PN1

THE DEPUTY PRESIDENT: Thank you. Closing submissions - there's no changes in appearances, I'm sorry, are there?

PN2

MR TILEY: No, your Honour.

PN3

MR McLEAN: Not from us.

PN4

THE DEPUTY PRESIDENT: Okay, great. Thanks. Mr Tiley.

PN5

MR TILEY: Thank you, Deputy President. Earlier this morning, we provided an outline of closing submissions to your chambers by email and to our friends as well. May I just inquire about whether that's reached you?

PN6

THE DEPUTY PRESIDENT: Yes, it has and I've had an opportunity to read it, Mr Tiley.

PN7

MR TILEY: Fantastic. That will allow me to circumscribe the matters that I need to traverse orally. The first topic that I wanted to address this morning, Deputy President, was the clause itself. Now, for your convenience the clause is relevantly set out in paragraph 11 of that outline.

PN8

THE DEPUTY PRESIDENT: Yes.

PN9

MR TILEY: And obviously enough the clause contains an obligation to provide preference to the directly employed workforce of the respondent. That is preference over or before relevantly labour hire and contractor employees. Now, there is no dispute between the parties that the employees of OS are ones that meet the description of labour hire and contractor employees. The dispute between the parties is about other aspects of the clause.

PN10

True it is that the clause does not specify training, it instead specifies development opportunities. We say that it can be safely concluded that the training that is the subject of this proceeding and the description of a development opportunity and we rely in that regard upon your prior decision, Deputy President, in another proceeding between these two parties, the relevant part of which is extracted at paragraph 24 of our closing submissions.

PN11

Now, we say that is an authority for the proposition or provides support for the proposition at the very least that training can be a development opportunity in certain circumstances. Now, the way in which we envisage the preference obligations operating is somewhat multifaceted. There is a rather binary way to look at it which would say that in order to give preference the respondent has to - had to here provide training to the relevant employees of the respondent prior to - sorry, offer that training prior to giving that training to the OS employees. And that's our primary position. But that is not the only way in which the preference obligation can operate and apropos of the example that your Honour gave which we respectfully adopt in paragraph 199 of the prior decision, and I'm looking at paragraph 24 here of the closing submission.

PN12

In that example what was traversed was a scenario whereby some of the contractor employees or labour hire employees had already been trained in the operation of certain trucks, and what the Commission said is that notwithstanding the fact that those people - that some of those people had already been trained, the respondent would still be required to give preference to its own direct employees. So, if there be a submission made today that the clause can't operate in what I describe as the first or the binary of those way because, as it was, the horse had already bolted and the OS employees had already been trained, well we say that that's not quite - that's not correct and that what in that scenario the respondent ought to have done is paused the training of the OS employees for so long as was necessary in order to provide - discharge its obligation to give preference and obviously it would do that by providing the training to the direct employees that needed it.

PN13

Now, that is of course a very common sense interpretation because again with respect the example that your Honour gave in that matter would appear to understand the possibility that there may well be an operational need for some contractor or labour hire employees to be trained first in certain circumstances. We acknowledge that. And the clause acknowledges that with the exception that it provides for. I'll come later and no doubt Mr McLean will also later come to the operation of the exception. But we just wanted to give those two scenarios at the outset to ensure that our position was understood and that the Commission appreciated that if there be one, any suggestion that the horse has bolted it's just not right and preference would still have been given at least in respect of those employees that hadn't yet been trained as between the two cohorts.

PN14

So, that's how we say the clause operates and you will recall that at the outset of the hearings in late March, we put on the record that we didn't hear from the respondent an assertion that your prior decision, and I should say for clarity or for the benefit of the transcript that when I say your prior decision I'm referring to CFMEU v BHP Coal Pty Ltd [2020] FWC 3788, we drew attention to the decision and we identified on the record that we didn't understand the respondent did contend that it was wrongly decided. The respondent directly answered that remark by us and said that it was a decision that could be distinguished but it wasn't said that it was wrongly decided.

PN15

Now, it may be that that is a moot point in any event because it might be thought that paragraph 199 is - it might be said that it's obiter rather than the ratio of that decision and sensible minds may differ about that and I'm certainly not going to say one way or the other, Deputy President, having not been the author of the decision nor having been a representative in the case. But at the end of the day it's, with respect, correct and we do adopt it.

PN16

So that's really the first topic that we wanted to address which is the way in which we say clause 8.1(g) operates at a conceptual level. Turning then to the facts, it is worth observing that there is, from our client's perspective, very little controversy about the key facts or what we consider to be the key facts. The key facts, from our perspective, fall into four categories.

PN17

The first one which is uncontested is that the training in - the AH training of the OS employees commenced in July 2021. There is no contest at all about that, and in the closing submissions I've given you references to the relevant parts of the evidence but you'll recall relevantly that we had the letter annexed to Mr Cox's statement. We had the information provided to Mr Goulevitch that the training would be commencing and the fact that Mr Goulevitch physically witnessed the training being commenced the following day, consistent with the information that had been provided to him about the training commencing. So, you would be comfortably satisfied of that fact, about which there was, in our submission, no contest.

PN18

There are some submissions that I've made in writing, and I won't labour them now, about the - which are critical of the quality of the respondent's evidence as to timing. But ultimately, that doesn't really matter because it's abundantly clear on those three pieces of evidence that I've given you - that I've just mentioned rather - that the training commenced - for those employees commenced in July.

PN19

Now, the second matter of fact, and again this is one about which there is no contest, is the requirements, the training requirements, that are set out in annexure CR1 to the statement of Caitlyn Ryan which is exhibit R3. Could I ask you to turn that up, please, Deputy President.

PN20

THE DEPUTY PRESIDENT: Sorry, just bear with me for a moment. I've just got the court book here electronically. Sorry, Mr Tiley, it's just taking me a while to flick through to it.

PN21

MR TILEY: Not at all, Deputy President.

PN22

THE DEPUTY PRESIDENT: Okay, yes.

PN23

MR TILEY: On the first page of the annexure when one spins it around and looks at it in a landscape way, you'll see the title of the document is, '(indistinct) FrontRunner AHS operational roles training', and it's divided into three columns. The course name on the left, we can skip over for present purposes the course overview in the middle, and then the third column we draw particular attention to the heading there, 'Roles required to complete this training'. Now, required is obviously a word of a mandatory quality and does not bespeak any - permit of any exception or lack of necessity. It's mandatory, we say, for the roles listed to complete the training in the corresponding column, the first column, and the example we draw particular attention to, it's not the only one that you would have regard to, Deputy President, but if you go down to the seventh row you'll see a course called p-a-s-s area.

PN24

THE DEPUTY PRESIDENT: Yes.

PN25

MR TILEY: If you then go across to the third column, you'll see that among the roles that are required to complete this training are mine employees with dozer/grader/water cart competencies. Now, obviously enough the document is talking about what competencies those mine employees have in the manned world and it's saying that if you have those competencies in the manned world then you are required to complete the training of course in the - because the training deals with the corresponding competencies in the AH world.

PN26

Now, I'll come in a minute to what the evidence shows about who did and did not have that training at what we say is the relevant point in time. But the key focus of our case, in an evidential sense, in relation to training that was required and not offered in the way we say the clause required it to have been offered is those mine employees with that competency who hadn't been offered the pass area training in a manner that amounted to being provided preference under the clause.

PN27

Now, this is the respondent's own document. It is a matter about which there is no dispute whatsoever and it is a matter - it is a document which is - there is no spin on the ball here, Deputy President. This is the - this is straight from the horse's mouth so to speak, and this is the information that you would find to be of the most assistance when you are assessing what training was and was not required, rather than, with respect, the interpretation that some of the witnesses placed with what one might fairly consider to be a degree of spin in the course of their evidence on what is and isn't required. So, that's the second bit of evidence about which there is no dispute.

PN28

The third bit of evidence that we draw attention to is - and there is a degree of factual dispute about this, is that the respondent had control or influence over the training of the OS employees. Now, I think I identified - I did identify in my opening that from our point of view that really doesn't matter because the clause required the respondent to give preference full stop. How it would discharge that obligation including dealings with third parties is a matter for it, and any suggestion that, for example, OS just got out ahead of us and it was out of our control would really be a plea in mitigation rather than a matter that was exculpatory if this were, as I said at the outset, a simple penalty type context.

PN29

But putting to one side the dispute between us about the significance in the proceeding of that issue, in an evidential sense the evidence doesn't get the respondents home in any event because there were numerous pieces of evidence and I have highlighted them for you, in particular paragraphs 29 through 36 of our closing submissions, and I won't labour them by taking you to them one by one, but to the various pieces of evidence about the way in which BHP was involved in the training of OS employees. We don't say that BHP was solely responsible for it. We simply say that it had control or I believe influence over who was trained, when they were trained and in what they were trained.

PN30

You'll recall the difficulty that, with respect, Mr Cox had when giving his evidence about what a number of the witnesses and the respondent described as the AH project team, and an unsuccessful attempt we say by the respondent to distance himself from the training that was given to the OS employees, we say prematurely, which you would see through based on, in particular, the oral evidence.

PN31

The last piece of evidence that we wanted to highlight and this again is one about which there is no dispute, is that as at the date of Mr Goulevitch's first statement and his first statement, Deputy President, is A3, if you could turn that up please.

PN32

THE DEPUTY PRESIDENT: Okay, I've got that Mr Tiley.

PN33

MR TILEY: Thank you. If I can just take you please, Deputy President, to paragraph 89 which is on the - from what is described in the footer as sheet 16 of that document.

PN34

THE DEPUTY PRESIDENT: Yes.

PN35

MR TILEY: And I'm focusing here for the purpose of the exercise on coalmining employees and on the pass area course that I took you to a moment ago in that row of CR1. Now, again that's not the only example on which we rely but it is, we think, the most stark example. Now, one thing worth noting at the outset is in the second sentence of 89 Mr Goulevitch says he's not aware of any employees that have been offered training and haven't taken it up.

PN36

What we have said about that in our closing is that save for the handful of examples that the respondent gave some evidence about being on long leave and so on, which you count them on one hand, the only - there's no evidence of offers being extended and not accepted, such that recalling that the question of arbitration is concerned with offers of training, you would infer that subject to those couple of exceptions the only offers of training that were made were those that resulted in the completion of training. And that's consistent with the second sentence of paragraph 89 of Mr Goulevitch's first statement.

PN37

Now, I can tell the Commission that on our calculation in the table at 89 of coalmining employees, there are 28 employees and 25 of those employees require the pass area competency because of the tickets that they have in the manned world. I say required, not based on some view that my client has about whether they needed it or not but required in the sense that Ms Ryan's document or the document annexed by Ms Ryan tells us that we require.

PN38

Now, the 28 comes down to 25 because three didn't require - they didn't have the tickets in the manned world and of the - of the 25, as at the date of this statement, 11 November 2021, only five of them had it. Now, I pause there to note two things. The first is that there is no dispute about the accuracy of these records as at the point in time at which they were prepared. There was no attempt to cross-examine Mr Goulevitch about the fact that, for example, he was wrong and in fact, you know, some greater number of the 25 I referred to had been given in the past training at that point in time. So, you can confidently conclude that this was an accurate snapshot as at that point in time and the second is that this is - this is four months after the training of the OS employees commenced. So, on any view of the world those 20 employees - just taking that discreet example that I've given you. Those 20 employees have been beaten to the punch by the training of OS employees. How many, we don't know because that information hasn't been given to you.

PN39

So that's the state of the training and that shows clearly the controversy that - the (indistinct) or controversy here which is what is in dispute is real live examples of people who we say have been deprived of their (indistinct) opportunity in a manner that is not permitted by the clause. So, those are the four matters of fact we wish to emphasise and I think I've said this probably ad nauseum but each of them save for the one about the extent to which BHP had control or influence over the OS training is not in dispute.

