Workplace rights and workplace instruments

This extract from a decision of the Federal Court of Australia analyses the nature of a workplace instrument when determining whether the actions of an employee of a labour hire entity constituted the exercise of a workplace right.

“(1) WORKPLACE INSTRUMENT ISSUES:  WERE THE SAFE LOADING SOP AND THE FITNESS FOR WORK POLICY “WORKPLACE INSTRUMENTS” WITHIN THE MEANING OF S 12 OF THE FAIR WORK ACT? (ISSUES 1 AND 2)

  1. Relevantly, s 340 of the Fair Work Act prohibits a person from taking adverse action against another person because that other person has a workplace right and has exercised that right.
  1. A threshold issue in this case is whether Ms Star had a workplace right within the meaning of the Fair Work Act (which she subsequently exercised). Section 341 (1) of the Fair Work Act provides that a person has a “workplace right” if the person:
  1. a)            Is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
  2. b)           Is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
  3. c)           Is able to make a complaint or inquiry:
  4. i)            To a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
  5. ii)           If the person is an employee – in relation to his or her employment.

  1. It is the applicant’s submission that Ms Star had workplace rights:
  • under the Safe Loading SOP, which entitled her to refuse to dump the rejects at ramp 14 when she believed that there was inadequate lighting; and
  • under the Fitness for Work Policy, by participating in a random mandatory drug test during her crib break on the morning of 10 November 2017, which constituted either participation in a process under a workplace instrument or exercising a responsibility under a workplace instrument (within the meaning of s 341 (1) (a) or (b) of the Fair Work Act).
  1. This aspect of the applicant’s case plainly hinges upon whether the Safe Loading SOP and the Fitness for Work Policy were “workplace instruments” within the meaning of s 12 of the Fair Work Act and therefore capable of conferring upon Ms Star a workplace right for the purposes of ss 340 and 341.
  1. Relevantly, s 12 of the Fair Work Act provides as follows:

“workplace instrument” means an instrument that:

(a)       is made under, or recognised by, a workplace law; and

(b)       concerns the relationships between employers and employees.

“workplace law” means:

(a)          This Act; or

(b)          The Registered Organisations Act; or

(c)          The Independent Contractors Act 2006; or

(d)          Any other law of the Commonwealth, a State or Territory that regulates the relationships between employers and employees (including by dealing with occupational health and safety matters).

(emphasis added)

  1. The applicant must establish in accordance with s 12:
  • first, that the Safe Loading SOP and the Fitness for Work Policy were workplace instruments which were “made under or recognised by” a workplace law; and
  • second, that they both concern the relationship between employers and employees

Submissions of the applicant

  1. The applicant’s case is that the Safe Loading SOP and the Fitness for Work Policy were individually given legal effect as workplace instruments by the Coal Mining Safety and Health Act 1999 (Qld) (CMSH Act) and Coal Mining Safety and Health Regulations 2017 (Qld) (CMSH Regulations), which each meet the definition of “workplace law”.
  1. First, the applicant’s case is that the plain meaning of the words used in the CMSH Act and CMSH Regulations required health and safety management systems which materialised in the Fitness for Work Policy and the Safe Loading SOP. The applicant further submitted that these instruments were given “legal life” by those legislative provisions, and accordingly they fell squarely within the first limb of the definition of “workplace instrument”; Barnett v Territory Insurance Office [2011] FCA 968 at [31]. In summary, the legislative scheme of the CMSH Act was deliberate in its intention to facilitate the development of such systems in the workplace. The principles of statutory construction concerning the definition of “workplace instrument” objectively favour the applicant’s position; Thiess v Collector of Customs (2014) 306 ALR 594 at [22] – [23].
  1. Second, in relation to the requirement that the purported workplace instrument “concern” the relationship between employees and employer, the applicant’s case is that the Fitness for Work Policy and the Safe Loading SOP apply to all workers and employees at the Mine, and the relevant duties, rights, and obligations of employers and employees. The applicant draws a distinction in the wording of the definition and the use of the word “concern” as opposed to such words as “regulate”. The applicant contends that the ordinary meaning of the word “concern” means to “relate to or otherwise affect”. In this respect, there appears from the applicant’s submissions to be a lower threshold because of the use of the word “concern”.
  1. The applicant refers to the decision of this Court in Australian Licenced Aircraft Association v Sunstate Airlines (Qld) Pty Ltd [2012] FCA 1222; 208 FCR 386 (ALAA). In ALAA Logan J observed at [33]-[34]:

