DECISION

Fair Work Act 2009
s.156—4 yearly review of modern awards

4 yearly review of modern awards—Black Coal Mining Industry Award 2010
(AM2020/25)

4 yearly review of modern awards – finalisation of Exposure Drafts and draft variation determinations – Tranche 3 awards – Black Coal Mining Industry Award 2010.

Introduction and Background

[1] This decision deals with two outstanding issues in the Black Coal Mining Industry Award 2010 (Black Coal Award) as part of the 4 yearly review of modern awards (the Review). The first issue (Issue 1) concerns the rates of pay applicable to shiftworkers in Schedules C and D engaged in weekend work. The second issue (Issue 2) relates to the rates of pay for work on a public holiday.

[2] A Statement 1 published on 12 March 2020 in relation to the Black Coal Award summarised the issues and submissions in respect of this award and indicated that it would be the subject of a separate conferencing process.

[3] A conference in respect of the issues raised was held on Friday 20 March 2020. The transcript of the conference is available here. A Report published on 23 March 2020 set out the outcomes of the conference. The contents of the Report, including Directions contained therein, was restated in a Full Bench Decision on 27 April 2020. 2

[4] The following submissions were filed in response to Directions contained in the Report published on 23 March 2020:

•  Ai Group on 7 April 2020, 15 April 2020 and 13 May 2020

•  Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) on 21 April 2020 and 13 May 2020

•  Coal Mining Industry Employer Group (CMIEG) on 13 May 2020

•  “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) on 14 May 2020

•  The Association of Professional Engineers, Scientists and Managers, Australia - Collieries Staff Division (APESMA) on 15 May 2020

•  Construction, Forestry, Maritime, Mining and Energy Union (Mining and Energy Division) (CFMMEU) on 20 April 2020 and 13 May 2020.

[5] A Statement 3 issued on 18 May 2020 (May 2020 Statement) noted that all parties had confirmed their agreement to the matters agreed at the conference on 20 March 2020.4

[6] The May 2020 Statement summarised the issues that remained outstanding 5 and stated that, while the Full Bench previously indicated that the outstanding issues would be the subject of a conference after the filing of reply submissions, given the positions of the respective parties, a further conference appeared of little utility. The President constituted this Full Bench to hear and determine the two issues earlier identified.

[7] Directions Hearings were held before Deputy President Gostencnik on 3 June 2020 and 12 June 2020.

[8] Directions were issued on 12 June 2020 and the following submissions were filed in response:

•  CFMMEU on 3 July 2020

•  APESMA on 3 July 2020

•  CEPU on 3 July 2020

•  CMIEG on 24 July 2020

•  Ai Group on 24 July 2020

[9] In correspondence of 27 and 28 July 2020, the CFMMEU sought an opportunity to respond to matters raised in the submissions of the employer parties that the CFMMEU contended had not been raised previously.

[10] A mention hearing was held before Deputy President Gostencnik on 31 July 2020, and Directions were issued that day, regarding the filing of submissions by the CFMMEU, submissions in reply and requests for an oral hearing. Parties were informed that absent any such requests the matter would be determined on the papers.

[11] The following submissions and submissions in reply were filed in accordance with these Directions:

•  CFMMEU on 6 August 2020

•  Ai Group on 12 August 2020

•  CMIEG on 12 August 2020

[12] On 20 August 2020 the CFMMEU wrote to the Commission stating that it considered the principles applied in the 4 yearly review of modern awards – Overtime for casuals Decision 6 to be relevant to this matter.7 Deputy President Gostencnik invited the CFMMEU to clarify what it considered relevant and the CFMMEU responded on 1 September 2020.8 No further submissions were sought.

Nature of the inquiry

[13] The CFMMEU states in its submissions that it understands the current process principally to be one of interpretation of the relevant provisions of the Black Coal Award and it has approached each of the issues in this way. 9 In the event that the Commission intends to consider either of the applications made as an application to vary the substance of the Black Coal Award, the CFMMEU says that such an application should be formally made and supported by a merits-based argument in the ordinary way. It requests a further opportunity to respond if any merits-based arguments are advanced.10 The matters with which this decision is concerned are the two issues identified as outstanding in the finalisation of the Exposure Draft and variation determination in respect of the Black Coal Award. These issues were identified in the Report published on 23 March 2020 and the May 2020 Statement. The resolution of these issues turns on the proper construction of several provisions of the Black Coal Award.

Issue 1: Clauses 23.1 and 23.2 and Schedules C and D - Shiftwork and weekend penalty rates

[14] The CFMMEU’s submissions dated 20 April 2020 11 and 3 July 202012 set out a proposal to vary clauses 23.1, 23.2, and Schedules C and D of the Exposure Draft as follows:

23.1 (a) An employee will be paid the following rates for all ordinary hours worked during the following periods:

(b) The above percentages shall be cumulative on any penalty rate prescribed by this award.

23.2 Weekend work

An employee will be paid the following rates for all ordinary hours worked during the following periods:

….

C.1.2 13 Full-time and part-time production and engineering employees—Shiftwork

C.1.4 14 Full-time and part-time production and engineering employees—6 day roster and 7 day roster employees—overtime

D.1.2 15 Full-time and part-time staff employees—shiftwork

D.1.4 16 Full-time and part-time staff employees—6 day roster and 7 day roster employees—overtime

D.2.2 Casual staff employees—shiftwork

Shiftwork and weekend rates

[15] The CFMMEU contends that the wording in subclauses 23.1 and 23.2 of the Exposure Draft, which use the term “minimum hourly rate”, is markedly different to the relevant provisions in the Black Coal Award, which refer to the undefined terms “ordinary time rate” and/or an “overtime penalty rate”. 17 The CFMMEU submits that on a plain and ordinary interpretation, the term “ordinary time rate” in the context of clause 22.2 of the Black Coal Award means the rate earned for working ordinary time on the relevant shift by an employee who is not a shiftworker.18 The CFMMEU submits that the relevant ordinary time rate would be determined by reference to the rates of pay set out at clause 21.2 and would include an entitlement to different rates of pay across weekdays, Saturdays and Sundays.19 The CFMMEU submits that, in contrast to how the Black Coal Award operates, the use of the term “minimum hourly rate” in the Exposure Draft specifically confines the application of these provisions.20

[16] In substance the CFMMEU contends that the plain and ordinary reading of the current provision is sufficiently clear and that the change in language contained in the Exposure Draft materially changes the entitlement to the detriment of employees. 21 In the result, six or seven day roster employees no longer obtain the benefit of shiftwork rates when performing weekend work under the Exposure Draft, despite the Black Coal Award providing no such exclusion and despite the fact that no application has been made to vary the Black Coal Award.22

[17] The CFMMEU contends that penalties payable to an employee for working shiftwork are to address a detriment different to that which is paid in respect of working a Saturday or a Sunday. 23 There is no basis, in the CFMMEU’s submission, for this review process to have the result of one penalty offsetting the other.24 In the circumstances, the CFMMEU submits that such a change contained in the Exposure Draft should be rejected.25

