Federal Court of Australia

Mining and Energy Union v OS ACPM Pty Ltd [2025] FCA 200

ORDERS

THE COURT ORDERS THAT:

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.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

LOGAN J:

1    A controversy has emerged between the applicant Mining and Energy Union (MEU), and OS ACPM Pty Ltd (OS) in relation to the meaning 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 controversy has emerged in this way, as described without objection by the MEU’s solicitor Ms Eliza Sarlos in an affidavit filed in these proceedings.

2    Since 2020, the MEU has endeavoured to negotiate enterprise agreements to cover employees of OS.  The MEU has been and remains the default bargaining representative for its members by virtue of s 176(1)(b)(i) of the Fair Work Act 2009 (Cth) (FWA).  To that end the MEU has, amongst other things, participated in about 30 bargaining meetings with OS and related entities on behalf of its members.  The controversy more particularly concerns the construction of two clauses in the 2020 Award, and materially similar clauses in the 2010 Award.

3    In the 2020 Award. the two clauses are clause 29, which deals with public holidays, and clause 15 which deals with shift work.  The equivalent clauses in the 2010 Award are in relation to public holidays, clause 27, and in relation to shift work, clause 23.

4    Within the 2020 Award clause 29 provides:

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.

5    Within the 2010 Award, clause 27 provides:

27. Public holidays

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

[26.1 varied by PR994553 from 01Jan10]

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

27.2 Transfer of recognised public holidays

The employer and the majority of employees affected may agree to observe a holiday on a day other than the day prescribed. If this occurs, the day agreed upon is the award holiday and the actual holiday becomes an ordinary working day.

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)

(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.

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

(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.

6    As to shift work, clause 15 of the 2020 Award provides:

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.

7    Within the 2010 Award, clause 23 provides:

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 take off; 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.

8    The controversy concerning the public holidays and shift work clauses has led to uncertainty as between the MEU and members and OS (and related entities) as employer, as to the terms and conditions of employment.  In turn this has, and continues to, adversely affect the progress of negotiations for enterprise agreements.  The controversy also affects the process for approval of an enterprise agreement by the federal conciliation and arbitration commission, presently known as the Fair Work Commission, (Industrial Commission).

9    The reasons for this are that the true construction of these clauses affects the Industrial Commission’s application of the better off overall test for which s 193 of the FWA provides:

Passing the better off overall test

When a non – greenfields  agreement passes the better off overall test

(1)    An enterprise agreement that is not a greenfields agreement passes the better off overall test under this section if the FWC is satisfied, as at the test time, that:

(a)    each award covered employee, and each reasonably foreseeable employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee; and

(b)    if the agreement is a single - enterprise agreement that covers one or more employees (each of whom is an old agreement employee ) to whom a supported bargaining agreement or a single interest employer agreement applies--each old agreement employee would be better off overall if the single - enterprise agreement applied to the employee than if the supported bargaining agreement or single interest employer agreement (as the case requires) applied to the employee.

Note 1:    Reasonably foreseeable employee is defined in subsection   (5).

Note 2:    Section 193A sets out rules for applying the better off overall test, including requiring the FWC to only have regard to patterns or kinds of work, or types of employment, that are reasonably foreseeable at the test time (see subsection 193A(6)).

(1A)    If an employee is, at the test time, both an old agreement employee and an award covered employee, the FWC must undertake an assessment against only paragraph (1)(b) for that employee.

FWC must disregard individual flexibility arrangement

(2)    If, under the flexibility term in the relevant modern award, an individual flexibility arrangement has been agreed to by an award covered employee and his or her employer, the FWC must disregard the individual flexibility arrangement for the purposes of determining whether the agreement passes the better off overall test.

(2A)    If, under the flexibility term in the supported bargaining agreement or single interest employer agreement, an individual flexibility arrangement has been agreed to by an old agreement employee and his or her employer, the FWC must disregard the individual flexibility arrangement for the purposes of determining whether the single - enterprise agreement passes the better off overall test.

When a greenfields agreement passes the better off overall test

(3)    A greenfields agreement passes the better off overall test under this section if the FWC is satisfied, as at the test time, that each reasonably foreseeable employee for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee.

Award covered employee

(4)    An award covered employee for an enterprise agreement is an employee who:

(a)    is covered by the agreement; and

(b)    at the test time, is covered by a modern award (the relevant modern award) that:

(i)    is in operation; and

(ii)    covers the employee in relation to the work that he or she is to perform under the agreement; and

(iii)    covers his or her employer.

Reasonably foreseeable employee

(5)    A reasonably foreseeable employee for an enterprise agreement is a person who, if he or she were an employee at the test time of an employer covered by the agreement:

(a)    would be covered by the agreement; and

(b)    would be covered by a modern award (the relevant modern award ) that:

(i)    is in operation; and

(ii)    would cover the person in relation to the work that he or she would perform under the agreement; and

(iii)    covers the employer.

Test time

(6)    The test time is the time the application for approval of the agreement by the FWC was made under subsection 182(4) or section 185.

[emphasis in original]

10    There is also an impact on a requirement, flowing from s 180(5) of the FWA, for the employer to take all reasonable steps to ensure the effect of the terms of an enterprise agreement is explained to employees, including by reference to existing terms and conditions.

11    Finally, the construction of the clauses mentioned also affects the ability of employees to agree to terms and conditions of a proposed enterprise agreement as required by s 186(2)(a) of the FWA, that being one of the prerequisites for approval of an enterprise agreement by the Industrial Commission.  The 2020 Award covers and applies to maintenance employees employed by OS (or a related company).  Before 28 January 2022, those employees were the subject of coverage and application by the 2010 Award.