[33] A regulation which, like reg 51 or reg 215(9) of the CA Regs, imposes a duty on a person as an incident of undertaking a particular task in the course of employment — “engaged in the maintenance of an Australian aircraft” (reg 51) or as an incident of a particular type of employment — operations personnel of an operator (reg 215(9)) does not regulate the relationship between that person and his employer. Having regard to the dictionary definitions cited by Barker J in ALAEA v International Aviation Service, each of these provisions in the CA Regs might readily be characterised as a provision which “regulates” the conduct of a person to whom it applies but the object of that regulation is not the relationship between that person as an employee and his employer but rather that of air safety by the imposition of particular reporting obligations. Common to the definitions of “workplace instrument” and “workplace law” in s 12 of the Fair Work Act is the object of the relationship between employer and employee. Provisions which do no more than use the status of employer or employee as an incidental touchstone for the imposition of duties serving other ends do not fall within the terms of these definitions.

[34]  Insofar as there may, because of this feature of the definitions, otherwise be room for debate as to whether provisions in statutes or regulations dealing with occupational health and safety matters had as their object the relationship between employer and employee, that debate is quelled by the express inclusion of such provisions in the definition of “workplace law”. That express inclusion also sets the limit of the additional reach of the definition.

(emphasis added)

Submissions of the respondent

  1. The respondent did not dispute that the CMSH Act and CMSH Regulations were workplace laws, satisfying para (d) of the definition of “workplace law” in s 12 of the Fair Work Act.
  1. Nonetheless the respondent argued that neither the Fitness for Work Policy nor the Safe Loading SOP were “made under, or recognised by” the relevant workplace laws, as required by (a) of the definition of “workplace instrument”.
  1. The respondent ultimately contended that the term “made under, or recognised by” is capable of either a broad or narrow interpretation. The respondent urged upon the Court a narrow interpretation of the words “made under, or recognised by” for the purposes of the s 12 definition of “workplace instrument”. A narrow interpretation is one which envisions an instrument directly made or promulgated under a specific legislative provision by some authority or agency so authorised, and which concerns collective terms and conditions of employment, rather than an individualised policy. The respondent submits that ordinarily, although not always, a workplace instrument is an award, enterprise agreement or other like instrument; see for example Construction Forestry Mining and Energy Union v De Martin & Gasparini Pty Ltd (No 2) [2017] FCA 1046 at [25], see also Barnett at [32].
  1. Further, the respondent argues that for the purposes of statutory construction, the applicant misled the Court in its submission that a workplace instrument is one that can be given legal force, effect or significance by reason of a workplace law. The respondent reiterated its submission that the plain wording of the section required it to be “made under, or recognised by” a workplace law. As such, anything to the contrary or falling short is simply “judicial gloss”.
  1. The respondent drew the Court’s attention to earlier legislative enactments which used terms comparable to “workplace instrument”, including the definition of “industrial instrument” in section 298B (1) of the Workplace Relations Act 1996 (Cth) and subsequently s 779(1) of the Work Choices Workplace Relations Act 1996 (Cth). In this respect, the respondent relied on the observations of Mansfield J in Barnett at [33]-[34] where his Honour stated:

33 The Transitional Act repealed the WR Act. It nevertheless preserved the status of certain instruments called “transitional instruments” for its purpose. Those instruments can extend to instruments made under the WR Act. Instruments made under the WR Act do not qualify as workplace instruments because the WR Act has been repealed. But they are variously recognised under the Transitional Act, such as their legal effect continues in certain circumstances. The ALAEA case so determined: see per Barker K at [234], a conclusion reached after careful consideration of the competing contentions: see at [205]-[203]. That is a legislative device apparently also used when the Industrial Relations Act 1988 (Cth) was repealed and replaced by the WR Act. The legislative ancestor of the “workplace instrument” in the FW Act appears to be the corresponding “industrial instrument” in the WR Act: see Part 16 of the WR Act, including the definition of “industrial instrument” in s779. It is not necessary to undertake a detailed analysis of the various forms of instrument made under the WR Act, or recognised by it, and which now continue to have effect by reason of the operation of the Transitional Act. The ALAEA case provides illustration.