[18] The CFMMEU contends that both its own application and Ai Group’s application are properly dealt with by considering the construction of clause 22.2 of the Black Coal Award. 26 It states that the issue in each application arises when considering the interaction of clause 22.2 with clauses 21.2 and 27.4 of the Black Coal Award and whether the effect of that interaction has been properly reflected in the Exposure Draft.27

[19] The CFMMEU refers to the historical context to the current provisions in the Black Coal Award in support of its contention that the provisions under consideration intend for shiftwork rates to be paid cumulatively on other penalty rates. 28

[20] The CFMMEU also emphasises the importance of considering the industrial reality related to the Black Coal Award. 29 In this regard, the CFMMEU contends that on a proper interpretation of the shiftwork rates in the Coal Mining Industry (Production and Engineering) Consolidated Award 1997 penalties are treated as components and none are mutually exclusive unless an employee is expressly entitled to one to the exclusion of the other.30

[21] APESMA supports the CFMMEU’s contentions and notes that its submission is intended to supplement those of the CFMMEU by providing historical context in relation to the “staff awards”. 31

[22] APESMA contends that the Black Coal Award is sufficiently unambiguous and clear that shiftwork rates are to be cumulative with any other penalty rate. 32 In support of this proposition it relies on the history of relevant provisions of the Black Coal Award, which it contends evince an intention that shiftwork rates would be cumulative with other penalty rates, including weekend penalties.

[23] The CEPU supports the submissions of both the CFMMEU and APESMA. 33

[24] Ai Group opposes the variations to the Exposure Draft proposed by the CFMMEU on the basis that the variations do not reflect the position under the Black Coal Award. It says that the change would be inconsistent with relevant pre-modern awards; and would effectively compensate employees for the same disability twice. 34

[25] Ai Group submits, contrary to the contentions advanced by the union parties, that:

•  The applicable reference rate to calculate payment for shiftworkers and employees working on weekends is contained in clauses 23.1 and 23.2 of the Exposure Draft, namely the minimum hourly rate;

•  The penalties applicable for weekend work and shiftwork are not aggregated;

•  The rates prescribed by clause 23.2 for weekend work are in substitution for and not cumulative upon the shiftwork rates prescribed by clause 23.1 of the Exposure Draft. 35

[26] Ai Group submits that the interpretation it favours is supported by:

•  The Commission’s consistent approach to penalties in the context of the Review;

•  The approach taken by the Commission in redrafting other provisions of the Black Coal Award in the Review;

•  The accepted principles of Award construction which begin with the ordinary meaning of the relevant words;

•  The need to avoid employees being, in effect, compensated twice for the disutility of working the same hours;

•  The approach taken by the Federal Circuit Court in interpreting similar provisions in an enterprise agreement in Construction, Forestry, Maritime, Mining & Energy Union & Ors v Tahmoor Coal Pty Ltd [2019] FCCA 292; and

•  The context of the relevant provisions of the Black Coal Award, extending to its origins in cognate provisions in predecessor awards. 36

[27] Ai Group submits that the structure of the Black Coal Award strongly suggests that the rates mandated under clauses 22.1 37 and 22.2 are not to be applied concurrently and that the remuneration for working on weekends, as well as shiftwork, are described in clauses 22.1 and 22.2 of the Black Coal Award, respectively, as complete rates of pay rather than separate loadings which may be aggregated.38

[28] Ai Group contends that the Black Coal Award contains some ambiguity because there is no clear statement regarding how the two provisions interact. 39 It says that the ambiguity could be resolved by including the following note at clause 23.2 of the Exposure Draft:

Note: The rates prescribed by clause 23.2 are in substitution for and not cumulative upon the shiftwork rates prescribed by clause 23.1 of this award. 40

[29] Ai Group argues that any context provided by the development of the Coal Mining Industry (Production and Engineering) Consolidated Award 1997 in relation to ascertaining whether the shift penalties in the Black Coal Award are intended to be paid concurrently or cumulatively with the weekend and public holiday loadings, while possibly relevant to the rates applicable to six and seven day roster employees, has little or no impact on the assessment of the proper interpretation of the interaction between shift and other penalties more generally. 41

[30] Ai Group rejects as bare assertion the argument that the presence of specified provisions mandating cumulative payment of shift and weekend penalties for six and seven day roster employees in various pre-modern awards evinces a clear intention that such entitlements were intended to extend to all shiftworkers. 42 Ai Group submits that the explicit preservation of concurrent entitlements present in predecessor provisions in respect of six and seven day roster employees only (and only then for shift and overtime loadings) supports the conclusion that the practice of cumulating the shift penalty with other penalties was not intended to apply to other categories of employees.43

[31] Ai Group notes that whilst the immediate context, being the award itself, is often the clearest guide, the origin of a clause is a relevant contextual consideration. 44 In this regard, Ai Group submits that the context of the Black Coal Award includes the award modernisation process conducted by the former Australian Industrial Relations Commission, not the Coal Mining Industry (Production and Engineering) Consolidated Award 1997.45

[32] CMIEG contends the tables at C.1.2, D.2.1 and D.2.2 in the Exposure Draft are correct and should not be varied in the manner proposed by the CFMMEU. 46

[33] CMIEG submits that there is no persuasive reason to interpret the shift allowances in clause 22.2 and the Saturday and Sunday penalty rates prescribed by clause 21.2 of the Black Coal Award as cumulative. 47 It says that on a plain reading of these provisions, taken together, the Saturday and Sunday penalty rates alone compensate for the requirement to work on a weekend.48

[34] In CMIEG’s view, satisfying the modern awards objective in s.134 of the Fair Work Act 2009 (Cth) (Act) does not necessitate treating the shift allowances and weekend penalties as cumulative. 49

[35] As to the history of the corresponding provisions in predecessor awards, CMIEG acknowledges that it was the intention of some of these awards that shift penalties for six and seven day roster workers and weekend penalty rates for those employees were intended to be cumulative. 50 However, it says that subsequent coal mining industry awards omitted references to cumulative shift penalties and weekend rates.51 The CMIEG submits that the history of the provisions in the Commission’s awards from the Coal Mining Industry (Production and Engineering) Consolidated Award 1992 onwards, which omit any prescription that shiftwork and weekend penalties are intended to be cumulative, leads properly to the inference that they were no longer intended to be cumulative and are not to be treated as cumulative in the Black Coal Award.52

Overtime “in excess of ordinary hours”

[36] The CFMMEU submits that the reference to “in excess of ordinary hours” in the final column of the tables set out at clauses C.1.4 of Schedule C and D.1.4 of Schedule D of the Exposure Draft is ambiguous and proposes to remedy this by changing the header to “all other overtime”. 53

[37] Ai Group supports the CFMMEU’s proposal to change the heading of the final column in clauses C.1.4 of Schedule C and D.1.4 of Schedule D of the Exposure Draft. 54

[38] The CMIEG does not oppose the CFMMEU’s proposal. 55

[39] In the circumstances we propose that the Exposure Draft be varied in the manner proposed by the CFMMEU.

