Federal Court of Australia

OS ACPM Pty Ltd v Mining and Energy Union [2026] FCAFC 59

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

THE COURT DECLARES THAT:

1.    Pursuant to clauses 27.5(a) of the Black Coal Mining Industry Award 2010 (2010 Award) and 29.5(a) of the Black Coal Mining Industry Award 2020 (2020 Award), the respondent must nominate two public holidays on which each employee covered by those awards will not perform work, where those public holidays are not required to be the same for every employee employed by the respondent.

2.    Pursuant to clause 15.1(b) of the 2020 Award, the respondent may determine the shift length to be worked where the ordinary hours of the shift, payable at ordinary rates, do not exceed 10 hours (where “ordinary hours” refers to hours payable at ordinary rates and do not include any rostered overtime payable at overtime rates).

3.    Pursuant to clause 15.1(c) of the 2020 Award, the respondent may determine that a shift length is to be longer than 10 ordinary hours, payable at ordinary rates (where “ordinary hours” refers to hours payable at ordinary rates and do not include any rostered overtime payable at overtime rates) in the circumstances outlined in either sub-clause 15.1(c)(i) or 15.1(c)(ii).

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

RAPER AND SHARIFF JJ:

Introduction

1    OS ACPM Pty Ltd engages employees to perform work in black coal mines operated by subsidiaries of BHP in Queensland and New South Wales. The Mining and Energy Union has acted as the default bargaining representative for its members under s 176(1)(b)(i) of the Fair Work Act 2009 (Cth) and has attempted to negotiate enterprise agreements to cover employees of OS. The parties have been unable to reach agreement by reason of a dispute over the proper construction of clauses in the Black Coal Mining Industry Award 2010 (2010 Award), and its successor, the Black Coal Mining Industry Award 2020 (2020 Award). The clauses in question concern entitlements to public holidays (cl 29 of the 2020 Award and cl 27 of the predecessor 2010 Award) and shift work (cl 15 of the 2020 Award) (the disputed clauses).

2    The MEU brought proceedings in this Court for declarations as to the true construction of these clauses. The primary judge accepted the MEU’s interpretation of these clauses in Mining and Energy Union v OS ACPM Pty Ltd [2025] FCA 200; 188 ALD 12 (primary judgment or J) and made the declarations sought by the MEU. OS seeks to appeal the whole of the primary judgment and to set aside the accompanying orders made on 4 March 2025 and, in lieu thereof, different declarations as to the proper construction of the disputed clauses.

3    In short, as to cl 29.5(a) of the 2020 Award (and cl 27.5 of the 2010 Award), the constructional dispute concerned whether by the words “provided that work will not be carried out on 2 of such holidays” refer to work not being carried out by the workforce, collectively, on two public holidays (as contended for by the MEU and accepted by the primary judge) or as OS submits as agreed individually as between the employer and the employee.

4    As to cl 15.1 of the 2020 Award, the constructional dispute concerned the words “the ordinary hours of the shift” in cl 15.1(b) and “ordinary hours” in cl 15.1(c). Consistent with the submission advanced below by the MEU, the primary judge accepted that each of the abovementioned phrases and terms refer to “the total length of the shift employees are rostered to work”. OS contended below, and on appeal, that those words do not confine the total shift length but rather regulate the ordinary hours payable at ordinary rates and do not restrict nor include any rostered overtime payable at overtime rates or alternatively do not include shifts that are made up of 10 ordinary hours (payable at ordinary rates) and 2.5 hours of rostered overtime (payable at overtime rates).

5    Additionally, the MEU, by a notice of contention, while contending that the primary judge construed the controversial clauses correctly, contended that the primary judge should have admitted and/or taken into account further evidence which supported its construction of those clauses, namely, concerning the industrial history, the common understanding and intention of the parties as to their meaning.

The disputed clauses

6    In the 2020 Award clause 29 reads:

29.    Public holidays

29.1    Public holidays are provided for in the NES.

29.2     Substitution of recognised public holidays

(a)    An employer and employee may agree to substitute another day for a day that would otherwise be a public holiday under the NES.

(b)    An employer and employee may agree to substitute another part-day for a part-day that would otherwise be a part-day public holiday under the NES.

29.3    Employee not required to work on a public holiday

An employee who is not required to work on a public holiday which would otherwise have been a working day for that employee will be paid for that day at the employee’s classification rate.

29.4     Employee required to work on a recognised public holiday

(a)    Subject to clause 29.4(c), an employee who is required to work on a public holiday is to be paid at the rate of 200% of the relevant minimum hourly rate prescribed by Schedule A—Production and Engineering Employees and Schedule B—Staff Employees for work performed during ordinary hours, in addition to the payment prescribed by clause 29.3.

(b)    Subject to clause 29.4(c), work performed in excess of ordinary hours on a public holiday is to be paid at the rate of 300% of the relevant minimum hourly rate prescribed by Schedule A— Production and Engineering Employees and Schedule B—Staff Employees.

(c)    In addition to the amounts paid in clauses 29.4(a) and 29.4(b) above, an employee will be paid the following additional shift penalties for working on a public holiday:

NOTE 1: Where clause 29.4 refers to a rate as being calculated as a percentage of the minimum hourly rate, that reference will (for a casual employee) instead be taken to be a reference to the casual minimum hourly rate where applicable.

NOTE 2: See also clauses C.1.4, D.1.4, D.2.4, D.2.8, C.1.8 and D.1.8.

29.5    Notice of public holidays to be worked (other than employees working shifts of up to 8.5 ordinary hours)

(a)    On a date agreed, the employer will nominate which public holidays will be worked in the following 12 months by employees (other than employees working shifts of up to 8.5 ordinary hours on weekdays), provided that work will not be carried out on 2 of such holidays.

(b)    If the employer does not require employees to work on a public holiday (as nominated in clause 29.5(a)) the employer must give the employees as much notice as possible of this decision.

(c)    If the notice required by clause 29.5(b) is less than 4 weeks inclusive of the public holiday, an employee who was rostered to work on the public holiday is to be paid for ordinary hours as if the public holiday had been worked.

(d)    If the employer decides not to require work to be performed on a public holiday because of a strike or ban, employees, other than those involved in the strike or ban, are to be paid at their classification rate for ordinary hours.

29.6    Employees working Monday to Friday shifts of up to 8.5 ordinary hours

(a)    An employee who only works shifts of up to 8.5 ordinary hours on weekdays cannot, as an integral part of their roster cycle, be rostered for ordinary hours on public holidays. Such employees may, however, in exceptional circumstances, be required to work on public holidays to meet operational needs.

7    In the 2010 Award, clause 27 reads:

27.    Public holidays

[Varied by PR994553, PR531393; 26 renumbered as 27 by PR545966 ppc 01Jan14]

27.1    Public holiday entitlements are provided for in Division 10 of the NES.

28.2    Transfer of recognised public holidays

[27.2 substituted by PR712216 ppc 04Oct19]

(a)    An employer and employee may agree to substitute another day for a day that would otherwise be a public holiday under the NES.

(b)    An employer and employee may agree to substitute another part-day for a part-day that would otherwise be a part-day public holiday under the NES.

27.3    Employee not required to work on a public holiday

An employee who is not required to work on a holiday which would otherwise have been a working day for that employee will be paid for that day at the employee’s classification rate unless the employee, without good and sufficient reason, fails to work on the employee’s:

(a)    last working day immediately before the holiday; or

(b)    first working day after the holiday;

in which case the employee is not entitled to payment for such holiday.

27.4    Employee required to work on a recognised public holiday

(a)    An employee who is required to work on a holiday is to be paid at the rate of double time for work performed during ordinary hours, in addition to the payment prescribed.

(b)     Work performed in excess of ordinary hours on a holiday is to be paid at the rate of treble time.

27.5    Notice of public holidays to be worked (other than employees working shifts of up to 8.5 ordinary hours)

[26.5(b) varied by PR531393 ppc 30Nov12]

(a)    On a date agreed, the employer will nominate which public holidays will be worked in the following 12 months by employees (other than employees working shifts of up to 8.5 ordinary hours on weekdays), provided that work will not to be carried out on two of such holidays.

(b)    If the employer does not require employees to work on a public holiday (as nominated in clause 27.5(a)) the employer must give the employees as much notice as possible of this decision.

(c)    If the notice required by clause 27.5(b) is less than four weeks inclusive of the holiday, an employee who was rostered to work on the holiday is to be paid for ordinary hours as if the holiday had been worked.

(d)    If the employer decides not to require work to be performed on a public holiday because of a strike or ban, employees, other than those involved in the strike or ban, are to be paid at their classification rate for ordinary hours.

27.6    Employees working Monday to Friday shifts of up to 8.5 ordinary hours

(a)    An employee who only works shifts of up to 8.5 ordinary hours on weekdays cannot, as an integral part of their roster cycle, be rostered for ordinary hours on public holidays. Such employees may, however, in exceptional circumstances, be required to work on public holidays to meet operational needs.

8    Clause 15 of the 2020 Award reads:

15.    Rostering arrangements

15.1    Rostering of hours and length of shifts

(a)    The employer may determine the type of rosters to be worked.

(b)    The employer may determine the shift length to be worked where the ordinary hours of the shift do not exceed 10 hours.

(c)    A shift may be longer than 10 ordinary hours:

(i)    where the employer and the majority of affected employees agree; or

(ii)    in the case of a dispute, as resolved in accordance with clause 32—Dispute resolution.

15.2    Shift starting and finishing times

(a)    The employer may determine the start and finish times of shifts up to 10 ordinary hours.

(b)    Shifts of longer than 10 ordinary hours will be worked between the starting and finishing times:

(i)    that are agreed between the employer and the majority of affected employees; or

(ii)    in the case of a dispute, that are resolved in accordance with clause 32—Dispute resolution.

15.3    Number and spread of shifts

The number and spread of ordinary shifts may be varied by the employer and, in the case of dispute, are resolved in accordance with the procedure in clause 32—Dispute resolution.

15.4    Starting and finishing places

(a)     The starting and finishing place of a shift:

(i)    are to be agreed between the employer and the majority of affected employees; or

(ii)    in the absence of agreement, are resolved in accordance with the procedure in clause 32—Dispute resolution.

(b)    At underground mines, the designated starting and finishing place will be on the surface.

15.5    Changes to rosters

The employer will not change an employee’s place on a roster, except in accordance with Part 7—Workplace delegates, Consultation and Dispute Resolution and where:

(a)    the employer has given one week’s notice of any change to the employee; or

(b)    where less than one week’s notice is given, the employee is paid at overtime rates for all work from the time of change of shift until the one week’s notice referred to in clause 15.5(a) would have expired.

15.6     Rostered days off

(a)    Period of notice to be given

Subject to clause 15.6, where an employee is entitled to a rostered day off (RDO) the employer must advise the employee of this:

(i)    at least 4 weeks before the day the employee is to take off; or

(ii)    within a lesser period agreed by the employer and the majority of employees in the mine or sections affected.

(b)    An employee required to work on an RDO

An employer will only require an employee to work on an RDO after attempts by the employer to cover the casual vacancy by other means have failed.

(c)    Payment for working on an RDO

An employee will be paid for working ordinary hours on an RDO at either:

(i)    ordinary rates for time worked during ordinary hours on an RDO, and

•    the employee will then take a day off in lieu before the end of the employee’s next roster cycle;

•    this day in lieu will be selected by the employee provided that at least one week’s notice is given to the employer; and

•    the employee will be allowed this day off unless the operations of the mine will be affected by the absence,

or

(ii)    overtime rates for the time worked during ordinary hours on the RDO, without any day off in lieu.

(d)    An employee will be paid overtime rates for all time worked outside or in excess of the ordinary hours for that day or shift.

(e)    RDO moved to another day

(i)    An employer, with the agreement of the majority of employees affected, may move the RDO of these employees to another day in the case of:

•    a breakdown of machinery;

•    a failure or shortage of electric power;

•    meeting the requirements of the mine; or

•    an emergency situation.

(ii)    In the case of another day being substituted for the RDO, the new day becomes the RDO and the original day becomes an ordinary working day.

(iii)    An individual employee, with the agreement of the employer, may substitute the day the employee is to take off for another day.

(f)    RDO falling on a recognised public holiday

An employee who is entitled to an RDO which falls on a public holiday is, at the discretion of the employer:

(i)    to be paid at the employee’s classification rate; or

(ii)    to be credited with one day for each such public holiday (payable at ordinary rates).

(g)    RDO not to fall on a recognised public holiday for an employee working Monday to Friday shifts of up to 8.5 ordinary hours

(i)    Subject to clause 15.6(g)(ii), where an employee is working Monday to Friday shifts of up to 8.5 hours and the employee’s roster does not include work on a public holiday, an RDO is not to be scheduled to fall on a public holiday.

(ii)    Where a public holiday is prescribed after an employee who is covered by clause 15.6(g)(i) has been notified of an RDO, and that holiday falls on the employee’s RDO, the employer must allow the employee to take the RDO on an alternative weekday.

9    Relevantly, cl 2 of the 2020 Award defined “ordinary hours” to mean:

…the hours required to be worked by an employee for the payment of their award classification rate. Clause 14—Ordinary hours of work specifies the ordinary hours of work

10    Whilst the predecessor clause, cl 23 of the 2010 Award, did not form part of the primary judge’s reasons nor was the subject of the declarations made, it is worthwhile extracting it, as it forms part of the relevant context:

23.    Rostering

[Varied by PR994553, PR531393; 22 renumbered as 23 by PR545966 ppc 01Jan14]

23.1    Rostering of hours and length of shifts

(a)    The employer can determine the type of rosters to be worked.

(b)    The employer can determine the shift length to be worked as long as the ordinary hours do not exceed 10. Shifts of more than 10 ordinary hours can only be implemented by agreement between the employer and the majority of employees affected or, in the case of a dispute, as resolved in accordance with clause 9—Dispute resolution.

23.2    Shift starting and finishing times

The start and finish times of shifts up to 10 ordinary hours may be determined by the employer. Shifts in excess of 10 ordinary hours will be worked between the starting and finishing times that are agreed between the employer and the majority of employees affected or, in the case of a dispute, as resolved in accordance with the dispute resolution procedure.

23.3    Number and spread of shifts

The number and spread of ordinary shifts may be varied by the employer and, in the case of dispute, the dispute resolution procedure applies.