34 …the correspondence between the relevant wording of the two successive definitions in the WR Act and then the FW Act supports the conclusion that the FW Act did not intend to expand the scope of a “workplace instrument” simply by changing the designated name.

  1. The respondent argued, as a matter of policy, that should the Safe Loading SOP and Fitness for Work Policy be deemed “workplace instruments”, various provisions of the Fair Work Act would become highly unworkable.

Consideration

  1. The Explanatory Notes of the Coal Mining Safety and Health Bill 1999 (Qld) included the following:

POLICY OBJECTIVES

The major policy objective of this Bill is to encourage all persons involved in the coal mining industry to improve safety and health by providing industry with modern safety and health legislation.

This is to be achieved by repealing the Coal Mining Act 1925 and introducing modern legislation that adopts the following principles:

  • an emphasis on duty of care obligations of employers and employees, and other persons involved in the supply of materials or services;
  • joint employer and employee planning for safety and health by developing site-specific safety management systems;
  • on-site management of risks involved in mining;
  • specific provision for employee involvement in safety at the site;
  • establishment of a tripartite Coal Mining Safety and Health Advisory Council to advise the Minister; and
  • a major monitoring and enforcement role for the Inspectorate.
  1. Relevantly the CMSH Act provides:

Coal Mining Safety and Health Act

41 Obligations of coal mine operators

(1)       A coal mine operator for a coal mine has the following obligations –

(a)       To ensure the site senior executive for the mine –

(i)          develops and implements a safety and health management system for the mine;

42 Obligations of site senior executive for coal mine

A site senior executive for a coal mine has the following obligations in relation to the safety and health of persons who may be affected by coal mining operations –

(c)           to develop and implement a safety and health management system for all persons at the time, including contractors and service providers;

  1. Sections 41 and 42 of the CMSH Act confer upon the coal mine operator (in this case BMA), and site senior executive an obligation to implement a “safety and health management system”. The obligation to adhere to a mine’s safety and health management system is imposed upon all those intended to commence work at the Mine under Part 3 of the CMSH Act. Section 62 of the CMSH Act provides further detail on the necessary safety and health management system. Notably, the applicant directs the Court’s attention to s 62(3)(d) of the CMSH Act which provides:

62 Safety and health management system

(3) The safety and health management system must be adequate and effective to achieve an acceptable level of risk by-

(d) including principal hazard and management plans and standard operating procedures; …

(emphasis added)

  1. Regulations 41, 42 and 133 of the CMSH Regulations provide:

41 Safety and health management system for alcohol

(1)          A coal mine’s safety and health management system must provide for controlling risks at the mine associated with the excessive consumption of alcohol.

(2)          The system must provide for the following about alcohol consumption for persons at the mine –

  1. a)           An education program;
  2. b)           An employee assistance program;
  3. c)           The following assessments to decide a person’s fitness for work-

(i)          voluntary self-testing;

(ii)         random testing before starting work;

(iii)        testing the person if someone else reasonably suspects the person is under the influence of alcohol.

(3)          In developing the fitness provisions, the site senior executive for the mine must comply with section 10, other than section 10(1) (a), as if-

  1. a)           A reference in the section to a standard operating procedure were a reference to a fitness provision; and
  2. b)           A reference in the section to the coal mine workers with whom the site senior executive consulted were a reference to representatives of the coal mine’s workers.

(4)       In this section –

“fitness provisions” means the part of the safety and health management system that provides for the things mentioned in subsection (2).

42 Safety and health management system for personal fatigue and other physical and psychological impairment, and drugs

(1)          A coal mine’s safety and health management system must provide for controlling risks at the mine associated with the following:-

(4)          The system must provide for the following about drug consumption or ingestion for persons at the mine-

(e) the following assessments to decide a person’s fitness for work-

(i)          voluntary self-testing;

(ii)         random testing before starting, or during, work;

(iii)        testing the person if someone else reasonably suspects the person’s ability to carry out the person’s duties at the mine is impaired because the person is under the influence of drugs.

(5) The site senior executive must consult with a cross-section of coal mine workers at the mine in developing the fitness provisions.