Overtime for other shiftworkers

[40] The CFMMEU submits that clauses C.1.3 of Schedule C and D.1.3 of Schedule D of the Exposure Draft erroneously confine the application of clause 21.2(b) to employees that fall within the definition of clause 21.2(b)(i). It says that clauses C.1.4 and D.1.4 are affected by associated errors. Accordingly, the CFMMEU submits that the tables at clauses C.1.3 and D.1.3 require amendment so as to exclude employees that fall within clauses 21.2(b)(ii) and (iii) and the tables at clauses C.1.4 and D.1.4 requirement amendment so as to include those employees. The CFMMEU proposes to achieve this by defining all employees who fall within clause 21.2(b) as “shiftworkers” for the purpose of the Exposure Draft and amending the relevant provisions of the Schedules accordingly. 56

[41] CMIEG does not oppose the CFMMEU’s proposal. 57

[42] Ai Group agrees the relevant Schedules pertaining to minimum rates of pay may cause confusion because the tables in clauses C.1.3, D.1.3, C.1.4 and D.1.4 do not account for the overtime rates mandated by clause 21.2(b) for the employees listed in clauses 21.2(b)(ii) and 21.2(b)(iii). 58

[43] Ai Group opposes the CFMMEU’s proposed resolution on the basis that it would inappropriately introduce a new definition of “shiftworker” into the Black Coal Award and extend the overtime rates mandated by clause 21.2(b) to shiftworkers who do not fall into the categories listed in clauses 21.2(b)(i)-(iii). 59 Ai Group proposes to resolve the issue by including a note to clauses C.1.3 and D.1.3 as follows:60

Note: These rates do not apply to employees referred to in cl. 21.2(b)(ii) and 21.2(b)(iii). For such employees, all overtime will be paid for at the rate of 200% of the minimum hourly rate

[44] We see some merit in the resolution proposed by the CFMMEU and supported by CMIEG. However, as will become apparent below, as there will be some further work to be undertaken on the Exposure Draft, the appropriate mechanism to resolving that which is agreed to be a problem with the current Exposure Draft can be settled in the conference to be convened by Commissioner Bissett.

Consideration Issue 1

[45] As should be evident from the foregoing summary of the submissions, the resolution of the issue raised by the CFMMEU in respect of clauses 23.1, 23.2, and Schedules C and D of the Exposure Draft turns on the proper construction of clauses 21 and 22 of the Black Coal Award.

[46] The construction of an award or of provisions thereof, begins with a consideration of the ordinary meaning of the words, read in context, taking account of the evident purpose of the provisions or expressions being construed. Context may be found in the provisions of the award taken as a whole, or in their arrangement and place in the award. The statutory framework under which the award is made or in which it operates may also provide context, as might an antecedent instrument or instruments from which a particular provision or provisions might have been derived. The industrial context in which an award is made and operates is also relevant. Thus, the language of an award is to be understood in the light of its industrial context and purpose, not in a vacuum or divorced from industrial realities. But context is not itself an end and a consideration of the language contained in the text of the award or instrument being considered remains the starting point and the end point to the task of construction. A purposive approach to interpretation is appropriate, not a narrow or pedantic approach. 61

[47] Clause 22.2 of the Black Coal Award sets out the rates payable under the award for shiftwork. Relevantly clause 22.2 provides that for “Day shift” the rate payable is “Ordinary time”; for “Afternoon and rotating night shifts” the rate payable for “Ordinary hours” is “115% of the ordinary time rate”; and for “Permanent night shift” the rate payable for “Ordinary hours” is “125% of the ordinary time rate”. The reference in clause 22.2 to “ordinary time” and to “ordinary time rate” appears to us clearly to be a reference to the rate that is payable for employees for working ordinary hours under the Black Coal Award.

[48] Clause 21.1 of the Black Coal Award provides that the “ordinary hours of work will be an average of 35 hours per week” and that these hours will be averaged over the roster cycle. Clause 21.2 sets out the rates that are to be paid for “ordinary hours” worked on particular days. Ordinary hours worked on Monday to Friday are to be paid at “single time”. The first 4 hours of ordinary hours worked on Saturday are to be paid at “time and a half” and the remainder at “double time”. All ordinary hours worked on a Sunday are to be paid at “Double time”. The use of terms such as “single time”, “time and a half” and “double time” in clause 21.2, stand in contrast to the terms deployed in clause 22.2 of “ordinary time” or “ordinary time rate”. But it is evident that each term refers to a rate of pay.

[49] As should be clear from clause 21.2, the Black Coal Award does not fix a single rate for working ordinary hours or for fixing the rate of “ordinary time” or the “ordinary time rate”. The rate payable for working ordinary hours depends upon the day on which ordinary hours are worked.

[50] Clause 3 of the Black Coal Award, which contains definitions, does not carry any definition of “ordinary time” or of “ordinary time rate”. It defines “ordinary week’s pay” as the amount in the total payment column for the award classification rate in respect of 35 ordinary hours, but that phrase is used only once in the Black Coal Award for the purpose of delineating an employee’s severance pay entitlement in clause 14.3 as one “ordinary week’s pay” for each completed year of employment.

[51] Clause 3 of the Black Coal Award also contains a definition of “base rate of pay” which is defined as meaning 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.

[52] The phrase “base rate of pay” is used only twice in the Black Coal Award. First, at clause 13.4(a) for the purposes of calculating the rate at which accrued annual leave must be paid on termination of employment. Secondly, at clause 13.4(b) for the purposes of calculating the rate at which a percentage of accrued personal leave must be paid on termination of employment.

[53] The limited use to which these definitions are put in the Black Coal Award gives expression to an intention that for some purposes the minimum rates prescribed by the Black Coal Award (“base rate of pay” and “ordinary week’s pay”) will be used to calculate identified entitlements. In other words, where rates other than those described in clause 21.2 of the Black Coal Award are intended to represent the rates payable for working ordinary hours, express provision is made therefor.

[54] Moreover, that “base rate of pay” is as defined in the Black Coal Award has the effect of distinguishing the Black Coal Award from what was said in Fonterra Brands (Australia) Pty Ltd v AMWU 62 (and on which Ai Group relies) that the well-established and common industrial meaning of the term “ordinary pay” is “remuneration for an employee’s weekly hours but excluding any amount paid for shiftwork, overtime or other penalty”.63 That meaning is given effect in the definition of “base rate of pay” in the Black Coal Award. In any event clause 22.2 does not refer to “ordinary pay”. It refers to “ordinary time” and “ordinary time rate”.