23.4    Starting and finishing places

(a)    The starting and finishing place of a shift are to be agreed between the employer and the majority of affected employees or, in the absence of agreement, as determined in accordance with the dispute resolution procedure.

(b)    At underground mines, the designated starting and finishing place will be on the surface.

23.5    Roster changes

An employee’s place on a roster will not be changed, except where:

(i)    one week’s notice of any change is given to the employee; or

(ii)    where less than one week’s notice is given, the employee is paid at overtime rates for all work from the time of change of shift until the week’s notice would have expired.

23.6    Rostered days off (RDOs)

(a)    Period of notice to be given

Subject to this clause, if an employee is entitled to a rostered day off (RDO) then the employee must be advised by the employer:

(i)    at least four weeks before the day the employee is to takeoff; or

(ii)    a lesser period of notice as agreed by the employer and the majority of employees in the mine or sections affected.

(b)    An employee required to work on an RDO

An employee will only be required to work on an RDO after attempts by the employer to cover the casual vacancy by other means have failed.

(c)    Payment for working on an RDO

An employee will be paid for working ordinary hours on an RDO at either:

(i)    ordinary rates for time worked during ordinary hours on an RDO, and

•    the employee will then take a day off in lieu before the end of the employee’s next roster cycle;

•    this day in lieu will be selected by the employee provided that at least one week’s notice is given to the employer; and

•    the employee will be allowed this day off unless the operations of the mine will be affected by the absence,

or

(ii)    overtime rates for the time worked during ordinary hours on the RDO, without any day off in lieu.

(d)    An employee will be paid overtime rates for all time worked outside or in excess of the ordinary hours for that day or shift.

(e)    RDO moved to another day

[22.6(e)(i) varied by PR531393 ppc 30Nov12]

(i)    An employer, with the agreement of the majority of employees affected, may move the RDO of these employees to another day in the case of:

•    a breakdown of machinery;

•    a failure or shortage of electric power;

•    meeting the requirements of the mine; or

•    an emergency situation.

In the case of another day being substituted for the RDO, the new day becomes the RDO and the original day becomes an ordinary working day.

(ii)    An individual employee, with the agreement of the employer, may substitute the day the employee is to take off for another day.

(f)    RDOs falling on a recognised public holiday

An employee who is entitled to an RDO which falls on a public holiday is, at the discretion of the employer, to be either:

(i)    paid at the employee’s classification rate; or

(ii)    credited with one day for each such public holiday (payable at ordinary rates).

(g)    RDOs not to fall on a recognised public holiday for employees working Monday to Friday shifts of up to 8.5 ordinary hours

[22.6(g)(i) varied by PR994553 from 01Jan10]

(i)    Subject to clause 23.6(g)(ii), where an employee is working Monday to Friday shifts of up to 8.5 hours and the employee’s roster does not include work on a holiday, the RDO is not to fall on a holiday.

(ii)    Where a holiday is prescribed after the employee has been notified of the RDO, and that holiday falls on the employee’s RDO, the employer must allow the employee to take the RDO on an alternative weekday.

11    Clause 3 of the 2010 Award defined “ordinary hours” to mean:

…the hours required to be worked by an employee for the payment of their award classification rate

The primary judgment

12    On 4 March 2025, the primary judge ordered the following:

1.    It be declared that, in relation to:

(a)    clause 29.5(a) of the Black Coal Mining Industry Award 2020 (BCMIA); and

(b)    clause 27.5 of the Black Coal Mining Industry 2010 (BCMIA 2010),

the words: “provided that work will not be carried out on 2 of such holidays” refer to work not being carried out by the workforce, collectively, on two public holidays per year.

2.    It be declared that, in respect of the employment of Mr Stephen Whitton at the Saraji mine during the period from 21 November 2021 to 9 December 2024:

(a)    clause 29.5 of the BCMIA 2020; and

(b)    clause 27.5 of the BCMIA 2010,

required the respondent to:

(a)    operate a roster of no more than 363 days per year (or 364 days in leap years); and

(b)    provide for at least two public holidays per year on which maintenance employees, collectively, were not rostered to work.

3.    It be declared that, in relation to the BCMIA 2020:

(a)    in clause 15.1(a), the words: “the ordinary hours of the shift”; and

(b)    in clause 15.1(c), the words “ordinary hours”,

each refer to the total length of the shift employees are rostered to work.

4.    The respondent’s cross claim be dismissed.

13    It is noted that there appears to be an error in the third declaration, the reference to cl 15.1(a) ought be with respect to cl 15.1(b).

14    In relation to clause 29.5(a) of the 2020 Award and clause 27.5 of the 2010 Award (the public holiday clauses), the primary judge made the declarations sought by the MEU for the following reasons.

15    The primary judge, as informed by past jurisprudence as to how to interpret industrial instruments (including the admissibility or inadmissibility as to the intention of the industrial parties and past industrial tribunals, considered the history of the public holiday clauses and found that the controversial aspects of the relevant clauses could be traced back to the former Coal Industry Tribunal’s 1988 decision, Queensland Coal Association and the Australasian Coal and Shale Employees Federation; Electrical Trades Union of Australia; the Amalgamated Metal Workers Union; the Federated Engine Drivers and Firemen's Association of Australasia [1988] ACIndT 4071; (Unreported, Coal Industry Tribunal, 8 September 1988) (the 1988 restructuring decision). The primary judge placed emphasis on parts of that decision that were directed to the purported purpose for “change”, namely securing and maintaining coal supply where the coal industry was in a “cost/price squeeze” (PJ[42]), the need for a 52 week working year (PJ[43]) which was said to be subject to a “significant proviso” namely as indicated in item 6 in appendix 5, namely “2 holidays per year will not be worked as per current practice with drag lines”, and where two holidays (Christmas and Boxing Day) per year were not worked: PJ [44]-[46].

16    The primary judge determined that the 1988 restructuring decision “became” the Coal Mining Industry (Production and Engineering) Interim Consent Award, September 1990 (1990 Award), which was then said to be the progenitor of the 2010 and 2020 Awards, such that the clause in the 1990 Award would be “traced” through in the Coal Mining Industry (Production and Engineering) Consolidated Award 1997 and then, in turn, into the 2010 Award: PJ[47].

17    The primary judge found that these contextual considerations supported “a more general quality of application” of the public holiday clauses such that the MEU’s construction ought be preferred, namely that there would be two nominated public holidays (applicable to the entire workforce) where employees would not be required to work (that did not have to be Christmas or Boxing Day): PJ[48].

18    As to the primary judge preferring the MEU’s construction of the shift length clauses, cl 15.1(b) and (c) of the 2020 Award, the primary judge reasoned that the term “ordinary hours” is defined in cl 2 of the 2020 Award which indicates that, unless contrary intention appears, “ordinary hours” must be construed elsewhere in the Award to mean “the hours required to be worked by an employee for the payment of their award classification rate”: PJ[51]. Clause 14 specifies that “ordinary hours of work, specifies the ordinary hours of work” and cl 2 defined “base rate of pay”, “roster”, “roster cycle” and “rostered hours” as follows:

base rate of pay means the rate of pay payable to an employee for their ordinary hours of work, but not including any of the following:

•    loadings;

•    monetary allowances;

•    overtime or penalty rates; and

•    any other separately identifiable amounts.

roster means any arrangement of rostered hours worked by an employee.

roster cycle means the period over which a roster repeats and an employee’s hours average 35.

rostered hours means ordinary hours of work and rostered overtime.

19    The primary judge found that these definitions indicated that there was a “deliberate definition” of “ordinary hours” for the purposes of the 2020 Award, but that definition was “subject to intention”: PJ[52].

20    Looking at cl 15 textually, the primary judge found that it would constitute “an unusual confining of ten “ordinary hours” to incorporate the defined meaning as the term is used in relation to starting and finishing times in clause 15.2(a)”: PJ[54]. Further, the primary judge reasoned that the construction favoured by OS would result in an award which is open-ended as to the length on a given day of a shift, which was said to be counter-intuitive, as it would “admit” (or rather permit) a 24-hour shift: PJ[54].

21    The primary judge also placed emphasis on the industrial history leading up to the 2020 Award which led to the Full Court decision of Re Australian Industrial Relations Commission; Ex parte Construction, Forestry, Mining and Energy Union [2001] FCA 1816; 115 FCR 267 (CFMEU Decision): PJ[56]-[67]. In essence, by reference to earlier black coal mining decisions and predecessor awards, the primary judge considered the reduction in weekly hours from 40 to 35 between 1939 and 1970, save for with respect to the operation of drag lines, and was persuaded, again, by particular aspects of the 1988 restructuring decision (said again to be “translated into the 1990 award”) in which it was found that there was “an arbitrated outcome as to shift length, a right to an eight hour shift length”: PJ[61]. Thereafter, it was reasoned that the history confirmed this limitation on shift length, by reference to a Full Bench decision in 2000: BHP Coal v Construction, Forestry, Mining and Energy Union (AIRCFB, Giudice and Boulton JJ, Lawson C, 18 May 2000), Dec 546/00, Print S6142 and to the then applicable provision as to shift lengths, which could be no greater than eight ordinary hours unless by agreement with the majority of affected employees. In that case, the employers were seeking a variation which allowed employees to be rostered for up to 12 ordinary hours per shift. The primary judge extracted a large portion of the Commission’s decision, but of particular note was its summary of the evidence as to shift lengths at that time, extracted at PJ[62] (paragraph [53]):

We have considered the evidence and material presented. We note that the working of extended shift lengths is not unusual in the coal industry even though the award restriction regarding 8 hour shifts remains…..In the coal industry, extended shifts have mainly been introduced by agreement between the employer and the majority of employees concerned, although there are some examples of 12 hour shifts being introduced as a result of arbitration….It is clear that extended shifts involving the working of eight and a half and nine hours are more common than those involving twelve hours work, at least in some parts of the coal industry.

22    Ultimately, the Commission concluded that the award should be varied to allow for extended shifts of up to 10 hours and that shifts of any greater length can only be by agreement between the employer and the majority of affected employees. The primary judge was satisfied that this reasoning illuminated the “intention” of the award provision to be one concerned with “length of shift” not just “with rates of pay”: PJ[63]. This was said to be confirmed by the Full Court’s subsequent judicial review decision in Re Australian Industrial Relations Commission; Ex parte Construction, Forestry, Mining and Energy Union [2001] FCA 1816; 115 FCR 267.

23    The primary judge found the construction promoted by the MEU was to be preferred on the basis of the arbitrated outcome by a specialist tribunal (in 2000) (not the subject of successful judicial review challenge in 2001), and that the “resultant clause” in the 1997 Award, cl 24.2, was said to be the predecessor of the disputed clause in the 2020 Award (and its predecessor in the 2010 Award): PJ[67]. The primary judge found that the words “ordinary hours” in cl 15.1(b) of the 2020 Award evinced, both textually as well as in terms of industrial regulatory context, a contrary intention to the definition contained in cl 2.

OS’s grounds of appeal

24    The grounds of appeal stated in OS’s notice of appeal are:

1.    The primary judge erred by declaring (at order 1 of the Orders) that in:

a.    clause 29.5(a) of the Black Coal Mining Industry Award 2020 (2020 Award); and

b.    clause 27.5 of the Black Coal Mining Industry Award 2010 (2010 Award)

the words: “provided that work will not be carried out on 2 of such holidays” refer to work not being carried out by the workforce, collectively, on two public holidays per year.

Particulars

The primary judge:

i.    failed to have proper regard to, and failed to give effect to, the text, context and purpose of the provisions in question;

ii.    at PJ[41]-[48], misunderstood the history of the provisions, and the decisions of the industrial tribunals that related to predecessors of the provisions; and

iii.    wrongly gave determinative significance to the said history and decisions.

2.    The primary judge erred by declaring (at order 2 of the Orders) that, in respect of the employment of Mr Stephen Whitton at the Saraji mine during the period from 21 November 2021 to 9 December 2024:

a.    clause 29.5(a) of 2020 Award; and

b.    clause 27.5 of the 2010 Award,

required the appellant to:

c.    operate a roster of no more than 363 days per year (or 364 days in leap years); and

d.    provide for at least two public holidays per year on which maintenance employees, collectively, were not rostered to work.

Particulars

The appellant repeats the particulars of Ground 1.

3.    Further to Grounds 1 and 2, the primary judge erred by not making a declaration that, on their proper construction, clauses 27.5(a) of the 2010 Award and 29.5(a) of the 2020 Award:

a.    give rise to an obligation on the part of the employer to make a nomination to the effect referred to in the said clauses only if (and when) the employer and employees have agreed on a date on which the employer will make the relevant nomination; and

b.    require an employer to nominate two public holidays for each employee employed by that employer, being public holidays on which that employee will not perform work, which public holidays are not required to be the same for every employee employed by that employer.

Particulars

The appellant repeats the particulars of Ground 1.

4.    The primary judge erred by declaring (at order 3 of the Orders) that, in relation to the 2020 Award:

a.    in clause 15.1(a) [no doubt intending to refer to 15.1(b)], the words: “the ordinary hours of the shift”; and

b.    in clause 15.1(c), the words “ordinary hours”,

each refer to the total length of the shift employees are rostered to work.

Particulars

The primary judge:

i.    failed to have proper regard to, and failed to give effect to, the text, context and purpose of the provisions in question;

ii.    at PJ[55]-[67], misunderstood the history of the provisions, and the decisions of the industrial tribunals that related to predecessors of the provisions;

iii.    wrongly gave determinative significance to the said history and decisions; and

iv.    at PJ[54] and [67], wrongly held that the words “ordinary hours” did not have the defined meaning given to them in cl 2 of the 2020 Award and cl 3 of the 2010 Award.

5.    Further to Ground 4, the primary judge erred by not making a declaration that:

a.    the reference to “ordinary hours” in clauses 23.1(b) of the 2010 Award and 15.1(b) and (c) of the 2020 Award:

i.    is a reference to ordinary hours payable at ordinary rates; and

ii.    does not include any rostered overtime payable at overtime rates.

b.    further, and in the alternative to (a) above, the reference to:

i.    “Shifts of more than 10 ordinary hours” in clause 23.1(b) of the 2010 Award; and

ii.    “A shift… longer than 10 ordinary hours” in clause 15.1(c) of the 2020 Award,

does not include shifts that are made up of 10 ordinary hours (payable at ordinary rates) and 2.5 hours of rostered overtime (payable at overtime rates).