(6) In developing the fitness provisions, the site senior executive must comply with section 10 , other than section 10 (1) (a) and (d) (ii) (C), as if a reference in the section to a standard operating procedure were a reference to the fitness provisions.

(6A) If the fitness provisions provide for the assessment of coal mine workers for a matter mentioned in subsection (1) (a) or (b), the site senior executive must establish the criteria for the assessment in agreement with a majority of coal mine workers at the mine.

(7) If the fitness provisions provide for the assessment of coal mine workers for a matter mentioned in subsection (1)(c), the site senior executive must make a reasonable attempt to establish the criteria for the assessment in agreement with a majority of workers at the mine.

(7A) If the majority of workers at the mine disagree with the criteria for the assessment under subsection (7), the criteria for assessment stated in a recognised standard apply until an agreement is reached.

(8) In this section—

“Fitness provisions” means the part of the safety and health management system that provides for the things mentioned in subsections (2) to (4).

133 Discharging loads

(1) A surface mine must have a standard operating procedure for discharging loads from fixed and mobile plant.

(2) The procedure must provide for the following for dump trucks—

(a) the design, construction and maintenance of safety berms on roads used by the trucks;

(b) identifying risks of the trucks overturning;

(c) safe dump areas and routes;

(d) methods of working with the trucks.

  1. Keeping in mind these regulations, and the requirement of the CMSH Act to create and implement the safety and health management system more broadly, reg 10 of the CMSH Regulations provides a detailed procedure for developing standard operating procedures in consultation between the site senior executive and the coal mine workers, as follows:

10 Developing standard operating procedures

(1) The site senior executive for a coal mine must ensure the following steps are taken in developing standard operating procedures for managing and controlling hazards at the mine—

(a) the site senior executive must consult with a cross-section of the mine’s coal mine workers involved in carrying out a task under the proposed standard operating procedure to identify the hazards associated with the task and ways of controlling the hazards;

(b) the site senior executive must prepare a draft standard operating procedure and give a copy of the procedure to the coal mine workers with whom the site senior executive consulted;

(c) if the coal mine workers agree with the draft standard operating procedure, the site senior executive must prepare the procedure as the final standard operating procedure;

(d) if the coal mine workers do not agree with the draft standard operating procedure—

(i) for a disagreement that is not about a legal or technical matter—the site senior executive must decide the disagreed matter and prepare the final standard operating procedure; or

(ii) for a disagreement that is about a legal or technical matter—the site senior executive must—

(A) obtain further information or advice, including, for example, from a person having the necessary qualifications and experience to give the advice or from a recognised text on the matter; and

(B) after consulting with the workers about the information or advice, prepare a further draft standard operating procedure and give a copy of the procedure to the workers; and

(C) if the workers disagree with the further draft—decide the disagreed matter and prepare the final standard operating procedure;

(e) the site senior executive must include the final standard operating procedure in the mine’s safety and health management system.

(2) The site senior executive must ensure—

(a) the final standard operating procedure accords with—

(i) all matters agreed, under this section, between the site senior executive and coal mine workers; and

(ii) the site senior executive’s decision, under this section, on any disagreed matters; and

(b) a record is kept of the disagreed matters.

(3) In developing the standard operating procedure, the site senior executive must—

(a) use a risk assessment process recognised by the mining industry as an acceptable process for identifying and controlling hazards; and

(b) have regard to the methods of controlling the hazard stated in the database kept by the CEO under section 280 (1) (a) (i) of the Act .

  1. The Safe Loading SOP is a document produced by BMA. It states that it is referable to reg 133 of the CMSH Regulations.
  1. The Introduction of the Safe Loading SOP states:

The intent of the Standard Operating Procedure is to describe the process associated with routine truck operations around loading and dumping in pit or at the ROM at Goonyella Riverside Mine.