12    The ultimate holding company of OS and related entities is BHP Group Limited.

13    Since about May 2019, OS have engaged employees to perform work in black coal mines operated by subsidiaries of the BHP Group in Queensland and in New South Wales.  This has included the following mines:

(a)    from about May 2019 until about 1 April 2024 Daunia Mine;

(b)    from about February 2022 until about 1 April 2024, Blackwater Mine;

(c)    from March 2019 until November 2021, Mount Arthur Coal;

(d)    from September 2019, Peak Downs Mine;

(e)    from about July 2019, Saraji Mine (Saraji);

(f)    from about May 2020, Goonyella Riverside Mine;

(g)    from about mid 2019, Caval Ridge Mine; and

(h)    from about late 2019, South Walker Creek Mine.

14    Endeavours have been made either by earlier court proceedings or by proceedings or attempted proceedings in the Industrial Commission, to secure either a judicial or arbitrated construction of the controversial clauses.

15    For one reason or another though, as detailed by Ms Sarlos, these earlier endeavours have come to naught.  So it is that the MEU has sought declaratory relief by its originating application in the following terms:

1.    A declaration that the words “provided that work will not be carried out on 2 of such holidays” in clause 29.5(a) of the Black Coal Mining Industry Award 2020 (BCMIA 2020) (and clause 27.5 of the Black Coal Mining Industry 2010 (BCMIA 2010)) refer to work not being carried out by the workforce, collectively, on two public holidays per year.

2.    A declaration that, in the period between July 2019 and 9 December 2024, in respect of its maintenance employees at the Saraji Mine,  clause 29.5 of the BCMIA 2020 (and clause 27.5 of the BCMIA 2010)  required the respondent to provide for at least two public holidays per year on which maintenance employees at the mine, collectively, were not rostered to work.

3.    In the alternative to order (2) above, a declaration 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, clause 29.5 of the BCMIA 2020 (and 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.

4.    A declaration that:

a.    the words “the ordinary hours of the shift” in clause 15.1(a) of the BCMIA 2020 and “ordinary hours” in clause 15.1(c) each refer to the total length of the shift employees are rostered to work;

[emphasis in original]

16    In turn, and by way of riposte, OS has cross-claimed for the following declaratory relief:

1.    A declaration that, on their proper construction, 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) 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.

2.    Further, and in the alternative to 1 above, a declaration that, on their proper construction, clauses 27.5(a) of the 2010 Award and 29.5(a) of the 2020 Award 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.

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

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

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

4.    Further, and in the alternative to 3 above, a declaration that the reference to:

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

b.    “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).

[emphasis in original]

17    Section 562 of the FWA confers, amongst other things, jurisdiction on the Court to determine matters, civil matters, arising under the FWA.  There was no question in the proceedings raised by the parties as to the Court’s jurisdiction.  That position appears, with respect to me to be sound, a controversy concerning the meaning and effect of awards made under the FWA, is one falling within s 562.

18    Further, once the Court’s civil jurisdiction is engaged, the Court has power by virtue of s 23 of the Federal Court of Australia Act 1976 (Cth) to grant declaratory relief in the exercise of judicial power to resolve a proceeding in a matter arising under the FWA.

19    To give more detailed context to the nature of the controversy by way of a specific example, the MEU has detailed in evidence that there are currently some 200 employees of OS or a related entity working in various maintenance capacities at the Saraji mine.

20    Since OS commenced its operations at Saraji in 2019, ie, at a time when the 2010 Award was applicable, those maintenance employees have been rostered to work 12.5 hour shifts.  The requirement to work shifts of that length is set out in a standard form letter of offer provided to such employees.  OS also requires the maintenance employees to work a 365, or in a leap year, 366 day roster.  The most common shift pattern is seven days, seven off, seven nights, seven off.

21    Typical in this regard is the circumstance of one particular maintenance employee and MEU member, Mr Stephen Whitton.  He is employed by OS as a diesel fitter/maintenance technician at Saraji.  On or about 3 November 2021 Mr Whitton was provided with a written offer of employment which he subsequently signed and returned to OS.  A copy of that letter as so signed is in evidence.  He commenced performing work for OS on or about 21 November 2021.  Since then Mr Whitton has worked what is referred to as a seven and seven even time roster.

22    On this roster, and typifying the general position just described, Mr Whitton works seven-night shifts and then has seven days off.  In the next fortnight he works seven-day shifts and then has seven days off.  Following completion of that 28-day cycle Mr Whitton’s work roster repeats itself in the way just described.  Mr Whitton works in OS’s truck maintenance department at the Saraji mine.  In that department there are four crews.  Mr Whitton is on “C crew”.  Another crew known as “A crew” and C crew have common days off.

23    When C crew is working the day shift, A crew is working the night shift.  Other crews known as B and D crews respectively are rostered off work.  When C crew is working the night shift A crew is working the day shift, and B and D crew are rostered off.  Since commencing work at the Saraji mine Mr Whitton has worked 12.5-hour shifts.  Night shifts commence at 5.45 pm and finish at 6.15 am.  Day shifts at that mine commence at 5.45 am and finish at 6.15 pm.  Although the claims for declaratory relief set out neatly the positions of the respective parties, they may elaborate upon the position of OS in this way.