PN40

Now, moving on away from the facts to a third topic, Deputy President. That is the exception that clause 8.1(g) contains. There is reference in the opening submissions of the respondent to the fact that it will rely or does rely on that exception. With respect, that submission hasn't been fully developed yet and for me to address it prematurely. I will address it in reply once we hear how it is put and on what evidence it is - it is founded. But for our part, at this early stage, we simply say that we don't discern any, let alone any sufficient evidence that would make out the operation of the exception. And that the Commission in assessing that submission if it be made, it might not ultimately be pressed, we don't know but the Commission would have careful regard to two overarching factual considerations.

PN41

One, the rollout - the pace of the rollout, the extent of the rollout, all aspects of the rollout of AH matters that were within the control of the respondent or at the very least BMA, and secondly, there is evidence that, in general terms, productivity is greater in the manned world than the unmanned world. So it's difficult to see how in that - against the background of those things, any submission that the operational requirements demanded that these OS employees were trained first, is a submission that you could accept. But that's all we can really say for now subject to hearing from our friends on this issue.

PN42

So, that then takes me, Deputy President, to the fourth and final matter that I wanted to emphasise orally this morning, which is that we think it would be safely concluded by the Commission that here, there was an obligation upon the respondent to provide preference to its employees over the OS employees that in order to discharge its obligation what it ought to have done, and what in the future it ought to do is to train its employees first - withdraw that - to offer the training to its employees first. There is obviously a large controversy about that because the respondent doesn't accept that that is the way in which the clause operates.

PN43

As I alluded to in my opening last month, the - in a sense, the facts that we rely on here are merely a prism through which to view and answer the question for arbitration and it is not - perhaps not strictly necessary to make findings about which particular failures did and did not amount to a breach of the clause. What the question for arbitration, the agreed question for arbitration invites is a ruling somewhat in the abstract about the way in which the obligation operates, and as we've identified previously and we say again, quite how that would play out in the future is a matter that no doubt could and would be discussed responsibly between the parties.

PN44

So, for all of those reasons we say the respondent was required to give preference. It failed to do so and in order to ensure that that conduct contrary as it is to the agreement is arrested and doesn't recur in the future, the question for arbitration should be answered in the affirmative. Unless I can assist you further, Deputy President, those are the oral submissions I wish to make today.

PN45

THE DEPUTY PRESIDENT: Thank you, Mr Tiley.

PN46

MR TILEY: Thank you.

PN47

THE DEPUTY PRESIDENT: Thanks. Mr McLean.

PN48

MR McLEAN: Thank you, Deputy President. I'll approach my submissions in a slightly different way to my friend in that I'll focus on the four reasons that, in the respondent's view, the question needs to be answered in the negative. And I'll address you to those four reasons in turn but at a high level, those four reasons are, Deputy President, first and foremost the union's case would very clearly have the Commission ignore the primacy of operational requirements that is provided for in the enterprise agreement. Second, the union's case would have BHP Coal do more than simply preference its employees in the administration of training opportunities. Third, the union has still not properly identified the training that BHP Coal would be required to preference for its own employees if the question was answered in the affirmative. And fourth and finally, the autonomous haulage training modules that are the subject of the dispute are not properly development opportunities within the meaning of clause 8.1(g).

PN49

So, starting with the first of those and that's the primacy of the operation requirements, that requires, Deputy President, a consideration of the question as against the full terms of clause 8.1(g), and that clause is extracted in the document that my friend has filed this morning, closing submissions, and I think it's uncontroversial that that clause in very clear terms says, and I'll paraphrase here but BHP Coal has provided by preference, and then subject only to operational requirements.

PN50

Now, by contrast the question for arbitration obviously contains no such acknowledgement and to that end, in my submission, the question is asking the Commission to disregard the expressed terms of the agreement itself. My friend suggested in his opening address two weeks ago, and again in the course of this morning, Deputy President, that of course any obligation to preference is not absolute. But again that concession's not reflected anywhere in the question that you're being asked to determine in the course of this morning. In my submission, the only way that the Commission can properly answered the question in the affirmative is if the applicant had established that there's no such operational requirements, such that that rider to clause 8.1(g) is effectively rendered obsolete.

PN51

Now, that's a burden that we say falls on the applicant and it's a burden that the applicant hasn't discharged. The evidence in this case indeed discloses to the contrary, namely that there is an operational requirement for OS employees to receive the training. The first evidentiary matter, Deputy President, is that it was clearly BM Alliance that determined that OS would be required to operate autonomous haulage fleets. If I can start by taking you to the statement of Ms Ryan, which is R3.

PN52

THE DEPUTY PRESIDENT: Sorry, just bear with me for one moment. Sorry, Ms Ryan?

PN53

MR McLEAN: Caitlyn Ryan.

PN54

THE DEPUTY PRESIDENT: Yes, okay.

PN55

MR McLEAN: Paragraph 16. And there Ms Ryan deposes to the fact that from around July 2021 the CMO, which is defined in the preceding paragraph as BM Alliance Coal Operations Pty Ltd, determined that it would implement autonomous haulage in those pits operated by OS, and required OS to commence rollout of AH training for its fleets. That evidence is consistent with the evidence given Mr Cox in this proceeding. Mr Cox's statement, paragraph 14, again deposes to the fact that the CMO determined that it required OS to commence AH rollout for its fleets.

PN56

As a result of that announcement, Deputy President, there then arose an operational need for OS employees to commence training on autonomous haulage and again, while we're in the statement of Mr Cox at paragraph 15, he says this required coal mine workers on OS pre-strip fleets to commence training for AH competencies, and by this he's referring to the announcement in the preceding paragraph that the CMO would be requiring OS to commence AH rollout.

PN57

Again, if we can go back to the statement of Ms Ryan and at paragraph 17 Ms Ryan similarly deposes to the fact that this again being the announcement by the CMO required OS to commence training in AH competencies for coal mine workers on OS pre-strip fleets. To round that out, Deputy President, the statement of Mr Greenhalgh, which is R2. Paragraph 18 of that statement, and this is perhaps the most instructive evidence, Mr Greenhalgh explains that in order to be operational a pre-strip AH fleet needs a particular number of CMWs claimed in the various skills.

PN58

Now, importantly none of this evidence was challenged during cross-examination and the applicant has developed no evidentiary case to sustain the submission that OS employees don't actually require AH training. For completeness, Deputy President, and I'll return to this in a moment but there's no evidence in this proceeding as to the relationship that exists between BHP Coal and BMA and absent that evidence, there's no basis for the union's suggestion that BHP Coal was in any way involved in the determination of those operational requirements. That being an announcement that was made and implemented by BMA.

PN59

So, having regard to that carve out that I took you to that exists in the clause for instances of operational requirements, in my submission the question both as a matter of construction but also having regard to the evidence in the proceeding needs to be answered in the negative.

PN60

The second submission, Deputy President, relates to the extent of the obligation that's contemplated by the question and in particular, insofar as the question essentially impose an obligation on BHP Coal not to simply preference the allocation of any training but rather to effectively guarantee in absolute terms that its employees will be the first to receive certain training. Now, it would seem uncontroversial that to be preferencing one group of employees over another, the preferer needs to be exercising an election or a determination, and it follows that in order for BHP Coal to be preferencing one group of employees over the other, BHP Coal necessarily needs to be determining when its group of employees receives the relevant benefit, which in this case is training on autonomous haulage modules.

PN61

The union's case in contrast proceeds on this assumption or this submission that the obligations in clause 8.1(g) would exist irrespective of BHP Coal's actual involvement in the sequencing of that training. And a few weeks back, Deputy President, in his opening, my friend criticised that submission as being something of a straw man that's being erected by the respondent. But if I can take the Deputy President to the transcript from the first day of the hearing.

PN62

THE DEPUTY PRESIDENT: Just bear with me. I'm sorry, I've got everything electronically. I thought we'd be in the office today and we're not. Sorry about this, I'll just have to get it up. Yes, the transcript.

PN63

MR McLEAN: The transcript, and in particular paragraphs 25 to 26. This is an extract from my friend's opening two weeks ago, and this where he describes this argument as (indistinct). But he says:

PN64

The question for arbitration is not concerned with the respondent itself offering training to employees. The question for arbitration does not presume that it is the respondent that's providing the training to OS employees and nor, in our submission, does that matter given the wording of clause 8.1(g).

PN65

Paragraph 26 goes on to double down behind that proposition. In my submission, Deputy President, those paragraphs are effectively fatal for the applicant's case and I say that because it cannot have been the intention of this clause that the clause would operate so as to effectively oblige BHP Coal to guarantee that its employees would receive training before contractors that are engaged by the mine operator receive that training opportunity.

PN66

The reason I say that is such a construction would clearly produce an industrially absurd outcome whereby BHP Coal is potentially liable and in breach of an enterprise agreement for a situation or an occurrence that's quite possibly, and in this case we'll say is beyond its control. To put it another way, perhaps the untenability of that construction is more apparent once it's recognised that there may well be training opportunities that BHP Coal provides to its employees but does not necessarily have ownership of. So, a very simplistic example would be if BHP Coal was to begin a rollout of training in relation to a new type of truck, and that training was also available on the market through a third party provider, then on the union's construction of the clause, BHP Coal would be in breach of the agreement if the employer of a contractor or a labour hire provider, of their own volition, went out and secured that training from a third party provider on the market.

PN67

THE DEPUTY PRESIDENT: How so?

PN68

MR McLEAN: Well, Deputy President, if you look at the question, the question operates in absolute terms and so the question isn't concerned with - let me start that again, Deputy President. The question is concerned with ensuring that BHP Coal offers training opportunities to its employees before, in this case, employers of a contractor are able to secure that training. Irrespective of where those employees may be securing the training from.

PN69

THE DEPUTY PRESIDENT: So, is your argument essentially and just stop me if I'm misunderstanding you, Mr McLean, but is your argument essentially that the obligations can only arise where BHP Coal engages the contractor and employs the relevant persons with respect to whom preference is claimed.

PN70

MR McLEAN: The obligation can only rise if BHP Coal has authority or can of its own right determine when the employees of a contractor or labour hire provider receive training.

PN71

THE DEPUTY PRESIDENT: But if it engages the contractor or the labour hire - so, if it engages the contractor or the labour hire organisation, I assume that somewhere in the contract it has something about the labour hire - you know, the contractor shall provide labour with appropriate skills and qualifications to do the work that's the subject of the contract, and that BHP could issue directions to the contractor with respect to that.

PN72

MR McLEAN: That's a possibility, Deputy President, but that's not the situation we're faced with in this case. And the reason I say that is first and foremost there's no evidence that BHP Coal has been involved in (indistinct) of OS. There's no evidence that BHP Coal has any control or determinative effect over the announcement by BMA that OS is required to operate autonomous fleets and accordingly secure autonomous haulage training for its employees.

PN73

THE DEPUTY PRESIDENT: Right.

PN74

MR McLEAN: The clause cannot operate so broadly so as to oblige BHP Coal to determine or to regulate in absolute terms when employees or contractors and labour hire providers receive training. The clause is concerned with BHP Coal's involvement in the sequencing of training opportunities.

PN75

THE DEPUTY PRESIDENT: But if BHP Coal engages the contractor and it engages the employees to whom the preference must be given - I mean I could understand there might be an argument if BHP Coal doesn't engage the contractor, if the contractor's engaged by somebody else, so that BHP Coal doesn't have control over where the contractor's working and what the contractor's doing. But if BHP Coal engages the contractor and its own employees, why can't an obligation to preference its own employees in the provision of training be enforceable?