  1. “Key hazards” are described in the Safe Loading SOP as follows:

(1)          Equipment/Vehicle /Pedestrian Interaction

(2)          Uncontrolled Movement of Equipment

(3)          Truck going over Edges /Tip head

(4)          Explosion by Digging up Misfire

(5)          Interaction with Power lines

(6)          Truck Rollover

(7)          Discharging Loads

(8)          Geotechnical Failure

  1. The following items are set out under the heading “General”:
  1. Only trained, assessed and authorised operators can conduct loading/discharging operations.
  2. Rear Dump Trucks in a queue must be staggered in order to maintain operator vision of following vehicles and must not reverse unless spotter is in place with positive communication.
  3. Vehicles and mobile equipment not involved in the direct operational activity of a restricted area, an active mining area or work area must not approach within 50 metres of any operating equipment.
  4. Ensure adequate lighting is in place to illuminate the area, having consideration for shadow, contrast and glare. Additional lighting sets may need to be set-up for night-time operations.
  5. At a minimum park lights must be on at all times for a vehicle queued.
  6. Maintain 25 metre exclusion zone between dumping and loading operations and power lines and substations at all times, without a GRM FRM Authority to Operate within 25m of Power Lines and Substation.
  7. Do not load or tip on a cross slope, as per manufacturer’s specifications.
  8. Maintain distances from crests and slopes as per BMA PRO Working Near Crests and Slopes Procedure.
  9. Floor grades must be assessed and controlled in relation to vehicle or mobile equipment manufacturers recommended limitations.

(emphasis added)

  1. The Fitness for Work Policy was also a document produced by BMA. The purpose of the document was described as follows:

The purpose of this procedure is to ensure that all persons are fit to be engaged in activities at the workplace. Physical and psychological conditions such as fatigue, grief, stress and illness as well as drugs and alcohol can all result in reduced Fitness for Work. This procedure seeks to reduce individual and organisational exposure to the potentially harmful consequences of conditions or substances which reduce Fitness for Work.

The policy and procedures for Fitness for Work are not intended to include or pre-empt every possible scenario that may be encountered in the course of administering a Fitness for Work program – it should be read and administered in the context of due prudence and reason.

This Procedure supports employee fitness for duty and wellbeing and any employee feeling the process is not being properly followed can utilise the appropriate mine site process.

  1. The Scope of the Fitness for Work Policy set out therein is as follows:

The intent of this Procedure is to identify, assess and control the risks at the mine associated with the improper use of drugs and alcohol and other physical or psychological impairment associated with coal mine workers or visitors of Goonyella Riverside Mine.

This Procedure has been developed in accordance with s.41 and s.42 of the Coal Mining Safety and Health Regulations 2001 (CMSHR) and forms part of Goonyella Riverside Mine’s Safety and Health Management System.

For matters relating to controlling the risks of personal fatigue, this Procedure must be read in conjunction with the GRM PRO Fatigue Management Procedure and the GRM HSE Fitness for Work Hours of Work Standard.

  1. Clause 10.3 of the Fitness for Work Policy provides:

Random Selection Testing

The guidelines for the random selection of personnel have been developed to maintain the integrity of the Drug and Alcohol Policy.

All Coal Mine Workers at GRM may be selected for drug and alcohol testing using a ‘random selection’ process. This can include selection for drug and alcohol testing when attempting to enter a Mine Access Point before commencing work or at any other time during the shift.

An additional random process will be utilised to select a sample of Coal Mine Workers who will be required to have a portion of their urine sample sent for laboratory testing for synthetic drugs. The CMW may enter the Mine Access Point until the results of the test for synthetic drugs are received.

If the person is found to have a blood alcohol content, urine drug level (or an oral fluid level for THC) at or above the cut off level, then they must be deemed to be unfit for work.

Any Coal Mine Worker who is delayed in presenting for work due to the completion of a random selection drug and alcohol test, will be paid from their normal start time. After the test is completed, the Coal Mine Worker must report to their Supervisor before commencing work to ensure information from the pre-start is provided.

If the Coal Mine Worker is selected for a random selection drug and alcohol test before commencing work, the Coal Mine Worker must commence their travel to the testing location at their normal shift start time, however, may choose to present earlier.

