Henderson would have been a suitable candidate for redeployment into either the Mentser or Nexus scope of work.

m) Mr Joshua Hogg

Mr Hogg has been employed by the Respondent since 2008 as an Operator at the Mine. Mr Hogg testified that he was competent to perform 85% of the Mentser work and 94% of the Nexus work. Mr Hogg claimed that he would require minimal training to increase his skills and competency. I am satisfied that Mr Hogg would have been a suitable candidate for redeployment into either the Mentser or Nexus scope of work.

n) Mr Stuart Kemp

Mr Kemp has been employed as an Operator by the Respondent at the Mine since 2021. Mr Kemp testified that he is competent to perform 91% of the Mentser work and 100% of the Nexus work. Mr Kemp is unable to perform the statutory work on the belts because he is not a qualified mechanical fitter. I am satisfied that Mr Kemp would have been a suitable candidate for redeployment within either the Mentser or Nexus scope of work.

o) Mr Clint Luck

Mr Luck commenced employment with the Respondent in 2010 as an Operator at the Mine. Mr Luck testified that he is competent to perform 67% of the Mentser work and 38% of the Nexus work. Mr Luck was not cross-examined by the Respondent. Mr Luck’s self-assessment of his competencies is quite low compared to his colleagues. Further, Mr Luck did not make any constructive comments in relation to his capacity to pick up additional skills and competencies through training. Without further information in relation to Mr Luck’s capabilities, I am not satisfied that Mr Luck has the necessary competency to warrant redeployment into the Nexus scope of work. I am satisfied that Mr Luck would have been a suitable candidate for redeployment into the Mentser scope of work.

p) Mr Ryan Martin

Mr Martin has worked for the Respondent as an Operator at the Mine since 2006. Mr Martin testified that he is competent to perform 91% of the Mentser Work and 100% of the Nexus work. I am satisfied that Mr Martin work have been a suitable candidate to be redeployed into either the Mentser or Nexus scope of work.

q) Mr Christopher Murdoch

Mr Murdoch has worked for the Respondent at the Mine as an Operator since 2014. Mr Murdoch gave evidence at the hearing at first instance. I was impressed by his knowledge in relation to the competencies required to perform his role. Mr Murdoch testified that he is competent to perform 83% of the Mentser work and 100% of the Nexus work. I am satisfied that Mr Murdoch would have been a suitable candidate to be redeployed into either the Mentser or Nexus scope of work.

r) Mr Gregory Remfry

Mr Remfry has worked for the Respondent at the Mine as an Operator since 1996. Mr Remfry testified that he was competent to perform 87% of the Mentser work and 100% of the Nexus work. I am satisfied that Mr Remfry would have been a suitable candidate to be redeployed into either the Mentser or Nexus scope of work.

s) Mr Ryan Schuster

Mr Schuster has worked for the Respondent as an Operator since 2017. Mr Schuster testified that he was competent to perform 70% of the Mentser work and 97% of the Nexus work. I am satisfied that Mr Schuster would have been a suitable candidate to be redeployed into either the Nexus or Mentser scope of work.

t) Mr Boro Selak

Mr Selak has worked for the Respondent at the Mine as an Operator since 2004. Mr Selak testified that he was competent to perform 93% of the Mentser work and 91% of the Nexus work. I am satisfied that Mr Selak would have been a suitable candidate to be redeployed into either the Mentser or Nexus scope of work.

u) Mr Simon Walder

Mr Walder has worked for the Respondent at the Mine as an Operator since 2009. Mr Walder testified that he was competent to perform 91% of the Mentser work and 82% of the Nexus work. I am satisfied that Mr Walder would have been a suitable candidate to be redeployed in either the Mentser or Nexus scope of work.

v) Mr Alex Windisch

Mr Windisch has worked for the Respondent at the Mine as an Operator since 2017. Mr Windisch testified that he had the competency to perform 91% of the Nexus work. I am satisfied that Mr Windisch would have been a suitable candidate to be redeployed into either the Nexus or Mentser scope of work.

(This information is contained in Appendix 2 to this Decision).

[93] I do not accept the proposition that the employees who had not performed a task for a period of time, or if at all, would require significant training or retraining to obtain this competency. These competencies are not trade skills nor are they all specialist skills. The fact that the theoretical training for the Mentser specialist where 28 competencies only takes two days identifies the theoretical complexity of the competency or lack thereof. The Respondent’s Operators are skilled employees. They pick up skills quickly, usually by watching someone perform the task and by reading the work method statement. To use an analogy for a lawyer, Mr Walkaden is a qualified lawyer. I doubt that he has filled out a ‘Contract for the Sale of Land’ form since he did Property Law at University. I would have every confidence that Mr Walkaden, or any other qualified lawyer, could still complete this task, even though he may not have done so for more than a decade.

[94] The Union is not seeking the total removal of all contractors for the Mine. On the contrary, the Union accepts that some of the work is specialist but, more importantly, the Union only wants the 22 Applicants redeployed into the work where 60 contractor employees are currently working. The Union’s proposition leaves a role for at least 38 contractor employees.