PN76

MR McLEAN: If BHP Coal was in fact the one delivering training to the employees of those contractors and BHP Coal engaged the contractor, then perhaps. But what the clause can't do - - -

PN77

THE DEPUTY PRESIDENT: Then what clause - what work does the clause do at all then?

PN78

MR McLEAN: The clause has relevance in circumstances where BHP Coal, where it is BHP Coal that determines the sequencing of the training. And so when the sequencing of the training is determined by third party operators then BHP Coal can't be held responsible and can't be found to be in breach of an enterprise agreement because a third party operator or third party individual has gone and obtained training without the involvement of BHP Coal.

PN79

THE DEPUTY PRESIDENT: Well, why is that any different from - and take for argument's sake an unfair dismissal situation where a labour hire company places a person on a site and the principal contractor says I want the person gone. The labour hire company just can't throw up its hands and say well, nothing I can do. Isn't it obligated to say well, hang on a minute, we've got an obligation here to treat the person fairly. Well, here BHP Coal's got an obligation with respect to its employees to give them preference over contractors' employees, assuming that's how the preference works.

PN80

It's got an obligation to give preference to its employees over a contractor's employee with respect to the same training opportunity and it's not as though it's an arm's length entity here. It's related to BMA. So, why isn't is obligated to take some steps - because otherwise, Mr McLean, the clause would just have no work to do and you could essentially structure your way out of the obligation by just saying it's not our problem because we're not deciding who does the training when.

PN81

MR McLEAN: The clause would very much still have to work to do if it was BHP that was determining the sequencing of training. So, if it was BHP that was bringing all the employees of the contractor into a room and saying we're BHP Coal and we're providing this training to you, and we're doing it notwithstanding there's no operational requirement for you to have it. And we're doing it for your benefit before we offer it to our own employees, then that's the situation in which the clause would say that's not available and that's not a course of action that BHP Coal can fairly adopt. But in circumstances where a sequencing is beyond the control of BHP Coal, BHP Coal cannot sensibly be said to be in breach of the clause.

PN82

THE DEPUTY PRESIDENT: Well, who is controlling the sequencing of the training?

PN83

MR McLEAN: We say that the announcement by BMA, BM Alliance, that OS was required to operate in autonomous pits, necessitated OS employees receiving training. And there's - sorry, Deputy President, bear with me. There's no evidence in this case, Deputy President, that BHP Coal has determined the sequencing of the training as it relates to employees of OS. That sequencing is the product of the announcement of BMA and the steps that OS took to give effect to its operational requirements, and there's not evidence that BHP Coal was the controlling mind in either of those steps.

PN84

THE DEPUTY PRESIDENT: Right. So, the issue is no evidence that BHP was the controlling mind and its involvement with BMA is not something that I can have regard to.

PN85

MR McLEAN: That's the submission, Deputy President.

PN86

THE DEPUTY PRESIDENT: I understand. Thank you.

PN87

MR McLEAN: Perhaps putting aside the constructional point for one moment and then reflecting on the evidence as it developed in the course of the proceeding. There's a reference in the - or there's an agreement in the agreed statement of facts at paragraph 11 that the autonomous systems were rolled out in BHP Coal fleets before they were rolled out in fleets that were assigned to OS. It's fair to say that insofar as training naturally follows an employment opportunity, and indeed further there's actually a base level of training that employees are required to complete before they can operate in an autonomous area.

PN88

The order of the deployment is in and of itself indicative of the fact that BHP Coal employees were the first to receive autonomous training. Perhaps even more telling in that regard is the annexure to the statement of Scott Greenhalgh, and that's annexure SG2.

PN89

THE DEPUTY PRESIDENT: Can you give me the page number in the court book?

PN90

MR McLEAN: I unfortunately don't have an electronic copy of the court book.

PN91

THE DEPUTY PRESIDENT: Right. I'll find it. So, SG2.

PN92

MR McLEAN: SG2, the statement of Mr Greenhalgh is ZR2.

PN93

THE DEPUTY PRESIDENT: Just bear with me for a minute. Sorry, I'm looking for Mr Greenhalgh's statement, one minute. I'm sorry, I've just got to get this statement, it's somewhere in this big, long electronic document.

PN94

MR McLEAN: Deputy President, perhaps while you're looking for that, I'll just re-visit the issue of BHP Coal's involvement in the sequencing of the training, just to make sure that I've made my submission clear.

PN95

THE DEPUTY PRESIDENT: Yes.

PN96

MR McLEAN: The respondent's position is that the operational requirement that OS employees receiving training on AH modules was a consequence of the decision of the mine operator, which is BMA, and as the evidence that I took you to previously disclosed that announcement necessitate OS employees being trained on autonomous haulage modules. And the statement of Mr Zietsman which I won't take the Deputy President to now but for the record at paragraphs 17 and 19.

PN97

THE DEPUTY PRESIDENT: Yes.

PN98

MR McLEAN: It makes clear that it was OS that managed training for OS fleets and it's OS that's responsible for training its own crews.

PN99

THE DEPUTY PRESIDENT: Is there evidence about who engaged OS?

PN100

MR McLEAN: There's not - there is, Deputy President, at 15 of Ms Ryan's statement, I'm instructed.

PN101

THE DEPUTY PRESIDENT: Yes.

PN102

MR McLEAN: And that makes clear that OS is engaged by BM Alliance, being the mine operator. So, OS being responsible for the training of its own crews, OS then enters into an arrangement with BMA to facilitate that training and that's the arrangement that is documented at the annexure which is SC1 to the statement of Shane Cox. That letter, be it in the redacted or unredacted version discloses an arrangement that existed between OS and BMA and only those two parties.

PN103

THE DEPUTY PRESIDENT: So essentially that comes back to the point I made earlier which is that if there was any obligation with respect to this, it would only be if BHP engaged OS.

PN104

MR McLEAN: On the facts of this matter I think that's a fair conclusion.

PN105

THE DEPUTY PRESIDENT: All right. I understand your point. I've got Mr Greenhalgh's statement in front of me now. So, I'm looking at the annexure to it.

PN106

MR McLEAN: If I can take you to annexure Greenhalgh number 2, SG2.

PN107

THE DEPUTY PRESIDENT: Yes.

PN108

MR McLEAN: So, this is a (indistinct) that sets out the sequencing of training and you'll see from the top right-hand corner that the data is said to be correct as at 19 December 2021.

PN109

THE DEPUTY PRESIDENT: Yes.

PN110

MR McLEAN: This (indistinct) demonstrates, Deputy President, that first and foremost OS training commenced on 15 July and you'll see that in the bottom row of the first page, the row that's highlighted in orange.

PN111

THE DEPUTY PRESIDENT: Yes.

PN112

MR McLEAN: That's obviously consistent with both the letter that's at C1 and also what my friend indicated this morning was an uncontroversial fact in the proceedings. The (indistinct) then indicates, if you look at the preceding rows and in the same column under 'start date' that every BHP Coal crew commence training by no later than 28 June 2021. And indeed it's clear from this (indistinct) that a number of those crews actually commenced training significantly earlier, going as far back as it would seem September 2020.

PN113

Now, the voracity of that (indistinct) was never put in issue in the course of cross-examination.

PN114

THE DEPUTY PRESIDENT: But essentially this would only say that even if we had to preference BHP employees we did but we didn't have to.

PN115

MR McLEAN: We did.

PN116

THE DEPUTY PRESIDENT: Really - - -

PN117

MR McLEAN: That's as far as we (indistinct).

PN118

THE DEPUTY PRESIDENT: Yes, because really if your point is right, that if we don't engage the contractor then we can have no obligation to give preference to our employees over the contractor. Isn't that the end of it?

PN119

MR McLEAN: We would say that the evidence of what the past practice has been is then by the by. The fact that - - -

PN120

THE DEPUTY PRESIDENT: But as a matter of - as a matter of law, could the agreement obligate BHP to preference - to take some step with respect to the employees of a contractor that it doesn't engage?

PN121

MR McLEAN: The only circumstance would be if BHP was absolutely arbiter of when those employees received training, and in this case it's not. If you have an obligation to preference that inherently requires that you have the ability to elect or make a choice or place one above the other. In circumstances where you can only control one group and you can't control what happens to the second group, you can't be said to be making a preference.

PN122

THE DEPUTY PRESIDENT: So the other operation of the clause would be even if BMA engaged the contractor, so BMA engages OS, if BHP, and I'm abbreviating them, if BHP was the provider of the training and the only provider of the training and the OS employees had to do the training, BHP would need to preference its own employees in the provision of the training before it provided it to the OS employees, notwithstanding that it didn't engage them. That's the other circumstance in which the clause could apply.

PN123

MR McLEAN: By that you mean - by BHP you mean BHP Coal? And again subject to the operational requirements rider that exists in the clause - - -

PN124

THE DEPUTY PRESIDENT: Yes, I do. Yes, when I say BHP I mean BHP Coal and BMA I mean the mine operator. So, if the mine operator engaged a contractor and BHP engaged employees to do the same work, and in order to do that work there was a training course that was required to be provided and BHP was the only provider of the training course then you say the course the clause could operate so that BHP subject, subject to operational requirements had to preference its own employees in the training. Notwithstanding that it didn't engage the contractors' employees.

PN125

MR McLEAN: That's conceivable.

PN126

THE DEPUTY PRESIDENT: So, that's the way it could work if BHP didn't engage the contractor, but not otherwise. I'm just trying to understand how the clause would work.

PN127

MR McLEAN: I think there's a conceivable set of circumstances, Deputy President, as you've described and it would obviously depend on the particularly arrangements that existed but if BHP was the sole determinate such that BHP could be said to have the choice as to which group of emails receive training before the other, then yes, of course we clearly have work to do.

PN128

I'm hesitant to give an absolute commitment and an absolute - - -

PN129

THE DEPUTY PRESIDENT: I understand, because I'm posing hypotheticals but, you know, I'm just coming at it from the angle that, you know, generally when you construe an agreement you have to give the clause some work to do, and I'm just trying to understand what - - -

PN130

MR McLEAN: That example that you've identified is very much one which the clause could have work to do, irrespective of the identity of the employing entity if BHP Coal had the capacity to determine in its own right the sequencing of the training, then BHP could be making an election and thereby preferencing one group of employees over the other.

PN131

THE DEPUTY PRESIDENT: Yes, I understand.

PN132

MR McLEAN: I'm just getting some instructions, Deputy President, bear with me. Just the last point I make, Deputy President, is not withstanding all those hypotheticals which may or may not engage the clause. This isn't a case that falls within the ambit of any of those hypotheticals, so it's really not a hypothetical that applies to the circumstances of this particular dispute.

PN133

THE DEPUTY PRESIDENT: I'm just looking - was this point about - because if the point's right, it's a - you know, it's a pretty fundamental point. Was this point raised at the outset?

PN134

MR McLEAN: Of my address this morning?

PN135

THE DEPUTY PRESIDENT: No, no, no, at the outset of the - when the question - when the dispute was before the Commission, when the question for arbitration was developed, did BHP raise this issue of look, we don't - we don't even engage OS, the mine operator does?

PN136

MR McLEAN: I think that's a point of common understanding between the parties that it's not BHP Coal that engages OS.

PN137

THE DEPUTY PRESIDENT: Yes, but BHP Coal has an involvement with BMA. It's part of the alliance, it's the employing entity of the BMA alliance. That's how I've always understood it, and if BHP was going to say well, in this matter we're not the engaging entity and therefore we have no role here, then was that said? Was this argument foreshadowed in the - at the outset? Because if it was I don't recollect it.

PN138

MR McLEAN: As a matter of fact, Deputy President, I think the position is that BHP Coal and BMA are not related entities and that - the fact that that may be inconvenient for the union's case is not necessarily something that's incumbent on the respondents to address at that preliminary stage and shouldn't prevent the dispute being determined in the respondent's favour simply because it wasn't, if the factual matrix is required for a finding in the applicant's favour isn't present based on the evidence that exists in this proceeding. I'm taking some instructions as to what was raised at the outset.