  1. Both the CMSH Act and the CMSH Regulations are workplace laws. It appears on the plain construction of s 12, and for the purposes of s 341 (1) of the Fair Work Act, that the Safe Loading SOP and the Fitness for Purpose Policy are instruments which were made under or recognised by the CMSH Act and the CMSH Regulations. Prima facie, the Safe Loading SOP and the Fitness for Purpose Policy would seem to concern the relationship between employers and employees.
  2. However before making a conclusive determination on this issue it is helpful to have regard to the authorities, in particular the decision of Mansfield J in Barnett v Territory Insurance Office [2011] FCA 968, 196 FCR 116, on which both parties rely.
  3. Barnett involved consideration of the question whether a contract of employment was a workplace instrument for the purposes of s 341 (1) of the Fair Work Act. It was common ground there that the relevant contract of employment concerned the relationships between employers and employees so as to satisfy para (b) of the definition – the key issue before the Court was whether the contract of employment was an instrument “made under, or recognised by, a workplace law”.
  4. In Barnett, Mansfield J referred in turn to the earlier decision of Barker J in Australian Licensed Aircraft Engineers Association v International Aviations Service Assistance Pty Ltd [2011] FCA 333 (ALAEA).
  5. In ALAEA Barker J found that a contract of employment made during the operation of the Workplace Relations Act 1996 (Cth) was a workplace instrument recognised by a workplace law (namely the Fair Work (Transitional Provisions and Consequential Amendments Act) 2009 (Cth)). His Honour found that the contract was an Individual Transitional Employment Agreement (ITEA), which came into operation only by its execution, its lodgment with the Workplace Authority Director and the issue of a receipt, or following the issue of a notice under the Workplace Relations Act. To that extent his Honour found that the Transition Act, by recognising and giving legal effect to the ITEA, gave legal life to an agreement which prescribed the rights, duties and obligations governing an employment relationship, and assumed its continued existence. Justice Barker in that case also found that the Transitional Act concerned the relationship between employees and employers.
  6. Returning to Barnett, Mansfield J at [22] observed that, by acknowledging the existence of, and treating as valid, the terms of a contract of employment, subject to the operation of the Fair Work Act, it could fairly be said that the Act recognised the contract of employment. His Honour continued:
  7. However, in my judgment, the concept of recognition in the definition of “workplace instrument” does not have that expanded meaning. I do not think that such a meaning can properly be derived from the context and background to that expression, or having regard to other considerations to which I refer below.
  8. His Honour reached that conclusion because:
  • underpinning every employment relationship was a common law contract of employment, namely a contract under which a person agreed to work for another person in return for remuneration. The existence of an award did not create the relationship of employer and employee. Accordingly it was unlikely that the concept of recognition by a “workplace law” was intended to extend to the contract of employment itself ([24], [29]);
  • the concept of “recognition” by a workplace law in the definition of “workplace instrument” was intended to refer to instruments which were given particular legal effect or legal life by a statutory enactment. The Fair Work Act did not enliven the contractual rights of the parties as expressed in the relevant contract of employment before Mansfield J, unlike that in the ALAEA case (at [30]);
  • the expression “an instrument made under or recognised by a workplace law …” in the definition of “workplace instrument”, in conjunction with the definition of “workplace law” means an instrument must be given legal significance by reason of a particular workplace law (at [31]).
  1. Barnett was further examined by Logan J in Australian Licenced Aircraft Engineers Association v Sunstate Airlines (Qld) Pty Ltd [2012] FCA 1222, where his Honour found that provisions of the Civil Aviation Regulations 1988 (Cth) were neither a workplace law nor a workplace instrument as defined by the Fair Work Act, and thus could not be a source of a “workplace right” for the purposes of that Act (at [11]). Justice Logan in that case found merit in the submission that instruments of a legislative nature such as regulations fell outside the definition of “workplace instrument”. Respectfully, that particular finding is plainly correct. The instruments before me – namely the Safe Loading SOP and the Fitness for Work Policy – are not subsidiary legislation. Further, to the extent that Logan J found that the relevant civil aviation regulations were not “workplace laws”, I do not consider it appropriate to equate the legislation before his Honour, with the State legislation currently before me which in my view (and which the parties agree) are workplace laws. The case before me is entirely distinguishable from that before Logan J.
  2. The common position of the parties is that the CMSH Act and CMSH Regulations are workplace laws, thus satisfying para (d) of the definition of “workplace law” in s 12 of the Fair Work Act. Both the CMSH Act and the CMSH Regulations mandate identification of workplace hazards, and the development of systems – including operating procedures – to address them, including with respect to drugs.
  3. Finally, as a matter of construction, including by regard to the Explanatory Notes to the Coal Mining Safety and Health Bill 1999 (Qld), I am satisfied that the definition of “workplace law” in para (d) of s 12 of the Fair Work Act – including those matters pertaining to “occupational health and safety matters” – was intended to include such legislation as the CMSH Act and CMSH Regulations.
  4. I am not satisfied that a “workplace instrument” can only be one which has been directly made or promulgated by “some authority or agency” so authorised as was the case under now repealed legislation, and as submitted by the respondent. Rather, a workplace instrument includes an instrument which is given legal effect or legal life by a workplace law. That is the case here in relation to both the Safe Loading SOP and the Fitness for Work Policy. Further, both the Safe Loading SOP and the Fitness for Work Policy provide direction in respect of conduct of all workers and employees on the mine site, to promote safety on the site. To that extent, they are also instruments which concern the relationships between employers and employees. The submission of BMA concerning the use of plurals in the definition of “workplace instrument” in s 12(b) of the Fair Work Act is not persuasive.
  5. In summary, I am satisfied that the Safe Loading SOP and the Fitness for Work Policy are workplace instruments within the meaning of s 12 of the Fair Work Act.