24    As to public holidays, in other words, clause 29.5(a) of the 2020 Award, or as the case maybe, clause 27.5(a) of the 2010 Award, is applicable.  The position of OS is that these clauses:

(a)    give rise to an obligation on the part of the employer to make a nomination to the effect referred to in these 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)    in addition or in the alternative, require an employer to nominate two public holidays for each employee employed by that employer, being public holidays on which the employee will not perform work and which are not required to be the same for every employee employed by that employer.

I interpolate that the MEU’s position is that such individually specific focus is not the true construction of this clause, rather it has an employee wide application across its workforce.

25    Further, the MEU’s position is that the opening preamble of the clause in its reference to “on a date to be agreed” long ago became vestigial.  In other words, in each 12-month period the employer is entitled to nominate two public holidays which will be observed generally.

26    As to the shift length controversy, in other words, clause 15.1(b) and (c) of the 2020 Award, and clause 23.1(b) of the 2010 Award, OS’s position is that the reference in these clauses to “ordinary hours” is a reference to ordinary hours payable at ordinary rates, and does not include any overtime payable at overtime rates. More particularly, OS’s position is that reference to “shifts of more than 10 ordinary hours” in clause 23.1(b) of the 2010 Award and “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.

27    The MEU’s position on the other hand is that 10 ordinary hours is descriptive of shift length.

28    Recently in Ridd v James Cook University (2021) 274 CLR 495 (Ridd), at [17], the High Court observed in a joint judgment Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ:

Industrial instruments are not always drafted carefully by lawyers or professional drafters, and hence the literal words of a provision might more readily be understood should, to have a meaning other than their ordinary meaning if the context so suggests.

29    The authority cited by the High Court for that proposition is a judgment of French J, (as his Honour then was when a member of this Court), in City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 (Wanneroo), at [57].

30    There is, with respect, something of a quality of masterly understatement in the High Court’s pithy summary of the approach to the construction of industrial instruments and why that approach can be necessary.

31    The passage referred to with approval by the High Court, in French J's judgment in Wanneroo, at [57], is as follows:

57    It is of course necessary, in the construction of an award, to remember, as a contextual consideration, that it is an award under consideration. Its words must not be interpreted in a vacuum divorced from industrial realities - City of Wanneroo v Holmes (1989) 30 IR 362 at 378-379 and cases there cited. There is a long tradition of generous construction over a strictly literal approach where industrial awards are concerned - see eg George A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503-504 (Street J). It may be that this means no more than that courts and tribunals will not make too much of infelicitous expression in the drafting of an award nor be astute to discern absurdity or illogicality or apparent inconsistencies. But while fractured and Illogical prose may be met by a generous and liberal approach to construction, I repeat what I said in City of Wanneroo v Holmes (at 380):

Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties.

32    Also, to be taken into account in relation to construction are observations earlier made in that case by French J, at [53]:

53    The construction of an award, like that of a statute, begins with a consideration of the ordinary meaning of its words. As with the task of statutory construction regard must be paid to the context and purpose of the provision or expression being construed. Context may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction. It is not confined to the words of the relevant Act or 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”. It may also include “… ideas that gave rise to an expression in a document from which it has been taken” - Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518; 46 IR 128 at 134 (Burchett J); Australian Municipal, Administrative, Clerical and Services Union v Treasurer of Commonwealth (1998) 82 FCR 175; 80 IR 345 (Marshall J).

33    Like sentiments were expressed by Madgwick J long ago now in Kucks v CSR Limited (1996) 66 IR 182, at 184, where his Honour eschewed a narrow pedantic approach to interpretation of industrial instruments in favour of searching for the evident purpose of a provision and for meanings which avoid inconvenience or injustice, subject to the following:

But the task remains one of interpreting a document produced by another or others.  A court is not free to give effect to some anteriorly derived notion of what would be fair and just, regardless of what has been written into the award.  Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award.  So, for example, ordinary or well understood words are in general to be accorded their ordinary or usual meaning.

34    Another helpful statement as to the construction of awards and industrial instruments is offered in the Full Court’s judgment in Construction, Forestry, Mining and Energy Union v Hail Creek Coal Pty Ltd [2015] FCAFC 149 (Hail Creek).  The passage concerned, although lengthy, is of particular relevance in the present case:

55    Both at first instance and on appeal, the appellant and, to a lesser extent, the respondent sought to rely on what were described as indications of “context” against which cl 13.7 of the 2011 agreement might legitimately, it was submitted, be construed.  Indeed, it was a central plank of the appellant’s case on appeal that the primary Judge had erred by paying insufficient attention to these indications.  As revealed in his Honour’s reasons, the appellant submitted at first instance that, at the time when the 2011 agreement came to be made, there was a “common understanding” between the parties – the respondent and its employees – that cl 13.7 gave rise to an entitlement to sick leave which was not limited in point of time:  an entitlement to “unlimited sick leave” as it was said.  On appeal, the appellant de-emphasised this notion of a “common understanding”, preferring to rely instead on what it described as a “common intention” of the parties who made the 2011 agreement, to be distilled from their words and deeds under the currency of the two previous agreements.

56    However it was expressed, this line of submission on the part of the appellant was based upon evidence such as an employee handbook promulgated by the respondent during the currency of the 2003 agreement, a statement made to a new employee at interview some time in 2005, and exchanges between representatives of the parties during bargaining for the 2011 agreement.  It was submitted that the present case was an instance where the court would admit, and would be influenced by, evidence of “the mutual subjective intention of the parties” as disclosed in these events:  BP Australia Pty Ltd v Nyran Pty Ltd [2003] FCA 520 at [34]; (2003) 198 ALR 442 at 453.  As noted above, the primary Judge received evidence of this nature, but was not assisted by it.  It became apparent to his Honour that the parties did not share a “common understanding” about the matter that was controversial in the proceeding.  Indeed, from what appears, this may have been a case in which the practice of relying on “largely irrelevant information about the subjective understanding of the individual participants in the dealings between the parties”, deprecated by the High Court in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 at [35]; (2004) 219 CLR 165 at 177, was deployed.  Subject only to what follows, the parties’ submissions on appeal have provided no basis for doubting the correctness of the course adopted by his Honour of interpreting cl 13.7 by traditional, wholly objective, methods – methods which would, and which did, qualify according to the well-understood principles articulated by Mason J in Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] HCA 24 at [22]-[25]; (1982) 149 CLR 337 at 352-353.