Particulars

The appellant repeats the particulars of Ground 4.

6.    The primary judge erred by declaring (at order 4 of the Orders) that the cross-claim be dismissed.

Orders Sought

7.    The appeal be allowed.

8.    Set aside the Orders and in lieu thereof, declare that:

a.    on their proper construction, clauses 27.5(a) of the 2010 Award and 29.5(a) of the 2020 Award:

i.    give rise to an obligation on the part of the employer to make a nomination to the effect referred to in the said clauses only if (and when) the employer and employees have agreed on a date on which the employer will make the relevant nomination; and

ii.    require an employer to nominate two public holidays for each employee employed by that employer, being public holidays on which that employee will not perform work, which public holidays are not required to be the same for every employee employed by that employer.

b.    the reference to “ordinary hours” in clauses 23.1(b) of the 2010 Award and 15.1(b) and (c) of the 2020 Award:

i.    is a reference to ordinary hours payable at ordinary rates; and

ii.    does not include any rostered overtime payable at overtime rates.

c.    further, and in the alternative to (b) above, the reference to:

i.    “Shifts of more than 10 ordinary hours” in clause 23.1(b) of the 2010 Award; and

ii.    “A shift… longer than 10 ordinary hours” in clause 15.1(c) of the 2020 Award,

does not include shifts that are made up of 10 ordinary hours (payable at ordinary rates) and 2.5 hours of rostered overtime (payable at overtime rates).

MEU’s Notice of Contention

25    In their notice of contention, MEU contended that the primary judgment should be affirmed on grounds other than those relied on by the Court:

Public Holidays

1.    The respondent contends that the primary judge correctly construed clause 27.5 of the Black Coal Mining Award 2010 (2010 Award) and clause 29.5(a) of the Black Coal Mining Award 2020 (2020 Award). The respondent contends that the primary judge should have admitted and/or taken into account further evidence which supported that construction. That evidence went to:

a.    industrial history which provided material context to the making of clause 27.5 of the 2010 Award and the materially identical predecessor clauses;

b.    the common understanding of the parties as to the meaning and effect of the predecessor provisions to clause 27.5 of the 2010 Award during the period between 1988 and the making of the 2010 Award; and

c.    the common intent of the parties in advancing, by consent, the provision which in substance became clause 27.5(a) of the 2010 Award.

Particulars of Evidence

Affidavit of Andrew Vickers affirmed on 24 January 2025 at:

•    [30]-[32]

•    [50] (first sentence up to the word ‘claim’ and last sentence)

•    [55]-[58]

•    [59]

•    [64] and Annexure AV-9

Shift Length

2.    The respondent contends that the primary judge correctly construed clause 23.1(b) of the 2010 Award and clauses 15.1(b) and 15.1(c) of the 2020 Award. The respondent contends that the primary judge should have admitted and/or taken into account further evidence and material which supported that construction. The evidence and material went to:

a.    industrial history which provided material context to the making of clause 23.1 of the 2010 Award and the materially identical predecessor clauses;

b.    the common understanding of the parties as to the meaning and effect of predecessor provisions to clause 23.1 of the 2010 Award during the period between 1988 and the making of the 2010 Award;

c.    the common intent of the parties in advancing, by consent, the provision which became clause 23.1 of the 2010 Award; and

d.    decisions of the Fair Work Commission (or its predecessors) prior to the making of the 2010 Award which construed or considered the materially identical predecessor provision.

Particulars of Evidence

Affidavit of Andrew Vickers affirmed on 24 January 2025 at:

•    [41]-[42] and Annexure AV5

•    [43]-[44] and Annexure AV6

•    [49]

•    [52]-[54]

•    [64]-[67] and Annexures AV 9, AV10, AV11 and AV12

•    [70]

Affidavit of Mitch Hughes affirmed on 24 February 2025 at:

•    [8] and Annexures MH5 and MH6

•    [15]-[16] and Annexure MH8

•    [24]-[25] and Annexure MH13 at PN11 and PN 350-352

Affidavit of Angela Vukovic sworn on 17 February 2025 at:

•    [10] and Annexures OS-5, OS-6, OS-7, and OS-8

Consideration

Principles of construction of industrial instruments

26    An award, made under the FW Act, is an “instrument” recognised by the Acts Interpretation Act 1901 (Cth). As a consequence, the principles of construction in that Act apply to an award as if it were an Act, and as if each of the award’s provisions were a section of an Act: see s 46 of the Acts Interpretation Act; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 at [52]; Construction, Forestry, Mining and Energy Union (Construction and General Division) v Master Builders’ Group Training Scheme Inc [2007] FCA 435; 161 IR 86 at [33]. Therefore, an award must be interpreted in a way which promotes the purpose or object underlying the Act (s 15AA of the Acts Interpretation Act) and where extrinsic material may aid its construction: s 15AB of the Acts Interpretation Act; City of Wanneroo at [54]; Master Builders’ at [33].

27    The principles governing the construction of industrial instruments were recently distilled in Australian Workers’ Union v UGL Resources (Contracting) Pty Ltd [2025] FCAFC 107 at [12], concurring with and summarising the principles as contained in the Full Court in James Cook University v Ridd [2020] FCAFC 123; 278 FCR 566 at [65]:

(1) The starting point is the ordinary meaning of the words, read as a whole and in context (including the industrial context), citing City of Wanneroo v Holmes (1989) 30 IR 362 at 378; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 at [53]; WorkPac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536 at [197].

(2) A purposive approach is preferred to a narrow or pedantic approach — the framers of such documents were likely to be of a practical bent of mind, citing Kucks v CSR Ltd [1996] 66 IR 182 at 184; Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16]; WorkPac at [197].

(3) The interpretation turns upon the language of the particular agreement, understood in the light of its industrial context and purpose, citing Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10; 222 CLR 241 at [2].

(4) Context is not confined to the words of the instrument surrounding the expression to be construed. It may extend to the entire document of which it is a part, or to other documents with which there is an association. Context may also include ideas that gave rise to an expression in a document from which it has been taken, citing City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union at [53]; Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518; Australian Municipal, Administrative, Clerical and Services Union v Treasurer (Cth) (1998) 82 FCR 175 at 178.

(5) Recourse may be had to the history of a particular clause, citing Short at 518.

(6) A generous construction is preferred over a strictly literal approach, but the instrument should make sense according to the basic conventions of the English language, citing Geo A Bond and Co Ltd (in liq) v McKenzie [1929] AR 499 at 503-4; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union at [57], City of Wanneroo v Holmes at 380.

(7) Words are not to be interpreted in a vacuum divorced from industrial realities but in the light of the customs and working conditions of the particular industry, citing City of Wanneroo v Holmes at 378-9; WorkPac at [197].

28    Although these principles are often cited, care must be exercised to ensure that there is not indiscriminate application of them to all “industrial instruments”, without accounting for differences in the nature of those instruments and how they have evolved over time under different statutory regimes regulating Australian industrial and workplace relations. The principles applicable to the interpretation of enterprise agreements made under the FW Act may not neatly apply to modern awards made under the same Act. Care must be taken to have regard to the statutory scheme under which instruments are made. We will return to this issue further below.

29    As will be evident from the disposition below, the parties, but particularly the MEU, sought to aid their interpretation of the disputed clauses by the relevant “context”, being the historical evolution of the awards and associated Tribunal (being the former Coal Industry Tribunal), Commission and Full Court decisions said to divine the intent or purpose of the provisions. These submissions appeared to mirror certain of the arguments before, and adopted by, the primary judge, as will be apparent from the above.

30    Whilst it may be accepted that account may be taken of the broader context (as observed by the Full Court in UGL, at points (3), (4) and (5) above), we would note the obvious: First, context is not an end in itself, the language of the instrument remains the start and end point: King v Melbourne Vicentre Swimming Club Inc [2020] FCA 1173 at [123].

31    Secondly, the context needs to be established in fact and account needs to be taken as to what can truly be presumed from that context. As is evident from the primary judge’s reasons, certain presumptions were made as to what constituted the genesis for the disputed provisions, by the identification of certain historical stepping stones on the path to the current relevant iterations of the awards. However, the history does not reveal a complete path and the history does not reveal so clear a bright line as to intention as the MEU urged and the primary judge accepted.

32    Thirdly, within the consideration of context, submissions are made about the “intention” of the “framers” no doubt alluding to that aspect of Madgwick J in Kucks v CSR Ltd [1996] IRCA 141; (1996) 66 IR 182 at 184. Given an award has a legislative or quasi-legislative force in the process of construction, as adverted to by Wheelahan J in King at [122], the search is not for the actual subjective intent of the makers of the instrument, but the process of construction must direct attention to the words that are actually used, citing Zheng v Cai [2009] HCA 52; 239 CLR 446 at [28] (French CJ, Gummow, Crennan, Kiefel and Bell JJ); Certain Lloyd’s Underwriters v Cross [2012] HCA 56; 248 CLR 378 at [25] (French CJ and Hayne J); City of Wanneroo v Holmes [1989] FCA 533; 30 IR 362 at 379 (French J).

33    Fourthly, the inquiry is to discern the objective, expressed intention from the text of the instrument in light of context and purpose: Amcor Ltd v Construction, Forestry, Mining and Energy Union & Ors [2005] HCA 10; 222 CLR 241 at [2] (Gleeson CJ and McHugh J); SZTAL v Minister for Immigration & Border Protection [2017] HCA 34; 262 CLR 362 at [14] (Kiefel CJ, Nettle and Gordon JJ).

34    Fifthly, in this case the “intention” is said to have manifested from the surrounding industrial practices prior to or after the inception of the instrument. Care needs to be taken with respect to both. As to the former, it cannot be presumed merely because of a practice before the inception of an instrument that it was intended, without more (from the text or other extrinsic material) that the instrument sought to cement that practice. As to the latter, as the principles of associated with post-contractual conduct reveal, caution must be exercised. Different considerations arise when divining “intention” with respect to enterprise agreements (where parties have negotiated and sought approval from the Commission with respect to an agreement). The form of the bargain is not without complexity as recognised in Toyota Motor Corporation Australia Limited v Marmara [2014] FCAFC 84; 333 FCR 152 at [88]-[89] and does not sit comfortably with contractual notions given those who are the subject of the instrument may not have voted in favour of it at its inception: See the reasoning of the Full Court in Qube Logistics (Rail) Pty Ltd v Australian Rail, Tram and Bus Industry Union [2025] FCAFC 73 at [23]. Therefore, care must be taken when attempting to apply jurisprudence arising in the context of enterprise agreements to industrial awards and vice versa.

35    Sixthly, the derivation of “intention” involves consideration of the particular species of instrument, taking into account how the instrument was created, as divined from the process required under the applicable statute. By way of illustration, the process by which a “modern award” has evolved is very different to its predecessor instruments and this informs what may be gleaned as to the “framer’s intention”. Critically, unlike predecessor instruments, the making of a modern award does not involve the resolution of an industrial dispute between an individual employer and its employees, or an organisation of organisations representing one or particular employers or employees, or employers or employees in the relevant industry or trade. Rather, under Pt 2-3 of the FW Act, the Commission must undertake the task of formulating the terms of a general award that will regulate the relationship of employers and their employees nationally, so as to achieve the modern award’s objective in respect of an entire industry or particular persons or classes of persons covered by the award (ss 134, 143).

36    Additionally, attention must be given to when the modern award was made and the applicable award modernisation regime. The award modernisation process commenced in March 2008. Part 10A of the former Workplace Relations Act 1996 (and thereafter under Pt 2-3 of the FW Act) prescribed (and now prescribes) the process for the Commission to follow when it makes a modern award. Notably, however, a review of these respective pieces of legislation demonstrates that their objects, the process and what was to be contained in modern awards is different. A stark illustration of the difference in the legislative regimes was that initially, according to the former s 576C of the Workplace Relations Act 1996 (Cth), the genesis of a modern award was that the Minister of Workplace Relations made a written request to the President of the Commission stipulating in that request the process to be carried out, the time by which that process must be completed and could include what matters should be included in the modern award. As observed in Beauglehole v Griffin Coal Mining Co Pty Ltd [2018] FCA 899 at [44], 122 modern awards commenced on 1 January 2010. This illustrated the monumental overhauling of the award system, to create (by consolidation of thousands of awards) modern awards, in a very short period of time.

37    Another difference, by way of example relevant to this appeal, is s 147 of Part 2-3 of the FW Act requires that a modern award must include terms specifying or providing for the determination of the ordinary hours of work for each classification under the Award. The former modern award provisions did not so require such terms.

38    Accordingly, given the statutory overlay of the award modernisation process, the search for the “intention” in the context of the consolidation of many awards, involving many industries, parties and prior custom and practice, can be difficult if not impossible. Furthermore, to the extent that the Commission gave reasons as part of the modern award process, they were often limited (understandably given the gargantuan task being undertaken). As a consequence, the jurisprudence considering the construction of modern awards, and the search for “intention”, reveals the caution that must be exercised when looking back at pre-award modernisation awards and submissions made to the Commission in the context of those earlier processes and extrapolating out that such an “intention” was thereafter adopted as part of the award modernisation process: See for example Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Excelior Pty Ltd [2013] FCA 638 at [36]-[38]; Zader v Truck Moves Australia Pty Ltd [2016] FCAFC 83 at [36].

39    Further, we would observe that, by this award modernisation process (and despite its haste in the early years), it is now ordinary that many legal hands are involved in the process leading to the creation of such modern awards and therefore, times have changed. It should not be assumed, as was previously the case the instruments may have been drafted by lay persons. Modern awards are made and varied by the Fair Work Commission. Its President is a judicial officer and many of its members have been qualified lawyers and are otherwise drawn from a wide pool of professionals with expertise in the field of industrial and workplace relations. It follows that, unlike the past, it should not be assumed that modern awards have been drafted by lay persons: cf Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union ( Nine Brisbane Sites Appeal) [2019] FCAFC 59; 269 FCR 262 at [5] (Allsop CJ); Kucks v CSR Ltd at 184 (Madgwick J).

40    More generally, care should be exercised in assuming, without good and principled reason, that the rights, entitlements and duties of employers and employees under a “modern” award made by a contemporary industrial tribunal should be determined by practically minded employers and employees having regard to the annals of industrial arbitration reports in respect of industrial awards and instruments made under entirely different legislative schemes.