(2) PROPER CONSTRUCTION OF S 274 OF THE CMSH ACT (ISSUES 3, 4 AND 5)

  1. The key issues in this case in respect of s 274 of the CMSH Act are whether that section gives rise to a workplace right within the meaning of s 341 of the Fair Work Act, and whether Ms Star exercised that workplace right. I note again that s 341 of the Fair Work Act relevantly defines “workplace right” as follows:

(1)  A person has a workplace right if the person:

(a)  is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or

(b)  is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

  1. Section 274 of the CMSH Act provides:

Where coal mine worker exposed to immediate personal danger

(1)          Subject to section 273(2) and (3), if a coal mine worker (the original worker) believes that there is immediate personal danger, the worker has the right—

(a)          to remove himself or herself to a position of safety; and

(b)          to refuse to undertake a task allocated to the worker that may place the worker in immediate personal danger.

(2)          The coal mine operator for the coal mine or the coal mine operator’s representative must not disadvantage the coal mine worker for exercising the worker’s rights under subsection (1).

Maximum penalty—200 penalty units.

(3)          Subsection (4) applies if the coal mine operator or the operator’s representative subsequently asks or directs another coal mine worker (the subsequent worker) to place himself or herself in the position from which the original worker has removed himself or herself, or to undertake a task that the original worker has refused to undertake.

(4)          The operator or the operator’s representative must advise the subsequent worker that the original worker exercised rights under subsection (1) because the original worker believed that there was a serious danger to the original worker’s safety or health.

Maximum penalty for subsection (4)—200 penalty units.

  1. Plainly, s 274 (1) of the CMSH Act permits a coal mine worker to remove himself or herself to a position of safety and refuse to undertake an allocated task that may place the worker in immediate personal danger if he or she believes there is immediate personal danger.
  2. I am satisfied that the requisite belief of the coal mine worker imported by that section is subjective.
  3. That “immediate personal danger” is solely judged against a subjective standard for the purposes of s 274 is supported by reference to both the Explanatory Notes to the Coal Mining Safety and Health Bill, and the CMSH Act itself.
  4. The Explanatory Notes relevantly state:

Provides that if a coal mine worker believes there is immediate personal danger the worker can remove him/herself to a position of safety and refuse to undertake a task that may place the worker in immediate personal danger. It also provides that a coal mine operator or the operator’s representative must not disadvantage the coal mine worker for taking this action.

  1. Although the Notes add little to the terms of the CMSH Act, it reinforces a finding that it is the subjective belief of the coal mine worker which is critical. Whether the task objectively may place the worker in immediate personal danger appears irrelevant – it is the subjective belief of the worker which is key.
  2. If s 274 required the imposition of an objective standard qualifying the coal mine worker’s belief, the legislation could have been drafted with that requirement. Section 274 can be contrasted with, for example:
  • s 101 of the CMSH Act, which applies if a site safety and health representative reasonably believes a danger to the safety or health of coal mine workers exists because of coal mining operations; and
  • s 166 of the CMSH Act, which applies if an inspector or inspection officer reasonably believes a risk from coal mining operations may reach an unacceptable level.
  1. In relation to whether Ms Star believed that there was immediate personal danger to her at the relevant time, her evidence was as follows:

Ms Star, is the folder in front of you still opened at page 59 which has paragraph 25 in front of it?—Yes, it is. Yes.