57    A specific point made by the appellant on appeal was that the primary Judge did not even refer, in his reasons, to what was said to have been a significant exchange between the bargaining representatives in the context of the negotiations for the 2011 agreement.  According to the affidavit of Steven Pierce, an official of the appellant:

18.    At one of the early meetings, I advised the Hail Creek representatives that the CFMEU wish to amend the existing sick leave entitlements to an entitlement which:

(a)    was fixed at 15 days per year;

(b)    accrued from year to year;

(c)    was paid out upon the termination of employment; and

(d)    was capable of being cashed out into an employee superannuation account.

After that claim was advanced, Mr Hail responded on behalf of Hail Creek.  Mr Hail advised that Hail Creek opposed the claim.  Mr Hail said words to the following effect:

There is currently an unlimited entitlement. We don’t understand why you would want to introduce a limit to 15 days.  The company has regularly extended things well beyond the three month period in the agreement.  We think the proposal would reduce conditions.

19.    The other Hail Creek representative, Mr McDonald, then agreed with what had been said by Mr Hail with respect to the existing entitlement.

A member of the appellant employed by the respondent who was present at that meeting, Stephen Gallow, gave evidence to substantially the same effect.  Neither Mr Pierce nor Mr Gallow was challenged on the accuracy of their evidence about this exchange.  Mr Hall was not called by the respondent.  Mr McDonald gave evidence by affidavit, but it did not relate to this subject.

58    With respect to the utility of the evidence of Mr Pierce and Mr Gallow, one possibility should be mentioned at the outset, if only for the sake of putting it aside.  Although, in a sense, the exchange referred to demonstrated why the provisions claimed by these representatives were not agreed to by the respondent, neither party suggested that the terms of cl 13.7 should be construed conformably with what had thereby been rejected.  The reception of this evidence could not be justified on the basis that it was necessary to expunge the legitimacy of such a construction.  The possibility that this evidence was relevant under the exception to which Mason J referred in Codelfa (HCA 24 at [22]-[25]; 149 CLR at 352-353) may, therefore, be discarded.

59    Otherwise, as mentioned above, the appellant relied on BP v Nyran.  In that part of the reasons of RD Nicholson J on which the appellant relies, his Honour said (FCA 520 at [33]-[34]; 198 ALR at 542 453):

If the language of the contract is “ambiguous or susceptible of more than one meaning” evidence of “surrounding circumstances” is admissible to assist in the interpretation of the contract.

The concept of “surrounding circumstances” is to be understood to be a reference to “the objective framework of facts”. It will include evidence of prior negotiations so far as they tend to establish objective background facts known to both parties and the subject matter of the contract. It will also include facts so notorious that knowledge of them is to be presumed. Additionally it will include evidence of a matter in common contemplation and constituting a common assumption.  From the evidence of that setting the parties’ presumed intention may be taken into account in determining which of two or more possible meanings is to be given to a contractual provision. What cannot be taken into account is evidence of statements and actions of the parties which are reflective of their actual intentions and expectations.  Objective background facts can include statements and actions of the parties which reflect their mutual actual intentions.  That is, evidence of the mutual subjective intention of the parties to a contract may be part of the objective framework of facts within which the contract came into existence.  It is the mutuality which makes the evidence admissible.

In this passage, RD Nicholson J made an important distinction.  Applied to the facts of the present case, the correct position, is that evidence of the exchange between Messrs Pierce, Gallow, Hall and McDonald referred to above was “evidence of statements and actions of the parties which are reflective of their actual intentions and expectations”, not evidence as to “the objective framework of facts within which the contract came into existence”.  The primary Judge was correct to have paid no attention to it in his task of construing cl 13.7 of the 2011 agreement.

35    Reference might also helpfully be made to the observations as to construction of industrial instruments made by Finkelstein J in Civil Air Operations Officers’ Association of Australia v Air Services Australia (2004) 130 IR 239, at [22]:

22    The correctness of this argument depends upon the Commission’s intended meaning for cl 24.17.2(d). In this regard the Commission’s actual intention is irrelevant; the Commission cannot be called to explain its intended interpretation of the legal effect of cl 24.17.2(d). The Commission's intention must be ascertained from the words it has used, considered not in isolation, but in the context of the Award as a whole: Seymour v Stawell Timber Industries Pty Ltd (1985) 9 FCR 241 at 263; 13 IR 289 at 307, per Gray J. I should also keep in mind the purpose of the Award: Canberra Television Ltd v Australian Theatrical and Amusement Employees Association (1979) 24 ALR 529 at 535, per Smithers J. It is also permissible to have regard to the history of the clause. As Burchett J said in Short v F W Hercus Pty Limited (1993) 40 FCR 511 at 518; 46 IR 128 at 134-135:

“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, only a kind of wilful judicial blindness could lead the court to deny itself the light of that history, and to prefer to peer unaided at some obscurity in the language.”