[55] We consider that the plain and ordinary meaning of the provisions in clauses 21 and 22 of the Black Coal Award as concern the rate of pay for ordinary hours of work is clear. The rate of pay for ordinary hours worked is variable depending on the day on which that work is performed. So much is abundantly clear from the text of clause 21.2. The reference to “ordinary time” and “ordinary time rate” in clause 22.2, conveys a collective description of the different rates at which ordinary hours of work are paid under clause 21.2. In effect the phrases mean the applicable rate for working ordinary time set out in clause 21.2. If the phrases “ordinary time” and “ordinary time rate” were intended to mean the rate of pay for working ordinary hours on Monday through Friday the term “single time” or “base rate of pay” could have been used. Indeed “single time” is used to covey that very meaning in clause 21.2. Its use to convey that meaning in clause 21.2 stands in contradistinction to the use in the very next clause (clause 22) of different phrases – “ordinary time” and “ordinary time rate”. This is because the phrases were intended to convey a broader meaning, namely the one we have earlier described which includes single time but is not confined to single time.

[56] As we have earlier summarised, the parties have made submissions about the history of these provisions in the context of “predecessor” awards. We consider that the issue in dispute can be resolved by recourse to the plain and ordinary meaning of the words read in the context of the Black Coal Award. In any event there is little in the history of the provisions to which we were taken, that would suggest a departure from the construction we favour, and which we consider to be clearly warranted. Such of the contextual material which goes the other way cannot contradict the plain language of the award provision.

[57] The decision in Transport Workers’ Union of Australia v Saputo Dairy, 64 on which Ai Group relies, is a decision concerning the construction of particular provisions of the applicable enterprise agreement. It provides no assistance to the construction of the provisions at issue in the Black Coal Award.

[58] As to the proposition derived from Federated Engine-Drivers and Firemen’s Association of Australasia v A1 Amalgamated; Re Dorman Long & Co Ltd 65 to which recent reference was made in Construction, Forestry, Maritime, Mining and Energy Union v Tahmoor Coal Pty Ltd66 (on which both Ai Group and CMIEG rely), that it has long been accepted that where a shift allowance and the like has been prescribed for working (for example) on a weekend, the higher rate prescribed is to be taken as adequate compensation in itself for being required to work on a weekend or public holiday, we make the following observation. Whatever else might be said about the proposition, it is one directed to the merit of a particular configuration of rates and the compensatory factors associated with a particular rate. While the proposition may be a relevant contextual consideration it is not a principle nor an unyielding rule of construction of award provisions applicable in every case. The general proposition cannot prevail over clear words which have the contrary result as in the instant case. Although it is permissible to search for the evident purpose of a provision and meanings which avoid inconvenience or injustice may reasonably be strained, the task remains one of interpreting a document which is the Black Coal Award and we are not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award.67 That is a process which must be left to a merits-based application to vary the Black Coal Award and with which these proceedings are not concerned.

[59] It follows that the CFMMEU and the other union parties are correct that the Exposure Draft reduces rates of pay for shiftworkers and so must be corrected.

[60] However, we are not persuaded that the drafting mechanism adopt by the CFMMEU will result in clarity. Replacing the phrase “minimum hourly rate” with “ordinary time rate” in clauses 23.1 and 23.2 of the Exposure Draft while retaining reference to “minimum hourly rate” in tables C.1.2 and C.1.4 of Schedule C and tables D.1.3, D.1.4 and D.2.2 of Schedule D is apt to confuse. The use of the term “minimum hourly rate” in clause 23.2 of the Exposure Draft has the effect of maintaining the rate for ordinary hours worked consistently with that for which provision is made in clause 21.2 of the Black Coal Award. For example, the Black Coal Award currently provides that the rate for working ordinary hours on Sunday is “Double time”, in other words the ordinary rate of pay for working on a Sunday is 200% of the base rate of pay or time. It is therefore our preliminary view that clauses 23.1 and 23.2 of the Exposure Draft should be expressed as follows:

23.1 An employee will be paid the following additional rates for all ordinary hours worked during the following periods:

23.2 Weekend work

An employee will be paid the following rates for all ordinary hours worked during the following periods:

[61] The provisions we propose above seem to us to be in conformity with the amendments to tables C.1.2 and C.1.4 of Schedule C and tables D.1.3, D.1.4 and D.2.2 of Schedule D proposed by the CFMMEU with which we agree.

[62] In the circumstances, Commissioner Bisset will convene and preside over a conference with interested parties to settle appropriate amendments to the Exposure Draft to give effect to our decision.

[63] All parties supported the CFMMEU’s proposal to change the heading of the final column in clauses C.1.4 and D.1.4 in the manner earlier set out. We agree. The Exposure Draft will be amended in the manner proposed by the CFMMEU.

Issue 2: Clause 29.4 - Employee required to work on a recognised public holiday

[64] Ai Group seeks variations to clause 29.4 the Exposure Draft as follows: 68

29.4 Employee required to work on a recognised public holiday

(a) An employee who is required to work on a public holiday is to be paid at the rate of double time 200% of the relevant minimum hourly rate prescribed by Schedules A and B for work performed during ordinary hours, in addition to the payment prescribed any amount payable in respect of the relevant minimum weekly rate prescribed by Schedules A and B.

(b) 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 Schedules A and B treble time.

(c) The rates prescribed by this clause are paid in substitution for, and are not cumulative upon, the overtime rates in clause 21 and the penalty rates in clause 23 of this award.

[65] Ai Group submits that its proposed variations to clause 29.4 of the Exposure Draft are necessary to reflect the meaning and intent of the current Black Coal Award, 69 and to clarify the following:70

•  The holidays referred to in clauses 29.4(a) and (b) are “public holidays” consistent with other references to the term in the Black Coal Award;

•  The rate payable to employees required to work on a public holiday is 200% of the relevant minimum hourly rate prescribed in Schedule A and Schedule B;

•  The amount payable for 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 and Schedule B;

•  The “amount prescribed” referred to in clause 29.4(a) is any amount which is payable in respect of the relevant minimum weekly rate prescribed in Schedule A and Schedule B of the Black Coal Award; and

•  The loadings payable pursuant to clause 29.4 are paid in substitution for rather than being cumulative on the overtime rates in clause 21 and the penalties payable under clause 23 of the Exposure Draft.

Meaning of “holiday”

[66] As to the use of the word “holiday” in clause 29.4 of the Exposure Draft, Ai Group submits that it is evident from the reference to “public holiday” in the title of the clause that the provision pertains to the applicable rates payable on public holidays and all references in the clause to “holiday” are references to “public holiday”. In Ai Group’s view the wording of the Exposure Draft may mislead employers into applying the penalties on days which are not public holidays as defined under the Act. Accordingly, Ai Group proposes that the variation sought is necessary in order to avoid confusion arising. 71 Ai Group submits that this variation is reflective of clause 27 of the Black Coal Award and includes clause 27.4 from which clause 29.4 of the Exposure Draft has been derived.72

[67] CMIEG supports the submissions of Ai Group and supports the variations it proposes to the Exposure Draft. 73

[68] The CFMMEU agrees with this submission of Ai Group. 74

[69] In the circumstances we propose that the Exposure Draft be varied in the manner proposed by Ai Group.