[95] I am of the view that it is feasible for the Respondent to insource some of the work of the contractors. There is no financial penalty associated with insourcing any of the Nexus work, simply because Nexus are now paid on a job by job basis. There is sufficient basic black coal work to gainfully employ all of the Applicants in this work. There are no problems associated with supervision because the local Deputy will simply provide the required supervision.

[96] I am also satisfied that it is feasible that the work of the four 2-man Mentser crews could be insourced. The Respondent wants dedicated crews performing work on the belts. Such an outcome is obtainable by the Respondent establishing the same 2-man crew per shift. The Respondent simply has to commit to maintaining the integrity of the belt crews rather than using these crews as some sort of supplementary labour pool for the longwall.

[97] The Respondent has raised the issue of the ‘operational impracticality of insourcing’. I do not agree that this barrier exists. In relation to Mentser, the Applicants want to work in the self-supervised 2-man crews. They are happy for Mentser to undertake the twice weekly inspections and provide the Raven report. In my view, the Applicants would have no problem working in self-supervised crews. If Mentser were not prepared to provide the inspections and the Raven reports, then the Deputies’ statutory reports actually provide more up to date and relevant information. Raven appears to be nothing more than a preventative maintenance (PM) computer program, which has been in existence for the last 25 years to my knowledge. I am confident that a multi-national mining company such as the Respondent would be utilising a PM program somewhere in the world which could be modified for the Mine.

[98] In relation to Nexus, certain elements of the ‘project work’ could be performed by the Applicants under the supervision of the existing local Deputy. The Respondent has raised that Nexus sometimes provide equipment for their tasks. I am in no doubt that Nexus would charge the Respondent for using that equipment. I am confident that the Respondent would already own the equipment needed for some of this work or would be able to hire it off a third party. Such a scenario would, at worst case, be cost neutral.

CONCLUSION

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

[100] I am satisfied that the Respondent has complied with its obligations in relation to consultation as required under the Agreement.

[101] Typically, contractors are used to supplement a permanent workforce or to provide specialist skills which are not available from the permanent workforce. I am not satisfied that either Nexus or Mentser could be regarded as supplying skills exclusively of a specialist nature. I accept the evidence of Mr Davey, that both contractors are performing basic black coal Operator work.

[102] Ms O’Brien testified that the reason Mentser were regarded as a specialist contractor was because of the Specialist Mentser Training program. I accept that the concept of the Mentser specialist sounds impressive, but the reality is very different. Whilst it takes approximately 6months for an Operator to be trained “on the job” to be regarded as a specialist, the face to face paper or classroom training only takes 2 days for the entire 28 competencies. The “on the job” training is nothing more than having an experienced Operator in the 2-man crews. This method of cross-skilling employees is exactly the same approach adopted by the Respondent in relation to the training of inexperienced Operators. The 2 day in house, unportable, unrecognised and unaccredited training package is not justification to suggest that Mentser is a specialist contractor. Based on the conveyer belt skills of a number of the Applicants, I am satisfied that a number of the Applicants would have far more competency to perform the Mentser scope of work then some of the Mentser employees. Ms O’Brien was wrong. Mentser is not a provider of skills that did not exist in the Respondent’s workforce.

[103] I accept that by outsourcing the conveyor belt work to Mentser was a result of the Respondent adopting a new approach to the maintenance of its conveyor belts. A new approach may have been required as a result of the fire which occurred in 2019. The Regulator certainly thought so by making the identification of risks compulsory for management. However, what has occurred is that the fire, which was not due to the actions or workmanship of the employees, has been used as a catalyst which has ultimately derived at least 8 or 9 Operators of their livelihood. Such an outcome is unreasonable and unfair. In all likelihood, if management had treated the conveyor belts as an important function of the Mine, appointed Operators as designated work crews on the belts and taken note of the defects and prioritised the work order requests, then the fire may not have occurred.

[104] A large proportion of the scope of work of Nexus is not specialist work. Nine of the Applicants testified that they could perform 100% of the Nexus work. It is work undertaken in a coal mine on a regular basis. The Respondent claims that Nexus is performing project work. I do not agree. The Nexus project was due to finish around June 2020, which coincidentally was the same time as the restructure. The 12-month extension has resulted in Nexus being paid on a job-by-job basis. Nexus is not being paid in advance or being paid upon the completion of a very large scope of work. There is no easily identifiable reason why the Applicants could not be performing this work. They certainly have the skills and competencies, they could work under the supervision of the local Deputy and they could supplement the Respondent’s workforce in other areas of the Mine on short notice and without issue.

[105] Based on the criteria identified and utilized by Ms O’Brien (see PN94 above), I am satisfied and find that the Respondent’s actions in terminating the Applicants and keeping either Mentser or Nexus was reasonable.

[106] I note however, that Nexus still has 9 employees on the site post Respondent. Eight of those roles could be performed by a majority of the Applicants.