[footnote references omitted]

36    The considerations set out by the Full Court in Hail Creek led to my ruling as irrelevant particular paragraphs in an affidavit of Mr Andrew Vickers that was filed and sought to be read on behalf of the MEU.  That is not to say that all of Mr Vickers’ evidence was irrelevant, only that it entailed, I do not doubt in good faith, reference to positions and opinions which he held, but which could not be said to be part of objective background circumstances or common subjective intentions of parties to particular industrial instruments.

37    I turn now to consider the public holidays and shift work clauses seriatim.

38    As to public holidays it does look wondrously strange on the face of the text of clause 29.5 to take the words “on a date agreed” found in the 2020 Award as the example that all might hang off an agreement which may never come to be reached.  In that circumstance the persons bound by the 2020 Award would be left in the position set out in s 114 and s 115 of the FWA in relation to public holidays. Section 59 of the FWA, the guide provision, gives particularity as to how those particular National Employment Standards have overarching effect.

39    Further, clause 29.5 contains a proviso.  It is an unlikely construction, and indeed not one promoted by OS, that this particular proviso also hangs off and is dependent upon agreement between the parties.  On its face, the clause looks to be a paradigm example of the kind of provision in an industrial instrument to which the High Court was referring in Ridd, in the observation at [17].

40    The context here, as the Hail Creek case neatly highlights, can involve the consideration and understanding of the history, if any, of the clause concerned.

41    As it happens, there is quite a history in relation to clause 29.5.  One may trace that history back to a case of seminal importance in modern times in relation to the industrial regulation of the black coal industry in Queensland and in New South Wales.  The case concerned is a decision of the then Coal Industry Tribunal (Tribunal), Queensland Coal Association v The Australasian Coal and Shale Employees Federation and Others, 8 September 1988 (the 1988 restructuring decision).

42    The seminal importance of the case for the black coal industry is revealed in the Tribunal’s response to the question posed rhetorically, “Is there need for change?”.  The Tribunal answered that on p 2:

There is need for change in the coal mining industry.  This proposition is accepted by all of the parties and intervenors who appeared before the Tribunal. … There is a wide divergence of views on what that change should be.

Before examining these divergences of views I summarise those factors which establish the validity of the general proposition:-

(i)    the coal mining industry is in a cost/price squeeze which has had gravely detrimental effects on employment, profitability and the industry’s ability to attract necessary investment;

(ii)    the industry is heavily dependent on exports and is in fact a very significant contributor to the credit side of the balance of payments;

(iii)    in the wider sphere of the public interest the ability of the coal mining industry to contribute to the health of the nation’s economy on a major scale requires that attempts be made to alter the current course of the industry;

(iv)    it has been demonstrated to my satisfaction that to continue without examining possible changes and to assess their capacity for improvement will lead to further contraction of the industry;

(v)    the only matters which might alter the economic situation of many producers would be both a quite dramatic increase in the international prices for coal and a substantial devaluation of the SA; neither on the evidence is likely.

In short it has been amply demonstrated that a situation exists where it is appropriate, in the context of the industrial dispute which has existed between the principal parties since at least my recognition of such a dispute on 17 September 1987, to consider the objective of the Coal Industry Acts namely to take action for ‘securing and maintaining supplies of coal to meet the need for that commodity throughout Australia and in trade with other countries.’ The parties themselves have demonstrated an incapacity to effect change because they cannot agree on the degree necessary.

43    It will be necessary to return to the position prior to the 1988 restructuring decision in detail in the context of the shift work controversy.  For the present, and in relation to public holidays, it is necessary to note that, in arbitrating the spread of hours yearly, the Tribunal commenced with this statement, on p 11:

Employer attempts to introduce a 52 week working year can be traced to the recent history of the coal mining industry to 1975.  The Tribunal’s attitude to date might be summarised as recognition of its desirability, that unwillingness to give employers a compulsory right to it.  Both applications seek it.

44    There then followed reasoning in relation to that 52-week working year with a significant proviso in the last paragraph in these terms:

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

45    If one goes to appendix 5, item 6, better to understand the intentions of the Tribunal in that passage one finds this on p 83:

Item 6, statutory public holidays:

When new rosters are introduced agreement will be negotiated at site level as to which holidays will be worked.  Two holidays per year will not be worked as per current practise with drag lines.

46    Evidence as to then practice in relation to drag lines was offered by Mr Vickers, who has very lengthy experience indeed, going back to the early 1970’s in relation to the black coal industry.  His experience is one of direct observation as related in his affidavit, at [26] to [28].  It is as follows:

26.    The sole exception to the public holiday arrangements set out above were those that applied to the ‘dragline crews’.

27.    Draglines are large machines used to remove substantial amounts of surface material (overburden) in open cut mines. They were introduced into the industry from the late 1950s. A crew of approximately 2-3 operators is required to operate a dragline.

28.    The dragline crews always worked a 24/7 roster (referred to as ‘continuous process’ in the industry). This was possible because, unlike the majority of employees in the black coal mining industry, they were covered by Federated Engine Drivers’ and Firemen's Association of Australasia (FEDFA) awards that permitted 24-hour operations. The dragline crews also worked on public holidays, with the exception of two public holidays per year, being Christmas and Boxing Day.

47    The Tribunal’s restructuring decision became the 1990 Award.  That particular award contains within it the obvious progenitor of clause 29.5 in the 2020 Award, and its equivalent in the 2010 Award.  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 (1997 Award), and in turn then into the 2010 Award.