Reference rate for application of penalties in clauses 29.4(a) and 29.4(b)

[70] Ai Group submits that clauses 29.4(a) and 29.4(b) of the Exposure Draft, which provide that payment for work during and in excess of ordinary hours on a public holiday is to be at “double time” and “treble time” respectively, are insufficiently clear as to the appropriate reference rate to be applied in calculating the relevant loading. 75 To remedy this, Ai Group proposes that the rates in clause 29.4 be described as the minimum hourly rate in Schedules A and B of the Black Coal Award and the references to “double time” and “treble time” should be changed to “200% of the minimum hourly rate” and “300% of the minimum hourly rate”.76

[71] Ai Group notes that the term “double time” is not defined in either the Black Coal Award or the Exposure Draft 77 and submits that this term should be understood in accordance with the Full Bench Decision in 4 yearly review of modern awards [2015] FWCFB 4658 wherein the Full Bench stated that penalties described as “double time” equate to a requirement to pay an employee 200% of the relevant minimum rate.

[72] Ai Group contends that the Commission’s consistent approach throughout the Review has been to equate penalties described as “double time” to a requirement to pay an employee 200% of the relevant minimum rate. 78 It refers to several examples where this approach has been applied in redrafting the Black Coal Award and contends the same approach should apply to clause 29.4 of the Exposure Draft. For the same reason, Ai Group contends that clause 29.4(b) should be amended to clarify that the applicable rate for time worked in excess of ordinary hours on a public holiday is 300% of the minimum hourly rate.79

[73] Ai Group submits that payment at “double” or “treble” time is inconsistent with an assertion that overtime or other penalty rates are to be cumulative on, instead of paid in substitution for, the penalties prescribed by clauses 21 and 23 of the Exposure Draft. It argues that to interpret the provision otherwise would lead to compensation twice for the same inconvenience when working on a public holiday. 80 It submits that the rates referred to in clauses 29.4(a) and 29.4(b) of the Exposure Draft are similarly intended to be exhaustive in respect of work performed during, and in excess of, ordinary hours on a public holiday respectively.81

[74] In Ai Group’s view the words “in addition to the prescribed payment” in clause 29.4 of the Exposure Draft are of little assistance in ascertaining the appropriate rate of pay for an employee. 82 Ai Group submits that the phrase “in addition to the prescribed payment” is derived from pre-modern awards under which an employee required to work ordinary hours on a public holiday received the daily amount due to them at their classification rate and any hours actually worked on the public holiday would be paid with a 100% loading, that is at double time.83

[75] To correct that which Ai Group describes as an omission in the Black Coal Award, 84 it proposes to replace the phrase “in addition to the prescribed payment” with the words “in addition to any amount payable in respect of the relevant minimum weekly rate prescribed by Schedules A and B”. In support of its proposal, Ai Group submits that this phrasing will direct the employer to the applicable minimum rates payable under the relevant tables in the Black Coal Award and clarify that the loading applicable to the hours worked on a public holiday is paid in addition to the relevant employee’s minimum weekly rate.85

[76] CMIEG contends that the terms of the predecessor awards in the black coal mining industry support the view that payments for working ordinary hours or overtime on a public holiday were to be added to the employee’s “classification rate” which was payable to an employee who was not required to work on a public holiday. 86 It submits that the term “classification rate” means the minimum rate prescribed for the employee’s classification and does not include any shift or other penalty rate.87

[77] CMIEG submits that the words “the payment prescribed” in clause 18.4 (now clause 29.4) is a reference to the payment prescribed by clause 18.3 (now clauses 29.3), which deals with payment for an employee not required to work on a public holiday. It submits that this intention is evident from the wording of the relevant clauses of the pre-modern instruments upon which clause 18.4(a) of the Exposure Draft (now 29.4) is based. 88

[78] CMIEG acknowledges that the Coal Industry Tribunal (CIT) made decisions in 1947 and 1951 in favour of treating the entitlement to the shift penalty and public holiday penalty as cumulative. However, it emphasises that in these instances the cumulative or additional nature of the penalties was expressly stated in the relevant provisions. 89

[79] CMIEG disputes the CFMMEU’s submission that the “prescribed payment is the payment as prescribed in the award for working on that day”. 90 In its view the public holiday clause deals fully with what the employee is to be paid in respect of a public holiday, whether working or not.91

[80] As to the interpretation of clause 18.4(b) of the Exposure Draft (now 29.4(b)), CMIEG submits that the term “treble time” is consistently used throughout the Black Coal Award and its predecessors to provide a maximum penalty rate payable for work performed outside of ordinary hours on a public holiday. 92

[81] CMEIG submits that whilst the terms of the Black Coal Award and its predecessor awards are important, the Commission must ensure that the terms of the award which it is to make satisfy the modern awards objective in s.134 of the Act. 93 In this regard, CMIEG states that treating public holiday payments, which are effectively triple time for both ordinary hours and overtime hours, as the maximum penalty for working on a public holiday without adding shift allowances on top is consistent with general industrial standards, and there is no basis for treating them as cumulative in order to ensure that the modern awards objective in s.134 of the Act is satisfied.94

[82] CMIEG rejects the contention that the history of corresponding provisions in predecessor awards support the view that shiftwork penalty rates in clause 23.1 and the rates for work on public holidays in clause 29.4 of the Exposure Draft should be treated as cumulative. It says, inter alia, the predecessor awards included a public holiday clause that clearly and expressly stated that the penalty rate for working ordinary hours on a public holiday was added to the employees “classification rate” and left no scope to argue that a shift allowance was also to be paid. 95 According to CMIEG, there is no evidence that the Black Coal Award was intended to change the prescription in the predecessor awards by making shift and public holiday penalties cumulative.

