Example 11

STV Contracting Pty Ltd (STV) is engaged for a discrete project on identified work that consists of the overhaul of a number of haul trucks. The contract:

• Provides for the trucks to be taken out of service and completely overhauled.
• Is performed on the black coal mine site in the mine operator’s workshop.
• Requires that work is performed by STV employees.
• Requires that STV employees provide their own tools and equipment.
• Requires that work is supervised by STV employees.
• Provides that work is performed for a three-week period.
• States that upon completion, STV employees leave the mine site and perform work in other industries.

Conclusion:

Employees are not eligible employees under the definition in subsection (b) because, when considering the totality of their employment, employees work briefly on a job before returning to work outside the black coal mining industry (i.e. the substantial industry of the employee is not the black coal mining industry)

Example 12

456 Pty Ltd is an electrical contractor based in a major regional centre, working predominantly in the manufacturing and construction industry. However, the company is also undertaking an increasing amount of work in the black coal mining industry on an intermittent basis.

One such contract involves electrical repairs to a coal handling and preparation plant located on a coal mine and operated by the mine owner. The contract involves approximately five weeks of work for six employees. When all facts are taken into account, the employees concerned are not employed in the black coal mining industry.

Conclusion:

Employees are not eligible employees under the definition in subsection (b) because, when considering the totality of their employment, employees work briefly on a job before returning to their usual work. These employees are not employed in the black coal mining industry.

The predominant industry of the employer and location of their operations is not a determinative factor.

Example 13

JPR Pty Ltd (JPR) is contracted through an individual work order from the black coal mine operator to perform a specific maintenance task at the mine. This occurs on an ad hoc basis and the task is usually of a short duration i.e. up to a day.

JPR employees are based at the contractor’s premises and travel from there to the mine site and return to the contractor’s depot at the end of each job.

JPR can allocate any of its employees to perform the work. It is not necessarily the same employee on each occasion.

Conclusion:

Employees are not eligible employees under the definition in subsection (b) because, when considering the totality of their employment, employees work briefly on a job before returning to work outside the black coal mining industry (i.e. the substantial industry of the employee is not the black coal mining industry.

Example 14

UVX Contracting Pty Ltd (UVX) is contracted to perform specific maintenance work on plant and equipment on an ongoing basis, subject to the renewal/termination of the contract after a minimum set period.

Under this arrangement:

• The work is performed by UVX employees on a periodic basis
• The work is performed on the black coal mine site
• UVX employees provide the tools and equipment to undertake the work
• UVX employees undertake the work on 1–2 days per week, on average
• UVX provides supervision of its employees
• The UVX employees leave site upon completion of the work and return to UVX’s workshop and perform other work at the direction of UVX.

Conclusion:

Employees are not eligible employees under the definition in subsection (b) because, when considering the totality of their employment, employees work briefly on a job before returning to work outside the black coal mining industry (i.e. the substantial industry of the employee is not the black coal mining industry).

Example 7

FTS Contracting Pty Ltd (FTS) is contracted to supply and assemble a large piece of mining equipment on a black coal mine. This could be, for example, the construction of a drag line. FTS also holds the contract for ongoing maintenance of the equipment, once constructed:

1. Group 1 (Machinery Construction) - the work is performed solely or largely by employees of FTS (albeit FTS may sub-contract). The assembly may take some months. While the assembly occurs on the mine lease it is in an area that is separate from the ongoing production area of the mine. Upon completion of the project, the employees of FTS leave the site and return to its workshop.

2. Group 2 (Machinery Maintenance) - following the assembly of the dragline, FTS leaves a crew in place at the mine on a permanent basis. The employees’ role is to monitor and maintain the operation of the dragline.

Conclusion:

Group 1 (Machinery Construction) - Employees are not eligible employees under the definition in subsection (b) because work is in the construction of new equipment and it is not part of the day to day operation of the mine.

Group 2 (Machinery Maintenance) - Employees are eligible employees under the definition in subsection (b) because:

• The employees are employed in the black coal mining industry
• The duties are part of the routine ongoing operation, maintenance or servicing of plant or equipment (i.e. directly connected to the day to day operation of a black coal mine)
• Duties are completed at or about a place where black coal is mined.

In this case, an employee of FTS Contracting Pty Ltd who commenced work during the construction of the machinery, but remained on site for the ongoing maintenance, would only be eligible from the time they commenced their maintenance duties.