48    With this background, a textual unlikelihood of individually specific agreement is underscored.  Instead, clause 29.5 has a more general quality of application about it in relation to public holidays.  That is not to say that what has been taken up is the Christmas Day Boxing Day two public holidays, but rather an ability on the part of an employer annually to nominate two public holidays.  Initially, 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.

49    That impression derived from the text is confirmed by looking as I consider Hail Creek permits to consider the industrial history and context of that particular clause.  I therefore find that the construction promoted by the MEU is the construction to be preferred.

50    I turn then to shift length.

51    A necessary and salutary starting point apart from the text of the clauses concerned is a definitional clause typified by clause 2 of the 2020 Award.  One sees there that unless the contrary intention appears: “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”.  Also, to be noted within the definitions clause is the definition of:

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.

52    Thus, flowing from the definitions clause, there is a deliberate definition of “ordinary hours” for the purposes of the 2020 Award.  But that definition is subject to intention.

53    Part three of the 2020 Award, which has an equivalent in the 2010 Award, is directed to hours of work.  Clause 14 provides:

14. Ordinary hours of work

An employee’s ordinary hours of work are 35 hours per week, or an average of 35 hours per week over a roster cycle.

54    Looking to clause 15, textually, it is 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).  The same may be said of clause 15.2(b).  Further, the construction promoted by OS would result in an award which is open-ended as to the length on a given day of a shift.  It is counter-intuitive to construe clause 15 in particular as admitting of a 24-hour shift.

55    Again, industrial regulation history is instructive in relation to giving meaning to “ordinary hours” as used in clause 15 of the 2020 Award and its 2010 Award equivalent.  There is a very long industrial history indeed to take into account.  In my view, Mr Vickers offered what looks to me to be a convenient and accurate summary under the heading in his affidavit: Rostering Provisions Prior to the 1988 Restructuring Case.  That history really is also revealed just by reference to the industrial instruments and decisions to which he refers in his affidavit.

56    One may commence that history with the Australasian Coal & Shale Employees’ Federation v J & A Brown and Abermain Seaham Collieries Ltd (1939) 40 CAR 367, which in turn contains a summary of earlier industrial regulation. Suffice it to say that 1939 decision yielded a reduction of hours to be worked in the black coal mining industry to no more than 40 each week across five working days: Monday to Friday.

57    In 1970, the Tribunal in the Australasian Coal and Shale Employees Federation v New South Wales Combined Colliery Proprietors Association (1970) ACIndT 2043 further reduced the number of weekly hours from 40 to 35 over two stages.

58    An exception more latterly found arose in relation to the operation of drag lines, which operated on a continuous basis.

59    The industrial history is taken up in the Tribunal’s 1988 restructuring decision, prompted as the passage already cited on p 2 reveals by very particular economic conditions faced by those operating in the industry at that time.  Against that background the Tribunal was required in the absence of agreement to arbitrate an outcome in relation to the length of hours to be worked.

60    I have already made reference to that part of the Tribunal’s decision concerned with spread of hours yearly.  Looking to spread of hours daily and spread of hours weekly in the Tribunal’s decision, it becomes apparent when one reads that in conjunction with spread of hours yearly that the Tribunal’s intention as translated into the 1990 Award was to affect a fundamental change from the hitherto position with respect to length of shifts.  Thus, with spread of hours daily, the Tribunal stated in the 1988 restructuring decision, on p 9:

I am convinced that it is neither fair nor just to take the compulsory nature of the award beyond common standards. There is evidence of 8-hour shifts and longer being worked in the industry, and where the latter occurs the decision is not to be seen as giving any ground for re-examining them.  To the contrary, this particular item is to be taken as recognising such arrangements.  This will in any event be implicit in the award provision contemplated which will recognise the right of an employer to an eight-hour shift and provide for extension beyond that by agreement.  There will be no limit on what can be achieved by agreement.

61    Thus there was an arbitrated outcome as to shift length, a right to an eight hour shift length.

62    Greater insight, though, in terms of history, is offered by a later decision of the Full Bench of the Industrial Commission, in a decision which translated into an arbitrated variation of the 1997 Award.  That Full Bench decision was BHP Coal v Construction, Forestry, Mining and Energy Union (CFMEU) (2000) Printing S6142.  In dealing with hours of work and in respect of clause 24, the Full Bench of the Australian Industrial Relations Commission state, at [42]-[55], the following:

[42]    We have decided to assign Commissioner Lawson to assist the parties in the development of the new classification structure. The Commissioner will prepare a report for consideration by the Full Bench on the structure to be introduced. The report should be submitted by early August 2000. It should cover the agreed position of the parties regarding the new classification structure and/or the evidence and submissions sought to be advanced by the parties regarding the new structure. Upon receipt of the report, the Full Bench will decide whether to convene any further hearing/s on this matter and what variations should be made to the Consolidated Award in order to implement a new classification structure.

(d) Clause 24 - Hours of work

[43]    In the proceedings before the Commissioner, the employers sought various changes in the hours of work provisions. Perhaps the most significant change sought concerned the length of shifts. This is presently regulated by clause 24.2 of the Consolidated Award which provides:

“24.2 Length of Shifts

24.2.1 The employer can determine the shift length to be worked up to a maximum of eight ordinary hours.

24.2.2 Shift lengths greater than eight ordinary hours can only be implemented by agreement between the employer and the majority of affected employees.”

[44]    The employers sought the ability to work shifts up to twelve ordinary hours. It was submitted that the requirement, in effect, to work three shifts per twenty four hours in a continuous process industry constitutes an impediment to efficiency and productivity. It was said that the evidence before the Commissioner did not establish that 12 hour shifts would be unfair to employees. The evidence supporting 12 hour shifts included material relating to international and Australian studies on the effect of working 12 hour shifts and evidence about the arrangements in some Australian coal mines for working longer shifts. The concern of the employers was that the 8 hour limitation in the award enables the union in effect to place a price upon its agreement to the introduction of more productive working arrangements.