PN139

THE DEPUTY PRESIDENT: Yes, but I - what you're asking me to do - essentially you're asking me to make a finding about things that I don't have any evidence about from either party.

PN140

MR McLEAN: We're content to let the agreement obligations stand on its own and it's the union that's in fact approaching the Commission and asking the Commission to answer a question that would place a particular colour on the company's obligations. And so we say that insofar as there's any deficiency in the evidence, that's a matter for the union and the union's case.

PN141

THE DEPUTY PRESIDENT: But if there's a - what you want me to find is that - in essence what you want me to find is that BHP Coal Pty Ltd is not the operating entity of the mine, BMA is and that BHP Coal Pty Ltd doesn't have a relationship with BMA at all. Is that the - because - where is the evidence about the operator of the mine and the structure of the operator of the mine?

PN142

MR McLEAN: Well, that's in Ms Ryan's statement, the paragraph we took you to previously where it's clear that it's BMA that engages OS.

PN143

THE DEPUTY PRESIDENT: But what is - where is the evidence about the relationship, if any, that BHP Coal Pty Ltd has with BMA?

PN144

MR McLEAN: Deputy President, you may recall at the outset of my friend's opening you handed up two company searches and I'm instructed - - -

PN145

THE DEPUTY PRESIDENT: Yes.

PN146

MR McLEAN: - - - although I don't have them in front of me right now but neither of those company searches identified BMA as a related entity of OS or BHP Coal.

PN147

THE DEPUTY PRESIDENT: But it's an alliance, isn't it? Isn't it a joint venture, an alliance, something along - my understanding was always that BMA and perhaps I've been wrong here, but that BHP Coal Pty Ltd is the employing entity in that alliance. And if it's not, then what is it?

PN148

MR McLEAN: It's the mine operator.

PN149

THE DEPUTY PRESIDENT: Not, it's not.

PN150

MR McLEAN: BMA is the mine operator.

PN151

THE DEPUTY PRESIDENT: BMA is the mine operator and my understanding is BMA is an alliance between a BHP entity, which I always thought was BHP Coal Pty Ltd, whatever the initials stand for, is an alliance of entities that operate the mine and BHP Coal is the entity that employs the labour that operates the mine. It's the entity that makes the agreements, it's the entity that responds to disputes and it's the employing entity and that it does have a relationship with BMA. It's part of the alliance. That's how I've always understood it.

PN152

MR McLEAN: (Indistinct) it provides labour to - - -

PN153

THE DEPUTY PRESIDENT: Yes. It employs the labour.

PN154

MR McLEAN: No, it provides labour to BM Alliance, which BM Alliance is a proprietary limited company and one of the companies that then provides labour to BM Alliance Pty Ltd is BHP Coal Pty Ltd. Another is OS.

PN155

THE DEPUTY PRESIDENT: Right. But BHP Coal Pty Ltd is a much different proposition than OS isn't it? As I understand it, BHP Coal Pty Ltd is part of the alliance. It's not just a provider of labour. It's part of the alliance and it's the entity under which the labour is employed as part of the alliance. It's not a labour hire provider as I've ever understood it. Whereas OS arguably is.

PN156

MR McLEAN: I don't think we'd accept that characterisation either, Deputy President. Can I just have a moment to confer with my instructors?

PN157

THE DEPUTY PRESIDENT: Yes, because I'd like to know. Because what you're saying in this dispute is we, BHP Coal Pty Ltd, the entity that made this agreement, the entity that employs the labour, the entity that appears in countless disputes in the Fair Work Commission, when it gives - when it makes an agreement about preferencing it can now say if we don't engage the contractor, nothing to see here. We have no obligation whatsoever. And if that's the argument - because that says I apprehend the fundamental argument you're making and if that's going to be the argument then I would like to see the structure of this whole box and dice, Mr McLean. Because that's a different argument than I've ever encountered.

PN158

MR McLEAN: To be fair, Deputy President, that wasn't the argument that was advanced.

PN159

THE DEPUTY PRESIDENT: No.

PN160

MR McLEAN: The argument that was advanced - the argument that was advanced was that BHP Coal cannot preference in relation to something that it doesn't have control of.

PN161

THE DEPUTY PRESIDENT: Okay.

PN162

MR McLEAN: And (indistinct) with the employing entity of other individuals is immaterial for that assessment.

PN163

THE DEPUTY PRESIDENT: Well, it's not. If BHP Coal Pty Ltd is a member of an alliance that operates that mine. Because it's not just some arm's length entity that's got no control over anything. I assume when something is an alliance it means we're all participants. It's like a joint venture. We all bring something to the table and we all have a say in it.

PN164

MR McLEAN: It's not an alliance, Deputy President. It's a proprietary limited company, BM Alliance Pty Ltd. Can I take a moment to confer with my instructors?

PN165

THE DEPUTY PRESIDENT: Yes. How long do you need?

PN166

MR McLEAN: Could we have a brief adjournment?

PN167

THE DEPUTY PRESIDENT: Sure. What about we take 15 minutes?

PN168

MR McLEAN: Thank you.

PN169

THE DEPUTY PRESIDENT: Because if we're going to re-open this whole who is OS, what is OS, who is BMA, who is BHP, I'd like to pin this down once and for all if that's the case. All right. I'll stand the matter down for 15 minutes. I make it - it's currently 11.14, so 11.30. Thanks.

SHORT ADJOURNMENT [11.11 AM]

RESUMED [11.30 AM]

PN170

THE DEPUTY PRESIDENT: Mr McLean.

PN171

MR McLEAN: Thank you, Deputy President, and apologies for the delay and thank you for the indulgence while I got instructions. If I can deal with it this way, perhaps: BHP Coal Pty Ltd and BM Alliance Operations Pty Ltd are separate legal entities.

PN172

THE DEPUTY PRESIDENT: Sorry, the second one is BM Alliance?

PN173

MR McLEAN: Operations Pty Ltd - BM Alliance Coal Operations Pty Ltd.

PN174

THE DEPUTY PRESIDENT: Right.

PN175

MR McLEAN: There is no evidence in the proceeding as to the relationship between those parties. There is certainly no evidence in the proceeding that BHP Coal Pty Ltd controls the BM Alliance Pty Ltd entity. So our position is in that context there is no basis for a conclusion that BHP Coal Pty Ltd has control over the sequencing of training for employees of operation services. Now, there is no further evidence in the proceeding that I can take you to as to those matters. By the same token, unless my friend demonstrates otherwise, I'm not aware of any evidence the union can take you to in the proceeding to demonstrate to the contrary.

PN176

Both parties admittedly had ample opportunity to do so. Indeed, the union did take up the opportunity to put in evidence before you evidence of the relationship between other entities in the proceeding.

PN177

THE DEPUTY PRESIDENT: Well, if there is no evidence in this proceeding I do not doubt that the next time we have a dispute this matter is going to be absolutely traversed because we danced around it for quite a number of disputes now.

PN178

MR McLEAN: That may be the case, Deputy President, but that's as far as I can take the evidence in this particular proceeding, based on the evidence that has been put on the record. If the Deputy President was to take the view that that had consequences for the submission I've advanced, then we except that, notwithstanding we say the submission still stands on its own feet.

PN179

THE DEPUTY PRESIDENT: Sorry - if I was to find it has consequences? You mean it's a more fundamental point?

PN180

MR McLEAN: Or if you were to find, for example, the submission could have been maintained absent more evidence from us, we wouldn't necessarily say that's the correct conclusion but if that's the finding you reach based on the absence of evidence then we accept that.

PN181

THE DEPUTY PRESIDENT: Well, generally in this dispute the parties agreed on the question for arbitration and, you know, I'm not saying that there was anything underhanded about it but it would have been nice to know that that question wasn't going to really resolve the fundamental dispute - you know, that there was a fundamental point that meant the question - because really, the question is meaningless, isn't it, if you're right?

PN182

MR McLEAN: In fairness, Deputy President, to my understanding it has always been in issue as to who was actually providing training. That's been an issue that's been front and centre.

PN183

THE DEPUTY PRESIDENT: I accept that. I accept that it's always been an issue as to who is providing the training but I don't know that it's been an issue as to the OS Alliance BHP relationship, that that could make a difference.

PN184

MR McLEAN: The only thing I'd say on that, Deputy President, is - and my friend clearly was cognisant of the relevance of the relationship between at least certain entities insofar as he went out of his way to tender at the outset of his openings company searches that related to certain of those entities. The fact that my friend chose not to develop his evidence as it related to the relationship between other entities is a matter for my friend.

PN185

THE DEPUTY PRESIDENT: So there is no evidence about the BM Alliance entity?

PN186

MR McLEAN: Save to say the BM Alliance entity engages OS.

PN187

THE DEPUTY PRESIDENT: Okay, thanks.

PN188

MR TILEY: Might I just be heard, Deputy President, briefly, before my friend resumes his submissions?

PN189

MR McLEAN: No objection from me.

PN190

MR TILEY: May I proceed, Deputy President?

PN191

THE DEPUTY PRESIDENT: Yes, I'm sorry, Mr Tiley. I'm just looking at the application clause of the agreement, but go on.

PN192

MR TILEY: We have certain things to say about all of this which we'll raise in reply but for now, we just want to say on the record that we understand the response that my friend has given following the interval is that there is no application to re-open.

PN193

THE DEPUTY PRESIDENT: No, as I understand it, but the point I think that Mr McLean was making is if I decide I want to know more about this, I can ask for some more submissions and, you know, I don't want to go frolicking off into some appealable error and this might be a matter that we argue about on another day and we just deal with it on the basis of the evidence that is before me now.

PN194

MR TILEY: I'd rather understood my friend to be saying that if you were to reach certain conclusions one way or the other, for him or against him based on the current state of the evidence, that that was something that you were entitled to do and we would embrace that.

PN195

THE DEPUTY PRESIDENT: Yes, I don't think there is an argument about that. What Mr McLean is saying is - I'll put it bluntly, Mr McLean, and I'm not suggesting there was anything disrespectful about the submission. I'm not, I completely understand it. That's our position, that's what I'm telling you, and there is no other evidence before you and we don't plan to put any more in and you have to decide it on what's there in terms of the relationship between those entities and not go delving any further and we're not going to voluntarily tell you anything further because that's the question you decided.

PN196

MR McLEAN: (Indistinct) in our submission the evidence that has been put on the record by both parties.

PN197

THE DEPUTY PRESIDENT: Yes - does that answer the question, Mr Tiley?

PN198

MR TILEY: Yes, we understand the respondent's position and dare I say, it might have been a helpful interjection by me to clarify that. So that having been done I'll leave my friend to resume.

PN199

THE DEPUTY PRESIDENT: Okay, and can I just understand, Mr McLean, in clause 1.1 of the agreement, the current 2018 agreement, the BMA enterprise agreement, is the entity that's named in 1.1A BHP Billiton Mitsubishi Alliance - is that the same entity as BM Alliance Coal Ops Pty Ltd or that's a different entity?

PN200

MR McLEAN: That's a different entity.

PN201

THE DEPUTY PRESIDENT: Right.

PN202

MR McLEAN: It is a business name, Billiton Mitsubishi Alliance. The entity is the entity I took you to before, which is BM Alliance Operations Coal Pty Ltd, being a Pty Ltd company.

PN203

THE DEPUTY PRESIDENT: But does the entity named in the agreement - it's currently managed - so the BHP Coal with respect to the employees employed at the following mines currently managed by BHP Billiton Mitsubishi Alliance, that is not the same entity as BM Alliance Coal Ops Pty Ltd? There is another entity that manages the mines?