Grounds 1, 2 and 3 of Appeal – Public Holidays

41    For the following reasons, appeal grounds one, two, and three are made out. Correctly construed, the effect of each of cl 29.5 of the 2020 Award and cl 27.5 of the 2010 Award give rise to an obligation on the part of the employer to make a nomination of there being two public holidays in a year for each employee employed by the employer, on which the employee will not be required to perform work and where it was not required that those public holidays would be the same for every employee employed by that employer. Such an interpretation is consistent with the text, not inconsistent with the purpose (to the extent that it is capable of being divined) and not defeated by the wider context.

42    The parties’ competing submissions were said to be supported by differing views as to what could be gleaned from the text, the purported purpose, and the context (particularly the historical context). Turning first to the text.

43    OS submitted that there are two constructional questions (1) the significance and effect of the introductory words “on a date agreed” and (2) and more significantly, whether the effect of the proviso is, as OS contends, that all employees may not be required to work on two public holidays, or as the MEU contends, and the primary judge held, it also requires that all employees should not be required to work on the same two public holidays. As to the first question, OS submitted, contrary to that found by the primary judge, at PJ[48], that the proviso, being a factual circumstance (the existence of agreement), triggered the obligation. It was not simply “vestigial” otherwise it would have no work to do.

44    As to the second, OS submitted that its construction ought be preferred because, when looking at the provisions in both Awards (in identical terms), the use of the word “such” is conventionally understood as referring back to something else. It was submitted that the word “such” refers back logically to public holidays per se, the universe of public holidays. Implicit in the primary judge’s construction is the unarticulated (incorrect) premise that the words before the proviso require that there be a single nomination that covers every employee of a subject employer. It was submitted that the words that appear before the proviso could equally be satisfied by a separate nomination by the employer to each of the employer’s employees or by separate nominations to groups or classes of employees, such as a crew. Once one correctly construes the expression “such holidays”, the meaning of the proviso becomes clear. It means that work will not be carried out on two public holidays by the employee or the employees who are the subject of any particular nomination.

45    The MEU contended that both textual and broader contextual matters support the primary judge’s conclusion. In relation to textual consideration of the public holiday clauses, the MEU submitted that the words providing that work will not be carried out on two of such holidays operate independently of the preceding words in cl 29.5(a) to create substantive rights. The real controversy between the parties is the content of those rights. The MEU submitted that textual considerations support the primary judge’s conclusion as to the nature of the substantive right. The words “…2 of such holidays” refer to two of the public holidays occurring in the following twelve months. On those holidays, work will not be carried out. Had the subject of the proviso been the rostering arrangements of individual employees, it would read “provided that an employee will not be rostered to work on at least two such public holidays”. It was submitted that OS’s construction that rosters can operate, and work can be carried out, on every day of the year is contrary to the plain meaning of the text. It was submitted that cl 29.5(d) uses similar language to cl 29.5(a), that of requiring work to be performed and to describe circumstances where the workforce as a whole, or a part of it, will not be required to work on a particular public holiday. Further, it was said that this collective focus is confirmed by the singular / plural distinction throughout cl 29. Clauses 29.2, 29.3, 29.4 and 29.6 address individual entitlements, using “the employee” (singular). In contrast, clauses 29.5(a), (b) and (d) use employees (plural), indicating a collective entitlement, rather than an individual rostering “guarantee”.

46    OS’s construction is to be preferred for the following reasons.

47    First, a consideration of not only sub-cl 29.5 but the rest of cl 29 supports OS’s construction. The provision allows for flexibility, by agreement, as to which and when an employee will be entitled to take leave on public holidays. It allows for substitution of another day for a day that would otherwise be a public holiday by individual agreement (cl 29.2). It stipulates the public holiday loadings that apply when one is required to work (cl 29.3). It provides for the provision of notice (cl 29.5) when an employer nominates a public holiday and provides a different regime for employees who work Monday to Friday shifts of up to 8.5 ordinary hours (cl 29.6).

48    Secondly, whilst cl 29.5 states “on a date agreed”, we do not accept that unless there is such a date agreed, there is no such right of an employee being entitled to have two public holiday days preserved as public holidays. It is clear from a review of the clause that the clause’s intent is to preserve the right to public holidays to the extent that they are contained in the National Employment Standards, as indicated by cl 29.1, but to allow for substitution and compensation when required to work. We do not accept that the preservation of the two days only applies if there has been a date agreed.

49    Thirdly, the fact of the use of the plural “employees” in cl 29.5 does not mean, within the text of cl 29.5 nor cl 29 as a whole, that the clause is to be read as by collective agreement or agreement as a collective of two days upon which work will not be performed. This is so because cl 29.5 uses the singular and plural forms of “employees” and “employer” interchangeably. For example, cl 29.5(b) requires that the employer must give “employees” as much notice as possible, but it cannot be read as meaning that the employer could only require that the whole of the employer’s workforce not be required to work on the public holiday (as nominated by cl 29.5). It must be read as allowing for some (even one) but not all to be so required, despite the use of the plural. This is so because the same is contemplated by cl 29.5(c) where the notice given is less than 4 weeks, and “an employee” is required to be paid for the ordinary hours as if he or she had worked. There is then a reversion to the use of the plural in cl 29.5(d) but again there is no logical reason why it could not apply to a single employee.

50    In our view, the construction we favour coheres with the objective purpose of the cl 29 as divined from its text and its immediate context.

51    As noted above, cl 29.1 recognises that public holidays are provided for in the National Employment Standards. Clause 29.2 permits the employer and an employee to agree to substitute another day for a day that would otherwise be a public holiday, and to do the same in respect of part-days. Clause 29.3 recognises that an employee who is not required to work on a public holiday which would otherwise have been a working day will nevertheless be paid. Clause 29.4 then provides the rates that are to be paid to an employee who is required to work on a public holiday.

52    Accordingly, each of cll 29.1 to 29.4 recognise that an employee may or may not be required to work on public holidays after negotiation and agreement between individual employees and their employer. This provides important immediate context for cl 29.5. Within this immediate context, one purpose served by cl 29.5(a) is that it calls for a nomination by the employer of which public holidays are to be worked in the following 12 months by employees. Given that cl 29.4 expressly contemplates that “an employee” may be required to work on a public holiday, reading cl 29.5(a) as requiring a nomination of such days in respect of a collective of employees would be acontextual. There is no immediate reason why on the face of the clause read as a whole, and in its immediate context, that such a nomination would need to be done in the way contended for by the MEU. Viewed within this context, the proviso in cl 29.5(a) reads conformably with the text, context and purpose to make it plain that the employee will not be required to work on at least 2 such holidays.

53    The balance of cl 29.5 (at subclauses (b) to (d)) operate by reference to the different contingent circumstances therein specified.

54    This construction is cohesive and adheres to an immediately evident purpose that each employee may be required to work on such public holidays as nominated by the employer, provided that the employer may not require them to work on those holidays at all and that they will not be required to work on at least 2 of them.

55    Fourthly, the carve-out in cl 29.5 that employees working shifts of up to 8.5 ordinary hours on weekdays supports this construction. By the carve-out, there is no requirement to provide two preserved, nominated public holidays to these employees. As is apparent from cl 29.6, an employee who only works shifts of up to 8.5 ordinary hours on weekdays cannot, as an integral part of their roster cycle, be rostered for ordinary hours on public holidays. However, critically, the provision allows for such rostering in exceptional circumstances for operational reasons, and does not suggest that such rostering could not be on the two preserved days identified in cl 29.5. That ability to roster such an employee on any public holiday (for operational reasons) accords with an interpretation of cl 29.5 which allows for such a preservation of two public holidays per employee rather than two nominated public holidays which would be the same for every employee employed by that employer.

56    Fifthly, we do not accept that the purported purpose as articulated by either party assists either party. It was submitted by OS that the purpose of the provision was to ensure that there could be a 24/7 365 day a year operation, whereas the MEU submitted that the purpose (remained as it had been when the provisions were purportedly first authored in 1988) was to retain two public holidays in the context where in 1988, employees were losing all the rest of their holidays (they had previously received 13 or 14 public holidays) save for this exception – to preserve two public holidays a year or two days on which employees may, collectively, be absent from work when they would otherwise be working, without loss of pay or other entitlements. More will be said shortly as to the guarded view, in this case, that can be taken of anything contained in the 1988 restructuring decision. Further, the MEU submitted, with respect to the possible second purpose articulated above, when asked by the Court, that there was no evidence either way as to whether the purpose was that there may be a societal benefit (particularly where the mine is located in a regional town) for there to be collective two days of public holidays (though the primary judge did not say that they needed to be two particular days nor one following the other).

57    Ultimately, it is not easy to divine the purpose from the text. It may be accepted that one purpose, at least, is the certainty of two public holidays a year (and them being known in advance). As to whether the purpose is directed to two collective annual holidays (for which there might be a concomitant collective benefit), there is nothing in the text nor the historical material that suggests this.

58    Sixthly, if the MEU’s construction is correct, it assumes that every black coal mine would be compulsorily closed for two days a year. Industrial instruments, of course, allow for compulsory shutdowns. However, it would be very strange if such a shutdown were not referred to explicitly in the instrument and that allowance was not made for who, in cases of emergency or otherwise, may be required to nonetheless work.

59    Seventhly, for the reasons which follow, we do not accept the MEU’s submission that the historical context assists its interpretation. As adverted to above, the historical context relied upon identifies certain, but not all, the stepping stones along the way. Further, it assumes that certain of the stones bear more significance and certainty than they do in the reality of wider industrial context.

60    It is worthwhile returning to the primary judge’s reasoning. The primary judge placed significant emphasis on the history said to give rise to the relevant disputed public holiday provisions, namely as submitted by OS:

(a)    the history of the provision can be dated back to the “1988 restructuring decision”, in which “the QCA claim which seeks the working of rosters on statutory public holidays with two exceptions” was “granted”: J[41]-[45];

(b)    the claim was based on “[t]wo holidays per year [not being] worked as per current practise with draglines”: J[45];

(c)    the evidence as to the practice of the draglines crew was that the crew worked on public holidays, with the exception of Christmas and Boxing Day: J[46];

(d)    the 1988 restructuring decision became the “1990 Award”, which contained materially the same wording as the 2010 Award and the 2020 Award: J[47];

(e)    the above background supports a construction that what was “taken up” is the ability, on the part of the employer, to nominate two public holidays (not necessarily Christmas and Boxing Day) as days not worked, with the opening words as to an “agreement” being vestigial: J[48]; and

(f)    the industrial history and context therefore supported the construction advanced by the Union: J[49].

61    For the following reasons, these matters cannot be accepted.

62    The reliance on the 1988 restructuring decision is misplaced. The 1988 restructuring decision cannot be relied upon as forming the genesis for the 2010 and 2020 decisions simpliciter. In the 1988 restructuring decision the former Tribunal determined whether one of the then-new wage fixation principles, namely a “structural efficiency” principle, would also apply to the black coal industry. Two employer industry associations made applications for certain awards to be amended in a number of respects. This Court only had a copy of the application of the Queensland Coal Association. In that application, in broad terms, it sought amendments (without provision of actual proposed wording) including relevant to this appeal, the “deletion of the necessity for the three week shutdown of productive operations per year” and the increase of the maximum number of ordinary hours of work available from eight to nine. The restructuring decision finds relevantly that “the claim should be granted to recognise a right to the employer to work all operation, production and ancillary for 52 weeks in a year” and also grants that part of the QCA claim (though not contained in its application) that seeks “the working of rosters on statutory public holidays with 2 exceptions (see item 6 in appendix 5)” where appendix 5, in very broad, skeletal terms, sets out the “outline of proposals” from the QCA application, and item 6 (referred to by the primary judge at PJ[45], was in the following terms:

6. STATUTORY PUBLIC HOLIDAYS

Where new rosters are introduced agreement will be negotiated at site level as to which holidays will be worked – 2 holidays per year will not be worked as per current practice with draglines.

63    The primary judge found that the Tribunal’s restructuring decision became the 1990 Award: PJ[47]. It is not clear how this was said to be established and such a finding could not have been made.

64    Whilst amendments were made to the various applicable awards as a result of this restructuring decision, those amendments were not before the primary judge nor this Court. Notably, the Tribunal, in its subsequent decision, dated 27 September 1988, referred to those amendments but they are not included in the decision: Queensland Coal Association and the Australasian Coal and Shale Employees Federation; Electrical Trades Union of Australia; the Amalgamated Metal Workers Union; the Federated Engine Drivers and Firemen’s Association of Australasia [1988] ACIndT 4074; (Unreported, Coal Industry Tribunal, 27 September 1988). Those amendments would have been made to the various awards that were the subject of the applications.

65    Further, and significantly, the evidence does not establish that the Tribunal’s decision “became the 1990 Award”. The 1990 Award comprised a consolidated award for the entire black coal mining industry and was the result of industry negotiations. To suggest that the 1990 Award reflected the “intention” of the Tribunal (opaque in itself) does not follow in any event. The MEU submitted that the effect of the restructuring decision, adopted by the primary judge, was to reflect the “current practice with drag lines”. That practice, referred to by a witness for the MEU, Mr Vickers, extracted at PJ[46], referred to the dragline crews working on public holidays “with the exception of two public holidays per year, being Christmas and Boxing Day”. However, the 1990 Award does not stipulate that the two public holidays be those days nor even that they be consecutive.

66    Regardless, since 1990, there were three new awards made as a result of two different statutorily-mandated processes: The 1998 award simplification process and then the later 2010 and 2020 modern awards processes.

The relevant aspects of the MEU’s notice of contention concerning the public holidays issue

67    The MEU contended that the primary judge erred by failing to admit and/or take into account further evidence said to aid its construction with respect to the public holiday clauses. The MEU further submitted that the primary judge had erroneously held evidence advanced by the MEU regarding: (a) the industrial context in which the 1990 Award, and the 2010 Award were made; and (b) the common understanding and intentions of the parties as to the effect of the clause at the time of its incorporation by consent into the 2010 Award was irrelevant.