[45]    The CFMEU opposed the employers’ case on health and safety grounds and on the basis of a Coopers and Lybrand report arising out of a trial of 12 hour shifts at the Vickery Coal Mine. This report cast doubt on whether such shifts are the most efficient means of arranging work to achieve continuous operations.

[46]    The Commissioner, having referred to the submissions made by the parties, recorded his conclusions on the hours of work clause as follows:

“The issue to be determined here is how to provide greater flexibility in the hours of work provision and efficient use of plant and equipment whilst ensuring protection to employees in shift lengths working patterns. Whilst there has been considerable change at mine site levels to working time arrangements in recent times. I have decided that the Hours of Work provision should be subject to the facilitative provisions referred to in paragraph 30 of this decision.”

[47]    In the appeal proceedings the Companies submitted that the Commissioner erred in not removing the existing award restriction on shift lengths. It was said that the Commissioner rejected the employers’ case “for no reasons which appear from his decision” and decided to make the question of hours of work subject to the facilitative provisions in the award. In so doing, the Commissioner failed to address adequately the issues arising under item 51.

[48]    The CFMEU submitted that the employers had not established a proper basis for varying the hours clause in the manner sought. It was also said that the Companies proposed to drastically alter the award provisions relating to shift lengths and the spread of hours while at the same time removing the need for agreement with employees on a range of issues. It was said that on the basis of the material submitted the Commission could not be satisfied that the facilitative arrangements regarding the working of ordinary hours (clause 24.1.2) and the length of shifts (clause 24.2.2) have not been appropriately utilised.

[49]    As referred to earlier, the focus of the issues raised in the appeals was the working of 12 hour shifts. In many respects the submissions in the appeal proceedings involved a repetition of what was put to the Commissioner.

[50]    In view of the inadequate reasons given by the Commissioner in his decision, it is appropriate for the appeal bench to examine the evidence and material presented and to reach conclusions on that material. We do not consider that the case has been made out for the hours of work clause proposed by the employers in the proceedings before the Commissioner. There were limited submissions put as to the effect which the various proposed changes would have and the need for them.

[51]    The main submissions in support of the employers’ case for 12 hour shifts were to the following effect. Firstly the submissions addressed the safety concerns. It was said that the evidence against such shifts was almost solely confined to matters relating to safety. However the results of the research conducted into the effects of 12 hour shifts have been equivocal. Indeed some studies suggest various improvements with the working of 12 hour shifts such as beneficial changes in health problems, sleep after night shifts, family, social and work relationships, faster recovery after night shifts and alertness. Secondly, there is evidence about a variety of 12 hour shift arrangements in coal mines which have been achieved by agreement or, in a few cases, by arbitration. Thirdly, restrictions on shift lengths reduce flexibility and are a barrier to the introduction of more efficient shift rosters in the industry. The effect of the current award provision is that unions have an effective right of veto over an employer's right to instigate continuous operation in an efficient manner. In some cases the CFMEU has refused to give its consent to shifts in excess of eight hours unless large overaward payments are made. Fourthly, the working conditions in open cut and underground mines are vastly different. It is often the case that the work performed in surface locations is more conducive to longer shifts than that performed underground. Finally, it cannot be argued that extended shift lengths are harsh or unsafe as employees in coal mines are already working shifts of eight and a half, nine, twelve and twelve and a half hours on a regular basis and with the agreement of the union and employees. It was put that to restrict employers to eight hour shifts as an award right unduly restricts the efficiency of the industry and increases costs to employers.

[52]    The CFMEU submitted that the hours clause in the award is flexible and provides facilitative provisions which meet the requirements of item 51(7)(a). In particular, clause 24.2 provides that shift lengths greater than eight ordinary hours are subject to agreement between the employer and the majority of affected employees. The employers’ proposal will allow a unilateral increase in shift lengths where currently there is a requirement to reach agreement with employees. There will also be an impact on employees’ earnings as employees may be compelled by their employer to work twelve and a half ordinary hours, without overtime payments. The evidence presented does not show that there is no capacity for working extended shifts or that such shifts are not available in the industry. It was submitted by the CFMEU that the argument is simply that employers would like to have the right to require employees to work extended shifts without paying some allowance for the inconvenience suffered. It was said that such an argument is not available under the award simplification criteria and principles. Further, it was submitted that the case on health and safety grounds against giving employers a wide discretion to force employees in the industry to work 12 hour shifts is overwhelming.

[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. We also note that there are no such restrictions on shift lengths in the Metal Industry Award or in the Hospitality Industry - Accommodation, Hotels, Resorts and Gaming Award 1995 (the Hospitality Award) which was under consideration in the Award Simplification Decision. 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 (see the Curragh decision and Re Novacoal Australia Pty Limited and CFMEU [Print N1711, 17 May 1996] (the Vickery decision)). 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.

[54]    The question is whether all of the employers to whom the award applies should have the right to require employees to work 12 hour shifts as part of their ordinary hours of work regardless of the consent of the employees and the CFMEU and regardless of the circumstances under which the work is performed. We do not assume that employers would use such a right unfairly. Nevertheless we are conscious that there has been some disputation in the industry concerning 12 hour shifts and of the troubled industrial history at a number of mines on this and other issues. As we have noted, the claim is not limited to a particular site or sites and if granted would have the potential to apply to all mines to which the award applies and to a variety of work environments. The Commission has not had the opportunity of hearing evidence and submissions about the circumstances in which the extended shifts would operate. Furthermore it is clear from the evidence in this case that a number of health and safety issues as well as social issues associated with the working of 12 hour shifts have not been conclusively resolved. In these circumstances a cautious approach is warranted.