PN204

MR McLEAN: The entity that is the operator of the mines is the entity I referred you to before, which is the Pty Ltd company.

PN205

THE DEPUTY PRESIDENT: So the manager and the proprietary - the manager and the operator are two different entities?

PN206

MR McLEAN: Well - - -

PN207

THE DEPUTY PRESIDENT: Because the agreement says: 'The following mines currently managed by BHP Billiton Mitsubishi Alliance'.

PN208

MR McLEAN: In a formal, legal sense, Deputy President, the operator of the mines is the Pty Ltd. company. I can't speak to - at this present point in time - the entity that's intended to be referred to by 1.1A insofar as that's not the actual legal entity.

PN209

THE DEPUTY PRESIDENT: Well, it signed an agreement, it made an agreement, it put forth its declaration and I seem to remember someone representing - BHP Coal Pty Ltd signed an agreement and I'm just hoping that it knows who BHP Billiton Mitsubishi Alliance is, because that determines what mines are covered by the agreement, doesn't it?

PN210

MR McLEAN: The mines are defined, Deputy President, in the agreement itself. It seems to be somewhat superfluous text. Clause 1.1A identifies the mines there.

PN211

THE DEPUTY PRESIDENT: Last time I checked, the application clause of an agreement was anything but superfluous and it was a matter that was pretty fundamental to getting the approval of an agreement. Anyway, I'm not going to delve any further but, you know, it's a little bit concerning that suddenly there is another entity that can affect obligations under this agreement, arguably.

PN212

MR McLEAN: That's not the submission that we've advanced, Deputy President. The agreement regulates the relationship between BHP Coal Pty Ltd as the employer and the employees - - -

PN213

THE DEPUTY PRESIDENT: Of mines currently managed by BHP Billiton Mitsubishi Alliance, that nobody seems to be able to tell me who that is or what that is.

PN214

MR McLEAN: The furthest I can take that, Deputy President, is the mines that the agreement applies to are expressly identified (indistinct) - - -

PN215

THE DEPUTY PRESIDENT: So in other words, I don't have to know that either? That's really - the worse thing about me, Mr McLean, is I'm endlessly curious and I do like to understand. Next time this agreement, if and when it's ever approved, comes up for approval there might be a few more questions about what on earth that means?

PN216

MR McLEAN: Certainly - that would be the appropriate juncture to press for those details, Deputy President, in my submission.

PN217

THE DEPUTY PRESIDENT: Okay.

PN218

MR McLEAN: I'll move on, Deputy President, and I might deal with what I flagged to be our fourth submission at the outset.

PN219

THE DEPUTY PRESIDENT: Yes.

PN220

MR McLEAN: This was the distinction that we say exists between development opportunities and training opportunities and in that regard it's relevant that the question proceeds on an assumption that the autonomous haulage training modules are in fact development opportunities. Now, if the Deputy President was to look at the agreement, and in particular clause 8.1, you'll see that the terms, 'Training and development opportunities', are used interchangeably - sorry, not used interchangeably, used as distinct terms at various points of that course. Indeed, looking at the agreement in its broader context, in particular at clause 5, where there is an entire clause dedicated to training. At subclause 5.1A, there is recorded what - at least as far as I can ascertain - to be the closest the agreement comes to defining what a training opportunity is. Specifically at 5.1A it contemplates training being something that is to maintain and develop an employee's skills for the purposes of safety certification and licensing retention.

PN221

Autonomous haulage training modules, insofar as they provide certification to operate particular pieces of equipment in an autonomous circuit, clearly meet that description at 5.1A. So the question of what constitutes a development opportunity is ultimately a question of construction. In my submission a development opportunity requires at the very least an opportunity to actually work in a particular capacity or role or function as distinct from simply undertaking the training that would allow an employee to do so. That construction is consistent with development opportunities being a distinct concept, from training throughout the agreement.

PN222

It's also consistent in some respects with how the term, 'development opportunity' is used at clause 13 of schedule 1 of the agreement. That can be found at page 57. That clause refers to former fixed-term development opportunities being offered to the local communities. So we say that the best indication from the agreement between the two clauses I've taken you to - add a different language, training and development opportunities, used throughout that agreement - indicates that the training being provided in this case is not a development opportunity. Now, if you're not with us on the distinction between those two terms we still say that in order to be captured by clause 8.1G, any development opportunity needs to be an opportunity within the respondent's own business.

PN223

As you've just taken us to, Deputy President, clause 1.1A defines the company as BHP Coal Pty Ltd. Again, as I'm sure the Deputy President is familiar with, that definition is replicated at clause 47.1. so in that context the agreement doesn't direct the Commission to identify or give consideration to development opportunities that might exist within the business of another enterprise. Again, in this case, as I've already canvassed on a number of occasions, OS is assigned by the mine operated to operate certain pits. The consequence of that assignment is that the opportunity to be trained to operate within OS-designated pits is an opportunity that exists for OS employees and not within BHP Coal Pty Ltd. My friend has taken you to a decision of this Commission in 2020, FWC 3788, and in particular paragraph 199 of that decision. We say that decision is not on all fours with the circumstances of the present case. Indeed, when read in context, that decision is plainly distinguishable from the circumstances that you've been asked to adjudicate over for the purposes of the present dispute.

PN224

First and foremost, paragraph 199 refers to an opportunity in relation to particular equipment that is allocated to areas where BHP Coal's own direct employees are working. That's clearly not what's happened in the present case because as I mentioned, the equipment for which OS employees are being trained to operate, is equipment that is in pits that the mine operator, BMA, has assigned to OS; importantly, not assigned to BHP Coal. The second basis for distinguishing this decision is that the conclusions reached at paragraph 199 are preceded by an acknowledgement in paragraphs 197 and 198 of the very distinction to which I'm talking: namely, the distinction that exists between opportunities that exist within BHP Coal's direct workforce and opportunities that may exist within the workforce of - in this case - a contractor.

PN225

We say that's a distinction that's very apposite for the present circumstances. For those reasons we say that even if it is found that the training is a development opportunity, it's not a development opportunity within the meaning of clause 8.1G. The final submission I'll make, Deputy President, as to why the question has to be answered in the negative, is the question that I think I flagged to be our third submission in my opening and that's to the effect that the question needs to be answered in the negative because union's case still remains evasive as to what training is said to be the subject of the preference obligation.

PN226

Now, the question refers to training in automated haulage training modules. You'll see that term is used in the singular and the plural, seemingly as alternative to the question. Somewhat concerningly for my client, particularly in circumstances where the union is seeking to compel it to ensure that its employees are the first to be offered certain training courses, it is still unclear what training is actually captured by the term, 'Automotive haulage training modules'. In both its initial outline and again in the submissions that have been filed by the union this morning at paragraph 5D, the union has purported to clarify what is meant by that term by saying the employees only need to be provided with training in relation to - to use the union's words - relevant training modules. But at no time in the course of its opening or its evidentiary case or in its submissions this morning has the union properly articulated what is meant by the term, 'Relevant training'.

PN227

In my submission none of the alternative interpretations of the term, 'Automated haulage training modules' that would seem to be available would yield a question that could be sensibly answered in the affirmative. The first potential alternative would seem to be that any employee who is required to work in the autonomous area is required to be offered all autonomous modules before any autonomous modules can be offered to training of contractors. Properly read, we say that's the obligation that the question would actually impose on BHP Coal in the present circumstances insofar as the question uses the term, 'modules' in the plural.

PN228

In my submission, that's plainly an absurd construction or would lead to an absurd outcome if that was the construction that was to be adopted. Mr Goulevitch conceded as much at paragraph 150 of the transcript and in that exchange, Mr Goulevitch acknowledged that there was some 38 modules that constituted automated haulage training modules and indeed, conceded that there were some modules that would take up to 14 and 39 days respectively to complete. Mr Goulevitch even went as far as to agree with me when I put to him that providing all those training modules to employees could actually result in a deterioration of employees' operational skills as they were out of the productive workforce for an extended period of time.

PN229

Just to round out why we say that construction is not a sensible industrial one, it should be borne in mind that this particular agreement applies at a number of mine sites to employees with a number of different types of skillsets and who have a number of different backgrounds and qualifications and experience that they rely on to perform tasks at the mine. The second seeming potential interpretation of the clause training modules would be so far as that term is used in the singular in the agreement, and that term, as it's used in the question, would seemingly encapsulate a number of different training modules as Mr Goulevitch acknowledged during cross-examination. If that's the case then the question would seem to do no more than oblige BHP Coal to simply make available to its employees at least one such training course that meets the description of automated haulage training. If that is the intent then the evidence supports that autonomous haulage modules have already been made available to all BHP Coal employees and if I could take the Commission to the statement of Mr Greenhalgh again, and that's at tab 7 of the bundle which is R2.

PN230

THE DEPUTY PRESIDENT: Sorry, yes, I've got that.

PN231

MR McLEAN: In particular paragraph 11A where Mr Greenhalgh explains that there are a number of modules that are available online to all coal mine workers at the mine. That's a proposition that Mr Goulevitch agreed with during cross-examination and that was at paragraph 123 to 130 of the transcript. So if that's all that automated haulage training modules refers to, then it's clear that BHP has already discharged its obligation of the clause and it's unclear what utility the question would have moving forward.

PN232

The third potential alternative - and one that I suspect the union will say is an alternative that it advances - why somewhere between those two extremes, namely the extreme of requiring BHP to offer all autonomous haulage training or offer only a single module of autonomous haulage training to its workforce. At various times in its submissions and evidentiary case, the union seemed to be suggesting that training in relation to which employees must receive or at least it's their preference in relation to is all training that they require to perform the tasks that they're required to undertake. If we go back to the transcript, Deputy President, at paragraphs 167 to 168 - - -

PN233

THE DEPUTY PRESIDENT: Yes, I've got that.

PN234

MR McLEAN: - - - in these paragraphs you'll see that Mr Goulevitch properly concedes that it's BHP Coal that determines the tasks and the equipment that employees are required to undertake or operate, and that's an appropriate concession in circumstances where the agreement at clause 6.1(a) stipulates that BHP Coal cannot assign employees to tasks for which they have not been properly trained. So taking the limitations of the agreement and the concessions given by Mr Goulevitch as to who is it that determines what tasks employees are required to undertake, it follows almost as a matter of definition that employees have received the training that they need to complete the tasks that will be required of them.

PN235

The alternative construction that it seems that the unions advance on different cases, particularly in the sedimentary case, Deputy President, is that the training modules that employees needs to be offered are the modules that correlate with the skills that they hold in the conventional world, or the manned world, and in my submission that's a construction that finds no support in attacks of the enterprise agreement. It's an arbitrary construction and it's a construction that's really been reverse engineered in an attempt to deliver on the industrial outcome that the union seeks to achieve through this proceeding.

PN236

In support of this construction the union took you to the annexure to Ms Ryan's affidavit, Annexure CR1. It was never put to Ms Ryan during the course of cross-examination that the document operates, as the union now contends as a matter of submissions, that it does, and rather, that document clearly discloses what training an employee is required to complete before they are eligible to operate a particular piece of equipment in the autonomous world.

PN237

There is no basis for concluding that this document establishes are requirement, or even stipulates a requirement as they relate to training for employees here who hold a particular skill in a conventional world. One doesn't follow the other. If I can take you to the table at paragraph 89 of Mr Goulevitch's statement - - -

PN238

THE DEPUTY PRESIDENT: Yes, yes.

PN239

MR McLEAN: That's the table that my friend took you to this morning, the unions had no hesitation in indicating in this table at various points, where particular modules have applied. They've done so in large capital letters, in this case, in particular, under the heading, 'Entry.' But there's no such notation under the column, 'Pass Area' that my friend took you to this morning and in my submission that's because the union has somewhat optimistically picked up Ms Ryan's statement and the annexure thereto and used that as a basis for somehow suggesting that all operators at the mine require the pass module, but on the evidence that the union itself filed at the outset of the proceedings, even the union wasn't contending that those employees required the pass module.