68    The MEU submitted that the primary judge erroneously held that this evidence was irrelevant, by wrongly considering that CFMMEU v Hail Creek Coal Pty Ltd [2015] FCAFC 149 bound him to exclude it. In Hail Creek the evidence concerned statements and actions of the parties which were said to be reflective of their actual intentions and expectations, rather than evidence of the objective framework of facts within which the contract came into existence. Whilst unclear, the MEU appears to submit that the primary judge did not misapprehend the reasoning in Hail Creek but rather mischaracterised the nature of Mr Vickers’ evidence when applying it. It was submitted that the parts of Mr Vickers’ evidence, which were not admitted below and are now pressed, established “objective industry practice and industrial history underlying the Coal Industry Tribunal's arbitration and the common understanding when the provision was incorporated unchanged into the modern award – objective matters properly considered when construing awards”.

69    The four parts of the affidavit of Mr Andrew Vickers affirmed on 24 January 2025, ultimately relied upon at hearing, which were not admitted and relied upon by the primary judge, may be summarised as follows:

(a)    [30]-[32] which comprised evidence of the practices of mines generally “at least until 1990” regarding annual shutdown periods, the fact that draglines were required to continue to work during those periods and that mines shut down completely for Christmas and Boxing Day;

(b)    [50] (which was partly redacted):

During the negotiations, evidence and submissions on the public holiday component of the QCA claim, [part redacted]….It was never suggested any party that the QCA’s proposed public holiday provision would be complied with if every employee, individually, was rostered off work under a 365/366 day roster for at least two public holidays per year.

(c)    [56], [57] and [59] (partly redacted) under the heading “Public Holidays following the 1990 Consent Award”:

[56] The introduction of new rosters providing for continuous process included consultation at each mine about two public holidays would not be worked each year. This generally occurred in the following way:

(a) At each site the company proposed to the union lodge two public holidays to be designated as non-working days under the new rostering arrangements;

(b) the union lodge executive then discussed this proposal with union members who would either agree to the proposal or make an alternative proposal.

[57] Rosters were then drawn up reflecting the agreed position. Once the public holiday days were agreed, at most mines the same holidays were observed every year without being revisited.

…

[59] The provision regarding two non-working public holidays was never disputed. Nor were there any disputes regarding the phrase “on a date agreed” [part redacted]….every employer at every black coal mine in Queensland operated on the basis that under the award there were two public holidays per year on which rosters would not be applied, and that all employees were entitled to be absent from work on those days. This position continued up until my retirement in 2017.

(d)    [64], under the heading “1998 ‘Award Simplification’ process”, a copy of Mr Vickers’ statement in that Award Simplification process.

70    It was submitted that this evidence demonstrated a “long standing and uniform industry practice” of two public holidays being observed, by all employees, each year prior to the introduction of the public holidays clause in the 2010 Award (said to be by consent) and there was a common understanding of its meaning, and a common intent that the status quo would continue.

71    It may be accepted that, where the language of an industrial instrument is ambiguous or susceptible of more than one meaning, evidence of “surrounding circumstances”, being a reference to “the objective framework of facts”, is admissible to assist in its interpretation: BP Australia Pty Ltd v Nyran Pty Ltd [2003] FCA 520; 198 ALR 442 at 452–453, cited in Construction, Forestry, Mining and Energy Union v Hail Creek Coal Pty Ltd [2015] FCAFC 149 at [59]. Indeed, even without ambiguity account may be taken of the surrounding context. Those objective facts, including industry practice (the customs and working conditions of the particular industry), may establish a common understanding or intention: Ridd at [65]; Civil Air Operations Officers’ Association of Australia v Airservices Australia [2021] FCA 1030; 309 IR 443 at [64]. The probative force of a mass of evidence may be cumulative such that it is pointless to consider the degree of probability of each item of evidence separately: Qube at [164]. However, as conceded by the MEU, proof of common understanding will not arise merely because a particular clause has a history of consistent application and will depend on the nature and extent of the evidence and indeed, as adverted to above, by reference to the nature of the instrument and the applicable legislative process by which the instrument was created. As a consequence, care must be taken when citing previous authority, so as to ensure that the circumstances are truly analogous.

72    We do not accept that the MEU has made out its notice of contention in this respect.

73    We accept OS’s submission that the MEU’s reliance on what it says is the history of the provision is misplaced. At the time the provision was introduced into the 2010 Award – that is, during the award modernisation process – the Australian Industrial Relations Commission (as the Fair Work Commission was then) did not hear any submissions or arguments as to the drafting of the provision, or its intended meaning or purpose. Instead, the Commission acknowledged that large parts of the award had been agreed between the coal industry employers and the unions: see Re Minister for Employment and Workplace Relations - Award Modernisation [2008] AIRCFB 717 at [36] and Re Minister for Employment and Workplace Relations - Award Modernisation [2008] AIRCFB 1000 at [155]. The provision was not the subject of any submissions made during the award simplification process that brought about the 2020 Award, and changes to the provision were merely cosmetic.

74    As has been elucidated earlier, the mere fact of evidence as to “context”, the existence of an industry practice along the long industrial history, the existence of a submission made or omitted from being made to a Tribunal decades before the relevant industrial instrument does not mean that it is admissible nor relevant. As the earlier reasoning reveals, we do not accept that the evidence establishes that the restructuring decision “became” the 1990 Award. In any event, the fact of submissions being made or not made before the Tribunal does not go far. If the Tribunal had arbitrated a result which created or varied an Award, it may be relevant evidence if it was sufficiently linked to later iterations. The Court did not have before it evidence of the amendments in the relevant order arising from that decision and, in any event, one would query the relevance of them, given the later development, the creation of a consolidated award (namely the consolidation of numerous awards) which arose from negotiation and where the content of that award revealed a disjunct between the reasoning in the restructuring decision (regarding the two public holidays being stipulated as “per the current practice with draglines”) and the flexibility as to days (and them not being consecutive) in the 1990 Award. Further, as to the later award simplification process in 1998, reliance is purportedly placed on the entirety of Mr Vickers’ statement before the Commission. The only portion of that statement that appears to the issue of public holidays, is an argumentative statement of the Union’s position. Again what is relevant is the reasoning of the Commission as evident from any reasons given as part of the simplification process and the Award itself.

75    To the extent that reliance was placed on what was contained in pre-reform enterprise awards, those instruments did not establish a settled industry practice. For example, the Coal Mining Industry (Mines Rescue Staff) Award, 2005, Queensland simply stated, at cl 15.7.1: “1 On a date agreed the employer shall nominate which public holidays shall be worked in the following twelve months.” The Coal Mining Industry (Staff) Award 2004 had no equivalent provision to the ones the subject of these proceedings.

76    More directly, the difficulty with the MEU’s contentions (to which we have adverted) is that it assumes that the words of cl 29.5(a) of the 2020 Award should be construed by reference to an apparent custom and practice from decades beforehand. In truth, the MEU’s contention was not that the words of the clause should be construed by reference to that practice, but that the clause manifested that practice as if it had been cemented in place. That approach to construction betrays the central principle that the context is not the end in itself: King at [123].

Grounds 3 and 4 of Appeal – Shift Work

77    The primary judge declared that the phrase “the ordinary hours of the shift” (in cl 15.1(b) of the 2020 Award) and the expression “ordinary hours” (in cl 15.1(c) of the 2020 Award) each refer to the total length of the shifts on which employees are to be rostered. By this appeal, OS challenges this construction by positing that the words “the ordinary hours of the shift” and “ordinary hours”, in clauses 15.1(b) and (c) of the 2020 Award, do not each refer to the total length of the shifts employees are rostered to work but rather the number of hours which may be remunerated at ordinary rates of pay before penalty rates must be paid.

78    It may be recalled that the relevant part of cl 15.1 of the 2020 Award reads as follows:

15.1    Rostering of hours and length of shifts

(a)    The employer may determine the type of rosters to be worked.

(b)    The employer may determine the shift length to be worked where the ordinary hours of the shift do not exceed 10 hours.

(c)    A shift may be longer than 10 ordinary hours:

(i)    where the employer and the majority of affected employees agree; or

(ii)    in the case of a dispute, as resolved in accordance with clause 32—Dispute resolution.

79    The MEU submitted that the interpretation adopted by the primary judge was to be preferred, both by a textual and contextual analysis. As to the text, the MEU submitted that it was clear that cl 15.1(b) and (c) were explicitly concerned with shift length said to be apparent on the face of the provisions and reinforced by the historical context. It submitted that the length of the shift is the number of hours an employee is rostered to work. As a consequence, on its ordinary meaning, cl 15.1(b) regulates, and places limits upon, actual shift lengths. In addition, cl 15.2 (which concerns shift starting and finishing times) was said to mirror cl 15.1 in that it is conditional upon actual shift lengths, with the same limit of 10 hours. It was submitted that cl 15.2 would “make no sense” if the words ordinary hours referred only to the hours which could be worked at ordinary rates of pay. Further, it was submitted that the dispute settlement procedure in cl 15.1(c) would have no work to do because the employer could unilaterally impose any length of shifts, so long as hours beyond ten were remunerated at overtime rates. It was further said that the content of cl 15.6(c) would be inconsistent with OS’ interpretation.

80    For the following reasons, a textual analysis reveals that the construction urged upon the Court by OS is preferred and appeal grounds three and four are made out.

81    First, the text reveals that this provision is concerned with the rostering of hours and the length of shifts by reference to ordinary hours. Clause 2 of the 2020 Award defines “ordinary hours” in the following way:

ordinary hours means the hours required to be worked by an employee for the payment of their award classification rate. Clause 14—Ordinary hours of work specifies the ordinary hours of work.

82    The provision does not stipulate the entire length of time that a person can be rostered to work (whether by ordinary hours or supplemented by overtime). The provision, by use of the concept of “ordinary hours” (as distinct from overtime), is concerned with how long an employee, absent agreement, can be compelled to work “ordinary hours” (at their stipulated award classification rate) that is without receiving some additional remunerative benefit.

83    Secondly, this deliberate choice to refer to shifts being limited to ordinary hours, not by hours simpliciter, is a strong textual indicator that it was intended that the limit not be to the entire shift (whether paid at ordinary hours or including overtime) otherwise there would have been no need for the descriptor “ordinary” attached to hours to be deployed. The MEU’s first contention, in this regard is rejected. We do not accept that cl 15.1(b) and 15.1(c) are explicitly concerned with shift length simpliciter, if they were then there would have been no need for the deployment of “ordinary”. Foundational to the operation of the Award, is the making of this choice – the ordinary hours one works by comparison to those which are extraordinary and for which additional benefits ensue.

84    Thirdly, the fact that the provision is concerned with “shift length” at “ordinary hours” is evident by how the Award otherwise operates. The Award is premised on the use of “rosters” and of “rostered hours”. “Rostered hours”, as defined in cl 2, have two components: ordinary hours of work and rostered overtime. “Rostered overtime” contains a limit, it is defined to mean “reasonable additional hours which are required to be worked by an employee as an integral part of the employee’s roster” which is reinforced in cl 21.5.

85    Fourthly, the conceptual delineation in the Award between “ordinary hours” and “overtime” was clear from the definition of “base rate of pay”, “ordinary hours”, “ordinary week’s pay” and “rostered hours” in cl 2 and how “overtime” was thereafter dealt with under the Award (cl 21). The Award clearly distinguishes between hours which are “ordinary” and time worked in excess of or outside ordinary hours (cl 21.2(a) and 21.2(b)). The deployment of “ordinary hours” as a distinction is foundational to many entitlements in the Award: See for example, cls 15.6(c)(ii), 24.2(a), 25.2, 25.4, 28.4(b), 29.5 and 29.6.

86    Fifthly, we reject the MEU’s contention that cl 15.2 “would make no sense” if the OS’ construction was adopted. Clause 15.2 provides:

15.2    Shift starting and finishing times

(a)    The employer may determine the start and finish times of shifts up to 10 ordinary hours.

(b)    Shifts of longer than 10 ordinary hours will be worked between the starting and finishing times:

(i)    that are agreed between the employer and the majority of affected employees; or

(ii)    in the case of a dispute, that are resolved in accordance with clause 32—Dispute resolution.

87    The clause provides a protection, the establishment for shift starting and finishing times for employees working “ordinary hours” (namely when they receive their base rate).

88    Sixthly, cl 15.6(d) expressly contemplates that an employee working on a rostered day off is to be paid overtime rates “for all time worked outside or in excess of the ordinary hours for that day or shift”. It does not suggest that such hours are limited, by operation of cl 15.1, to less than 10 hours.

89    Seventhly, we do not accept, with respect to reasoning of the primary judge, that despite the use, multiple times in cl 15 of the term “ordinary hours”, there was a “contrary intention”. No such contrary intention arises in the text of the Award. The “contrary intention” must be apparent on the face of the Award – not by reference to what disputes (some decades ago) were about, or what industrial tribunals opined about those disputes.

90    Eighthly, the primary judge was wrong to find that the result of this construction would leave a shift “open-ended”; as adverted to above, a person would only be able to work beyond the 10 ordinary hours if rostered to work overtime. The Award expressly limits that overtime, as defined to “reasonable additional hours which are required to be worked by an employee as an integral part of the employee’s roster” which is reinforced in cl 21.5.

91    Ninthly, a broader contextual analysis, beyond the text, to the history, does not aid a different construction. As referred to above, this provision arose from the 2020 award modernisation process (and the predecessor process in 2010). In both cases, nothing can be gleaned from the submissions, transcript nor reasons of the Commission in these processes as to the intent of the disputed provision. A hollow submission was made by the MEU that reliance could not be placed on the definition of “ordinary hours” in cl 2 of the 2020 Award because it was submitted that that definition “was introduced during the award modernisation process, and could not change the meaning of cl 15.1 as it appeared since the 1990 award”. This submission exemplifies a continual problem with the MEU’s contextual submissions, it relied upon assumption upon assumption which could not been borne out from the historical evidence.

92    Further, as adverted to above, insufficient regard was placed by the MEU on the peculiarities and strictures of the modern award processes undertaken with respect to both the 2010 and 2020 modern awards. In particular, no heed was paid to the operation of s 147 of the FW Act which provided:

A modern award must include terms specifying, or providing for the determination of the ordinary hours of work for each classification of employee covered by the award and each type of employment permitted by the award.

Note: An employee’s ordinary hours of work are significant in determining the employee’s entitlements under the National employment standards.