[55]    We consider that the limitations in the award provisions on the working of extended shifts have the effect of restricting or hindering productivity and that the provisions need updating. We also recognise that there are a variety of significant issues relating to the working of 12 hour shifts in the coal industry and that it is appropriate that as far as possible where such extended shifts are necessary that they be introduced as a result of negotiations and by agreement with the employees concerned. In all the circumstances and in seeking to balance the needs of efficiency in the industry and fairness to employees, we have decided that employers in the industry should be able to determine shift lengths to be worked up to ten ordinary hours. Shift lengths greater than ten hours may be implemented at mines by agreement between the employer and the majority of affected employees. Where an employer wishes to introduce shift lengths greater than 10 ordinary hours and agreement cannot be reached, a procedure is to be provided under the award for the matter to be referred to the Commission for determination. The award will be varied accordingly.

[emphasis in original]

63    Of particular importance in discerning the intention there is, I consider, [55]. That is not concerned, in my view, just with rates of pay but also with length of shift.

64    Were there any doubt about what was intended, that is put to rest in my view, when one refers to the subsequent decision of the Full Court upon a judicial review challenge to the Full Bench’s decision Re Australian Industrial Relations Commission; Ex parte Construction, Forestry, Mining and Energy Union (2001) 115 FCR 267.  In the course of explaining why the judicial review application should be dismissed, the Full Court made, at [40]-[44], these observations in relation to the Full Bench’s reasons:

40     In the course of the proceeding before the Full Bench, the employer respondents handed up a draft award containing the provisions they sought to have included in the award as a result of the Full Bench’s deliberations. This draft award contained a clause relating to length of shifts, designed to replace cl 24.2 of the Consolidated Award. It was in the following terms: “The employer may require employees to work for periods of 12.5 hours many combination of ordinary and/or rostered overtime hours.”

41     The effect of this clause, if the Full Bench had adopted it, would have been to give to the employer concerned the power to determine how many ordinary hours, and how many rostered overtime hours, should be included in a particular shift, which could be for any period up to 12.5 hours.

42     This clause proposed by the employer respondents effectively defined the ambit of the dispute over cl 24.2. The CFMEU adopted the position that it sought to defend cl 24.2 in its existing form. If it had succeeded, any employee who worked more than eight hours in a shift would have been paid at overtime rates for the hours worked beyond eight. The introduction of longer shifts would have been dependent upon agreement between the employer and the majority of employees affected. The employer respondents sought instead to be entitled to control not only the length of shifts worked (up to a maximum of 12.5 hours) but also to determine the number of ordinary hours and the number of rostered overtime hours to be involved in anyone shift.

43     The dispute before the Full Bench was therefore not as to the length of shifts. It was as to the power to make decisions to introduce shifts longer than eight hours, and as to the power to determine appropriate rates of pay for the hours worked in such shifts. On these issues, the CFMEU had the opportunity to call any evidence on which it saw fit to rely, and to make any submission that it thought would help its case. If it opted to concentrate on the effect of working 12-hour shifts, or compulsory 12-hour shifts, that was its decision. Such a decision was understandable in the circumstances, so that issue could be joined at a level appropriate for specific debate. It could not operate, however, as a unilateral act to confine the issue in dispute to one of either 12-hour shifts or the status quo. It could not change the fact that, within the ambit of the dispute, it was open to the Full Bench to choose shifts with any number of standard hours between eight and 12 and a half. Likewise, it was open to the employer respondents to put forward whatever they saw fit in relation to the area of dispute. In fact, their case concentrated on 12-hour shifts as well. There was no denial of natural justice to the CFMEU, in the sense that it lacked notice of the area of dispute or was prevented from making whatever case it wished to make.

44    It must be remembered that the Full Bench was exercising its function as an arbitrator in the absence of agreement by the parties on a provision dealing with shift lengths. It was open to the Full Bench to choose a compromise position, within the area or framework of dispute. For it to do so did not involve any denial of natural justice.

65    Each party sought to gain advantage from what the Full Court stated, at [43].  In my view, much turns on understanding the second sentence in that paragraph.  It was as to the power to make decisions to introduce shifts longer than eight hours, and as to the power to determine appropriate rates of pay for the hours worked in such shifts.

66    In other words the Full Court’s understanding confirms what a reading of the Full Bench’s decision might suggest, which is that it was an arbitrated outcome, which for present purposes, materially, concerned a balancing as between an employer’s desire for shifts of particular length, and so as one might apprehend to maximise its exploitation of invested capital, and considerations of: workplace health and safety; employee families’ and general enjoyment of life.

67    The result as the Full Court disclosed, at [44], was an arbitrated outcome by a specialist industrial tribunal.  The resultant clause in the 1997 Award, clause 24.2, is a predecessor of the clauses which are controversial in relation to shift work in the 2010 and 2020 Awards.  “Ordinary hours” in those clauses evinces in my view both textually as well as in terms of industrial regulatory context, a contrary intention to the definition.  It necessarily follows that I prefer the construction of these clauses promoted by the MEU.

68    For these reasons the cross-claim will be dismissed.  There will be declarations in terms of the relief sought by the MEU.

69    There will be orders in those terms.

Associate:

Dated:    17 March 2025