Example 8

DEF Pty Ltd (DEF) is engaged in the business of manufacturing, transporting and servicing heavy earthmoving and mine haulage equipment that is used in open cut mines. DEF has a contract with a black coal mine operator that includes two main components:

1. The supply and assembly of the heavy machinery on the mine site
2. The provision of a permanent onsite maintenance crew consisting of diesel fitters, welders, mechanics and auto-electricians to repair and maintain the equipment it has supplied.

In this example, employees would be engaged in group 1 or 2 in isolation, not completing works from both categories.

Conclusion:

Group 1 - Employees are not eligible employees under the definition in subsection (b) because work is in the construction of new equipment and it is not part of the day to day operation of the mine.

Group 2 - Employees are eligible employees under the definition in subsection (b) because:

• The employees are employed in the black coal mining industry
• The duties are part of the routine ongoing operation, maintenance or servicing of plant or equipment (i.e. directly connected to the day to day operation of a black coal mine)
• Duties are completed at or about a place where black coal is mined.

For employees who are involved in both group 1 and group 2 of the work, eligible service would be limited to work completed under group 2.

Example 1

ABZ Contracting Pty Ltd (ABZ) is contracted to perform maintenance tasks on a specific make of vehicles as detailed in the contract with the operator of a black coal mine. ABZ is the maintenance subsidiary of a major manufacturer of mining and quarrying equipment. Under this arrangement:

• The employees commence work at the mine site or may drop into the ABZ’s workshop on the way to the mine site to pick up a vehicle
• The employees will work on the mine site for the duration of the working day
• Periodically, some may briefly return to the workshop to pick up a particular tool or part
• Upon the completion of their shift, the employees leave the mine and do not regularly return to ABZ workshop
• The employees perform the same work as maintenance employees of the mine operator, though they often work on different makes of vehicle. ABZ’s employees and the mine operator’s employees often work alongside each other
• While ABZ provides 'supervision' through a leading hand arrangement, the employees are subject to decisions of the mine operator regarding work priority and other requirements of the mine as determined by the supervisors of the mine operator
• Some employees work the same rosters as the mine operator’s employees and others work a different configuration of hours.

Conclusion:

Employees are eligible employees under the definition in subsection (b) because:

• The employees are employed in the black coal mining industry
• The duties are part of the routine ongoing operation, maintenance or servicing of plant or equipment (i.e. directly connected to the day to day operation of a black coal mine)
• Duties are completed at or about a place where black coal is mined.

In this case, and in light of the balance of information, the location of sign-on/off, provision of tools, manner of supervision was not sufficient to alter the determination of eligibility.

Example 2

BCY Contracting Pty Ltd (BCY) performs exactly the same work as in example 1 except that its employees may be required to work on more than one black coal mine site on any one day or over a period of time.

The employees of BCY work permanently on black coal mine sites, subject to the minor variation in work patterns of the type described in example 1.

Conclusion:

Employees are eligible employees under the definition in subsection (b) because:

• The employees are employed in the black coal mining industry
• The duties are part of the routine ongoing operation, maintenance or servicing of plant or equipment (i.e. directly connected to the day to day operation of a black coal mine)
• Duties are completed at or about a place where black coal is mined.

In this case, the completion of work at several black coal mine sites is not determinative.

Example 3

DXW Pty Ltd (DXW) performs exactly the same work as in example 1; however, one or more employees of DXW occasionally do not work a full week on the coal mine site, instead working one to two days at the company workshop or another client site.

Conclusion:

Employees are eligible employees under the definition in subsection (b) because:

• The employees are employed in the black coal mining industry
• The duties are part of the routine ongoing operation, maintenance or servicing of plant or equipment (i.e. directly connected to the day to day operation of a black coal mine)
• Duties are completed at or about a place where black coal is mined.

In this case, the variation in work patterns described above only involves a marginal change to the predominant work pattern of employees, such that their work is still substantially in the black coal mining industry.

Example 4

EUV Contracting Pty Ltd (EUV) performs exactly the same work as in example 1; however, as a matter of company practice, the employees are required to report to EUV’s workshop on each shift prior to commencing work at the black coal mine site.

Conclusion:

Employees are eligible employees under the definition in sub-section (b) as:

• The employees are employed in the black coal mining industry
• The duties are part of the routine ongoing operation, maintenance or servicing of plant or equipment (i.e. directly connected to the day to day operation of a black coal mine)
• Duties are completed at or about a place where black coal is mined.