93    Furthermore, it is clear, by the combined operation of s 16 of the FW Act which defines “base rate of pay” and the relevant parts of the National Employment Standards, that the legislative scheme relies on “ordinary hours” as meaning those hours worked for which an employee will receive their “base rate of pay” (excluding incentive-based payments and bonuses, loadings, monetary allowances, overtime or penalty rates). So much can be confirmed by the bounds of the National Employment Standards which are informed by the combined effect of an employee’s ordinary hours and the applicable base rate of pay for those hours: See for example, an employee’s entitlement to annual and personal leave is determined by reference to the employee’s ordinary hours (ss 87(2) and 96(2)) and an employee’s right to be paid for jury duty, public holidays and in the event of redundancy is limited by reference to the employee’s base rate of pay for the employee’s ordinary hours (respectively ss 111(2), 116 and 119(2)).

94    Accordingly, the MEU cannot submit that the term “ordinary hours” in cl 15 of the modern award ought be given a meaning “that has long been used in the coal mining industry to denote actual hours” (citing a decision made over 70 years ago in The Australasian Coal and Shale Employees Federation & Ors v The Blacksmiths Society of Australasia & Ors (1939) 40 CAR 367). As adverted to by a previous Full Court, the phrase can be seen to reflect the long-recognised distinction between ordinary hours of work and overtime: Bluescope Steel (AIS) Pty Ltd v Australian Workers’ Union (2019) 270 FCR 359 at [38]. The demands of the FW Act affirm that recognised distinction given what is required as part of the modern award process and the critical role the concept of “ordinary hours” plays within the mandated scheme of entitlements (as stipulated in modern awards and supplemented by reference to modern awards in the National Employment Standards). Accordingly, the MEU’s construction cannot be accepted by a reaching back to a purported recognition of the term in a different context 70 years ago. It cannot be submitted, given this critical role, that some contrary intention may be gleaned from cl 15.1 in the circumstances. We reject the suggestion that “ordinary hours” has been used elsewhere in the 2020 Award to refer to actual rostered hours, deploying cll 29.5(c) and (d), 29.6 and aspects of Sch A8.2(a) and Sch B.3.1(b). Further, by contra-distinction the two Schedule references accentuate the difference – that there is a clear delineation between ordinary hours and overtime. “Context” cannot be used to re-write the words of cl 15.1(b) nor to change the definition in cl 2. The defined term “ordinary hours” ought to be given the meaning expressly given to it in the Award.

95    It is efficient, in the context of considering the MEU’s submission regarding the context aiding its construction, to also consider the overlapping issue that arises in its Notice of Contention. For the reasons already given and as follows, the second part of the MEU’s notice of contention is rejected. The MEU, in a similar vein to that advanced with respect to surrounding evidence concerning the public holidays submission, submitted that the primary judge erred in failing to admit or take into account further evidence and material which was said to support its construction of the shift provision. It relied on six aspects of Mr Vickers’ evidence which may be summarised as follows: (a) a further decision of the Coal Industry Tribunal, in the form of Questions and Answers, which followed the restructuring decision; (b) the “statement” issued by the Tribunal after the restructuring decision; (c) the evidence of Mr Vickers as his recollection as to the negotiations, evidence and submissions of the parties “during the Restructuring Case and after the making of the 1990 consent award” such that he believed that it had “never [been] suggested or claimed by any party that a reference to the “ordinary hours” of a shift was only a reference to the number of hours in a shift payable at ordinary rates of pay…Nor….that there would be no cap on the permissible length of shifts so long as an appropriate number of hours were paid at overtime rates”; (d) that following the 1990 consent award, “no employer attempted unilaterally to introduce shift lengths of more than eight hours”, giving an example at a particular site of there being extensive negotiations; (e) evidence as part of the 1998 award simplification process which included, by way of example, evidence of Mr Lawson, who provided consultancy services in the coal mining industry, and observed that the former CFMEU was unwilling to agree to work “longer than 8 hours” and that this had led to arbitrations of the issue, for example, the North Goonyella mine; and (f) evidence of Mr Hughes regarding the award modernisation process but where the only substantive submission concerned an extract from the transcript referring to the submission of Mr Morris on behalf of the Coal Mining Industry Employer Group.

96    To the extent that there was a looking back by the MEU, decades earlier to the restructuring decision (again) to aid its construction, very little can be gleaned from that decision, or from the creation of the 1990 consolidated award or the 1998 simplified award thereafter. The restructuring decision’s reasons can be interpreted as assisting either construction as they are ultimately not clear. The relevant application before the Tribunal referred to the limitation on the “ordinary hours” to be worked on any one day not to a limitation on hours to be worked per se. The QCA proposal contemplated overtime and referred to shifts by reference to “ordinary hours” not by both ordinary hours and overtime. The Tribunal, in its reasons, distinguishes between ordinary hours and overtime: The Tribunal refers to the fact that the Tribunal was not considering particular kinds of rosters and where, for example, overtime was built into them (at page 8 of its reasons). Further the Tribunal, also in the context of considering the health and safety conditions of increasing the daily spread of hours, refers to “overtime possibilities”. This again goes against the MEU suggestion that the Tribunal was considering total shift lengths inclusive of overtime. Further, the Tribunal does not come to any landing on the rosters.

97    The same is reiterated by the Tribunal’s subsequent decision made on 27 September 1988 (Queensland Coal Association and the Australasian Coal and Shale Employees Federation; Electrical Trades Union of Australia; the Amalgamated Metal Workers Union; the Federated Engine Drivers and Firemen’s Association of Australasia [1988] ACIndT 4074; (Unreported, Coal Industry Tribunal, 27 September 1988), 2) which left open the issue of “rosters” and contemplated “overtime” which remained “subject to the ‘reasonable’ standard”. Of course, the MEU retort would be to the effect that the concept of “ordinary hours” could be understood to mean actual hours of work (which would subsume any overtime). However, the decision’s reasoning, understood in the context of the applications made and the absence of any understanding as to what followed immediately thereafter in terms of orders made, is such that no bright line either way can be revealed.

98    No error is revealed, as purportedly raised by the Notice of Contention, by the primary judge not referring in his reasons to this subsequent decision nor the one which contained questions and answers (Queensland Coal Association and the Australasian Coal and Shale Employees Federation; Electrical Trades Union of Australia; the Amalgamated Metal Workers Union; the Federated Engine Drivers & Firemen's Association of Australasia [1988] ACIndT 4101; (Unreported, Coal Industry Tribunal, 24 October 1988). Again, it cannot be submitted, from a review of the answers given by the Tribunal, that it can be assumed that the Tribunal intended that any subsequent variation to the relevant awards would ensure a limit to the entire length of the shift.

99    The subsequent 1990 consolidated award is detailed and may be contrasted to the limited reasoning of the restructuring decision. There is no basis upon which it could be said that the 1990 Award was a mere manifestation of the restructuring decision. Whilst there are many examples as to its content which demonstrate this, particularly poignant are the provisions regarding shifts and hours. Very detailed provisions were placed in this Award regarding different times of rosters. The Award introduces the concepts of “rostered overtime” and “rostered hours” (including both ordinary hours and rostered overtime), neither of which are referred to in the restructuring decision.

100    To the extent that, by the Notice of Contention, reliance was placed on the evidence of Mr Vickers as to his recollection of the purported absence in negotiations, evidence and submissions of the parties during the Restructuring Case and after the making of the 1990 consent award as to any assertion of the current construction, again such evidence, given the effluxion of time and the intervening circumstances, is of limited utility. Furthermore, it was open for the primary judge to not take into account the fact that, in certain instances, a party arbitrated the issue, as referred to in the evidence of Mr Lawson 16 years before the making of the 2010 Award: North Goonyella Coal Mines Ltd v Construction, Forestry, Mining and Energy Union [1994] ACIndT 4729; (Unreported, Coal Industry Tribunal, 21 June 1994 1988).

101    To the extent that reliance was thereafter placed on the award simplification proceedings and the Full Bench decision in BHP Coal v Construction, Forestry, Mining and Energy Union (AIRCFB, Giudice and Boulton JJ, Lawson C, 18 May 2000), Dec 546/00, Print S6142, again it is of limited assistance because it concerned the ability of employers to require employees to work “12 hour shifts as part of their ordinary hours of work regardless of consent”, at [54], rather than the ability to require employees to work shifts of a particular duration that included both ordinary hours and overtime. To the extent that the effect of that decision was interpreted differently by a subsequent Commissioner is also of limited assistance: Re BHP Coal Pty Ltd (AIRC, Bacon C, 16 May 2001), Print PR904284. The decision concerned an application to terminate a number of certified agreements. Indeed, the decision reveals that the industrial parties took different positions, as at 2001, as to how the 1998 Award was to be interpreted in line with their differing positions now.

102    Similarly, we do not accept that much can be gleaned from the Full Court’s view (in Re Australian Industrial Relations Commission; Ex parte Construction, Forestry, Mining and Energy Union [2001] FCA 1816; 115 FCR 267) in a judicial review context, of the nature and scope of the dispute before the Full Bench of the Commission. It does and cannot assist in construing the meaning of the words used in the 2010 Award and the 2020 Award.

103    However, there was one contextual matter which arose from the immediate context, namely a submission made by the representative of the Coal Mining Industry Employer Group, Mr Morris, to the Commission as part of the award modernisation process in 2008 which culminated in the creation of the 2010 Modern Award. The MEU placed reliance on that submission, as said to be indicative of “the shift length provision [being] universally applied, and the common understanding (and common intent) of the parties in proposing that same provision be included in the modern award by consent”. However, read in context, the relevant submission was not directed to the shift clause but rather to concerns as to the effect of the Australian Government’s submission as to the limits of the proposed dispute resolution procedures and where it was contemplated that there might be a need for arbitration (as there was in the award simplification process in 2000 on the issue of 10 hour shift lengths). The particular submission concerned what the Commission “had determined” not what the intent of the parties was now as part of the award modernisation process. In any event, there is no indication as to the intention of Mr Morris’ industry client to articulate the effect of the then proposed clause and, even if it were, it does not evince, without more, in the circumstances, a common understanding or intention.

Conclusion

104    It follows that the appeal should be upheld and the Notice of Contention dismissed.

105    The form of declarations sought by OS in the proceedings before the primary judge, and on appeal, were too broad and went beyond the quelling of the immediate dispute between the parties. There is no justification for the grant of declaratory relief in that breadth. It is trite that “federal jurisdiction” arising from the subject matter in ss 75 and 76 of the Constitution is limited to deciding a “matter”: AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 26; 278 CLR 512 at [30] (Kiefel CJ, Gordon and Steward JJ). Relevantly, a “matter” has two elements: (a) the “subject matter itself as defined by reference to the heads of jurisdiction” mentioned in ss 75 and 76 of the Constitution; and (b) “the concrete or adequate adversarial nature of the dispute sufficient to give rise to a justiciable controversy”: Hobart International Airport Pty Ltd v Clarence City Council [2022] HCA 5; 276 CLR 519 at [26] (Kiefel CJ, Keane and Gordon JJ).

106    First, the “subject matter” of the controversy between the parties is clearly within the jurisdiction of the Court in that it relates to the proper construction of awards made under the FW Act. Accordingly, there is a matter “arising under” a law made by the Commonwealth Parliament within the meaning of s 76(ii) of the Constitution and in any case, such jurisdiction is also conferred on this Court by s 562 of the FW Act. Second, there can be no “matter” unless there is “some immediate right, duty or liability to be established by the determination of the Court”: Hobart International Airport at [29], citing Re The Judiciary Act 1903-1920; Re The Navigation Act 1912-1920 [1921] HCA 20; 29 CLR 257 at 265 (Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ). It is a “necessary condition of federal jurisdiction” that the “matter in which the jurisdiction of the court is invoked is ‘capable of judicial determination’ or ‘justiciable’”: CGU Insurance Ltd v Blakeley [2016] HCA 2; 259 CLR 339 at [26] (French CJ, Kiefel, Bell and Keane JJ). The concept of justiciability “does not embrace a purely advisory opinion”: CGU at [26]. We are satisfied that there is a justiciable matter before the Full Court, the determination of which may affect an “immediate right, duty or liability” of the parties.

107    In the present case, there was no dispute between the parties that they were in dispute as to OS’s obligations under the relevant awards and that this was a matter centrally relevant to the bargaining between them. The resolution of that controversy will both affect OS’s immediate rights and duties under the relevant Awards but also affect the future rights and duties of OS. In light of the actual dispute between the parties, we are satisfied that declaratory relief should be granted. However, we are not satisfied that declaratory relief should be granted at large. It should be limited to the obligations imposed on OS in the following confined form:

(1)    Pursuant to clauses 27.5(a) of the 2010 Award and 29.5(a) of the 2020 Award, the respondent must nominate two public holidays on which each employee covered by those awards will not perform work, where those public holidays are not required to be the same for every employee employed by the respondent.

(2)    Pursuant to clause 15.1(b) of the 2020 Award, the respondent may determine the shift length to be worked where the ordinary hours of the shift, payable at ordinary rates do not exceed 10 hours where “ordinary hours” refers to hours payable at ordinary rates and do not include any rostered overtime payable at overtime rates.

(3)    Pursuant to clause 15.1(c) of the 2020 Award, the respondent may determine that a shift length is to be longer than 10 ordinary hours, payable at ordinary rates (where “ordinary hours” refers to hours payable at ordinary rates and do not include any rostered overtime payable at overtime rates) in the circumstances outlined in either sub-clause 15.1(c)(i) or 15.1(c)(ii).

Associate:

Dated:    7 May 2026

REASONS FOR JUDGMENT

DOWLING J:

108    This appeal concerns the proper construction of two clauses in the Black Coal Mining Industry Award 2010 and its successor, the Black Coal Mining Industry Award 2020. The first of those clauses concerns the breadth of the entitlement to two public holidays per year. The second concerns what limits, if any, are imposed on shift lengths.

109    The construction dispute arose before the primary judge because the respondent, the Mining and Energy Union (MEU), commenced negotiations for an enterprise agreement to cover employees of the appellant, OS ACPM Pty Ltd. Those negotiations led to controversy about the 2020 Award terms for OS employees on public holidays and shift work. That controversy affects the process for approval for any new enterprise agreement, including because of the obligation in the Fair Work Act 2009 (Cth) to ensure that employees are better off overall if the new agreement applied to them than if the 2020 Award applied to them.