[83] The CFMMEU’s primary submission in relation to Ai Group’s application is that on a plain and ordinary reading of the text of the current provision it is sufficiently clear that it provides an entitlement to the payment prescribed for the time worked, including relevantly the shiftwork penalty otherwise payable for the time worked. 96

[84] The CFMMEU submits that the variations proposed by Ai Group are largely inconsistent with the terms, history and industrial context of the relevant provisions in the Black Coal Award and Ai Group must, given the nature of its proposal, advance a merits-based argument, supported by probative evidence, in support of its proposal. 97

[85] The CFMMEU submits that it is incorrect to assert that the entitlement to double or treble time for working on a public holiday under clause 29.4 of the Exposure Draft is “insufficiently clear”. In its submission, the terms “double time” and “treble time” have a known ordinary meaning in the black coal mining industry. 98

[86] As to the proposition that the variation sought should be made on the basis of consistency, the CFMMEU contends that a substantive change of the nature proposed should not be sought without the merits of such a change being presented. 99

[87] The CFMMEU submits that the Decision in 4 yearly review of modern awards [2015] FWCFB 4658 does not provide a precedent in favour of changing the terms “double time” and “treble time” to “200% of the minimum hourly rate” and “300% of the minimum hourly rate” in awards generally because it only considered brief submissions on the point in the context of particular awards with their own industrial history. 100

[88] The CFMMEU argues that the proposed variation is inconsistent with the modern awards objective 101 and that rather than ensuring simplicity and ease of understanding, introduces unnecessary complexity that increases the likelihood that employees will be paid incorrectly.102 The CFMMEU submits that clause 29.4 of the Exposure Draft as currently drafted should be retained in form and substance because it ensures that the penalty an employee receives has a direct relationship with their rate of pay and represents the simplest and fairest approach.103

[89] The CFMMEU disputes the rational provided by Ai Group in support of their proposed variation 104 and argues that Ai Group’s proposal is based on the misapprehension that an entitlement to “double” or “treble” time effectively compensates employees twice for the same inconvenience when working on a public holiday.105 In its view compensation is received, firstly, for the inconvenience of working shiftwork and, secondly, for the inconvenience of working on a public holiday.106

[90] The CFMMEU argues that the base rate of pay prescribed by clause 27.4 of the Black Coal Award (and clause 29.4 of the Exposure Draft) includes penalty rates where there is a clear intention for that to be the case, but not otherwise. 107 It contends that if the payment prescribed for ordinary hours was not intended to include relevant penalty rates, this clause would be more effectively articulated as treble time, but it is not.108

[91] The CFMMEU disputes the relevance of the decision in CFMMEU v Tahmoor Coal Pty Ltd [2019] FCCA 292. Rather, it says the application of the relevant penalties must be considered in the context of the words of the provisions, the history of the provisions and the modern awards objectives. 109

[92] The CFMMEU submits that rather than constituting a departure from the approach of its predecessor award of calculating shift penalties on a cumulative basis with other penalty rates, the Coal Mining Industry (Production and Engineering) Consolidated Award 1997 is simply a consolidation of the earlier award. 110 While it acknowledges a change in form, on its view there was no change to the substance of the relevant provision. It contends that in the absence of any words indicating an express departure, no such departure is to be read into the drafting of the 1997 Award.111

[93] The CFMMEU argues that the words “double time… in addition to the payment prescribed” in clause 27.4(a) of the Black Coal Award clearly create an entitlement to the payment prescribed and a payment equivalent to double time to be paid in addition to that amount. 112

[94] The CFMMEU opposes Ai Group’s proposal to redraft the words “payment prescribed” as “to any amount payable in respect of the relevant minimum weekly rate prescribed by Schedules A and B” on the basis that it will not correct an omission in the Black Coal Award and it departs from the current provision in a material way by excluding the shiftwork loading from this entitlement. 113

Consideration Issue 2

[95] The resolution of the second issue, like the first, turns on the proper construction of various provisions of the Black Coal Award. Relevantly, clause 27.3 of the Black Coal Award and clause 29.3 of the Exposure Draft provide that 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. Clause 27.4 of the Black Coal Award and clause 29.4 of the Exposure Draft provide:

“(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.”

[96] Apart from inserting the word “public” before the word “holiday” throughout the public holidays provision, Ai Group’s proposal seeks to vary clause 29.4 of the Exposure Draft by:

•  replacing the reference to “double time” and “treble time” with “200%” and “300%” respectively “of the relevant minimum hourly rate prescribed by Schedules A and B”;

•  replacing the reference to “the payment prescribed” with “any amount payable in respect of the relevant minimum weekly rate prescribed by Schedules A and B”; and

•  adding a new paragraph (c) providing that the rates prescribed by clause 20.4 are in substitution for and not cumulative upon the overtime and penalty rates elsewhere prescribed.

[97] Turning first to the meaning of “double time” and “treble time” in clause 27.4 of the Black Coal Award. Clause 21.2 of the Black Coal Award provides relevantly that the rate of pay for working ordinary hours on Monday to Friday is “single time”, the first four hours on a Saturday is “time and a half”, after four hours “double time” and on a Sunday it is “double time”.

[98] The reference to “single time” in clause 21.2 is a reference to an hourly rate of pay derived by dividing the “basic weekly 35 hour rate” in Schedule A of the Black Coal Award or the “minimum rate of pay” in Schedule B of that award, as the case requires, by 35, representing the ordinary hours per week as found in clause 21.1. “Time and a half” in clause 21.2, means 1.5 times the “single time rate” or 150% and “Double time” means twice that “single time” rate or 200%. The same nomenclature is used to describe the rates payable for overtime work in clause 17 of the Black Coal Award. The terms “time and a half” and “double time” have the same meaning.

[99] There is no reason to suppose that the reference to “double time” and “treble time” in clause 27.4 of the Black Coal Award is intended to have some different basis for calculation than that which we describe in the preceding paragraph. “Double time” in clause 27.4 has the same meaning and basis for calculation as found in clause 21.2. The reference to “treble time” means three times the “single time” rate or 300%. We do not accept that the reference to “double time” in clause 27.4 means double the rate for working ordinary hours.

[100] Ai Group’s proposal set out in the first dot point above reflects this construction because the “relevant minimum hourly rate prescribed by Schedules A and B” in the Exposure Draft is the “basic weekly 35 hour rate” in Schedule A of the Black Coal Award or the “minimum rate of pay” in Schedule B of that award divided by 35.

[101] The second issue raised by Ai Group’s proposal concerns the meaning and effect of the words “in addition to the payment prescribed” in clause 27.4(a) of the Black Coal Award.

[102] We consider the words “in addition to the payment prescribed” in clause 27.4(a) of the Black Coal Award refer to the payment prescribed in clause 27.3, namely, the payment for the day that is a public holiday on which the employee would otherwise have worked at the employee’s classification rate.

[103] The ordinary and natural meaning of the words support this conclusion. The use of the definite article “the” preceding the noun “payment” makes clear that the payment with which the phrase is concerned has already been mentioned. In the instant case, the payment has already been mentioned in clause 27.3 of the Black Coal Award. The word “prescribed” reinforces that the previously described payment must be carried out or made. While the words “in addition to” make clear that the payment prescribed by clause 27.3 is to be made on top of the payment for working ordinary hours on a public holiday set out in clause 27.4. To the extent that industrial context assists in ascertaining the meaning of the phrase, the history of the provision contained in predecessor awards clearly shows that the additional payment to which the phrase relates was that of the payment for the day that is a public holiday on which the employee would otherwise have worked at the employee’s classification rate. 114 The words are confined to ensuring that double time is paid in addition to the payment in clause 27.3 for working ordinary hours on a public holiday. The additional payment is confined to that for which clause 27.3 makes provision. It does not mean any payment elsewhere prescribed in the Black Coal Award.