25 on it, I should say. Can I ask you, please, to read paragraph 25 to yourself?—Yes, I have.

And can I ask you, please, to look at the sentence on the third line which reads:

I was also concerned about my personal safety if I carried out the task in the dark.

Do you see that sentence?—Yes, I do.

Can you please to her Honour what you meant by that sentence and why you had that concern?—Because the area was only lit up by grader lights, it wasn’t sufficient to see the whole area, and – sorry – I’m just thinking how to put it – and there were – there could have been hazards that I couldn’t see on the side of the roads, and there could be rocks which could have caused the truck to roll or – or something, and then I could have personally injured myself within the cabin of the vehicle. Yes, in the cabin of the vehicle. So if I rolled the truck, yes, I could have personally hurt myself and potentially maybe hurt others within the area as well.

(transcript 18 February 2021 pp 36-37)

  1. I further note Ms Star’s evidence that:
  • She was driving a very large truck weighing in the region of one hundred tonnes;
  • She was driving the truck at a coal mine in the dark on a sloped surface with dips and hollows;
  • She was not allowed to run over rocks of any size because it could damage the wheels of the truck;
  • There were gullies or culverts on the sides of the ramp because of rain;
  • Although she was dumping on a haul road 35 metres wide, the truck she was driving had a wide turning circle;
  • It was possible to misjudge the ramp if there was insufficient lighting;
  • There was a risk that the truck could roll or be put on its side, resulting in possible injury to her; and
  • It may not be possible to see where the grader was, or if the driver suddenly moved the grader.

(transcript 18 February 2021 pp 45-48)

  1. While I note that Ms Star gave evidence that insufficient lighting could have resulted in her driving the truck such as to cause damage to the truck or injury to other people, her evidence was plainly that it could have resulted in injury to herself. I do not accept the respondent’s submission that the only period to which any regard could be had was the moment when Ms Star was in situ, causing the truck she was driving to physically dump the load. To position the truck to dump the load required Ms Star to drive the truck down the ramp, in the dark, and drive it from the ramp again. The fears expressed by Ms Star necessarily encompassed the positioning of the truck so as to dump the load and remove the truck from the ramp.
  2. I am further satisfied that even if s 274 (1)(b) introduced an objective element as submitted by the respondent, that element was satisfied in the circumstances given Ms Star’s unrebutted evidence of the hazards of driving large vehicles in unlit conditions at the Mine.

(3) WHETHER EXERCISE OF WORKPLACE RIGHTS BY MS STAR (ISSUES 6, 7, AND 8)

  1. In order for the applicant to succeed in the present proceedings it must establish that Ms Star exercised workplace rights in respect of her conduct at the relevant time.
  2. It is not in dispute that in the early hours of 10 November 2017 Ms Star’s duties required her to dump loads of rejects at Ramp 14 at the Mine. The evidence is further clear that Ms Star believed that the ramp and its surrounds were inadequately lit, and that dumping the rejects in the dark would expose her to immediate personal danger (as per s 274 of the CMSH Act). Accordingly, Ms Star refused to dump a second load of rejects in those conditions.
  3. In summary:
  • s 274 of the CMSH Act gives mine workers the right to both remove themselves to places of safety and refuse to undertake tasks which may place the worker in immediate personal danger if the worker believes there is immediate personal danger;
  • the Safe Loading SOP was a workplace instrument within the meaning of s 12 of the Fair Work Act, made pursuant to the CMSH Act and the CMSH Regulations; and
  • the Safe Loading SOP specifically required that adequate lighting be in place to illuminate relevant areas.
  1. I am satisfied that:
  • In refusing to dump a load of rejects at Ramp 14 at the relevant time because of her belief that she would be in immediate personal danger in doing so because of inadequate lighting, Ms Star was exercising a workplace right arising from the operation of s 274 of the CMSH Act, within the meaning of s 341 (1) of the Fair Work Act; and
  • In refusing to dump a load of rejects at Ramp 14, Ms Star was exercising a workplace right arising from a workplace instrument, namely the Safe Loading SOP.”

Construction, Forestry, Maritime, Mining and Energy Union v BM Alliance Coal Operations Pty Ltd (No 3) [2022] FCA 1345 (11 November 2022) (Collier J)