110    I have had the considerable advantage of reading the draft joint reasons of Raper and Shariff JJ. Respectfully, I have reached a different view in relation to grounds one, two and three of the appeal concerning the two public holidays. I have reached a different view about the text, context and purpose, particularly what can be taken from the history said to give rise to the clause. My view is largely consistent with the primary judge’s construction: Mining and Energy Union v OS ACPM Pty Ltd [2025] FCA 200; 188 ALD 12 (primary judgment). I otherwise agree with the reasons of Raper and Shariff JJ in relation to grounds four and five of the appeal concerning shift lengths. I would dismiss the appeal in relation to grounds one to three and allow it in relation to grounds four and five.

THE PUBLIC HOLIDAY CLAUSE AND APPEAL GROUNDS ONE TO THREE

111    The public holiday clause, at cl 27 of the 2010 Award and cl 29 of the 2020 Award, is set out in full in the reasons of Raper and Shariff JJ. The contentious part of that clause reads as follows:

On a date agreed, the employer will nominate which public holidays will be worked in the following 12 months by employees (other than employees working shifts of up to 8.5 ordinary hours on weekdays), provided that work will not be carried out on 2 of such holidays.

112    By grounds one, two and three, OS alleges, in effect, that the primary judge erred in finding that the words “provided that work will not be carried out on 2 of such holidays” refer to work not being carried out by the workforce, collectively, on two public holidays per year. OS contends that, when properly construed, cl 27.5(a) and cl 29.5(a) do not require that the nominated public holidays on which work will not be carried out be the same for every employee. Rather, OS contends that the clause entitles it to enter into individual arrangements with employees to agree on which two public holidays work will not be carried out by that employee. It says the public holidays can be different for each employee. Grounds one, two and three of the notice of appeal are helpfully set out in full at [24] of the reasons of Raper and Shariff JJ.

THE HISTORY AND THE 1988 RESTRUCTURING DECISION

113    Both parties accept that the public holiday provisions in the 2010 and 2020 Award have their source in the introduction of the 52-week working year in the 1988 restructuring decision of the Coal Industry Tribunal: Queensland Coal Association and the Australasian Coal and Shale Employees Federation; Electrical Trades Union of Australia; the Amalgamated Metal Workers Union; the Federated Engine Drivers and Firemen's Association of Australasia [1988] ACIndT 4071; (Unreported, Coal Industry Tribunal, 8 September 1988). OS contends that the primary judge “correctly found” that the Award provisions the subject of the appeal “had their source in” the 1988 restructuring decision. Although it submits that events and instruments since that decision undermine that history. The MEU contends that when construing the provisions in the Awards “it is relevant to look at the original dispute” that was the subject, and necessarily the outcome, of the 1988 restructuring decision.

114    In the 1988 restructuring decision, the Coal Industry Tribunal dealt with applications by the Queensland Coal Association (QCA) and the New South Wales Coal Association (NSWCA) to amend coal mining industry awards. The applications arose in the context of an industrial dispute which had existed between the parties since at least 1987. The QCA and NSWCA sought changes to the awards to, in the words of the Tribunal, increase the use of capital invested in the industry, move towards a position of viability and attract needed further investment. The applicants also sought removal of certain work practices and union policies. The union respondents actively resisted any award changes.

115    Amongst the changes sought by the QCA was the introduction of a 52-week working year. At appendix 5 of the 1988 restructuring decision (p 83-84), the QCA’s outline of proposals to the Tribunal is set out. The QCA relevantly proposes, at item 8 under the heading “52 Week Operation”, to “Delete the mandatory Christmas shutdown from Awards. Basis for work during the period – volunteers. Minesites to discuss details. Each employee must have one break of 3 weeks per year.”

116    In the same QCA outline of proposals at item 6 of appendix 5, under the heading “Statutory Public Holidays”, the QCA proposes: “Where new rosters are introduced agreement will be negotiated at site level as to which holidays will be worked – 2 holidays per year will not be worked as per current practice with draglines. Current practices will continue for employees not on roster.”

117    At appendix 3 (p 63) of the 1988 restructuring decision, the Tribunal summarises the submissions of the QCA. It relevantly states: “Finally, when new rosters are introduced QCA seeks to work all public holidays by agreement at site level with the exception of two. This is the current practice with draglines.”

118    The “current practice with draglines” is explained by a witness for the MEU, Mr Vickers, as referring to the practice where dragline operators in Queensland could be rostered to work on public holidays with the exception of two public holidays per year, being Christmas Day and Boxing Day. The source of that practice was not disclosed by any of the material before the primary judge. Additionally, the award that covered drag line operators in Queensland prior to the 1988 restructuring decision was not in evidence before the primary judge and its contents are not relevantly known.

119    The parties appear to accept that the effect of the QCA claim was that all employees would have the same two public holidays off every year.

120    The Tribunal arrived at its conclusion as to the 52-week working year and the statutory public holidays at p 11 of the 1988 restructuring decision, as follows:

The employer evidence, particularly that of Mr Harrison, leads me to conclude that voluntary arrangements should not be relied on and that the claim should be granted to recognise a right in the employer to work all operations, production and ancillary for 52 weeks in a year.

It obviously remains open for individual employers to choose how to implement the provision and recourse to volunteers may be one such way. I do not propose to postpone the introduction of the clause in the award to prevent its application for the 1988/89 shut down. Whether it is or not is left as one of the matters to be dealt with at the minesite level.

That part of the QCA claim which seeks the working of rosters on statutory public holidays with 2 exceptions (see item 6 in appendix 5) is also granted and is also to be available in New South Wales.

121    In other words, the Tribunal determined that mines would operate for the entire year, while two public holidays per year would not be worked “as per current practice with drag lines”. Agreement would be negotiated at site level as to which holidays will be worked. This suggests the two public holidays operating as “2 exceptions” were, historically, not worked by the relevant entire workforce.

122    In 1990, the Coal Mining Industry (Production and Engineering) Interim Consent Award 1990 was made. It is common ground between the parties that the Award provisions the subject of the appeal, as contained in the 1990 Award, have their source in the 1988 restructuring decision (see [113] above). Clause 14(h)(1) of the 1990 Award provides:

(h) Notice of Holidays to be worked - 7 Day, 6 Day or 5 Day Weekend Employees

(1) On a date agreed the employer shall nominate which public holiday shall be worked in the following twelve months, provided that work shall not be carried out on two of such holidays.

(2) If an employer decides not to work on a public holiday so nominated, the employer shall give the employees as much notice as possible of such decision.

(3) If the notice is less than four weeks inclusive of the holiday, an employee who was rostered to work on the holiday shall be paid hereof for ordinary hours as if the holiday had been worked.

(4) If the reason the employer decides not to work on a holiday is due to any strike or ban, employees shall receive payment in accordance with sub-clause (f)(2) hereof.

123    In 1997, the Australian Industrial Relation Commission made the Coal Mining Industry (Production and Engineering) Consolidated Award 1997. The relevant public holiday provision is at cl 37.5, as follows:

37.5.1 On a date agreed, the employer is to nominate which holidays are to be worked in the following twelve months, provided that work is not to be carried out on two of such holidays.

37.5.2 If the employer does not require employees to work on a public holiday (as nominated in 37.5.1) the employer must give the employees as much notice as possible of this decision.

37.5.3 If the notice required by 37.5.2 is less than four weeks inclusive of the holiday, an employee who was rostered to work on the holiday is to be paid for ordinary hours as if the holiday had been worked.

37.5.4 If the employer decides not to work on a holiday because of a strike or ban, employees are to paid [sic] at their classification rate.

124    The 1990 Award and 1997 Award contain materially the same wording as the 2010 Award and the 2020 Award.

THE CONSTRUCTION OF THE PRIMARY JUDGE

125    In the context of that history, the primary judge concluded that the public holiday provision in the 2010 Award and 2020 Award dates back to the 1988 restructuring decision in which the QCA claim, which sought the working of rosters on statutory public holidays with two exceptions, was granted. His Honour considered that the QCA claim was based on two holidays per year not being worked as per current practice with draglines; where the evidence as to the practice of the draglines crew was that the crew worked on public holidays, with the exception of two public holidays on Christmas Day and Boxing Day: primary judgment [41]-[46].

126    The primary judge said that the 1988 restructuring decision “became the 1990 Award”. His Honour concluded that the 1990 Award “contains within it the obvious progenitor of clause 29.5 in the 2020 Award, and its equivalent in the 2010 Award” and that “it is possible in turn to trace the clause found in the 1990 Award through the Coal Mining Industry (Production and Engineering) Consolidated Award 1997, and in turn then into the 2010 Award”: primary judgment [47].

127    The history was said by the primary judge to underscore the “textual unlikelihood of individually specific agreement”. Instead, his Honour concluded that the clause has a more general application about it in relation to public holidays. His Honour considered that the clause discloses an ability on the part of an employer annually to nominate two public holidays, whether those two public holidays are Christmas Day and Boxing Day or other public holidays: primary judgment [48].

128    As to the words “On a date agreed” at the commencement of the subclause, the primary judge determined that “in keeping with the fundamental restructuring introduced as a sequel to the Tribunal’s 1988 restructuring decision, that had a necessary transitional starting point on a date to be agreed. Thereafter, underscoring the unlikelihood that an important right conferred by that proviso would hang off and be dependent upon agreement, the opening words became vestigial”: primary judgment [48].

129    That history, and considerations of the text, led the primary judge to prefer the MEU’s construction; namely; that the words “provided that work will not be carried out on 2 of such holidays” in cl 27.5(a) and cl 29.5(a) refer to work not being carried out by the workforce, collectively, on two public holidays per year: primary judgment [49].

THE PRINCIPLES OF CONSTRUCTION & 1988 RESTRUCTURING DECISION

130    As stated in the reasons of Raper and Shariff JJ, the principles governing the construction of industrial instruments were recently set out in Australian Workers’ Union v UGL Resources (Contracting) Pty Ltd [2025] FCAFC 107 at [12] (Raper, Dowling and Longbottom JJ), which concurred with and summarised the principles in James Cook University v Ridd [2020] FCAFC 123; 278 FCR 566 at [65] (Griffiths and SC Derrington JJ). Relevantly, [12] of UGL provides:

(1) The starting point is the ordinary meaning of the words, read as a whole and in context (including the industrial context), citing City of Wanneroo v Holmes (1989) 30 IR 362 at 378; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 at [53]; WorkPac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536 at [197].

(2) A purposive approach is preferred to a narrow or pedantic approach — the framers of such documents were likely to be of a practical bent of mind, citing Kucks v CSR Ltd [1996] 66 IR 182 at 184; Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16]; WorkPac at [197].

(3) The interpretation turns upon the language of the particular agreement, understood in the light of its industrial context and purpose, citing Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10; 222 CLR 241 at [2].

(4) Context is not confined to the words of the instrument surrounding the expression to be construed. It may extend to the entire document of which it is a part, or to other documents with which there is an association. Context may also include ideas that gave rise to an expression in a document from which it has been taken, citing City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union at [53]; Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518; Australian Municipal, Administrative, Clerical and Services Union v Treasurer (Cth) (1998) 82 FCR 175 at 178.

(5) Recourse may be had to the history of a particular clause, citing Short at 518.

(6) A generous construction is preferred over a strictly literal approach, but the instrument should make sense according to the basic conventions of the English language, citing Geo A Bond and Co Ltd (in liq) v McKenzie [1929] AR 499 at 503–4; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union at [57], City of Wanneroo v Holmes at 380.

(7) Words are not to be interpreted in a vacuum divorced from industrial realities but in the light of the customs and working conditions of the particular industry, citing City of Wanneroo v Holmes at 378–9; WorkPac at [197].

131    Much was made of the historical context in this case. It is worth revisiting the role of that context. As the principles remind, the starting point, and end point, for the task of construction is the text: Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503 at [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ). Context, whether it is the immediate or broader textual context, the industrial context, or the historical context, is the background, framework or perspective for the examination of the text. In other words, context assists in the proper construction of the words. Context is not an end in itself; it is a means to an end. Further, where the context is the industrial or historical context, it must have a proper evidentiary basis for it to be meaningful and useful.

132    It is said, as Raper and Shariff JJ understandably observe, that lawyers are now involved in the creation of modern awards. What is unclear is the extent and breadth of that involvement. It may be that just as much caution is required in assuming modern awards are drafted by lawyers as is required in assuming they were drafted by lay persons. That is especially so where modern award terms were, and are, in many cases not re-drafted as part of award modernisation but are, as here, adopted from historic awards. In any event, the original principle directs attention to a purposive approach as the result of drafters with a “practical bent of mind”. That is in part because an award should be understood by the large and diverse audience of persons and entities covered by the award. Even if the mix of draftspersons has changed, the audience has not. The need for the drafters to draft with a practical bent of mind remains. Most lawyers have that bent, or at least that aspiration. In that way the construction should still prefer a purposive approach consistent with UGL at [12(1)].

The 1988 restructuring decision

133    Adopting the principles above, and exercising caution so as not to elevate the role of context, I consider that the 1988 restructuring decision is relevant historical context. Adopting the language of the principles as applied to that decision:

(1)    the parties properly accept that it is a document with which there is at least “an association” between its determinations and the public holiday working arrangements included in the 1990 Award and ultimately the 2010 and 2020 Awards (see [113] above): City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union at [53] (French J);

(2)    OS accepts that that the public holiday provisions in the 2010 and 2020 Award have “their source in the introduction of what was called a 52-week working year in the so called 1988 restructuring decision” (see [113] above). The MEU submits that when construing the provisions in the Awards it is appropriate to look at the 1988 restructuring decision. In other words, that decision includes an idea “that gave rise to an expression in a document from which it has been taken”: City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union at [53] (French J);

(3)    the history suggests that when the reference to the two public holidays (or “2 of such holidays”) was “transplanted” into the 1990 Award “it may have brought with it some of the soil in which it once grew”: Short at 518 (Burchett J);

(4)    where “the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form”, a court should not “deny itself the light of that history”: Short at 518 (Burchett J).

134    None of that is to suggest that the 1988 restructuring decision provides such context as to be solely determinative of the outcome. The MEU did not submit that the 1988 restructuring decision, or the practice it reflected, alone should determine the construction. That context is not an end in itself; it is one means to the end of the assessment of the language. But the principles direct attention at the association with the 1988 restructuring decision, or the soil in which it grew, rather than a complete path between it and the 2010 and 2020 Awards.