[104] Thus on a proper construction of clause 27.4(a) of the Black Coal Award, an employee who would otherwise have worked on a day that is a public holiday and who works ordinary hours on a public holiday is to be paid double time (that is, double the single time rate or 200%) for the ordinary hours worked and a payment for the day at the employee’s classification rate.

[105] Pursuant to clause 27.4(b) of the Black Coal Award, an employee who works on a public holiday in excess of ordinary hours is to be paid treble time (that is, three times the single time rate or 300%).

[106] Ai Group’s proposed variation to delete the words “payment prescribed” and replace them with the words “any amount payable in respect of the relevant minimum weekly rate prescribed by Schedules A and B”, is rejected for two reasons. First and foremost because the proposal is intended to bring about an operation which is contrary to the operation of the current provisions of the Black Coal Award. Secondly, because we do not consider that the variation has the result for which Ai Group contends in any event.

[107] Turning then to the third issue raised by Ai Group’s proposal, namely whether shiftworkers working on public holidays are to receive shift loading in addition to the payments set out in clause 27.4 of the Black Coal Award. The effect of Ai Group’s proposed amendment to include paragraph (c) in clause 29.4 of the Exposure Draft would confine the payments for work on public holidays to those prescribed by paragraphs (a) and (b). The provision is unnecessary for the purposes of overtime on public holidays, because on the construction we favour - that treble time in clause 27.4(b) of the Black Coal Award means three times the single time rate or 300% of that rate - excludes the possibility that the treble time is calculated on the overtime (double time rate) in clause 17 of the Black Coal Award.

[108] The question of whether shift loadings are payable for shiftwork on a public holiday is answered by reference to clause 22.2 of the Black Coal Award. Clause 22.2 provides:

“22.2 Shiftwork rates

Rates for shiftwork are payable as follows:

[109] Clause 22.2 provides a loading for shiftwork on ordinary hours and for overtime. Just as it does not exclude the payment of the shift loading for ordinary hours shiftwork on weekends, it does not exclude the loading for ordinary hours shiftwork performed on a public holiday. Similarly, just as the clause does not exclude overtime hours shiftwork on weekends from the loading, it does not exclude the loading for overtime hours shiftwork performed on a public holiday. The clause establishes that assigned loadings are payable for ordinary hours shiftwork and assigned loadings are payable for overtime shiftwork.

[110] Clause 27.4(a) of the Black Coal Award provides that the rate for working ordinary hours on a public holiday is double time. That is the ordinary time rate for working ordinary hours on a public holiday. When those ordinary hours of work are performed as an afternoon or rotating night shift, the assigned ordinary time shift loading is payable. The assigned ordinary time shift loading for permanent night shift is payable for ordinary hours of work performed on a public holiday on a permanent night shift. Clause 27.4(b) provides that payment for work in excess of ordinary hours on a public holiday is at the rate of treble time. That is the overtime rate for overtime worked on a public holiday. When that overtime work is performed as an afternoon or rotating night shift, the assigned overtime shift loading is payable. The assigned overtime shift loading for permanent night shift is payable for overtime hours performed on a public holiday on a permanent night shift.

[111] Ai Group’s proposed amendment to the Exposure Draft has the effect of reducing these payments. The proposal is inconsistent with the current operation of the Black Coal Award and is rejected. Ai Group’s proposal is in substance an argument about the relative merit of its proposal. These proceedings are not the vehicle for mounting a merits-based proposed variation to the Black Coal Award.

[112] Any necessary variations to clause 29 the Exposure Draft should be considered in conjunction with variations which will be settled in the conference that will be convened by Commissioner Bissett. The necessity for the CFMMEU’s proposed amendment to clause 23.1 of the Exposure Draft contained in Annexure A to its 3 July 2020 submissions may be considered at that conference in light of our conclusions.

Summary and Conclusion

[113] For the reasons set out above we consider that clauses 23.1, 23.2, and Schedules C and D of the Exposure Draft reduce rates of pay for shiftworkers and so must be corrected. As we are not persuaded that the drafting mechanism advanced by the CFMMEU will result in clarity, we have set out modified provisions seeking to avoid confusion between clauses 23.1, 23.2, and Schedules C and D of the Exposure Draft. Commissioner Bisset will convene and preside over a conference with interested parties to settle appropriate amendments to the Exposure Draft to give effect to our decision.

[114] All parties supported the CFMMEU’s proposal to change the heading of the final column in clauses C.1.4 of Schedule C and D.1.4 of Schedule D in the manner earlier set out. In the circumstances we propose that the Exposure Draft be varied in the manner proposed by the CFMMEU.

[115] As to clauses C.1.3 and D.1.3 of the Exposure Draft, while we see some merit in the resolution proposed by the CFMMEU and supported by CMIEG, we consider that the appropriate mechanism to resolving that which is agreed to be a problem is the conference to be convened by Commissioner Bissett.

[116] All parties supported Ai Group’s proposal that references to the word “holiday” in clause 29.4 of the Exposure Draft be replaced with the words “public holiday”. In the circumstances we propose that the Exposure Draft be varied in the manner proposed by Ai Group.

[117] As indicated above, we do not accept that the reference to “double time” in clause 27.4 means double the rate for working ordinary hours. “Double time” means twice that “single time” rate or 200% and “treble time” means three times the “single time” rate or 300%. Ai Group’s proposal to vary clause 29.4 of the Exposure Draft by replacing the reference to “double time” and “treble time” with “200%” and “300%” respectively “of the relevant minimum hourly rate prescribed by Schedules A and B” reflects this construction.

[118] For the reasons given, Ai Group’s proposals to vary clause 29.4 of the Exposure Draft by replacing the reference to “the payment prescribed” with “any amount payable in respect of the relevant minimum weekly rate prescribed by Schedules A and B” and adding a new paragraph (c) providing that the rates prescribed by clause 20.4 are in substitution for and not cumulative upon the overtime and penalty rates elsewhere prescribed are rejected.

[119] Any necessary variations to clause 29 the Exposure Draft to give effect to our decision should be considered in conjunction with variations which will be settled in the conference that will be convened by Commissioner Bissett.

DEPUTY PRESIDENT

Determined on the basis of the written submissions

Printed by authority of the Commonwealth Government Printer

<PR724268>

 1   [2020] FWCFB 1297.

 2   [2020] FWCFB 2124 at [20].

 3   [2020] FWC 2576

 4   Ibid, at [10].

 5   Ibid, at [4] – [7]; see also [11] – [16].

 6   [2020] FWCFB 4350.