PN240

So, Deputy President, having regard to the, what I would say, limitations, with a conceivable reading of the term, 'automated haulage training modules', and in circumstances where we all seem to remain somewhat in the dark as to what that term actually entails, it would at least in my submission be somewhat improper for the Commission to answer a question in the affirmative that would impose such a nebulous obligation on my client. Deputy President, unless there's anything else that I can assist with, those are our submissions.

PN241

THE DEPUTY PRESIDENT: Thanks, Mr McLean, I understand your submissions. Mr Tiley, are do you have anything in reply?

PN242

MR TILEY: Sorry, Deputy President, I was muted. I do have quite a bit in reply. At the moment I think there are as many as 19 discrete points although some of them are inter-related and it might be a more productive use of time in my respectful submission, if it were a convenient time to the Commission, we had the lunch interval now and I came back and did my reply thereafter because I might be able to condense it. In particular - - -

PN243

THE DEPUTY PRESIDENT: Mr McLean, is there any issue with that suggestion, from your end?

PN244

MR McLEAN: No, no issue. No, thank you.

PN245

THE DEPUTY PRESIDENT: All right, how long would you like for the lunch interval, Mr Tiley?

PN246

MR TILEY: Would 1.45 be stretching the friendship, Deputy President?

PN247

THE DEPUTY PRESIDENT: No, that's fine. It's 12.37 now, so 1.35 is fine. All right, we'll resume then, thank you.

PN248

MR TILEY: Thank you.

LUNCHEON ADJOURNMENT [12.37 PM]

RESUMED [1.35 PM]

PN249

THE DEPUTY PRESIDENT: Thanks, Mr Tiley.

PN250

MR TILEY: Thank you, Deputy President. I will deal with the reply submissions by reference to the four topics that my friend addressed and in the order that he addressed them, being one, two, four, three. A number of them will touch upon the question for arbitration and some criticisms that were made of the question for arbitration. Unfortunately I don't think they can be conveniently grouped into one. They just have to be dealt with in the order they were raised but stick with me, Deputy President, if you will, and I think we'll get there.

PN251

So, the first issue is the operational requirements exception. Our friends say that the question for arbitration ignores the exception. It doesn't, with respect. The question calls up because the clause contains the exception. It is appropriate that you have regard to the exception and if it dictates that you answer the question adversely to my clients, then so be it. But the question doesn't, in that way, ignore the exception. It was said that the applicant has to discharge the burden, effectively as negatising(sic) the operational requirements exception. With respect that proposition is wrong.

PN252

I draw attention to a decision of Justice Collier in the Federal Court, Australian Building & Construction Commissioner v Ingham (180 Brisbane Construction case) [2019] FCA 1052, in particular, paragraph 124. Ingham was a case about whether a particular stoppage of work was industrial action within the meaning of section 19 of the Fair Work Act, and her Honour was required to consider the exceptions to the definition of 'industrial action' in section 19, sub-section 2 of the Act, and in particular, which of the parties was responsible for, in an evidentiary sense, either proving or negatising the matters in 19.2, and no doubt, Deputy President, you'll recall that relevantly one of the matters in section 19.2 is that it wouldn't meet the definition of 'industrial action' if the action was authorised or agreed to by the employer.

PN253

In paragraph 124 her Honour found in favour of the applicant that it had to prove that there was a stoppage of work, and that the stoppage of work was prima face industrial action but that it was not for the applicant to prove that the action was not within any of the exceptions in 19 sub-section 2, and her Honour said that was a matter for the respondents to make out, that is, the union parties for that proceeding, and her Honour noted as one of the reasons for that the exception concerned special facts that are uniquely within the knowledge of the parties seeking to rely on the excuse. It is for that party to establish the existence of those (indistinct).

PN254

Here the respondent seeks to avail itself of the exception. It's not for the applicant to negatise the exception, it's for the respondent to make it out or not. And of course what the operational requirements of the enterprise are, are matters that are peculiarly within the knowledge of, or to her Honour's language, uniquely within the knowledge', of the respondent. So, it calls in my respectful submission to the respondent to make out that the operational requirements exception allowed it to, or allows OS employees to be trained before the training is offered to the BHP employees.

PN255

In the course of his discussion of this topic my friend took you to the evidence of Mr Greenhalgh and suggested that that part of his statement would make out the operational requirements exception because it showed that a direction was given by the coal mine operator, to paraphrase, for the implementation of the automation. True is it that that evidence exists and was uncontested, but that is evidence about the implementation of the automation at an anterior stage, not about the fact that certain training had to be provided to certain employees from one cohort or the other at a particular time. It is not germane to the exception. It doesn't make it out.

PN256

What you would expect to see if the respondent was to make out the exception is that a direction was given by the coal mine operator to BHP Coal Proprietary Limited that it had to complete certain training, specified training by a certain date, or conversely that the same was done by the coal mine operator towards OS. There's no evidence of that kind, and so that's just by way of illustration, the sort of gaps that there are in the evidential case of the respondent in relation to the exception, bearing in mind as I've explained, the respondent has the onus of making it out. We don't cavil with the notion that the respondent, it would appear on the evidence, has not been involved in the determination of, or the making of the decision that the automation would be introduced. But out complaint is not with the introduction of the automation, our complaint is with the manner and timing of the training of the respective groups of employees.

PN257

Turning to the second topic, and I think my friend began his part of the submissions by referring to what, in my opening a fortnight ago, I referred to as a 'straw man', and we still say that those parts identified in the transcript of the respondent's written opening are a straw man. The question of whether the training of the OS employees was something within the control of the respondent is, on our case, not something which arises and the question for arbitration and the approach that we take to the question for arbitration, is one which focusses on examining what it was that the respondent was required to do in relation to its employees, not what the respondent was required to do in relation to somebody else's employees, or what somebody else was required to do in relation to their employees.

PN258

It is a distraction to invite you to focus attention on whether the respondent could or did take any steps in relation to the training of the OS employee. What we say is that the agreement requires the respondent to provide preference to its employees. There are various ways to discharge that obligation and we've articulated some of those already, but the respondent doesn't have to be able to control what OS does in order to discharge its obligation.

PN259

THE DEPUTY PRESIDENT: But Mr Tiley, sorry, but isn't it the case though that in order to provide preference there has to be another cohort or another group that you're providing preference against?

PN260

MR TILEY: Yes, Deputy President.

PN261

THE DEPUTY PRESIDENT: All right.

PN262

MR TILEY: I was just coming to how that might be done and I'll endeavour to use some examples to illustrate our point. If there was a cohort of OS employees who had already been trained prior to the respondent having an opportunity to train its employees then the respondent can't have breached its clause because - it can't have provided a preference because it didn't have the opportunity to do that. So, the big bad clause 8.1(g) doesn't cause any prejudice to the respondent or create an obligation to the respondent in that scenario.

PN263

If a scenario arises where the respondent is in a position, in a sense that the clause is triggered the respondent can, and we say should, give the training to its employees, and at that point in time there is also a cohort of OS employees who have not been trained - whether there's one or 10 or 50 doesn't matter, then what on our case the respondent has to do to discharge the obligation is simply make an offer of the training to its employees. The burden is not onerous. It is not oppressive. If on our case the respondent makes the offer and between the making of the offer of training to its employee and the provision of the training to its employee, the contractor OS happens to gazump the respondent and gives training to the OS employee.

PN264

We could hardly be critical of the respondent for that fact because it was not something within the respondent's control. The respondent has taken positive steps to discharge its obligation to give preference. But it is to be remembered that these - whether they're related entities within the meaning of the Corporations Act or not, is not to the point. These are all part of the one corporate structure. The company searches exhibited as A1 and A2 demonstrate that BHP Coal Proprietary Limited and OS share the same ultimate holding company. They are not strangers to one another and what, in my submission, a responsible employer would do to discharge its obligation under this clause in a practical sense would be one of the following.

PN265

Firstly, the respondent could write a letter to OS and alert OS to the obligation that it has, and ask OS to pump the brakes, as it were, pending the discharge by the respondent of it's obligations under the clause, let OS place the respondent in a position where it's arguably in breach of the clause. And if that weren't practicable because there was some greater than arm's length distance between these parties, which we don't think has been established on the evidence, but in any event all that the respondent needs to do is to say to the coal mine operator, which we're told from the Bar table it is engaged by, I have this obligation, I'm alerting you to this obligation, I need to discharge it and I recommend that you take steps to ensure that OS doesn't get out ahead of us in a way that means we can't discharge our obligation. Otherwise you, the coal mine operator, maybe OS, maybe the individuals involved, are going to be accessories to our breach. It's not difficult.

PN266

THE DEPUTY PRESIDENT: But Mr Tiley, what I'm, I guess, struggling with is, you know, there's a raft of cases where agreements are dealt with obligations that employers have with respect to contractors.

PN267

MR TILEY: Yes.

PN268

THE DEPUTY PRESIDENT: So, you know, if you're going to contract - - -

PN269

MR TILEY: (Indistinct).

PN270

THE DEPUTY PRESIDENT: Agreements that say if they're going to contact out work then they have to use their best endeavours to ensure the contractors pay the rates.

PN271

MR TILEY: Yes.

PN272

THE DEPUTY PRESIDENT: All of those cases. It's one thing when the employer that's made the agreement is the employer that's contracted out the work. Isn't it another thing entirely when the employer who has made the agreement is not the employer who contracted out the work? So, if BHP Coal Proprietary Limited does not have a contract with OS, and the contract with OS is with the mine operator to do something, how can - you know, what's the difference? What makes this a different case?

PN273

Like, let's say, I don't know, contractor A was undertaking coalmining for the operator of a coal mine and the operator excised off a pit and put contractor B in, and contractor A had an agreement that said we'll ensure contractors pay their employees the same as we pay ours, how would what's in contractor A's agreement apply, vis-à-vis, to the employees of contractor B, because the contract is not between A and B, its between A and C, and C and B.

PN274

MR TILEY: Well, the validity and enforceability of the clause doesn't turn on the contractual position between the parties.

PN275

THE DEPUTY PRESIDENT: No, it doesn't but it turns on whether the clause can obligate in the first place, and I don't see how the clause can obligate BHP Coal Proprietary Limited to preference contractors' employees when it doesn't have the contract with the contractor. That's the fundamental proposition I'm really struggling with.

PN276

MR TILEY: Self-evidently, Deputy President, the steps that a party can take where they are directly contracting with the third party in question, are necessarily greater than the steps that they can take if there's no (indistinct) of contract, and we understand that and we accept that. But we don't contend for anything other than the making of offers of training to employees. That is something which the respondent could have done, should have done, it should in the future do, for its employees where the other criteria in the question are discharged, and I'll come to those later. But again, the question is focussed on what the respondent can and should have done, vis-à-vis, its employees, not vis-à-vis, the OS employees. We understand that the respondent on the evidence doesn't have the power, for example, to tell OS to do anything. But on our case they didn't have to.

PN277

THE DEPUTY PRESIDENT: Then isn't that reading down preference to mean something - or making preference means something more than it generally does? I mean, preference to me would be BHP Coal Proprietary Limited has a contractor and it has its own employees, and if it has an obligation to preference its own employees and it's providing the training, then arguably it has to give preference to its own employees in the training its provided and it can't fill up the course it's providing with contractors' employees where its own employees aren't trained, and subject to the other exceptions. But where it's - you know, I don't see how preference can operate at all in circumstances where the entity that's required to give the preference doesn't have any relationship with the entity of the employees that it's required to give preference over.