CONSIDERATION

The text of the public holiday provisions

135    Consistent with the above principles, it is appropriate to return to the words of cl 29.5.

29.5 Notice of public holidays to be worked (other than employees working shifts of up to 8.5 ordinary hours)

(a) On a date agreed, the employer will nominate which public holidays will be worked in the following 12 months by employees (other than employees working shifts of up to 8.5 ordinary hours on weekdays), provided that work will not be carried out on 2 of such holidays.

(b) If the employer does not require employees to work on a public holiday (as nominated in clause 29.5(a)) the employer must give the employees as much notice as possible of this decision.

(c) If the notice required by clause 29.5(b) is less than 4 weeks inclusive of the public holiday, an employee who was rostered to work on the public holiday is to be paid for ordinary hours as if the public holiday had been worked.

(d) If the employer decides not to require work to be performed on a public holiday because of a strike or ban, employees, other than those involved in the strike or ban, are to be paid at their classification rate for ordinary hours.

136    Reading those words as a whole and in context, for the reasons that follow, I prefer the construction of the words “provided that work will not be carried out on 2 of such holidays” as meaning work not being carried out by the workforce, collectively, on two public holidays per year.

137    First, I consider that cl 29.5 draws a deliberate distinction between the collective “employees” and the singular “employee”. Contrary to the submissions of OS, I do not agree that the clause shifts between the collective and singular “interchangeably”. To read the clause in that manner does not pay proper regard to the plain meaning of the text. That is, such a reading assumes the difference was not meaningful rather than accepts that the difference was deliberate. Further, for reasons explained below, the deliberate distinction between the collective and the singular reveals a construction that is consistent with that described in the QCA claim and the 1988 restructuring decision. A decision directed at two public holidays collectively being taken off by the workforce. A decision where the collective was contemplated. That history suggests the use of the singular and plural is more likely to be deliberate than not.

138    Second, the phrase “2 of such holidays” is in reference to public holidays occurring in the following 12 months. The use of the determiner “such” in this context refers to something “previously described or specified; the (person or thing) before mentioned”: Oxford English Dictionary (Oxford University Press, 2025) definition 1.5. It is in reference to the before-mentioned noun clause: “which public holidays will be worked in the following 12 months by employees”. Read in this way, cl 29.5 reads: on those days “work will not be carried out”.

139    Third, the use of the passive verb phrase “work will not be carried out” omits the actor; it does not specify by whom work will not be carried out. Is work not to be carried out by all employees subject to cl 29.5 (the MEU’s construction), or by some, but not necessarily all employees subject to cl 29.5 (OS’s construction)? The relevant actor has already been introduced in cl 29.5: “employees”. No other actor has been introduced in cl 29.5. Had the clause been directed at providing for separate nominations for each of the employer’s employees or by separate nominations to groups or classes of employees, it would read “provided that an employee will not be rostered to work on at least 2 of such holidays” (or words to a similar effect). This separate actor, “an employee”, would have otherwise been introduced.

140    Read with these three matters in mind, by cl 29.5(a), the employer makes a nomination to all employees covered by cl 29.5 as to which public holidays they will work, provided that employees will not work on two of those public holidays.

141    By cl 29.5(b), the employer must give the (collective) employees as much notice as possible of the decision of which public holidays the (collective) employees will not be working.

142    By cl 29.5(c), if the employer’s notice of the public holidays that (collective) employees will have off for the following 12 months is provided less than four weeks out of the public holiday, some employees may have already been rostered to work on that public holiday. Therefore, “an employee” (singular) “who was rostered to work on the public holiday is to be paid ordinary hours as if the public holiday is worked”. Clause 29.5(c) deliberately directs itself to an employee who was rostered to work on the public holiday with the clear understanding that only some employees would be rostered to work on any given day. The use of the singular, as contrasted with the collective in cl 29.5(a) and (b), is intentional and logical.

143    By cl 29.5(d), an employer may decide not to require work to be performed on a public holiday because of a strike or ban. It is clear that this clause is directed to employees (collectively) who are rostered to work on the day of a strike or a ban. Should an employer decide not to require work to be performed on that day, those employees not involved in the strike or ban are to be paid at their classification rate. The reversion to the plural in cl 29.5(d) is again intentional and logical.

144    On this reading, cl 29.5 cannot be satisfied by a separate nomination by the employer to each of the employer’s employees or by a separate nomination to groups or classes of employees.

145    There is an important related issue concerning the proviso “on a date agreed”. OS’s position is that the phrase acts as a trigger for the employer’s obligation to notify which public holidays will be worked in the following 12 months. It says that if the parties do not agree a date, there is no trigger for the employee to notify which public holidays will be worked. OS submits that the phrase has the effect of leaving to the parties the decision of whether, in any given period, the obligation is to exist. Put another way, if the employer or employee withhold agreement as to the date of nomination, employees are deprived of the right to two public holidays off under cl 29.5.

146    For clarity, it is accepted by the parties that “on a date agreed” refers to the date by which the employer is to “nominate which public holidays will be worked in the following 12 months by employees”. Clause 29.5(a) does not contemplate the parties agreeing as to which public holidays will be worked or not worked. It is simply the date on which the employer will inform employees of those dates.

147    The primary judge found that it is an unlikely construction that cl 29.5 hangs off and is dependent upon agreement between the parties which may never be reached: [39] of the primary judgment. That is, as I understand it, that the right conferred by cl 29.5 operates independently of whether or not a date is agreed by the parties. The draft reasons of Raper and Shariff JJ reach the same conclusion as to the effect of the phrase “on a date agreed”. Their Honours do not accept that unless there is such a date agreed there is no right of an employee being entitled to have two public holiday days preserved as public holidays.

148    I agree with the effect of the primary judge’s reasons and the reasons of Raper and Shariff JJ. To suggest that the right to two public holidays off per year in cl 29.5 is dependent on agreement between the parties as to the date of nomination is to fundamentally curtail the right bestowed. It would also be inconsistent with the history reflected in the QCA claim and the 1988 restructuring decision which is designed to bestow those days in exchange for the 52-week working year, rather than enable them to be denied by withholding the date of nomination. Moreover, sub-clauses 29.5(b) and (c) build in additional obligations for the employer to give employees “as much notice as possible” of the decision to not work on a public holiday (cl 29.5(b)) and provide that if that notice is less than four weeks inclusive of the public holiday, an employee rostered to work on the public holiday is to be paid for ordinary hours as if the public holiday had been worked (cl 29.5(c)). I consider that the phrase “on a date agreed” introduces a practical mechanism where employers must give employees notice of the public holidays they will have off for the following 12 months. In doing so, they must give employees “as must notice as possible” of that decision and face financial consequences should they inform employees of the public holidays they will have off less than four weeks out from those public holidays.

149    Further reasons were raised for preferring OS’s construction. To those reasons, I say the following.

150    I accept that cl 29.2 allows for flexibility by agreement as to how and when an employee will be entitled to take leave on public holidays; while cll 29.3 and 29.4 provide the pay consequences for work on a public holiday when an individual is rostered to work. Clauses 29.2 to 29.4 are directed to individual circumstances and therefore deliberately deploy the singular “employee”. Clauses 29.2 to 29.4 do not undermine the MEU’s construction of cl 29.5. Clause 29.5 directs itself towards a discrete public holiday scheme. The fact that cl 29.2 is directed to individual flexibility and cll 29.3 and 29.4 are directed to individual circumstances does not colour the entirety of cl 29 with a requirement for individual flexibility. Nor does it suggest that cl 29.5, and cl 29.6, must import a notion of individual flexibility into their reading that is not otherwise provided for in the text.

151    I accept cl 29.5 does not apply to employees “working shifts of up to 8.5 ordinary hours on weekdays”, but that carve out does not support OS’s construction. It is true that by that carve out, there is no requirement to provide employees working shifts of up to 8.5 ordinary hours on weekdays the two preserved, nominated public holidays under cl 29.5(a). However, by cl 29.6, this category of employees does not work on public holidays in any event. This category of employees may be “in exceptional circumstances … required to work on public holidays to meet operational needs”. I have understood this to mean that this category of employees may, in “exceptional circumstances”, be required to work on the two nominated public holidays “to meet operational needs”. Rather than supporting OS’s construction, this appears to demonstrate that the drafters were alive to the possibility that some employees may be required to work to meet operational needs on the two public holidays in which employees covered by cl 29.5 would not work.

152    Lastly, it is contended that if the 2010 and 2020 Awards intended for a compulsory shut down of two days a year, it is strange that, first, the shutdown is not referred to explicitly in the award and, second, that allowance is not made for those who, in cases of emergency or otherwise, may be required to nonetheless work. As to the first point, it is equally strange that, given the context of the 1988 restructuring decision granting the QCA claim for a collective two holidays per year to not be worked, the drafters of the 1990 Award and its successors would deploy the collective “employees” in cl 29.5 and its predecessors if they intended for 365-day per year operation. As to the second point, as discussed, I consider cl 29.6 to make allowance for employees working shifts of up to 8.5 ordinary hours to be required in “exceptional circumstances” to work on public holidays to meet operational needs. That is, allowance is made for those employees to nonetheless work if in an exceptional circumstance.

The context and purpose of the public holiday provisions

153    As is clear from the above, the submissions about context focused largely on the historical context of the 1988 restructuring decision. Both parties made submissions about what use should be made of the 1988 restructuring decision and the effect it had on the 1990 Award.

154    The submissions of OS were to the effect that the relevant practice of dragline crews, which on its submission included taking Christmas Day and Boxing Day as collective days off, was not “taken up” in the 1990 Award. OS correctly observes that the 1990 Award is agnostic as to the choice of Christmas Day and Boxing Day as working days. It submits that once the choice of Christmas Day and Boxing Day as common days off is removed, there is no sensible or even identifiable purpose to a requirement that an employer allow all of its employees to have the same two days off.

155    I do not agree that, because the 1990 Award is agnostic to the choice of Christmas Day and Boxing Day as working days, it follows that there is no sensible or identifiable purpose to the requirement for a collective two days off.

156    As stated at [116] of these reasons, the QCA claim was in the following terms: “Where new rosters are introduced agreement will be negotiated at site level as to which holidays will be worked – 2 holidays per year will not be worked as per current practice with draglines. Current practices will continue for employees not on roster.” The QCA claim did not specify that the public holidays must be Christmas Day and Boxing Day (as they were for draglines). Rather, the reference to the “current practice with draglines” should be understood as a reference to the fact that all dragline employees, collectively, were not required to work on the same two public holidays per year. OS does not point to any other practice to which the QCA claim could have referred. The MEU submits, and I accept, that if the QCA claim and the reference to the current practice with draglines was so intertwined with the idea that Christmas Day and Boxing Day must be the chosen days off, how can one understand the wording in the QCA claim: “agreement will be negotiated at site level as to which holidays will be worked”? If OS’s construction was correct, what would there be to negotiate at site level? The QCA claim was directed to a collective two public holidays off. The relevant public holidays would be “negotiated at site level”. Understood in that context, the reference to the “current practice of draglines” is a reference to employees not being required to work on two public holidays per year.

157    As stated at [120] of these reasons, the Tribunal in the 1988 restructuring decision granted “that part of the QCA claim which seeks the working of rosters on statutory public holidays with 2 exceptions (see item 6 in appendix 5)”. The 1988 restructuring decision was again silent as to which two public holidays are to be taken off.

158    I do not accept that because the 1990 Award does not reference Christmas Day or Boxing Day as the collective days off, that may indicate a fundamental shift from the right conferred by the 1988 restructuring decision such that there is no sensible or identifiable purpose to a requirement that an employer allow all of its employees the same two days off. On a plain reading of the 1988 restructuring decision, the right conferred was not the right to Christmas Day and Boxing Day off. It was the right to two collective public holidays off. Having accepted that, that fundamental right appears consistent with what is provided in the 1990 Award and its successors.

159    OS also submits that because there was no evidence before the primary judge as to why the claim considered in the 1988 restructuring decision resulted in the precise consent wording adopted in the 1990 Award, the relevance of the practice that had been adopted by dragline crews is unclear.

160    I have accepted that the fundamental right conferred by the 1988 restructuring decision, the practice that all employees were not required to work on the same two public holidays per year, is reflected in the 1990 Award and its successors. Once that much is accepted, I am unable to accept OS’s submission that the fact there was no evidence before the primary judge as to why the precise consent wording was adopted in the 1990 Award undermines the historical context of the 1988 restructuring decision. There was no evidence before the Court of anything that occurred in the intervening period between 1988-1990 that might undermine that significant historical context.

161    For the reasons explained above, I am satisfied the 1988 restructuring decision is relevant context which assists in the proper construction of the words in cl 27.5 and cl 29.5. Having accepted that, I accept that the identified “dragline practice” that might assist in the proper construction of the clauses was the practice that all dragline employees were not required to work on the same two public holidays per year. The reference to “dragline practice” does not simply mean that employees must have off Christmas Day and Boxing Day.

162    As to purpose, I accept, as the MEU submits, that a public holiday is a day on which employees may, collectively, be absent from work. There is a purpose in the collective nature of those public holidays. That is especially so in rural communities where black coal mines operate. OS accepts the utility of such a purpose, although it emphasised that that purpose cannot be gleaned from the text. The MEU submits that purpose in the collective nature of public holidays supports its construction, while describing a lack of evidence about the purpose. Such a purpose is self-evident. It enables the benefits and activities of the public holiday to be shared with fellow employees. But, as with context, purpose should not be used as a substitute for the words. Rather, here it assists in the proper construction of the words. On the construction of OS there would be no purpose. That is because, on the rosters as described, any full-time roster would result in at least two public holidays falling on days on which the employee is rostered off work.

163    For all of those reasons, I consider that the words “provided that work will not be carried out on 2 of such holidays” means that work not being carried out by the workforce, collectively, on two public holidays per year. Accordingly, on grounds one, two and three, I would dismiss the appeal.

The MEU notice of contention

164    Having found in favour of the MEU’s construction it is not necessary for me to determine the MEU’s notice of contention. That notice of contention relevantly alleges that the primary judge failed to admit or take account of further evidence that supported its construction of the public holiday clauses, and that the primary judge erroneously excluded supportive evidence as irrelevant. Where I have found in favour of the MEU’s construction without resort to that further evidence, but by reference to the text, the historical context, and the purpose, it is not necessary for me to determine the admissibility or relevance of that further evidence.

Grounds four and five of the appeal

165    As explained above, as to grounds four and five of the appeal I respectfully adopt the reasons of Raper and Shariff JJ.

Associate:

Dated:    7 May 2026