 7   See correspondence from CFMMEU of 20 August 2020.

 8   See correspondence from CFMMEU of 1 September 2020.

 9   CFMMEU on 6 August 2020 at [3]

 10   CFMMEU reply submission on 13 May 2020 at [6].

 11   CFMMEU submission on 20 April 2020 at Annexure A. 

 12   CFMMEU on 3 July 2020 at Annexure A

 13   CFMMEU proposal notes that variations to the corresponding rates as calculated in the table should be included.

 14   CFMMEU proposal notes that variations to the corresponding rates as calculated in the table should be included.

 15   CFMMEU proposal notes that variations to the corresponding rates as calculated in the table should be included.

 16   CFMMEU proposal notes that variations to the corresponding rates as calculated in the table should be included.

 17   CFMMEU submission on 20 April 2020 at [12]

 18   CFMMEU submission on 20 April 2020 at [14]

 19   CFMMEU submission on 20 April 2020 at [14]

 20   CFMMEU submission on 20 April 2020 at [14]

 21   CFMMEU submission on 3 July 2020 at [51]

 22   CFMMEU submission on 20 April 2020 at [17]

 23   CFMMEU submission on 20 April 2020 at [18]

 24   CFMMEU submission on 20 April 2020 at [18]

 25   CFMMEU submission on 20 April 2020 at [18]

 26   CFMMEU on 3 July 2020 at [53]

 27   CFMMEU on 3 July 2020 at [55]

 28   CFMMEU on 3 July 2020 at [34] - [47]

 29   CFMMEU on 6 August 2020 at [7]

 30   CFMMEU on 6 August 2020 at [15]

 31   APESMA on 3 July 2020 at [2] and [5]

 32   APESMA on 3 July 2020 at [25]

 33   CEPU submission on 3 July 2020

 34   Ai Group on 13 May 2020 at [4]

 35   Ai Group on 24 July 2020 at [6]

 36   Ai Group on 24 July 2020 at [7]

 37   We have taken the reference to clause 22.1 to be a typographical error. The correct reference appears to be clause 21.2 of the Black Coal Award.

 38   Ai Group on 13 May 2020 at [10]

 39   Ai Group reply submission on 13 May 2020 at [10]

 40   Ai Group reply submission on 13 May 2020 at [41]

 41   Ai Group on 24 July 2020 at [25]

 42   Ai Group on 24 July 2020 at [41]

 43   Ai Group on 24 July 2020 at [40] - [43]

 44   Ai Group on 24 July 2020 at [48] - [49]

 45   Ai Group on 24 July 2020 at [50]

 46   CMIEG reply submission on 13 May 2020 at [7]

 47   CMIEG reply submission on 13 May 2020 at [5]

 48   CMIEG reply submission on 13 May 2020 at [5]

 49   CMIEG reply submission on 13 May 2020 at [6]

 50   CMIEG submission on 24 July 2020 at [8]

 51   CMIEG submission on 24 July 2020 at [9]

 52   CMIEG submission on 24 July 2020 at [14]

 53   CFMMEU submission on 20 April 2020 at [21] - [22]

 54   Ai Group reply submission on 13 May 2020 at [45]

 55   CMIEG reply submission on 13 May 2020 at [8]

 56   CFMMEU submission on 20 April 2020 at [23]-[25]

 57   CMIEG reply submission on 13 May 2020 at [8]

 58   Ai Group reply submission on 13 May 2020 at [50]

 59   Ai Group reply submission on 13 May 2020 at [51] - [52]

 60   Ai Group reply submission on 13 May 2020 at [53]

 61   See WorkPac Pty Ltd v Skene [2018] FCAFC 131 at [197] and the authorities referred to therein; see also King v Melbourne Vicentre Swimming Club Inc [2020] FCA 1173 at [122]-[130] and the authorities referred to therein

 62   [2015] FWCFB 3423

 63   [2015] FWCFB 3423 at [16]

 64   [2020] FWC 1271

 65   (1930) 29 CAR 229

 66   [2019] FCA 1696 at [41]

 67   Kucks v CSR Limited (1966) 66 IR 182 at 184

 68   Ai Group submission on 15 April 2020 at Annexure A.

 69   Ai Group submission on 15 April 2020 at [4]

 70   Ai Group submission on 15 April 2020 at [4]

 71   Ai Group submission on 15 April 2020 at [6]-[9]

 72   Ai Group submission on 15 April 2020 at [6]-[9]

 73   CMIEG submission on 13 May 2020 at [9]

 74   CFMMEU reply submission on 13 May 2020 at [7]

 75   Ai Group submission on 15 April 2020 at [10]-[11]

 76   Ai Group submission on 15 April 2020 at [15]-[17]

 77   Ai Group submission on 15 April 2020 at [11]

 78   Ai Group submission on 15 April 2020 at [12]

 79   Ai Group submission on 15 April 2020 at [16]

 80   Ai Group submission on 15 April 2020 at [18]

 81   Ai Group submission on 15 April 2020 at [23]

 82   Ai Group submission on 15 April 2020 at [24]

 83   Ai Group submission on 15 April 2020 at [25] - [26]

 84   Ai Group submission on 15 April 2020 at [27]

 85   Ai Group submission on 15 April 2020 at [27]

 86   CMIEG reply submission on 13 May 2020 at [12]

 87   CMIEG reply submission on 13 May 2020 at [12]

 88   CMIEG reply submission on 13 May 2020 at [13]

 89   CMIEG reply submission on 13 May 2020 at [13]

 90   CMIEG reply submission on 13 May 2020 at [13]

 91   CMIEG reply submission on 13 May 2020 at [13]

 92   CMIEG reply submission on 13 May 2020 at [13]

 93   CMIEG on 24 July 2020 at [2]

 94   CMIEG on 24 July 2020 at [22]

 95   CMIEG on 24 July 2020 at [21]

 96   CFMMEU submission on 3 July 2020 at [50]

 97   CFMMEU reply submission on 13 May 2020 at [5]

 98   CFMMEU reply submission on 13 May 2020 at [9] - [10]

 99   CFMMEU reply submission on 13 May 2020 at [11]

 100   CFMMEU reply submission on 13 May 2020 at [14] - [15]

 101   CFMMEU reply submission on 13 May 2020 at [17]

 102   CFMMEU reply submission on 13 May 2020 at [22]

 103   CFMMEU reply submission on 13 May 2020 at [24]

 104   CFMMEU reply submission on 13 May 2020 at [25]

 105   CFMMEU reply submission on 13 May 2020 at [31]

 106   CFMMEU reply submission on 13 May 2020 at [35]

 107   CFMMEU reply submission on 13 May 2020 at [32]

 108   CFMMEU reply submission on 13 May 2020 at [33]

 109   CFMMEU reply submission on 13 May 2020 at [36]

 110   CFMMEU reply submission on 13 May 2020 at [44] - [46]

 111   CFMMEU reply submission on 13 May 2020 at [48]

 112   CFMMEU reply submission on 13 May 2020 at [50]

 113   CFMMEU reply submission on 13 May 2020 at [52]

 114   See clauses 37.3 and 37.4 of the Coal Mining Industry (Production and Engineering) Consolidated Award 1997; clauses 33.3 and 33.4 of the Coal Mining Industry (Staff) Award, 2004; clause 14(f)(2) and (3) of the Coal Mining Industry (Production and Engineering) Interim Consent Award 1990