PN278

MR TILEY: We think that on the evidence you will come to a different conclusion about the extent of the relationship between the entities, and I'll come to that at the appropriate time.

PN279

THE DEPUTY PRESIDENT: All right.

PN280

MR TILEY: But this exchange which we've having, Deputy President, assumes for the purpose of debate, the correctness of my friend's proposition that they can't be pro OS, and says, well, even if that's so, here's why we can still proceed. As to the extent of the preference obligation, yes, our position does read the clause down. Our position arguably doesn't give full effect to the clause, and arguably the clause imposes more onerous obligations. But that's a question that you're not asked to arbitrate. The question that you're asked to arbitrate is only whether the respondent had to give offers to its employees of the training.

PN281

THE DEPUTY PRESIDENT: I don't know reading it down in this case is less arduous. It's arguably more arduous because it casts the net of the clause wider than it is supposed to go, on the respondent's argument.

PN282

MR TILEY: Do you mean on the sense of which employees are trained?

PN283

THE DEPUTY PRESIDENT: Yes. Yes. Or which employees it has an obligation to give its employees preference over. Because to say - like I said, to say it's obligated to give its employees preference over employees of contractors it engages is one thing, but to say it is obligated to give its employees preference over employees of contractors it doesn't engage is a different proposition entirely, and I'm afraid it's not one I had even turned my mind to when this matter was first being ventilated, or I would have done something at the beginning to try and thrash out the issue.

PN284

MR TILEY: We'll come when addressing the relevant topics, to this concept of relevant employees and we will also come to, very shortly, the evidence about the extent to which the respondent did in fact have a hand in the training of the OS employees. So, it might be that we in our case are able to navigate through those issues in that way, in any event. But certainly to your example, Deputy President, the idea that the respondent could fill up a training course with the OS employees, assuming for a minute that that's what occurred, the idea that the respondent could do that is not something which we embrace, and that is something which we say would squarely be a breach of the clause because that is, on that scenario, something which you can control.

PN285

Just before I leave the subject of what's within and without the control of the respondent, the difficulty that with respect, flows from that construction is that it deprives the clause of any real work to do, and I won't labour that point. Your Honour made that point and we respectfully agreement with the observation your Honour made in that respect. The construction we give the clause is one which is a sensible industrial outcome and gives it work to do, rather than one which virtually ignores the existence of the clause.

PN286

I am reminded in that respect by the decision of the Full Court on CFMEU v Hay Point Services Proprietary Limited [2018] FCAFC 182, in particular, paragraph 20. That was a case where the union brought proceedings alleging a breach of agreement concerning the number of hours that employees had been rostered to work overtime, and in short compass the claim was dismissed at first instance on the basis that the clause didn't create a binding obligation, and on appeal the union was successful in having that decision overturned on the basis that the clause did in fact create a binding obligation. The language of the clause was, 'HPS may require an employee to work reasonable overtime and the employee shall work such overtime as required.' Now 'reasonable overtime' was defined in summary as, 104 hours overtime in a year is generally considered reasonable. The argument there by the employer was in essence, that's just a guide and not something which creates a binding obligation.

PN287

In finding that the clause did create a binding obligation to the Full Court said in the final sentence of paragraph 20:

PN288

Construing the relevant clause as imposing no burden upon HPS and imposing the burden on refusing unreasonable requirements to perform additional work on the employee, does not produce a sensible industrial outcome.

PN289

So, here we say that having a clause which on its face appeared to impose a burden but on the respondent's construction imposes no burden at all because of the peculiar factual circumstances that arise in this case, is not a sensible industrial outcome. There is no parallel whatsoever between the facts or the legal issues, almost, between the Hay Point case and this case, save for the principle of construction about sensible industrial outcomes.

PN290

Turning then to the evidence that is relevant to this second topic, can I just ask your Honour to turn up, please, the transcript and I'll endeavour through the parts of the transcript I take you to, to demonstrate why our submissions that the respondent controlled or influenced the training of OS employees should be accepted.

PN291

THE DEPUTY PRESIDENT: Sorry, Mr Tiley, I've got the transcript in front of me.

PN292

MR TILEY: Thank you. So, you'll recall that there is some evidence about the AH project team, and there was some cross-examination particularly of Mr Cox about the AH project team. It is also a matter that is traversed, I think in the evidence of Ms Putt. At PN741, I put to Mr Cox that in summary the AH project team is comprised of people employed by BHP Coal Proprietary Limited, and he said, 'Yes', unequivocal.

PN293

If one scrolls up to PN706, this was where in re-examination my friend asked Mr Cox, and it's important to look carefully at the words that were used, 'So who was it that determined or determines training priorities and selections for OS employees?' And Mr Cox says, 'So, training priorities is determined by the AH project team.' Pause there. The AH project team is comprised by people employed by BHP Coal Proprietary Limited, presuming the selection for those roles is determined by OS, themselves. He was then further cross-examined because that was a new matter that hadn't arisen previously, and he explained at PN711, 'Once the training plan had been delivered by the AH project team, the OS team would then decide how they would deliver that training.'

PN294

So, we have the respondent determining to a large extent, the training priorities, the training to be given, and then OS selects the employees and decides how they will deliver it. And over the page, and I don't need to take you to each of them but I simply note that at PN713 through to 717, the witness gives further evidence which clarifies who does what as between BHP Coal Proprietary Limited and OS, and that based on that evidence you would conclude, at least that there was influence, if not control, and the witness indeed said essentially there were two halves to this process. One is determining the training priorities and that's done by the AH project team, that's BHP Coal Proprietary Limited; the other is the selection of the employees and how the training is delivered, and that's OS.

PN295

So, it just can't sensibly be suggested that the respondent is a stranger, despite it employing the people in the AH project team, to the training of the OS people. If they could set the training priorities for the OS people, one asks rhetorically, why couldn't they set those priorities in such a way that accommodated the necessity of (indistinct) preference, or alternatively, set them and say, don't implement this until X date because we need to discharge our preference obligation before then.

PN296

THE DEPUTY PRESIDENT: But aren't they saying that really someone other than BHP Coal Proprietary Limited is deciding what parts of the mine will go autonomous at what point, and they are delivering people - so if the part of the mine that's to go autonomous is the OS part of the mine and not a BHP Coal Proprietary Limited part of the mine, wouldn't that be within one of the exceptions?

PN297

MR TILEY: It could be but that evidence is not before the Commission.

PN298

THE DEPUTY PRESIDENT: It kind of is, isn't it, because when we need certain areas to become autonomous, because Goonyella Riverside, BHP, 'We determine the operational needs, when we need certain areas to become autonomous.' BHP Coal Proprietary Limited isn't determining when the arears become autonomous, the mine operator is.

PN299

MR TILEY: No, that's true.

PN300

THE DEPUTY PRESIDENT: So, the mine operators says, here's the area that's going to become autonomous, and so now that's a designated OS area. So, why do BHP Coal Proprietary Limited employees have to be given preference in the training in that area?

PN301

MR TILEY: The respondent's position would have a different complexion if, for example, there was evidence of the coal mine operator giving a direction on 1 January that a particular area had to be changed to an autonomous area by 30 June and the training was known to take, for example, three months. Then that would mean that at the absolute latest, the training would need to have been commenced by the end of March to allow it to be completed by the end of June. Those sorts of timelines and imperatives are what you would look for, Deputy President, in order to be satisfied there was a requirement.

PN302

Nebulous evidence that the operator wanted to make certain pits autonomous without any clarification of when that was to be done by, how that was to be done, it just can't sensibly be contended, in my submission, that there was any requirement when the respondent hasn't put any meat at all on those bones, and as I say, that's her Honour Justice Collier's decision, which we say should be applied by analogy, is their burden. What the evidence shows is that the operator wanted to move toward autonomy, people had to be trained to move toward autonomy, the people who had to be trained fell into two different cohorts, and that this was done in a slapdash way. That's just not anywhere near enough in my submission to make out the exception.

PN303

But the words of the witness are instructive about the extent to which the AH project team was involved, and we commend them to you. Other aspects of the evidence to emphasise is that there's no doubt that the respondent could have given you its contract or contracts with the operator. It's their document. And the fact that they've failed to do so is a matter about which you might draw an inference. Relatedly - - -

PN304

THE DEPUTY PRESIDENT: Yes, but I know the evidence establishes that there are certain pits, to use the vernacular, that are autonomous pits, and they're pits that have been designated as pits that OS works in.

PN305

MR TILEY: Yes.

PN306

THE DEPUTY PRESIDENT: So the BHP employees may have to go into those pits for certain purposes. There is also evidence about that. But there's also evidence they don't necessarily need the training to do that because they can be escorted or whatever have we. But if the OS are required to work in the autonomous mining area to operate those pits and have the most obligation to do that, why would BHP employees be trained ahead of the OS employees when it's OS's pit and they have to go into it?

PN307

MR TILEY: On that discrete scenario, Deputy President, the exception would presumably be able to be made out. But there's no evidence of that.

PN308

I've just made a point about the contract between the respondent and the other party to its contract, which we understand from the interchange today to be the coal mine operator. It also should not be lost on you, Deputy President, that when it suited the respondent it brought along as FC1, and this is the document about which there was argument about redaction and it became R1, when it suited the respondent it brought along correspondence between - which it wasn't even a party to, correspondence between the coal mine operator and OS, to make a particular point. It plainly has access to those documents, and so in the same way that you would draw an inference about the failure of the respondent to put on its contract, you would also draw an inference about the failure of the respondent to put on the OS contract.

PN309

The point that your Honour made about clause 1.1(a) of the enterprise agreement is well made, and we embrace it. It shows the extent of the inter-relationship between these parties. It seems from what was earlier said that your Honour is already well across these authorities but for completeness and for the transcript, the sort of cases that your Honour, I think, had in mind about job security clauses and obligations that affect third parties, include the Full Court in AiG and Fair Work Australia [2021] CAFC 108, where such clauses were found to be a permitted matter for the purposes of section 172, and also I would draw attention to a more recent decision of Justice Logan, CEPU v Walsberry(?) Proprietary Limited (2018) FCA 923 in which his Honour imposed penalties upon an employer for breach of a job security agreement. They left that without any doubt about their enforceability. One of the two breaches his Honour was there concerned with was a failure by the employer to ensure that the employees of the third party received terms and conditions which were the same or no less favourable than those contained in the agreement.

PN310

Your Honour is familiar with those authorities and they aren't of great relevance to us in this case, save to this extent. Obligations like clause 8.1(g) can operate in a way which affects the behaviour of a third party which is not privy to the agreement, and that can be so, irrespective of the contractual relationship between the party that has the obligation under the agreement and the third party that is engaged. There is no reason at law why the fact that OS is 2 degrees removed from the respondent, whereas the coal mine operator is 1 degree removed from the respondent - there's no reason at law why that would defeat the operation of the clause, bearing in mind the construction of the clause that we contend for, namely that the respondent was required to offer the training to the relevant employee, as opposed to, for example, a contention that the respondent was required to do something to stop OS training employees. We don't say that is something they had to do.

PN311

Moving on then to the second-last of my friend's topics, which was number 4, and this is his submission about whether this training is a development opportunity, there's a couple of short points to make there about the wording of the clause. Obviously there's a clause that is drafted by lay people, a matter which is recognised in the authorities; secondly, one askes rhetorically, what is meant by, 'development opportunity', if not training; and thirdly, when one looks carefully at the wording of the exception, the exception says, 'subject only to operational requirements such as where there is identified an immediate need for a particular skill', as we read it that example of when the exception might be made out is one which is squarely concerned with training, which would support out submission that training is a development opportunity within the meaning of the clause.