[107] I note that Nexus was able to sustain all of their employees post the restructure by a job sharing arrangement, which only lasted a few months, but still has some 50 or more employees engaged on a full time basis at the Mine.

[108] I find that the Applicants’ termination was not a case of genuine redundancy.

[109] I so Order.

[110] A Directions Conference will be convened in February 2022 to program the substantive applications.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR736051>

APPENDIX 1

MENTSER COMPETENCIES

NEXUS COMPETENCIES

APPENDIX 2 – APPLICANTS’ COMPTENCIES

 1   [2020] FWC 5756.

 2   [2021] FWCFB 2871.

 3   As per Teterin & Ors v Resource Pacific Pty Limited [2014] FWCFB 4125 (Teterin Appeal).

 4   [2021] FWCFB 2871 at [69] and [92].

 5   Statement of Michael Carter at [11] to [15].

 6   Statement of Michael Carter commencing at [27] for example regarding the Centenary Project; Statement of Killian Grennell at [15] and [16].

 7   Statement of Michael Carter at [14]; Statement of Killian Grennell at [7] to [12].

 8   Statement of Michael Carter at [14], [15], [44] and [45].

 9   Statement of Andy Withers at [8] and [9].

 10   Ibid at [8], [13] and [14]; Statement of Michael Carter at [46] and [47].

 11   Statement of Andy Withers at [7] and [9].

 12   Statement of Killian Grennell at [13]; Statement of Michael Carter at [44](e).

 13   Statement of Kain Abbott at [25].

 14   Statement of Andy Withers at [21](c); Statement of Michael Carter at [44](e).

 15   For example see: Teterin Appeal at [34]; Brown & Ors v Clermont Coal Operations Pty Ltd [2015] FWC 3862 at [40]-[41]; Stickley v Kestrel Coal Pty Ltd [2015] FWC 2884 at [149].

 16   Statement of Kain Abbott at [17].

 17   Statement of Andy Withers at [18].

 18   Statement of Kain Abbott at [18].

 19   Ibid at [19] and [20].

 20   Ibid at [18].

 21   Statement of Andy Withers at [21](c).

 22   Statement of Michael Carter at [44] to [48]; Statement of Andy Withers at [18] and [21].

 23   Teterin Appeal at [34].

 24   Respondent noted: C.f. the situation in Pettet v Mt Arthur Coal Pty Ltd [2015] FWC 2851 for the truck driving roles.

 25   Statement of Killian Grennell at [17] and [18].

 26   Ibid at [18].

 27   Ibid.

 28   Statement of Kain Abbott at [14] and [15].

 29   Ibid at [15].

 30   Teterin & Ors v Resource Pacific Pty Limited [2014] FWC 1578 at [112], acknowledging that each case needs to have regard to its own circumstances.

 31   Including Teterin, Mt Arthur Coal, Brown and Kestrel Coal.

 32   As per Teterin & Ors v Resource Pacific Pty Limited [2014] FWCFB 4125 (Teterin Appeal), it is the employee who bears the onus of establishing there was a reasonable redeployment offer for that employee.

 33   First Raelene O'Brien Statement at [12](b), [23](b) and [73]-[74]; Reply Raelene O'Brien Statement at [6], [8], and [21];

Statement of Michael Carter at [23]-[45]; Statement of Killian Grennell at [7]-[11] and [15]-[16].

 34   Statement of Michael Carter at [14].

 35   Statement of Killian Grennell at [13]; Statement of Michael Carter at [44](e).

 36   Peabody notes that Andy Davey gives hearsay evidence relating to Ken Dryden that he was employed by a belt splicing company before he commenced employment with Peabody (Andy Davey at [24]). This experience is not explained at all in Mr Dryden's statement, noting Mr Dryden commenced employment with Peabody in August 2004 (Ken Dryden at [2]). It should be noted that belt splicing is not carried out directly by Mentser (Kain Abbott at [24]).

 37   Statement of Kain Abbott at [9] and [16]-[24].

 38   Ibid at [19] and [20].

 39   Statement of Andy Withers at [13].

 40   Ibid at [23]; Andy Withers' Reply Statement at [16].

 41   Full Bench Appeal Decision at [68] – [72].

 42   Ibid at [15], [21] – [71].

 43   Those observations are found at [69], [86] – [87], [91] – [92] of the Full Bench Appeal Decision.

 44   At [86] – [87].

 45   The Australian Workers’ Union v Alcoa of Australia Limited [2019] FWCFB 3834 at [19].

 46   [2010] FWAFB 7578.

 47   [2014] FWCFB 714.

 48   At [34] – [35].

 49   At [28].

 50   At [35].

 51   At [34] – [38].

 52   At [28].

 53   Paragraph 2.13(a) of Peabody’s Rehearing Outline.

 54   Applicants’ noted: see paragraphs 2.5 – 2.6 of Peabody’s Rehearing Outline.

 55   Paragraph 2.7(b) of Peabody’s Rehearing Outline.

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

 57   Statement of Ms Raelene O’Brien at [12].

 58   Transcript at PN2339.

 59   Transcript at PN2344.