In this case, the location of sign-on/off, provision of tools, manner of supervision is not persuasive in the determination of eligibility.

Example 5

MUV Contracting Pty Ltd (MUV) is a general mechanical contractor that employs a small number of employees who work exclusively on black coal mines performing continuous maintenance and general routine break down work on mining equipment. Under this arrangement:

• MUV employees work their own roster consisting of regular 10-hour shifts, however they are also subject to frequent call-backs outside of normal hours
• MUV employees are not subject to the direct supervision of the mine operator and work autonomously to the maintenance employees of the mine operator
• MUV employees work predominantly on three black coal mines within a mining district. The employees will work across the three mines as required but over a given period will spend the greatest amount of time on the largest of the three mines
• MUV employees drive their work Utes directly from their own homes to their assigned mine site at the beginning of each shift and will drive home again from the mine site at the conclusion of the shift
• Administrative work for MUV is performed out of the proprietor’s domestic property.

Conclusion:

Employees are eligible employees under the definition in subsection (b) because:

• The employees are employed in the black coal mining industry
• The duties are part of the routine ongoing operation, maintenance or servicing of plant or equipment (i.e. directly connected to the day to day operation of a black coal mine)
• Duties are completed at or about a place where black coal is mined.

In this case, the proportion of time spent at each of the mine sites, location of the administration office and nature of the supervision are not determinative.

Example 6

LZI Contracting Pty Ltd (LZI) enters into a contract with a coal company to provide maintenance work on a conveyor belt. The conveyor belt transports coal from the mine through the CHPP to a rail head or power station located several kilometres from the mine lease. Under the arrangement:

• Maintenance work on the conveyor is also performed by employees of the mine operator. A single employee of LZI can perform work on any part of the conveyor belt but the substantial nature, circumstances and principal purpose of each employee’s work is to maintain the conveyor belt within the mine site.
• Generally, the employees of LZI will commence work on the mine site, finish work on the mine site and spend the majority of time on the site.
• While the employees of the contractor may have their own supervision, it is the mine operator that ultimately determines the work priority and workplace rules, and the employees of the contractor can be directed by the mine operator’s supervisor.
• The employees of the mine operator and contractor can work together, and the rosters are built around that occurrence.
• While the contractor provides its own tools and equipment, the employees utilise the coal mine operator’s facilities and amenities.

Conclusion:

Employees are eligible employees under the definition in subsection (b) because:

• The employees are employed in the black coal mining industry
• The duties are part of the routine ongoing operation, maintenance or servicing of plant or equipment (i.e. directly connected to the day to day operation of a black coal mine)
• Duties are completed at or about a place where black coal is mined.

In this example, the requirement to spend some time off the mine site to undertake the maintenance of this equipment does not alter the conclusion.

Example 10

A black coal mining company enters into a contractual arrangement with MNO Contracting Pty Ltd (MNO), a general engineering company that provides engineering and maintenance services to a range of industries, including the black coal mining industry. The contract:

• Identifies the actual work to be performed, i.e. the overhaul of certain haul trucks used on the mine site
• Has a fixed two-year term
• Requires work to be performed off the mine site and at the workshop of MNO
• Requires work to be performed solely by employees of MNO employees (albeit MNO may subcontract)
• Requires that at completion of the work, the vehicle or part of the vehicle (e.g. engine) is returned to the mine site.

Conclusion:

Employees are not eligible employees under the definition in subsection (b) because the work is performed off the mine site (i.e. not at or about a place where black coal is mined).

In this case, whether the work was part of an ongoing contract or a one-off job is not a determining factor.

Example 15

GRQ Contracting Pty Ltd (GRQ) is contracted to undertake the work of changing tyres on various vehicles used on a black coal mine site, for example water trucks, haul truck vehicles and loaders.

The work is performed on an ongoing basis by GRQ employees at a designated bay area adjacent to the main maintenance workshop on the mine site.

GRQ employees work under their own supervision and according to their own roster. There is limited contact with mine operator employees.

Conclusion:

Employees are eligible employees under the definition in subsection (b) because:

• The employees are employed in the black coal mining industry
• Tyre maintenance and change out work is required for continued operation of the mine (i.e. directly connected to the day to day operation of a black coal mine)
• Duties are completed at or about a place where black coal is mined.

In this case, the nature of employee supervision and roster arrangement is not determinative.