PN312

There were two basis on which our friends sought to distinguish your prior decision in 2020, FWC 3788, Deputy President. The first is the point about working in the pits which is, we accept, a factual point of distinction between the two cases. But we weren't relying on the decision for its facts, we were relying on it for the construction of the clause; and the second was that here it is said essentially that there's no necessity to provide preference because we're concerned with an opportunity within a contractor, not within BHP, and again that is a strawman. We are not concerned with what OS did and didn't do for its employees. We're concerned with what the respondent did and didn't do for its employees. It is an opportunity within the business to be trained as a development opportunity which should have been, but was not extended to certain people, and should in the future be extended to certain people.

PN313

Turning then to the last topic, it's said against us that the union's case is evasive as to what training is required, and attention is drawn to the language of the question for arbitration. I would again emphasise this is an agreed question for arbitration. If my friend doesn't like it he can take it up with his instructor. The respondent is not permitted to resile, and won't be permitted by you with respect, Deputy President, to resile from this agreement (indistinct) selection (indistinct).

PN314

The question was quite sensibly crafted by the party as one which asks the anterior question, does the obligation arise. Because if the obligation does not arise then which training for which employee and when, are all moot points, and the parties have very sensibly sought to not waste their time and money and the Commission's time with quarrels that simply may not arise. So the parties have agreed to approach the question in the abstract. The parties have agreed to approach the question in the present tense, not in the past tense. The question doesn't say, 'Was the respondent required', the question says, 'Is the respondent required', and my friend criticised the question as shifting from the plural to the singular. It doesn't do that.

PN315

It shifts from training model(s), being a module singular, or module plural, the flexibility existing because some people might require more than one and some people might require only one, to the singular later in the question. Because later in the question it's obviously attaching to whichever modules the employees require, which might be one, and perhaps that should be 'model(s)', to be strictly correct, but it's obvious enough from the question which was agreed how it is to operate. As to which employees, the answer to the question would be conditioned in two significant ways. Firstly, it would only be applicable to employees of the respondent to whom the agreement applies; and only to those who are required to work in the autonomous mining area; and I suppose, thirdly, at the Goonyella Riverside Mine.

PN316

Those are the handbrakes, if you like, on our contention. Those are the filtration mechanisms which determine who does and does not need the training, and as I outlined in my opening, the shorthand description that perhaps I'm guilty of using, is relevant employees. But it is our case, and it has always been our case, that only the employees who need the training to do their work are the employees who should have been given preference, and - - -

PN317

THE DEPUTY PRESIDENT: Would the respondent have met its obligation if it said to enter the autonomous - like, I'll have to go and obviously look at the evidence, but I'm going from memory here, but the respondent said there is a basic module about autonomous haulage, and so to go into the area, at all, you need that.

PN318

MR TILEY: Yes.

PN319

THE DEPUTY PRESIDENT: So, here it is online, knock yourselves out, get on there any time you want, look at the module and do it, and even if you haven't done it you can still enter the area if you're escorted, and we can provide you with an escort when you need to enter the area. Would it have met its obligation? Hasn't it made it available?

PN320

MR TILEY: Yes, if he had done that in advance of that same opportunity being given to OS.

PN321

THE DEPUTY PRESIDENT: Or at the same time. Because if you put a module online and you let - I mean, surely you don't have to hold off - if there's no limit on who can access the module at any - if it's an online, self-directed module - - -

PN322

MR TILEY: No, no, the question, Deputy President, only says, 'offer.' They would only need to have offered the training.

PN323

THE DEPUTY PRESIDENT: Yes, so they've offered it.

PN324

MR TILEY: Yes, and we accept that. However, again, that's not what the evidence shows. The evidence shows that there are a number of people who needed more training than that and weren't offered it until at least after 11 November 2021, despite the fact that the OS training commenced in July, 2021. So, if only it was so simple.

PN325

THE DEPUTY PRESIDENT: I guess it will depend on whether that was a requirement, because there was an immediate identified need for the OS employees to have the training, because here's your pick, get in there and operate it autonomously.

PN326

MR TILEY: That's one consideration and we say you won't find that in the evidence, and there is another though which is, what are the requirements that the respondent has imposed on its employees. We drew attention to CR1 and we are criticised for not putting to Ms Ryan that the document operates in the manner for which we contend. That criticism is, with respect, displaced. The respondent embraces that part of Ms Ryan's evidence, the respondent doesn't have a - I beg your pardon, I'll withdraw that, the applicant. The applicant doesn't have any obligation to cross-examine Ms Ryan on evidence with which it agrees, evidence which speaks for itself. But the Commission - - -

PN327

THE DEPUTY PRESIDENT: Not often you agree with Ms Ryan, so it'll come as a pleasant surprise to her, I suspect.

PN328

MR TILEY: We thought it prudent to spare the witness the time of being cross-examined about a matter about which we furiously agree. That's a forensic decision we were perfectly entitled to make.

PN329

THE DEPUTY PRESIDENT: Yes.

PN330

MR TILEY: But, Deputy President, if you read the document and you think that it says what we say it plainly says, then a certain finding will be made. If you read the document and you form a different view, which we can't see how one would but if you do, then you will make a finding the other way. But it's not going to turn on whether it was put to Ms Ryan or not because Ms Ryan would only be verballing the contents of the document when the document says what it says.

PN331

THE DEPUTY PRESIDENT: But I don't have a question that says, you know, there were X employees and we say they needed this training, and then there were other employees who we say got the training ahead of them, and therefore the clause wasn't complied with in these particular circumstances. This is a question about - you know, essentially you're answering arguably in the abstract, and if the answer is, yes it was if they needed it to do their job, then there's - do I really have evidence that says there were people who didn't have the training they needed to do their jobs? Because, you know, I start from the proposition that the company - you know, there's a mine that - it costs a lot of money if the coal doesn't come out of the ground, so why would they - and they have very stringent obligations, which they rightly should, to ensure that they provide a safe working environment for coal mine workers, so why on earth would they send people in to an autonomous haulage area without the training that they needed? And there's no one saying, I didn't have something and I had to work in a way that wasn't safe or wasn't - I'm just not aware of any of that kind of evidence.

PN332

MR TILEY: The proposition, Deputy President, is more binary than that. There is evidence in CR1, taking - and this is really the key evidential focus of this part of our case. Taking in the pass(?) area module as an example, there is evidence in CR1 that anybody with certain competencies in the manned world had to have the pass area module. They were required to do that. With respect, it's not for us to scrutinise why they were required or why they weren't required. Those are the requirements.

PN333

THE DEPUTY PRESIDENT: But they can only logically have been require have the pass area module if they had it in the non autonomous world and they were required to use it in the autonomous world, can't they? Why - - -

PN334

MR TILEY: With respect, Deputy President, that's wrong. The document says, 'roles required to complete this training', and it lists the roles.

PN335

THE DEPUTY PRESIDENT: But it must follow that it's required because they're going to work in the autonomous area. Like, again, like I know there's a bend in the road, I know employers are not in the habit - I mean, there were long and furious battles about what 'required' meant, 'required in an industrial context of training and skills development', means required to be exercised in the performance of your work, not just because you're required to do it in some other context. I don't see how it follows that just because - you know, you could read CR1 as saying, this person does this job in the non autonomous world, and if they had to do it in the autonomous world, this is the competency they'd need. So, it's a mapping exercise, and then if they do require it to do a job, then they have to have it.

PN336

MR TILEY: The answer which we contend for is limited to the employees of the respondent to whom the agreement applies, who are required to work in the area, so with respect the issue doesn't arise, in any event because we're only concerned with the people who need to work in the area, and your answer would only touch upon and apply to those people. So, if it be the case that CR1 has a bigger footprint, the question effectively reads it down because the question is more narrow. But it is a distraction, to complete the point, to complain about something not being put Ms Ryan. There is no substantive submission about the document saying something different to what we say it says. The only complaint is that it wasn't put to her, and it's said that it is opportunistic that we rely on the document now. Well, little wonder we didn't rely on it before when these are matters uniquely within the knowledge of the respondent and not matters that we were privy to until well after Mr Goulevitch made his first statement on 11 November 2021, which is the document which my friend said didn't include any reference to this.

PN337

I just wanted to finish on one point that arose during the course of my friend's submission to you about this third issue, which is the one he dealt with last, which is that you would be satisfied, and I'm paraphrasing of course, on the evidence that the obligation has already been discharged and people have been trained, and he's essentially put to you, well, what utility would all of this have? Well, considerable utility because the issue is going to arise again, Deputy President, and that's why we're here. There are some rats and mice issues about people who, even on the current state of the evidence, perhaps should have been trained before now. But the real controversy here is, what does the clause mean and how should it be applied, going forward. That's the utility in the question, that's why the question has the tense it has, that's why that question is asked in the abstract, and in my respectful submission there is considerable utility in the question being answered because it will guide the parties as to their future conduct.

PN338

THE DEPUTY PRESIDENT: All right, but I'm looking at CR1, and admittedly I'm looking at it sideways, Mr Tiley because it's on a screen and I don't know how to turn it around, but it looks like it's pretty - just the course overview is governed by roles required to complete the training, so it's not - arguably on the fact of the document it's really not saying anyone who does this in the real world has to do it in the autonomous world. It seems to be limited to anyone that is operating equipment or a light vehicle in the autonomous area, any role that's - field officers, so they're all in the autonomous area. It's not saying, if you do it somewhere else and you're not physically required - - -

PN339

MR TILEY: If that - I beg your pardon, was I interrupting you, Deputy President?

PN340

THE DEPUTY PRESIDENT: No, not at all.

PN341

MR TILEY: We would respectfully suggest that the document is more absolute than that, and direct attention again to the words at the top of the third column. The middle column, we say, is simply a description of the course and you don't use the content of the second column to inform the meaning of the third. But if your Honour was against us on that and your Honour read the document down or read it more narrowly, it would still lead to an affirmative answer on the question for arbitration. It would just be that obviously that would have the qualifications that the question attaches to it, meaning people who are required to work in the area.

PN342

So that would be a matter that goes to the, if you like, the breadth of an affirmative answer rather than whether there is one. Self-evidently, if somebody is not required to work in the area then they don't need the training and they wouldn't be touched by this case, because an affirmative answer wouldn't apply to them.

PN343

THE DEPUTY PRESIDENT: Was there evidence of anyone required to work in the area who didn't have the modules they needed to have?

PN344

MR TILEY: There's evidence from Mr Goulevitch about the extent to which people are required to work in the area, including that everybody in overburden is working in the area, and in my respectful submission there is sufficient evidence to satisfy you when it's all examined in the fullness of time that there were, at least as at 11 November 2021, the 20 employees I identified in the coalmining department who between the requirement to work in the area and CR1, needed to have the pass area competency but did not, that being four months after the OS training commenced.

PN345

This might be a different case, Deputy President, if we were faced with some evidence as to why the OS training had to be started and completed first, which gave in a cogent way, an explanation for what the competing priorities were that made OS's cohort need to go first.

PN346

THE DEPUTY PRESIDENT: Because you're going to operate the pit, and anyone else who comes in there - it's your pit, you're responsible for it, and anyone else who comes in there is just going to be in there for an ancillary or a none core purpose. It would be logical, wouldn't it? It's like saying, 'Keith, this is your pit.' Or - - -

PN347

MR TILEY: That is one scenario that conceivably could arise and which might have led to a particular outcome. That is not the scenario which, in my submission, the evidence bears out.

PN348

THE DEPUTY PRESIDENT: Okay.

PN349

MR TILEY: Unless I can assist you further, Deputy President.

PN350

THE DEPUTY PRESIDENT: No. Thank you, Mr Tiley. Thank you for those submissions. Thank you. I will indicate that I will reserve my decision and I'll issue it in due course and I'll adjourn. Good afternoon.

ADJOURNED INDEFINITELY [2.35 PM]